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What does the future hold for the private prosecution?

19 October 2018
DWF
The last 18 months have shown a sharp rise in Private Prosecutions with cases now increasingly attracting media coverage. In this article regulatory expert Jeremy Bird highlights the recent developments and analyses the current landscape.  

In March 2017, Accident Exchange successfully brought a private prosecution against two men who brought a fraudulent insurance claim following a collision between two vehicles in London in 2014. Investigations carried out uncovered evidence both drivers knew each other and after being charged both pleaded guilty to Fraud Act Offences. One was sentenced to eighteen months custody, the other a twelve month suspended sentence.

In April 2017 a major crowdfunding campaign was launched (backed by The Sun), to help the families of those British soldiers murdered by the IRA in the 1982 Hyde Park bombing to bring the main suspect to justice. Relatives want to raise £640,000 to bring a private prosecution against suspect John Downey after he walked free from the Old Bailey in 2014.

Meanwhile attempts were made by a former chief of staff of the Iraqi Army, General Abdul-Wahid Shannan ar-Ribat to bring a private prosecution. He sought to prosecute Tony Blair, his then foreign secretary Jack Straw and the attorney general at the time, Lord Goldsmith, for the crime of "aggression". However the High Court ruled in July that although such a crime had recently been incorporated into international law it did not apply retroactively in English law. As such the prosecution failed. 

We have also seen the beginnings of a crackdown on fraudulent holiday sickness claims with the first, landmark private prosecution. Thomas Cook successfully prosecuted Paul Roberts and his partner, Deborah Briton following false claims they made for £20,000 in 2016 stating their holiday in Mallorca had been ruined due to illness.

In November 2017 it was reported that a mother who claimed she had been the victim of a rape had set up a crowdfunding page to bring her alleged attacker to justice. Emily Hunt, who waived her right to anonymity, claimed she was raped by a stranger in a London hotel room, after being drugged. 

The Police investigated but the CPS declined to bring any charges due to there being insufficient evidence for a realistic prospect of conviction. This was despite claims from the 38-year-old that she woke up “naked and terrified” next to a man she did not know in May 2015.

Ms Hunt subsequently hired a barrister and duly set up what was thought to be the UK's first crowdfunded rape private prosecution in order to pay the estimated £50,000 costs.

Earlier this year the parents of baby Alfie Evans, Kate James and Tom Evans made headlines around the world with their legal battle concerning Alfie's treatment for a rare degenerative brain condition at Alder Hey Hospital. Amongst all of the media frenzy as to whether the Hospital could withdraw treatment (against the parents' wishes) for Alfie or whether his parents could take him to Italy to receive specialist treatment, the question arose as to whether it would be possible for his parents to privately prosecute the Hospital and/or senior individuals for the withdrawal of any treatment which was, at the time, keeping Alfie alive. However after an 18 month battle and having exhausted all their legal avenues before the Court of Appeal, Alfie's life support was turned off on 28 April 2018. 

On 11 June 2018, in what is thought to be the largest fraud in Britain to be successfully prosecuted privately, Paul Sultana, a former car dealer was jailed for eight years for a multi-million pound investment fraud after the company he defrauded brought a private prosecution. 

Sultana was part of a gang of fraudsters which persuaded the off-shore engineering company, Allseas, to give them £88m (100m euros) to invest by promising extremely high rates of return. 
Interestingly, CPS who had initially decided there was insufficient evidence to prosecute said it would seek to "learn lessons" from the case.

The power to bring a private prosecution by any private individual or company who has been the  victim of a criminal offence is preserved by s6 (1) of the Prosecution of Offenders Act 1985.
There are a number of benefits in bringing a private prosecution. Firstly you are in control, not a government agency. You have access to a better resourced, more focused and efficient team rather than any other public prosecution. Perhaps most importantly you are eligible to claim back costs from the Court even if you lose or withdraw from the proceedings so long as the prosecution has been brought with good cause and not in a vexatious or malicious manner. Unlike other proceedings generally you will not have to pay the defendants' costs if you lose your case. Unlike civil proceedings, matters can be brought to Court very quickly. Criminal convictions carry a stigma whilst criminal courts have wider powers to punish, from fines and confiscation to imprisonment. It is important to ensure that you have exercised all other methods of recourse before turning to a private prosecution.

It seems clear that as Police budget cuts continue to bite, coupled with the increased pressure on our criminal justice system, people are being forced to fund their own actions as a means of seeking justice. Indeed according to a recent National Audit Office report the Home Office doesn’t actually know whether the current police system in England and Wales is "financially sustainable" given recent funding cuts. This is supported by recent Home Office figures which suggest that in the 12 months to March 2018 only 9% of crimes end with suspects being charged or summonsed to court. 

Judging by the media attention currently being given to private prosecutions they are clearly here to stay. It's clearly noticeable that despite these times of austerity the public are increasingly turning to private prosecutions as a means of recourse in order to achieve justice. As we continue through 2018 one can only surmise that, despite the costs outlay required, private prosecutions will continue to garner traction and further media attention.  

Further Reading

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