Investigating the Growth in Private Legal Actions: When Law Enforcement Demonstrates Little Interest

During the summer months of 2018, independent detective Simon Davison got a phone call from a woman reporting her ex- boyfriend had taken £10,000 from her. The woman, a transport coordinator at a municipal authority, represented an unusual client for Davison. Being the director of investigations at an emergency advisory firm in London, Davison usually operates for cautious companies and affluent individuals. Previously a police detective, Davison has recovered stolen cryptocurrency, uncovered secret properties owned by bankrupt business people and located fraudsters working from Cyprus.

Understanding Private Prosecutions

Davison's specialty lies in private prosecutions, a little-known area of law that allows victims to pay for 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 basically replicate the process between police and public prosecutors," Davison stated. The primary difference is that police officers are representatives of the state, whereas people approach Davison when state agencies fail to provide assistance.

A Case of Monetary Fraud

Carol's former partner, Jiro Wilson, had convinced her to provide him money to fund a company he was establishing. In exchange, Wilson committed to giving her shares in his fledgling firm. "Looking back, I could recognize how gullible I was to trust him," Carol later recalled in a witness statement. "He would frequently call me paranoid, and definitely made me feel this way when I thought he was seeing other women."

One evening, while surreptitiously scrolling through Wilson's phone, she recorded the numbers of other women in his address book, and began messaging them covertly. To Carol's horror, three women informed her that Wilson had also "taken" thousands of pounds from them. Carol established a WhatsApp group, and organized to meet the women at one of their homes in Exeter. The four women found that each had been duped in the identical manner. "He was a disgusting narcissist," one of them remarked. In total, Wilson had taken £46,000 from them, assuring they would reap the rewards of putting money in his company. He used the money on companions, restaurant meals and motorbikes.

In Situations Where Law Enforcement Demonstrates Minimal Response

Carol reported Wilson's financial crime to the police, who directed her to the fraud reporting service, which provided her a reference number and never followed up with her again. The three other women also failed to interest law enforcement in their case. More than recovering their money, the women desired justice. One approached a solicitor in Exeter called Jeremy Asher. "It was very obvious that this was a significant fraud perpetrated by a very devious, manipulative individual," Asher recalled. "But the police weren't interested." Asher recommended the women to initiate a private prosecution. Doing so would be costly – possibly tens of thousands of pounds – but their case was so compelling that Asher said the court would probably reimburse their costs. So the women cobbled together the money, and on Asher's recommendation, Carol approached Davison, the private investigator.

Building the Case

As he investigated the case, Davison found that Wilson also appeared to have falsified his VAT returns. The judge who presided over the private prosecution in December 2020 decided Wilson's offences were possibly so serious that public prosecutors should take over the case. State legal authorities 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 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 experience is not rare. The result is that over the past decade, a parallel criminal justice system has emerged in England and Wales, staffed by lawyers who specialise in privately prosecuting crimes, and former police officers who investigate them. Official data 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 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."

Availability and Expense Concerns

Some regard these prosecutions as a solution to reducing state budgets, and a way to access justice when all other options 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 investigating complex cases puts such prosecutions out of reach of most average people. "As it stands, they address 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 Instances and Law Enforcement Approach

In recent years, fraud has only grown. In England and Wales, it increased by 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 pore over Microsoft Excel documents. As one officer put it in a 2019 report, "Fraud doesn't bang, bleed or shout."

Current Systems and Their Current 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 informed," 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 "gullible individuals."

Financial Aspects of Private Legal Actions

While victims cover the upfront 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 public funds 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 unlimited payment," 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 effective 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 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.

Coming Developments and Considerations

Despite the growing demand for this alternative justice system, some people in the industry worry about its future sustainability. Government proposals 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 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 aftermath 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 failing 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.