Private Prosecutions: History, Present Future


In 1977, Lord Wilberforce in Gouriet v Union of Post Office Workers (1978) 3 All ER 70 [1977] gave a wonderful sound bite to the Court when he stressed the importance of the right to bring private prosecutions:

“The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.

Whilst Lord Wilberforce considered that inertia or partiality might be to blame, investigation of complex fraud and subsequent prosecution is increasingly restricted due to lack of government funding  to fight fraud on the current scale, particularly as it is a crime which is often difficult and time consuming to investigate and prosecute.

As an illustration, results published on 16 July 2012 of a review carried out by the University of Portsmouth’s Centre for Counter Fraud Studies, revealed an estimated 98.5 per cent of fraud cases go unreported to the police and, of the 1.5 per cent that are reported, only 0.4 per cent result in a criminal sanction.

In times of austerity, companies and the public often look for alternatives to traditional methods of redress which are either not available to them or if they sought to commence civil proceedings instead, would be prohibitively slow and costly.

In many jurisdictions outside of the UK, private prosecutions are being used more and more frequently to address criminality. In the US, for example, private prosecutions are often run in tandem with civil proceedings. In Brazil  and Canada, private prosecutions are frequently used, particularly in crimes which have a financial aspect.

It is considered that private prosecutions must increase in the UK as our courts become an international dispute resolution centre and our legislature has seen fit to increase the reach of the Crown; The Bribery Act 2010 shows an increasing acceptance of the international reach of the criminal court. The Criminal Court of appeal accepted in R v Sheppard & Whittle [2010] EWCA Crim 65 that crime has ceased to be largely local in origin and effect:

“Crime is now established on an international scale and the criminal law must face this new reality. Their lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.”

The test accepted by the Criminal Court of Appeal in R v Sheppard & Whittle to assess jurisdiction to try the defendant for their conduct is if “a substantial measure of the activities constituting the crime took place in England.”

Private Prosecutions and International Fraud: Watch this space!