Examining this Growth in Non-Government Prosecutions: When Law Enforcement Demonstrates Minimal Interest

During warm season of 2018, independent detective Simon Davison obtained a contact from a woman stating her former boyfriend had taken £10,000 from her. Carol, a traffic manager at a local council, represented an unusual client for Davison. Being the director of investigations at an emergency advisory firm in London, Davison usually operates for wary companies and affluent individuals. A former police detective, Davison has retrieved stolen cryptocurrency, uncovered secret properties held by bankrupt business people and tracked down fraudsters working from Cyprus.

Comprehending Private Legal Actions

Davison's expertise lies in private prosecutions, a lesser-known field of law that allows victims to finance their own legal recourse. These legal matters are processed in the identical courts operated by state legal authorities for England and Wales, and they can impose the same prison sentences for defendants. "We basically mirror the procedure between police and public prosecutors," Davison explained. The key difference is that law enforcement are representatives of the state, whereas people contact Davison when state agencies cannot provide assistance.

An Example of Financial Deception

The woman's former partner, Jiro Wilson, had convinced her to provide him money to finance a company he was establishing. In return, Wilson committed to giving her shares in his new firm. "In retrospect, I could recognize how naive I was to trust him," Carol later remembered in a witness statement. "He would frequently call me paranoid, and definitely made me feel this way when I thought he was seeing other women."

One evening, while surreptitiously scrolling through Wilson's phone, she saved the numbers of other women in his address book, and began messaging them in secret. To Carol's shock, three women told her that Wilson had also "taken" thousands of pounds from them. Carol established a WhatsApp group, and organized to meet the women at one of their homes in Exeter. The four women found that each had been deceived in the same manner. "He was a disgusting narcissist," one of them commented. In total, Wilson had stolen £46,000 from them, promising they would gain the benefits of investing in his company. He used the money on companions, dining out and motorbikes.

In Situations Where Law Enforcement Demonstrates Minimal Response

Carol notified Wilson's financial crime to the police, who referred her to the national fraud hotline, which provided her a reference number and never followed up with her again. The three other women also failed to interest law enforcement in their case. More than getting back their money, the women wanted justice. One approached a lawyer in Exeter called Jeremy Asher. "It was extremely clear that this was a significant fraud perpetrated by a extremely sly, calculating individual," Asher remembered. "But the police showed no concern." Asher recommended the women to initiate a private prosecution. Doing so would be costly – possibly tens of thousands of pounds – but their case was so strong that Asher said the court would probably repay their costs. So the women cobbled together the money, and on Asher's advice, Carol approached Davison, the private investigator.

Developing the Legal Action

As he dug into the case, Davison found that Wilson also appeared to have manipulated his VAT returns. The judge who heard the private prosecution in December 2020 determined Wilson's offences were possibly so serious that public prosecutors should take over the case. State legal authorities passed the case to the police, who discovered that Wilson had submitted nearly £250,000 in false VAT returns, and had stolen a further £50,000 from a government loan scheme. On 13 June 2023, Wilson admitted guilt to seven counts of fraud at Exeter crown court. A judge sentenced him to six years in prison and described him as a "dishonest parasite."

The Growing Trend of Private Prosecutions

Had the police taken Carol and the other women's initial allegations more seriously, a private prosecution would never have been necessary. But their experience is not uncommon. The result is that over the past decade, a parallel criminal justice system has emerged in England and Wales, staffed by lawyers who specialise in privately prosecuting crimes, and ex- police officers who examine them. Official data on private prosecutions are limited, but in 2024 they accounted for a quarter of all cases in magistrates courts in England and Wales. According to one law firm, between 2016 and 2021 the number of private prosecutions more than doubled. "Fifteen years ago, they were extremely uncommon," said a barrister who specialises in white-collar crime. Since then, "it's been like the stock market going up. It's just a sharp line."

Availability and Cost Issues

Some regard these prosecutions as a solution to reducing state budgets, and a method to access justice when all other options have failed. But the risk is that affluent victims can afford something denied to others. A defence barrister noted that, in his experience, private prosecutions were typically brought by "people who can afford to spend a million, or a couple of million, if it comes to it." The cost of examining complex cases puts such prosecutions out of reach of most average people. "As it stands, they fill a gap in name only," said a solicitor at a City law firm. "If you really wanted to close that gap, the best way to do it would be by properly funding the criminal justice system."

Financial Crime Instances and Police Response

In recent years, fraud has continued increasing. In England and Wales, it rose 31% in 2024 alone. Yet the police have, as a rule, shown minimal interest in addressing it. Several former police officers noted that it was seen as uninteresting. "There's a real focus towards action. Catching a burglar and chasing them down the street," said a former detective chief inspector. Whereas with fraud cases, "you need someone who is willing to go through a thousand pages of a spreadsheet." Few people join the police to pore over Microsoft Excel documents. As one officer put it in a 2019 report, "Fraud doesn't bang, bleed or shout."

Current Systems and Their Current Shortcomings

The main contact point for victims is the national hotline, Action Fraud, which was founded in 2009. When a retired sergeant used to work at a control room logging emergency calls, he would often direct callers to Action Fraud. "We thought, these experts are highly capable. They've got sufficient resources, they're informed," he remembered. "You're not talking about some community policeman who has no idea."

In reality, Action Fraud is a call centre whose day-to-day running was, until 2019, outsourced to a private US company that employed call handlers who received just two weeks of training and were paid close to the minimum wage. When an undercover reporter worked at Action Fraud in 2019, they found staff taking calls from victims while scrolling through their phones and engaging in distracting activities. Some of their managers mocked fraud victims as "gullible individuals."

Financial Considerations of Non-Government Prosecutions

While victims cover the upfront costs of private prosecutions, many of their expenses are ultimately funded by taxpayers, whether or not their case is successful. Every time a firm wraps up a private prosecution, they ask the judge to reimburse them from central funds, a pot of government money that covers the costs incurred in criminal prosecutions. The relevant government unit then reviews the firm's application and decides how much money they get back. "It's not a blank cheque," said one legal expert. "But in my experience, you typically get 80% or 90% of your costs reimbursed." Firms specializing in private prosecutions charge a higher hourly rate than public prosecutors, so private prosecutions "typically cost the state much more," one judge noted in a 2014 ruling. According to available data, the government has paid out significant sums to cover private prosecution fees in recent years.

Potential Improper Use and Abuse

Private prosecutions can also be effective weapons: some legal experts mentioned having seen cases where wealthy people "try to use private prosecutions just as a way of bullying someone, basically." Rail companies have been particularly adept at criminalising people for minor rule-breaking in recent years, fast-tracking draconian prosecutions through simplified procedures. Defendants receive a letter detailing a charge, to which they must respond within 21 days. If they don't respond (because the letter gets lost in the post, for example), they can be tried and sentenced by a single magistrate, who can criminally convict them without a court hearing, using only minimal evidence.

Coming Changes and Considerations

Despite the growing demand for this shadow justice system, some people in the industry worry about its long-term viability. Government proposals currently making their way through parliament contain details that could substantially impact the entire business model. It proposes that lawyers should only be awarded "adequate" costs from central funds. The proposal doesn't state how much would count as "adequate," but in theory it could mean that highly paid lawyers would suddenly find themselves earning lower rates.

Earlier this year, government authorities took a critical view of private prosecutors in a consultation paper, alleging that some of them had "acted unlawfully, improperly and well below the standards the public expects." Its main target was an organization that brought numerous successful private prosecutions against its operators between 1991 and 2015, sending innocent employees to prison for theft and fraud. In theory, it should be possible to distinguish between such scandals and justified cases, since public prosecutors can put a stop to any private prosecution. In practice, they are too overstretched to monitor every case.

Ethical Questions and Societal Interest

If such prosecutions provoke a basic unease, it can be because they assume a power that many people think should belong to the state. "How do we feel about the state effectively lending the keys to its tanks to a private individual, and saying, you can have fun with these for a little while?" said a defence barrister. Private prosecutors emphasize that they apply the same public interest test as the state does when deciding whether to prosecute. But unlike public prosecutors, who receive a salary regardless of whether they prosecute a case, private firms get paid to bring cases, not turn them down.

"The old thing that used to be said about public prosecutors was that they enjoy no victories and suffer no defeats," noted a former director of public prosecutions. "If you're a private law firm and your whole business model depends on bringing private prosecutions, you want to win. Your business model is: we will get you a conviction."

Summary

If the government reduces the fees that private prosecutors can claim back from the state, the industry that has thrived in the wake of austerity will certainly decline. So long as the government continues to underfund the criminal justice system of adequate funding, however, the demand for such alternatives will persist. During research, multiple legal experts mentioned the health service. They drew a parallel between private prosecutions and the clinics and surgeries that improvise expensive solutions to the problem of a decrepit public institution. In both instances, the solution only compounds the problem: when some people can buy their own criminal cases or medical treatments, they have fewer reasons to invest in the idea of improving these things for everyone else.