Fraud: A Criminal Claim brought by the CPS or by Private Prosecution?

DRAFT

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

You may or may not know this but currently, resources are limited by Government cuts, and Home Office budget restraints as to what statistically must be fulfilled by respective Police forces to receive further funding, to fight crime.

There has been stiff criticism and an inference of constitutional corruption whereby some crimes are favoured above others to satisfy Home Office statistics.

On many occasions, those who approach me for legal advice, have been rejected by the Police, following complaint, for one or more of the reasons set out below:

 

1. The Police lack resources to deal with such economic crime;

2. This is a Civil matter, and not in the public interest to pursue;

3. There is insufficient evidence to secure a conviction to a criminal standard;

4. The Police force who received complaint, do not have an economic crime team, or fraud team;

5. The Police Officer found the facts too complicated, and shelved the complaint hoping the victim would go away.

 

The Lord Chief Justice of England and Wales recently commented in the Court of Appeal Criminal Division, as follows:

 

‘…there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions…’. R (Virgin Media Limited v Munaf Ahmed Zinga [2014] EWCA Crim 52.

 

I do not seek to explain in any great detail by way of this blog post, fundamental differences between Civil Law and Criminal Law procedure, or the Court systems, costs or timing. I have done that in other blog posts.

I intend by way of this blog post, merely to touch upon why the common law right to bring a private prosecution was correctly enshrined and retained under Section 6 of the Prosecution of Offences Act 1985 which states:

 

‘Prosecutions instituted and conducted otherwise than by the Service

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage’.

 

Theoretical Instability:

What if resources fell so low, that the Police and other enforcement agencies were rendered ineffective to address economic crime, and so in terms of economic crime, an absence of Lawyers, and absence of Law enforcers, and a lack of Court resources to effectively manage such economic crime?

The likely answer is that crime increases because there is no deterrent, or prevention measures. Isn’t it easier for those criminally minded, to develop further ways to obtain money dishonestly, where there is no pressure to stop it? Does this not then breed further criminal schemes by others searching for the proverbial elusive buck?

It necessarily follows that there will be instability in society and criminal networks will increase in stability. New business structures will emerge based on corruption…Or has this been developing for years? We will all fall to the dark side.

The worst case scenario: A total breakdown of Governmental control, chaos and anarchy.

The Crown Prosecution Service: The CPS

I have heard from more cynical and successful Defence Barristers that CPS actually stands for: ‘Couldn’t Prosecute Satan’.

I disagree. There is nothing wrong with the Crown Prosecution Service per se, but there is a major problem with the resources they have to determine and manage cases.

It is true that sometimes the Police do not present the evidence properly because of a poor investigation. In almost all cases where I have acted for the Defendant, this has not been the case at all, but rather, the Police are let down because of poor preparation by the CPS because they are over-burdened with hundreds of cases.

Anyone who goes to a Magistrates’ Court will plainly see an Advocate for the CPS generally looking flustered, with a huge case-load of cases to be heard, being harassed by Defence lawyers trying to cut deals, seek adjournments, challenge evidence, seek applications for no case to answer.

So?

With the current state of our economy as it is, it is time to reflect upon the previous words of Lord Bingham in Jones v Whalley [2007] 1 AC 63, where he said: ‘A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate the alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest’.

The Lord Chief Justice, citing Lord Bingham’s views, further commented in R (Virgin Media Limited) v Munaf Ahmed Zinga [2014] EWCA Crim 52 ‘…as Parliament has authorised the bringing of such prosecutions, we do not consider it desirable to add to the debate. It is evident that private prosecutions by charitable or public interest bodies such as the RSPCA are common. Furthermore public bodies such as the Financial Services Authority also rely for their authority to prosecute on the general power of a private individual to prosecute…It is now also evident that commercial organisations regularly undertake private prosecutions….’

A Private Prosecution:

Having established therefore the previous common law right to bring a private prosecution, further considered recently by the Lord Chief Justice of England and Wales, the next hurdle for a private prosecutor is an immediate back-lash firstly from the proposed Defendant or their legal team, that a case of fraud could be brought in the Civil Courts as well as the Criminal Courts, and that the Civil Courts are more appropriate.

The second hurdle, having overcome the evidential and public interest tests as prescribed by CPS guidance notes before bringing criminal proceedings, is to convince the Court not only of your intentions as Prosecutor, but also that the case has been brought responsibly, and not frivolously, or is a vexatious claim.

The purpose of the Criminal Courts, are not to be used to blackmail a Defendant, or to seek vengeance or revenge. If you are bringing a claim in any Court, that must NEVER be an underlying factor, or else you will find yourself looking at a claim for malicious prosecution, interference with business, defamation, amongst other recourses for bringing criminal proceedings without merit to a criminal standard.

Why opt for Criminal Courts instead of Civil Courts?

The matter was considered briefly in William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984),

“The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.”

The purpose therefore of bringing criminal proceedings rather than civil proceedings are to maintain stability of the Government, and social stability, by punishing offenders and deterring them, and others from offending.

Following natural Laws of Justice, Justice must be seen to be done.

Let’s face it, there are just too many instances of cases where there was criminal wrongdoing, but nothing was done about it for any number of reasons as set out at the beginning of this blog post, amongst others.

Bringing a private prosecution should not be about seeking damages, but above all, to uphold the Law of the land, and to prevent the baddies from getting away with it, and to prevent others thinking about baddies from doing anything naughty.

Conclusion:

In conclusion, a private prosecution should be considered most carefully before being pursued. One can not go too far wrong if you adopt the CPS guidelines .

Bringing a private prosecution should be first and foremost to punish those who have committed a criminal offence/s, and not to gain a financial advantage or use those proceedings as a bargaining chip.

 

Professor David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors LLP. He is Strategic Director of ACFEUK a member of RUSI and an associate Professor of Law at Brunel University.

 

 

The information herewith gives general guidance. It should not be regarded or relied upon as a complete or authoritative statement of the law or treated as a substitute for specific legal advice concerning individual situations. Read our full legal notice on the left.

 

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