🔗 Share this article

During warm season of 2018, independent detective Simon Davison received a phone call from a woman reporting her former boyfriend had appropriated £10,000 from her. Carol, a transport coordinator at a local council, constituted an atypical client for Davison. Being the director of investigations at a crisis consultancy in London, Davison usually works for wary companies and wealthy individuals. A former police detective, Davison has recovered stolen cryptocurrency, discovered secret properties owned by bankrupt business people and located fraudsters operating from Cyprus.

Comprehending Non-Government Legal Actions

Davison's specialty lies in non-state legal actions, a lesser-known field of law that enables victims to pay for their own legal recourse. These cases are processed in the identical courts operated by public prosecutors for England and Wales, and they can carry the equivalent custodial terms for suspects. "We essentially mirror the process between law enforcement and public prosecutors," Davison stated. The primary difference is that law enforcement are agents of the state, whereas people approach Davison when state agencies cannot provide assistance.

An Example of Financial Deception

Carol's former partner, Jiro Wilson, had convinced her to lend him money to finance a company he was creating. In return, Wilson committed to giving her shares in his new firm. "Looking back, I could recognize how naive I was to trust him," Carol later remembered in a legal testimony. "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 looking through Wilson's phone, she recorded the numbers of other women in his contacts, and began messaging 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 arranged to meet the women at one of their homes in Exeter. The four women discovered that each had been duped in the same manner. "He was a disgusting narcissist," one of them remarked. In total, Wilson had stolen £46,000 from them, promising they would reap the benefits of investing in his company. He spent the money on companions, restaurant meals and motorbikes.

In Situations Where Law Enforcement Shows Limited Response

Carol reported Wilson's theft to the police, who directed her to the national fraud hotline, which gave her a reference number and never contacted her again. The three other women also failed to interest law enforcement in their case. Beyond recovering their money, the women desired justice. One approached a solicitor in Exeter called Jeremy Asher. "It was extremely obvious that this was a significant fraud committed by a extremely devious, calculating individual," Asher remembered. "But the police weren't interested." Asher recommended the women to bring a private prosecution. This approach would be costly – potentially tens of thousands of pounds – but their case was so strong that Asher said the court would likely reimburse their costs. So the women gathered the money, and on Asher's advice, Carol contacted Davison, the private investigator.

Building the Case

As he investigated the case, Davison discovered that Wilson also appeared to have manipulated his VAT returns. The judge who heard the private prosecution in December 2020 determined Wilson's offences were possibly so serious that public prosecutors should take over the case. Government prosecutors passed the case to the police, who found that Wilson had submitted nearly £250,000 in false VAT returns, and had stolen a additional £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 sentenced him to six years in prison and characterized him as a "dishonest parasite."

The Growing Trend of Private Prosecutions

Had the police taken Carol and the other women's original allegations more seriously, a private prosecution would never have been required. But their situation is not uncommon. The result is that over the past decade, a parallel criminal justice system has developed in England and Wales, staffed by lawyers who specialise in privately prosecuting crimes, and former police officers who investigate them. Government statistics on private prosecutions are limited, 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 extremely uncommon," 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 Cost Issues

Some regard these prosecutions as a answer to reducing 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 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 ordinary 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 Response

In recent years, fraud has continued increasing. In England and Wales, it rose 31% in 2024 alone. Yet the police have, as a rule, shown little interest in addressing it. Several former police officers noted that it was seen 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 examine Microsoft Excel documents. As one officer put it in a 2019 report, "Fraud doesn't bang, bleed or shout."

Current Structures and Their Shortcomings

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 excellent. They've got sufficient resources, they're knowledgeable," he remembered. "You're not talking about some community policeman 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 Private Legal Actions

While victims cover the initial costs of private prosecutions, many of their expenses are eventually 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 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.

Possible Misuse and Exploitation

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 bullying someone, basically." Rail companies have been particularly skilled at criminalising people for minor rule-breaking in recent years, fast-tracking strict 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.

Future Developments and Factors

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 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 Questions and Public Interest

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."

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 certainly diminish. 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.