Sign Up for our Free Newsletter
menu
Solicitors Journal Homepage
  • Home
  • News
  • Digital Edition
  • Practice Notes
    • Area of Law
      • Agricultural
      • ADR & Mediation
      • Asylum & Immigration
      • Aviation
      • Bankruptcy and Insolvency
      • Charities
      • Children
      • Clinical negligence
      • Commercial
      • Competition
      • Construction
      • Conveyancing
      • Costs
      • Crime
      • Data Protection
      • Discrimination
      • Education
      • Employment
      • Energy
      • EU
      • Expert witness
      • Family
      • Financial services & Tax
      • Health & Safety
      • Human rights
      • Inquest
      • Insurance
      • Intellectual property
      • Legal Aid
      • Litigation
      • Maritime
      • Media
      • Mergers & Acquisition
      • Pensions
      • Personal injury
      • Police & Prisons
      • Private client
      • Procedures
      • Professional negligence
      • Property
      • Public Law
      • Regulation
      • Residential
      • Road traffic
      • Vulnerable Clients
    • Management
      • Business Development and Marketing
      • Career development
      • Covid-19
      • Education & Training
      • Equality & diversity
      • Ethics and Compliance
      • Finance
      • Human Resources
      • Knowledge management
      • Leadership
      • Legal services
      • Marketing
      • Pro bono
      • Professional indemnity
      • Regulators
      • Risk & Compliance
      • Technical legal practice
      • Technology
      • Wellbeing
  • Opinion
  • Business
  • International
  • Interview
  • Features
  • More
    • About
    • Contact Us
    • Subscribe
    • Newsletter
    • FAQ
    • Guide to Authors
    • Media Pack
    • Site Map
  • Contact Us
  • Terms and Conditions
  • Cookie Policy
  • Privacy Policy
  • Follow us:
    Twitter
    LinkedIn
© 2023 Solicitors Journal in partnership with the International In-house Counsel Journal | Picture Credits: Freepix, Unsplash and by permission of the authors
Francesca Titus

Francesca Titus

Partner and BarristerMcGuireWoods London LLP
Quotation Marks

As with trains, so too with criminal justice… in England and Wales the private sector is muscling in on what has traditionally been the public sector’s turf.

Privatising the criminal justice system

Fri Mar 17 2023Feature
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.

Conclusion

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

Tags:
AdvertisementAdvertisementAdvertisementAdvertisementAdvertisementAdvertisementAdvertisementAdvertisement
Latest News

Legal Services Board survey on tech innovation in the legal services sector

Tue Jun 06 2023

Prime Minister details progress made to stop illegal border crossings

Tue Jun 06 2023

Law Society and Bar Council sign MoU with the Bar Council of India

Tue Jun 06 2023

APPG for Crypto and Digital Assets calls for urgent regulation in the UK

Mon Jun 05 2023

UN Child Rights Committee publishes report on the UK

Mon Jun 05 2023

Regulator of Social Housing publishes latest financial trends report

Mon Jun 05 2023

SRA details factors influencing outcomes for Black, Asian and minority ethnic candidates

Fri Jun 02 2023

Competition and Markets Authority publishes green heating and insulation sector report

Fri Jun 02 2023

Sentencing Council publishes new business plan

Fri Jun 02 2023
Featured
Saudi Arabia’s evolving business laws
InternationalTue Jun 06 2023
Saudi Arabia’s evolving business laws

Dr Hamid Harasani and Samaher Alsobeihy explore how Saudi Arabia has reformed its companies law per its Vision 2030 ambitions

Love-bombing recognised as a sign of abuse
Practice NotesMon Jun 05 2023
Love-bombing recognised as a sign of abuse

Samantha Farndale explores how family lawyers can recognise and address love-bombing in abusive relationships

Personal data protection in the UAE
InternationalThu Jun 01 2023
Personal data protection in the UAE

Ashish Mehta examines the data protection regime under the new federal personal data protection law in the UAE

Navigating India’s investment landscape
InternationalThu May 25 2023
Navigating India’s investment landscape

While India offers many attractive investment opportunities, there are various regulatory factors to be aware of

SJ Interview: James Fulforth
SJ InterviewThu May 18 2023
SJ Interview: James Fulforth

The Solicitors Journal spoke to James Fulforth, Kingsley Napley’s newly appointed Senior Partner, about his experiences in the law, his thoughts on the UK’s tech sector and what he hopes to achieve in his new role

Long-awaited reports and controversial bills dominate
ForewordTue Apr 25 2023
Long-awaited reports and controversial bills dominate

Sophie Cameron takes a look at the news in the April Foreword