Two-tier justice: Private prosecution revolution

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Private prosecutions are on the increase as police budget cuts and pressures on the justice system force hundreds of Britons to fund their own criminal actions. Prosecutions for a wide array of offences including sex attacks, violent assaults and multi-million pound frauds are currently being pursued by private law firms.

The growing trend for private criminal prosecutions has raised concerns about the prospect of a “two-tier” justice system, with some cases reaching court only because the victims – often corporations – can afford to pay the substantial costs.

One specialist firm involved in private prosecutions says that up to 40 per cent of its cases are brought by people angered by the failure of police to investigate, or by the Crown Prosecution Service’s unwilling to press ahead to trial.

Under UK law anyone has the right to bring a private prosecution, but cases have previously been rare due to the crippling cost of investigating and pursuing such cases. Legal aid is not available, meaning they have largely been restricted to private industry or wealthy individuals.

Cases being brought by law firms in the coming months include allegations of fraud over a property land grab and claims of wrongdoing by a member of police staff.

Lawyers say they have acted on behalf of the family of a man who had a heart attack during a neighbourhood dispute, and another that involved a fight after a road rage incident.

One leading firm estimated that up to 250 cases were being handled by the private sector – including the RSPCA and the music and film industries – but there are no official figures measuring the amount of work being done by the private sector.

“It’s a growing market where people are acting out of sheer frustration when their cases aren’t being heard and they’re being fobbed off too readily” said David Rosen, an associate law professor at Brunel University who has brought a number of private prosecutions.

“It’s a sad state of affairs when neither the police nor the Crown Prosecution Service have the resources to tackle every crime.”

The majority of cases involve fraud which are not taken on by the police – which has seen the closure of a number of anti-fraud units – or the Serious Fraud Office. They have included gold bullion fraud and Brazilian rain forest investment scams.

“We have to acknowledge that the pressures on the public system at the moment are extreme,” said Kate McMahon, whose company Edmonds Marshall McMahon is pursuing about 75 private prosecutions. “If people want some sort of justice that can be done in a timely manner, sometimes you need to go private.”

Her company is representing Michael Doherty, a 42-year-old aircraft engineer who is behind a private prosecution of a Metropolitan Police civilian worker. Mr Doherty alleges the worker made false claims about him in a witness statement after he reported concerns about child grooming to the force. He described the case, which is due to come to court next month, as a “David vs Goliath” battle which has involved three years of court hearings.

“These organisations are failing to do their jobs so people are taking it into their own hands for DIY justice,” Mr Doherty said. “I think the position is now that the Establishment is clearly very worried about private prosecutions.”

Critics have raised concerns about an unregulated private investigations industry carrying out inquiries on behalf of lawyers to build their cases. Private investigators have the disadvantage of not being able to arrest suspects, apply for search warrants, or have access to defendants’ criminal records, leading in some cases to controversial joint inquiries with police forces.

The Lord Chief Justice criticised one such deal which saw the Metropolitan Police help Virgin Media prosecute a gang of fraudsters in return for a cut of any compensation. The first court hearing was not told that it was a private prosecution.

Police have also previously approached insurance companies to contribute to the costs of investigating fake car smashes, according to a paper by Professor Ed Cape of Bristol Law School published this week. “The big danger is that corporations will have an undue influence on policing policy in the way that the public doesn’t,” he said.

The Government has been challenged over the issue and has promised guidance on public-private deals.

A tycoon was jailed for eight years last month after swindling investors out of £13.5m in the largest private prosecution so far to come to the courts. Ketan Somaia was convicted of nine counts of fraud after a case launched by his victim, a former friend. Murli Mirchandani had handed over millions of pounds to Somaia, which he used to prop up his ailing businesses. Mr Mirchandani launched the private prosecution in 2011. “By bringing a private prosecution, I have made sure that his conduct is seen for what it is: criminal and dishonest,” he said in a statement after the case.

A private prosecution brought by an anti-counterfeiting group led to Anton Vickerman (right), from Gateshead, being jailed for four years in 2012 for making available pirated movies on his website. He was said to have made £250,000 profit from advertising on the site – Surfthechannel – which was the 514th most popular in the world. In a separate case, two men are due to be sentenced later this month after pleading guilty after a private prosecution over the illicit recording and uploading of the action movie Fast & Furious 6, said FACT, the Federation Against Copyright Theft, which is funded by broadcasters and major film studios.

The right to bring a private prosecution dates back to the earliest days of the legal system. The most high-profile private prosecution was by the family of Stephen Lawrence in 1996, against five suspects after three years of bungled police investigations. The case resulted in only three making it to trial and they were acquitted on the orders of the judge.

The Director of Public Prosecutions – the head of the Crown Prosecution Service – can take over cases and stop them if they are considered “vexatious” or “malicious”.

They can also be stopped if they interfere with other criminal cases, or are considered not in the public interest, according to prosecutors’ guidance.

A tycoon was jailed for eight years last month after swindling investors out of £13.5m, in the largest private prosecution so far to come to the courts. Ketan Somaia was convicted of nine counts of fraud after a case launched by his victim, a former friend. Murli Mirchandani had handed over millions of pounds to Somaia, which he used to prop up his ailing businesses. Mr Mirchandani launched the private prosecution in 2011. “By bringing a private prosecution, I have made sure that his conduct is seen for what it is: criminal and dishonest,” he said in a statement after the case.

A private prosecution brought by an anti-counterfeiting group led to Anton Vickerman, from Gateshead, being jailed for four years in 2012 for making available pirated movies on his website. He was said to have made £250,000 profit from advertising on the site – Surfthechannel – which was the 514th most popular in the world. In a separate case, two men are due to be sentenced later this month. They pleaded guilty in a private prosecution over the illicit recording and uploading of the action movie Fast & Furious 6, said FACT, the Federation Against Copyright Theft, which is funded by broadcasters and major film studios.