Exploring this Growth in Private Prosecutions: When Law Enforcement Shows Minimal Concern

During the summer months of 2018, private investigator Simon Davison obtained a contact from a woman reporting her ex- boyfriend had taken £10,000 from her. The woman, a transport coordinator at a local council, represented an atypical client for Davison. As the head of investigative operations at a crisis consultancy in London, Davison usually works for cautious companies and wealthy individuals. A former police detective, Davison has retrieved stolen cryptocurrency, uncovered secret properties owned by bankrupt business people and located fraudsters working from Cyprus.

Comprehending Private Prosecutions

Davison's focus lies in private prosecutions, a lesser-known area of law that enables victims to pay for their own justice. These legal matters are heard in the identical courts used by public prosecutors for England and Wales, and they can carry the same custodial terms for suspects. "We essentially mirror the procedure between law enforcement and state attorneys," Davison explained. The primary difference is that law enforcement are agents of the state, whereas individuals contact Davison when state agencies cannot provide help.

An Example of Monetary Fraud

The woman's former partner, Jiro Wilson, had convinced her to provide him money to finance a company he was creating. In return, Wilson committed to giving her shares in his fledgling firm. "Looking back, I could recognize how naive I was to trust him," Carol later recalled in a witness statement. "He would often call me paranoid, and certainly made me feel this way when I thought he was dating other women."

One evening, while surreptitiously scrolling through Wilson's phone, she recorded the numbers of other women in his contacts, and began texting them in secret. To Carol's horror, three women told her that Wilson had also "taken" thousands of pounds from them. Carol created a WhatsApp group, and organized to meet the women at one of their homes in Exeter. The four women found that each had been duped in the identical manner. "He was a disgusting narcissist," one of them remarked. In total, Wilson had taken £46,000 from them, promising they would gain the rewards of investing in his company. He spent the money on companions, dining out and motorbikes.

When Law Enforcement Shows Limited Response

Carol notified Wilson's theft to the police, who directed her to the fraud reporting service, 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 desired justice. One contacted a solicitor in Exeter called Jeremy Asher. "It was extremely clear that this was a substantial fraud committed by a very sly, calculating individual," Asher recalled. "But the police showed no concern." Asher recommended the women to bring 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 likely repay their costs. So the women gathered the money, and on Asher's recommendation, Carol contacted Davison, the private investigator.

Developing the Legal Action

As he dug into the case, Davison found that Wilson also appeared to have falsified his VAT returns. The judge who presided over the private prosecution in December 2020 decided Wilson's offences were possibly so serious that public prosecutors should take over the case. Government prosecutors passed the case to the police, who discovered that Wilson had submitted nearly £250,000 in fraudulent 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 gave him to six years in prison and characterized him as a "dishonest parasite."

The Growing Trend of Non-Government Legal Actions

Had the police taken Carol and the other women's initial claims more seriously, a private prosecution would never have been required. But their experience is not rare. The result is that over the past decade, a parallel criminal justice system has developed in England and Wales, staffed by lawyers who focus in privately prosecuting crimes, and former police officers who investigate them. Government statistics on private prosecutions are limited, but in 2024 they represented 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 very rare," 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 Concerns

Some view these prosecutions as a answer to reducing state budgets, and a way 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 ordinary people. "As it stands, they address a gap in name only," said a solicitor at a City law firm. "If you really wanted to fill that gap, the best way to do it would be by adequately funding the criminal justice system."

Fraud Instances and Law Enforcement Response

In recent years, fraud has continued increasing. In England and Wales, it increased by 31% in 2024 alone. Yet the police have, as a rule, shown minimal interest in tackling it. Several former police officers noted that it was regarded as boring. "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 examine Microsoft Excel documents. As one officer put it in a 2019 report, "Fraud doesn't bang, bleed or shout."

Current Systems and Their Current Limitations

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 specialists are excellent. They've got adequate 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 "naive individuals."

Financial Aspects of Non-Government Legal Actions

While victims cover the upfront costs of private prosecutions, many of their expenses are eventually 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 government money, a pot of public funds 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 unlimited payment," 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 "almost inevitably 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 Exploitation

Private prosecutions can also be useful 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 skilled at criminalising people for minor rule-breaking in recent years, fast-tracking strict prosecutions through streamlined 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.

Future Changes and Considerations

Despite the growing demand for this alternative justice system, some people in the industry worry about its long-term viability. Government suggestions currently making their way through parliament contain details that could significantly affect 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 negative 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 Considerations and Societal Concern

If such prosecutions provoke a fundamental 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 budget cuts will certainly diminish. So long as the government continues to deprive 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.