🔗 Share this article

During the summer months of 2018, private investigator Simon Davison received a call from a woman stating her former boyfriend had taken £10,000 from her. Carol, a traffic manager at a municipal authority, represented an atypical client for Davison. As the head of investigative operations at a crisis consultancy in London, Davison usually works for wary companies and wealthy individuals. Previously a police detective, Davison has recovered stolen cryptocurrency, discovered secret properties held by bankrupt business people and located fraudsters working from Cyprus.

Comprehending Private Prosecutions

Davison's specialty lies in non-state legal actions, a lesser-known field of law that allows victims to finance their own justice. These cases are processed in the identical courts used by public prosecutors for England and Wales, and they can carry the same prison sentences for defendants. "We essentially replicate the process between law enforcement and public prosecutors," Davison stated. The primary difference is that law enforcement are agents of the state, whereas individuals approach Davison when government authorities fail to provide assistance.

An Example of Monetary Deception

The woman's ex-boyfriend, Jiro Wilson, had convinced her to lend him money to fund a company he was establishing. In return, Wilson committed to giving her shares in his fledgling firm. "In retrospect, I could see how gullible I was to believe him," Carol later remembered in a witness statement. "He would frequently describe me suspicious, and definitely 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 address book, and began texting them in secret. To Carol's shock, three women told her that Wilson had also "borrowed" 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 deceived in the same manner. "He was a repellent narcissist," one of them commented. In total, Wilson had taken £46,000 from them, assuring they would gain the benefits of putting money in his company. He used the money on companions, restaurant meals and motorbikes.

In Situations Where Law Enforcement Shows Minimal Response

Carol notified Wilson's theft to the police, who referred her to the fraud reporting service, which gave her a reference number and never followed up with her again. The three other women also failed to interest law enforcement in their case. Beyond getting back their money, the women wanted justice. One contacted a solicitor in Exeter called Jeremy Asher. "It was very obvious that this was a significant fraud committed by a very devious, manipulative individual," Asher remembered. "But the police showed no concern." Asher recommended the women to bring a private prosecution. This approach would be costly – possibly tens of thousands of pounds – but their case was so strong that Asher said the court would probably reimburse 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 manipulated his VAT returns. The judge who presided over the private prosecution in December 2020 decided Wilson's offences were potentially 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 sentenced him to six years in prison and characterized him as a "deceitful parasite."

The Growing Trend of Private Legal Actions

Had the police taken Carol and the other women's original allegations 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, operated by lawyers who focus in privately prosecuting crimes, and ex- police officers who examine them. Government statistics on private prosecutions are scarce, 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 increased significantly. "Fifteen years ago, they were very rare," said a barrister who focuses in white-collar crime. Since then, "it's been like the stock market going up. It's just a vertical line."

Accessibility and Expense Issues

Some view these prosecutions as a solution to shrinking state budgets, and a way to access justice when all other routes have failed. But the risk is that well-resourced victims can afford something unavailable 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 beyond the 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 fill that gap, the best way to do it would be by adequately funding the criminal justice system."

Fraud Cases and Law Enforcement Approach

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 seen 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 pore over Microsoft Excel documents. As one officer put it in a 2019 report, "Fraud doesn't bang, bleed or shout."

Current Structures and Their Limitations

The main port of call 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 highly capable. They've got adequate resources, they're informed," he remembered. "You're not talking about some local officer 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 Considerations of Non-Government Legal Actions

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 source 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 useful weapons: some legal experts mentioned having seen cases where wealthy people "try to use private prosecutions just as a way of pressuring 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 alternative justice system, some people in the industry worry about its future sustainability. Government suggestions 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 "reasonably sufficient," 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 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 surely decline. 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.