It pains me to write this blogpost.
Where the Full Code Test is satisfied, the Crown Prosecution Service ought to prosecute. The Full Code Test consists of 2 stages, namely, the Evidential stage and the Public Policy stage.
Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
The Code for Crown Prosecutors, 2013.
Public Policy Stage:
If the evidential stage fails, prosecution should not be considered further.
If the Evidential Stage is satisfied, there are a number of factors to be taken into account, as set out in The Code for Crown Prosecutors 2013.
What happens if the Police do not investigate the crime?
This is a difficult question to consider, for me. I have tremendous respect for our Police. They do a fantastic job, BUT they are restricted by a lack of funds, and resources. No Police Officer I have ever met, has not been interested in wanting to investigate a possible crime, however large or small, regardless as to whether or not the offender has any financial means whether or not to re-pay in time or financially what he/she has stolen, etc…
Current Police Policies v Home Office Statistics:
It appears that the Police do not receive or agree their budget with the Home Office, unless they satisfy what the Home Office require of them in terms of tackling specific crime.
So for example, if mugging on the street, were not important to satisfy a Home Office statistic, one could see an argument arising where the Police will not investigate such a crime, because it adds nothing to statistics, and does not serve to further a Police budget.
What would happen to ‘mugging’ as a crime? It might be deemed, a ‘non-crime’ for a myriad of reasons, and an investigation may not be considered further.
When did it become important to justify to the public purse, any spending on Police investigations?
Were things running inefficiently, with no care as to expenditure, but in these days of thrift, Police must be more answerable?
Theft in the Workplace:
Theft by an employee in the workplace, is more serious than just theft, because there is an element/ingredient of abuse of position, breach of trust, and breach of confidence.
Yet, in my current real case which concluded earlier yesterday, the Police felt that since goods stolen had been recovered in full, and that the suspect was likely not to have any assets, and that the Company I was representing was substantial, and had sufficient resources not to care too much about such an offence, that the Police openly stated that they lacked sufficient resources to investigate the complaint, further.
1. A Civil case could have been brought against the suspect, but Civil Court timetables are notoriously lengthy to allow good time for preparation of evidence, etc…as are costs, and Court time.
2. Do nothing. This was, nevertheless, an option, but given it was public knowledge in this particular workplace, that the Police were not with resources to take steps, there might be anarchy, and mass looting and theft.
3. Bring Private Prosecution.
Bringing a Private Prosecution
Information is laid before a Bench of Magistrates, and if accepted, a Summons will be issued.
Prior to the Summons being issued, a one-off Court fee of £200 is paid, regardless of the value of the claim (at least that has been my experience).
The Court serves the Summons, and there is a return date to attend.
In the instant case, the return date to Court was 3 weeks from service of the Summons.
The Defendant did not attend on the return date, and so I applied for a warrant for the Defendant’s arrest, which I obtained.
Some weeks later, the Defendant was found, and a new date set.
At the first hearing, the Defendant pleaded guilty to stealing a number of items totalling just under £2,000 by way of a retail value.
The entire claim took 8 weeks to be heard from the start of the Summons until a guilty plea.
Legal costs were in the region of £2,000 to £3,000 including the costs of investigation, preparation of Witness Statements for the prosecution bundle, preparing the bundle, and attendance 3 times at Court. Some 70% of legal costs incurred, are to be recovered.
Those legal costs were partly Ordered to be paid by the Defendant, with the remainder of funds to be paid from Central Funds.
Effects of Prosecution:
A. The Defendant now has a criminal record for stealing;
B. The Defendant is unlikely, given his age, to re-offend;
C. A Zero-tolerance policy has been re-asserted in the work-place confirming that irrespective as to whether or not the Police choose to investigate a crime further, in all instances where there is sufficient evidence, a Private Prosecution will be brought, and if
found guilty, the offender would face low prospects of being re-employed, would have a criminal record, would of course lose their job.
D. The deterrence of bringing a private prosecution has been felt throughout the work-place.
The Fraud Triangle:
In Criminology, one often refers to the fraud triangle, which consists of 3 main factors namely: A need for something they do not have, rationality to justify committing a fraud, and a an opportunity to commit fraud.
Before a Probation Officer at sentencing, the Defendant admitted that he had felt frustrated not to have been promoted as quickly as he felt he had promised. He said that promises made to him for more money, had not been honoured, and in an ill-thought, immature, and impulsive manner, he stole from his employee. He was very sorry. He had admitted his guilty at the time. He had a small drugs problem, and needed additional money. He had rationalised stealing because he felt he was owed it.
His perceived opportunity to commit the crime was apparent, because he did not think he would be seen at the rear of the factory, albeit that he was on CCTV walking with the stolen goods until he turned a corner outside of the CCTV view. He was, however, seen by a neighbour who reported the theft.
The evidence was overwhelmingly against the Defendant to a criminal standard of proof, beyond all reasonable doubt.
The Defendant was represented by a good Solicitor, who upon reading the evidence stacked against the Defendant, then took instructions and conveyed his intention to admit his guilt.
Comparison to Civil Court:
A. No real stigma if you receive a County Court Judgment, except of course it affects your credit rating for some 6 years;
B. A Defendant might re-offend, and there would be no central record of this, because in a Civil Court, it would not be deemed a criminal offence;
C. A zero-tolerance policy could be re-asserted, but if the punishment is a Civil Judgment, and the Defendant has no other financial means or assets, the Judgment would be a Pyrrhic victory;
D. There would be little deterrence upon receipt of a Civil Judgment, for others in the work-place.
The Learned Judge observed the state of the Police being in a frustrated position not to have the resources to investigate this crime, as ‘Appalling’.
There is an overwhelming desire for natural justice to run its course, namely, that justice must prevail over and beyond any financial considerations, and that justice must be seen to be done. Private Prosecution is a common-law right, preserved in the Prosecution of Offences Act, to bring prosecution against firms or individuals in a number of cases for a number of offences.
Many cases under certain legislation, require the permission of the Department of Public Prosecutions, or the Attorney-General. The Bribery Act, for example, requires permission of the Attorney-General before a criminal claim can be brought.
The Crown Prosecution Service has a right of veto, to take over any case in the Criminal Courts, and either run it themselves, or to discontinue the same. In their decision, they would need to re-consider the Full Code Test, as well as a third test, that it would be in the public interest for them to continue to prosecute the case, or to discontinue the same, as the case may be.
Following a guilty plea, the Defendant was assessed by the Probation Service, and brought before a District Judge for consideration. The Court gave the Defendant 160 hours of Community Service to be carried out over a 12 month period, and also ordered a contribution towards prosecution costs within 28 days.
I am being consulted to advise and investigate from individuals to Public Limited Companies, with a view to bringing Criminal Private Prosecutions. The Courts are aware of the Police position, and welcome private prosecutions so long as they are not brought vexatiously or frivolously, having regard to the Full Code test.
Professor David Rosen is a Solicitor-Advocate, (Higher Rights, All Proceedings), Partner and head of Litigation at Darlingtons Solicitors LLP. He is Vice-President, and Strategic Director of the Association of Certified Fraud Examiners, United Kingdom Chapter, a Certified Fraud Examiner, a working member of the Fraud Advisory Panel, a member of the Society of Legal Scholars, and an associate Professor of Law at Brunel University where he regularly lectures each week on Fraud Examination, amongst other subjects.
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