Bringing A Private Prosecution

Rahman Ravelli | View firm profile

Aziz Rahman and Ben Ticehurst explain what you can do if you
have fraud committed against you or your company.

Fraud is estimated to cost the UK economy £193 billion a
year. And yet this is not reflected in the volume of fraud prosecutions that
reach the UK’s criminal courts.

One reason for this is that, obviously, not all fraud is
detected. Another is that even when fraud is detected, it is not always clear
who has committed it. The result is that the number of prosecutions for fraud
comes nowhere near to matching the amount of fraud that has been identified.

It is certainly true in many cases that even when a suspect
is identified in connection with a fraud, the prosecuting authorities decide
not to charge the person. If that person argues vehemently that they did not
commit the fraud and the Crown Prosecution Service does not believe that there
is sufficient evidence or that a prosecution is not in the public interest, the
suspect will not be charged.

With the resources of the police and other law enforcement
agencies stretched, the chances of a fraud prosecution being brought are slim
at best: a report from the Centre for Counter Fraud Studies released in
November 2016 stated that less than 2% of people accused of fraud are being
prosecuted through the criminal justice system.

Legal Alternative

Such a situation can be hugely frustrating for the person or
company that had the fraud committed against them. They could bring civil
proceedings in a bid to recoup what was lost to fraud. But this does not result
in the perpetrator being punished. An option that does lead to punishment,
however, is bringing a private prosecution.

A private prosecution is certainly a lesser-known
alternative to leaving the decision to prosecute to the authorities. But it is
an equally valid way of seeking justice and is considered to be a
“constitutional right”. Under the Prosecution of Offences Act 1985, any private
individual, victim, interested party, charity or company in England and Wales
is entitled to bring a private prosecution.

The person bringing the prosecution must have the finances
to pay for it, which can deter some people from going ahead. But what has to be
remembered is that once the proceedings have been completed, it is possible to
recover some or all of your costs from the Ministry of Justice’s Central Funds
budget.

Preparation

Before a private prosecution is brought, however, it is
important to prepare carefully. Seeking appropriate, expert legal advice is
essential in order to both assess the chances of success of a private
prosecution and then plan it and carry it out to its conclusion.

As an example, a person bringing a private prosecution does
not have the evidence-gathering powers available to agencies such as the police
or Serious Fraud Office (SFO). They have to consider carefully, therefore,
whether they have enough evidence – or can obtain enough – to secure a
successful private prosecution.

A solicitor specialising in business crime will be able to
deduce the quality and admissibility of the available evidence, recognise the
chances of securing a successful prosecution and identify other investigative
steps that could be explored to obtain more evidence. Once all available
evidence has been collected, an expert can also determine whether a private
prosecution is still the best option or whether there is now enough
incriminating evidence for the police to be brought in.

Details

At Rahman Ravelli, our Corporate Fraud department works for
clients who have been unable to interest the authorities in prosecuting a case.
Unlike the severely under-resourced departments of the authorities, we can
assemble a tailor-made team for each client to direct and oversee all aspects
of an investigation and private
prosecution.

Such an approach enables every aspect of a private prosecution
to be developed carefully and in the best interests of a client – not given a
routine assessment and then dropped, as may be the case with the police or SFO.
It can ensure rapid and effective action, with all aspects of a case examined
by experts and an appropriate strategy developed.

A private prosecution gives someone who has been on the
“receiving end’’ of fraud a chance to gain justice without having to rely on a
state prosecution. It can be less costly than civil litigation and can even be brought
at the same time as civil proceedings.

In order to succeed, however, it is essential to seek the
right legal advice.

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