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Private prosecutions

At Libra Solicitors, we can provide assistance to individuals, businesses and other organisations that are contemplating bringing a private prosecution in the criminal courts to protect their interests, and to redress harm caused to them by illegal behaviour. Businesses are now successfully using private prosecutions to take action against individuals and criminal organisations who have committed fraud, copyright or trademark offences against them. Call us today on 01223632420 to discuss whether a private prosecution might be a suitable and effective option for you or your business.

What is a private prosecution?

Private prosecutions have enjoyed a renaissance in recent years, with victims of criminal activity using this powerful private right to bring a criminal prosecution against those responsible. The right is not limited to individuals and can be used by various organisations including businesses, charities, professional bodies and regulators.

In an era of cuts in the public funding of the police and Crown Prosecution Service, authorities do not always have the resources to prosecute every case that has merit, particularly in cases involving intellectual property infringement and complex fraud, where the victim may also have an avenue to seek redress through civil litigation. If you find yourself in this type of situation, where you believe there is strong evidence that someone has committed a crime against you and the authorities have decided to take no further action, we suggest you contact us to discuss your options.

When conducted effectively, private prosecutions can achieve justice and provide a strong deterrence against other individuals engaging in similar behaviour. If the prosecution is successful, the defendant may face a significant fine or even a custodial sentence, and may also be deprived of the proceeds of his or her criminal activity.

Protecting intellectual property from crime

One of the areas in which private prosecutions have been particularly effective is in respect of criminal offences that target the intellectual property of businesses. When companies are set up with the intention of infringing the intellectual property of others, private prosecutions can target the individual directors and individuals within the organisation, who might otherwise try to hide behind the company.

The possibility of custodial sentences for convicted offenders can act as a stronger deterrence than the prospect of civil litigation, particularly when the defendant does not have the financial means to make them worth suing. The criminal courts also have the power to confiscate assets under the Proceeds of Crime Act 2002, and can make orders that counterfeit goods are forfeit and subject to being destroyed. Given that criminal prosecutions often receive significant publicity, these sanctions may discourage future offenders and make them aware that your business is not an easy target.

If you or your organisation has suffered due to illegal acts concerning your intellectual property, call us today on 01223 632420 to discuss the prospect of bringing a private prosecution. We can also advise you on whether issuing civil proceedings may be a more suitable and effective option for your business.

In what type of situations are private prosecutions used?

Certain offences require the consent of the Director of Public Prosecutions or the Attorney General before any prosecution can be started. For these offences, even in cases where consent is granted, a prosecution would probably be taken over by the Crown Prosecution Service (CPS), as it would probably be in the public interest to do so.

The CPS can also take over and discontinue private prosecutions in circumstances where the prosecution is brought to their attention, and there is insufficient evidence, a public interest in not prosecuting or a particular need for them to do so.

However, the number of private prosecutions continues to grow, and situations in which they have been seen to be particularly effective include:

  • Owners protecting intellectual property against criminal activity, such as copyright and trademark offences, and conspiracy to defraud. Prosecutions are often brought by organisations such as FACT or BPI, but can also be brought by individuals or businesses who have been affected themselves.
  • Businesses bringing prosecutions against employees who engage in criminal behaviour against the business, including fraud and theft.
  • Charities bringing prosecutions against specific criminal behaviour, in accordance with the organisation’s principles and commitments (such as the RSPCA prosecuting individuals for animal cruelty).
  • Individuals who have been the victim of criminal activity, such as acts of fraud, who decide to bring a prosecution when resource constraints mean that the authorities have chosen not to prosecute.
  • Professional associations bringing private prosecutions targeting illegal practice to safeguard the reputation of the profession.

This list is not intended to be exhaustive, and there will be other situations in which a private prosecution may be appropriate. If you believe you have been the victim of a crime and you want to know more about private prosecutions, call us today on 01223 632420 to discuss your situation in detail.

Advantages of bringing a private prosecution

There are a number of advantages to bringing a private prosecution that may vary according to the situation and depending on the offence committed:

  • The private prosecutions can be quicker and less expensive than litigating in the civil courts, particularly if the case against the defendant is very strong, and this results in the defendant entering an early guilty plea.
  • The deterrence effect that a criminal conviction can have on other potential offenders. By commencing a private prosecution it shows that you are prepared to take action against those who commit crimes against you, and that you will not take their behaviour lying down.
  • Successful private prosecutions can receive a good deal of publicity, which can amplify the deterrence effect and serve notice that you or your organisation, are not easy targets for criminals.
  • In cases when shell companies have been set up to facilitate criminal activity, targeting the individuals responsible with prosecution for offences such as conspiracy to defraud may potentially ‘pierce the corporate veil’, and allow those responsible to be held accountable in a criminal court.
  • Generally, if you bring a reasonable prosecution you will not have to pay the defendant’s legal costs. You may also be able to recover some of your own legal costs from central funds, providing it was reasonable to bring the prosecution and you have not acted out of improper motives. This can leave a business open to less financial risk than might be the case if they had taken action in the civil courts, where a successful defendant potentially can recover a significant portion of their legal costs from the claimant.
  • There is also the advantage of efficiency. Given that public resources are stretched, often the prosecuting authorities may not have the resources to pursue the case as they would like to. With a private prosecution, you can decide the budget that you are willing to commit, and we can assemble a legal team of highly experienced practitioners to give your case the best possible chance of success.
  • Court orders can be sought that place restraints on the defendant, including those which target the proceeds of crime.

Important considerations

Whilst we have seen some of the possible advantages of bringing a private prosecution in appropriate situations, it is important to remember that there are significant responsibilities that come with acting as a prosecutor in the criminal courts. In addition, undertaking a private prosecution requires a commitment to seeing the process through to its conclusion, unlike in civil lawsuits where the parties can agree to settle at any point during proceedings, and are actively encouraged to do so by the court.

Should any prosecution proceed to trial, the standard of proof required to secure a conviction requires the evidence to prove the defendant’s guilt beyond reasonable doubt, whereas a claimant in civil proceedings will only need to prove the elements of his or her case on the balance of probabilities. There is also a duty to disclose information in your possession to the defendant that might undermine your case against them, or assist them in putting forward an effective defence, so as to ensure a fair trial.

Why call us?

At Libra Solicitors, we recommend that any decision to commence proceedings should not be taken without first seeking expert legal advice from a specialist in this field, and only after conducting a thorough review of all the evidence available to determine the prospects of a successful prosecution.

This may take some time, and will involve expenses on your part, but it makes sense to ensure that any prosecution is the most appropriate course of action, and that it has the best possible chance of success.  For instance, it may be that by gathering further evidence and presenting it to the authorities in a clear and effective manner, they may reopen an investigation and decide to proceed with the prosecution themselves. Wherever we can, we are committed to saving our clients’ money and offering them the most practical course of action to resolve their matter.

We will also consider whether a civil claim is more suitable to your circumstances, and if so, we can advise and represent you throughout the litigation process. This is an important consideration, as the court will be likely to take a dim view of any prosecution that is commenced when a civil claim is more apt. Sometimes criminal and civil proceedings can be used together but a private prosecution should never be used to intimidate another party into settling a civil claim.

Throughout your instruction we will apply the highest standards, including Code for Crown Prosecutors and all the relevant government guidelines, including those relating to disclosure, so the prosecution has the best possible chance of success. We will also ensure that any investigators and expert witnesses that may be required to assist in proving your case, apply the highest professional standards at all times. We will never instruct anybody on your behalf without first explaining why the extra expense is necessary and receiving your permission to go ahead.

For further discussion of the services we provide and whether we can assist you in your matter, call us today on 01223 632420. Our experience and knowledge could provide you with solutions that you may not realise are available.

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