Investigating the Rise in Private Prosecutions: When Police Shows Minimal Interest

During warm season of 2018, independent detective Simon Davison obtained a phone call from a woman reporting her former boyfriend had appropriated £10,000 from her. The woman, a transport coordinator at a municipal authority, constituted an atypical client for Davison. Being the head of investigative operations at a crisis consultancy in London, Davison normally operates for wary companies and affluent individuals. Previously a police detective, Davison has recovered stolen cryptocurrency, uncovered secret properties owned by bankrupt business people and tracked down fraudsters working from Cyprus.

Understanding Non-Government Legal Actions

Davison's expertise lies in non-state legal actions, a little-known area of law that allows victims to finance their own justice. These legal matters are processed in the identical courts operated by public prosecutors for England and Wales, and they can impose the equivalent custodial terms for suspects. "We essentially mirror the process between law enforcement and state attorneys," Davison stated. The primary difference is that police officers are representatives of the state, whereas people contact Davison when state agencies fail to provide help.

A Case of Financial Deception

Carol's former partner, Jiro Wilson, had persuaded 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 remembered in a witness statement. "He would frequently describe me paranoid, and definitely made me feel this way when I thought he was seeing other women."

One evening, while secretly looking through Wilson's phone, she saved the numbers of other women in his address book, and began messaging them covertly. To Carol's shock, three women told her that Wilson had also "taken" thousands of pounds from them. Carol established a WhatsApp group, and arranged to meet the women at one of their homes in Exeter. The four women discovered that each had been deceived in the same manner. "He was a disgusting narcissist," one of them commented. In total, Wilson had taken £46,000 from them, assuring they would reap the rewards of putting money in his company. He spent the money on companions, restaurant meals and motorbikes.

When 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 case identifier and never followed up with her again. The three other women also failed to engage law enforcement in their case. More than getting back their money, the women wanted justice. One approached a lawyer in Exeter called Jeremy Asher. "It was extremely obvious that this was a significant fraud perpetrated by a very sly, calculating individual," Asher remembered. "But the police showed no concern." Asher recommended the women to initiate a private prosecution. Doing so would be costly – potentially tens of thousands of pounds – but their case was so strong that Asher said the court would likely repay their costs. So the women cobbled together the money, and on Asher's recommendation, Carol contacted Davison, the private investigator.

Developing the Case

As he investigated the case, Davison found that Wilson also appeared to have manipulated his VAT returns. The judge who heard 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 pleaded guilty to seven counts of fraud at Exeter crown court. A judge gave him to six years in prison and described him as a "deceitful parasite."

The Growing Trend of Non-Government Legal Actions

Had the police taken Carol and the other women's original claims more seriously, a private prosecution would never have been necessary. But their situation is not rare. The result is that over the past decade, a alternative criminal justice system has developed in England and Wales, staffed by lawyers who focus in privately prosecuting crimes, and former police officers who examine them. Official data 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 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 Issues

Some regard these prosecutions as a answer to shrinking state budgets, and a way to obtain justice when all other routes have failed. But the risk is that well-resourced 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 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 properly funding the criminal justice system."

Fraud Cases and Police 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 addressing it. Several former police officers noted that it was regarded as uninteresting. "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 Current Shortcomings

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 sufficient 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."

Monetary Considerations of Private Prosecutions

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 pot of public funds that covers the costs incurred in criminal prosecutions. The appropriate 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 "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.

Possible Misuse and Abuse

Private prosecutions can also be effective 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 adept at criminalising people for minor rule-breaking in recent years, fast-tracking draconian 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.

Coming Developments and Factors

Despite the growing demand for this shadow justice system, some people in the industry worry about its future sustainability. 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 critical 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.

Moral Considerations and Public 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."

Conclusion

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 underfund 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.