Privatising the criminal justice system
Francesca Titus and Oscar Ratcliffe review the effects of privatisation on criminal justice
It was at 21:42 GMT on Saturday 7 December 2019 that a historic locomotive set out on its final journey. Emblazoned on each carriage the logo of not just any train company, but an iconic brand – Virgin. From 1997 as part of the privatisation of British Rail, by deploying private capital via Virgin Trains, his own company, Richard Branson was able to innovate in a manner which simply had not been possible when the railways were under the aegis of the state. From online ticket sales to on-board streaming services – you name it, Virgin was trying (to privatise it?).
As with trains, so too with criminal justice, where, in England and Wales the private sector is muscling in on what has traditionally been the public sector’s turf. In complex cases such as fraud, private prosecutions (a prosecution instituted and conducted other than by the state) are a growing field.
On board for privatisation?
In December 2022, Stephen Jones, a tax lawyer, was jailed for 12 years after pleading guilty to two separate counts of fraud amounting to £13m. Bringing the case were Discovery Land Company (DLC). DLC is a private US company that Jones had defrauded after being instructed by them to purchase Taymouth Castle, a 450-acre estate in Scotland. Jones asked for the purchase price twice, claiming an issue with the first set of funds sent through. In reality he was misappropriatingms from his client. The case had been referred to the Crown Prosecution Service (CPS) by the High Court, but the CPS declined to prosecute, forcing DLC to bring a private prosecution to secure justice. On sentencing, His Honour Judge Griffith stated that the case was “obviously prosecutable” and expressed how delighted Mr Jones must have been when he heard the CPS would not bring a case against him. If it had not been for the tenacity of the victim company Jones would have escaped justice.
Cases like Taymouth beg the question, is the state pulling its punches when it comes to prosecuting fraud? And, if so, are private prosecutions the only viable option for victims of fraud?
An October 2022 House of Commons Justice Committee Report, Fraud and the Justice System, makes for grim reading. It concluded that fraud is now the most commonly experienced crime in England and Wales accounting for some 40 per cent of all recorded crime in 2021. However, of these reported crimes only 0.75 per cent were prosecuted by the CPS. Linked to this, the report found that fraud is not an investigative priority for the police, despite being estimated to cost society at least £4.7bn annually. In short, “there is simply not capacity within the criminal justice system to tackle thems of fraud crimes taking place each year.”
Where does this leave private prosecutions?
The right to bring a private prosecution derives from the Prosecution of Offences Act 1985 and brings with it a number of advantages. Chief among these is the control that a private prosecution gives a victim of crime. A private prosecutor can choose their own legal counsel and shape the direction of an investigation and prosecution. The House of Commons Justice Committee Report found that one of the key challenges in prosecuting fraud is the volume of documentation to be worked through, with City of London Police currently holding more than 70m pages of evidence relating to ongoing investigations. Private prosecutors have the option of engaging law firms with access to the latest document review technology, with legal teams experienced in handling this evidential volume in an efficient manner.
Private prosecutions contain safeguards to ensure a fair process. The Director of Public Prosecutions retains the power to take over - to prosecute or to discontinue a private prosecution - at any stage. Further, communications between a private prosecutor and their legal team may not always be protected by legal professional privilege. Evidence which undermines the prosecution case or assists the defence has to be disclosed.
Of course, often the main priority for victims of fraud is swift resolution to their matter. With a backlog of nearly 75,000 defendants awaiting crown court trial there are delays in the criminal justice system. Perhaps the City of London Law Courts, currently under construction, and which will focus on high-level fraud will be just the innovation that private prosecutions need to be truly ready for departure.
Francesca Titus is a partner and barrister and Oscar Ratcliffe is a trainee solicitor, both with McGuireWoods: mcguirewoods.com