Companies that suffer fraud or infringement of their intellectual property (such as counterfeit goods) are usually familiar with using civil litigation to seek redress. However private prosecution in the criminal courts can be an effective remedy and can be issued either separately or concurrently to civil proceedings.
For example, a false representation made by an individual or company, with the intention to make a gain or to cause a loss to someone else, is an offence under the Fraud Act 2006 and can result in prosecution.
Section 6(1) of the Prosecution Offences Act 1985 preserves the right of individuals and companies to bring a private prosecution. Private prosecutions operate in the same way as if the case had been brought by the Crown Prosecution Service.
Private prosecutions offer numerous advantages including the chance to recover legal costs from government central funds. Because of this, costs recovery is not dependent on the defendant’s means. This applies even if the defendant is acquitted (provided that the case is conducted with good faith). If the prosecution is unsuccessful prosecutors are generally not required to pay the defendant’s legal costs. Furthermore, unlike civil cases, criminal proceedings do not require prosecutors to pay any court fees to issue proceedings.
Successful prosecutions can result in custodial sentences, criminal convictions and confiscation proceedings (where guilty parties are stripped of their assets to pay sums which represent the financial benefit of their activity). The court can order that compensation is paid to victims including companies. Enforcement is the court’s responsibility and individuals can be sent to prison if they fail to pay sums owed. These measures can protect business interests and can act as a powerful deterrent. In addition, the court has a range of orders at its disposal including the power to disqualify defendants from acting as company directors.
A recent budget restriction on the police has meant that fraud and intellectual property infringement cases are not priority crimes. Consequently companies are often advised to take civil action. Private prosecutions mean businesses can retain significant control over cases, choose specialist lawyers, provide additional resources and select the most appropriate charges to bring.
Private prosecutions should not be undertaken lightly as there are significant risks associated with starting a prosecution, including the right of the Crown Prosecution Service to take over the case and discontinue it. It is important that expert legal advice is sought before acting. For more information and to find out how we can help you, please contact Dan Hart by email or call 01279 755777.