I note with some concern, that on 4th February 2014, Lord Taylor of Holbeach was challenged over the issue of private prosecution deals with the Police, by the opposition front bench, during the afternoon question session in the House of Lords, as reported by the BBC: Police guidance to be revised for private prosecution deals
I am concerned that the venture for Police to provide service to the public sector, and to be paid for their time, fulfilling their objective to fight crime, is not too readily brushed away as heretical.
The questioning came, following criticism that the Metropolitan Police had agreed to help Virgin Media in a private prosecution, in exchange for a ‘slice of the cake’: a slice of the proverbial cake of monies recovered in compensation.
High standards are expected of the Police, but the concern raised, was a conflict of interest.
Forgive me for stating the cynical obvious, but I have it on good authority that there has, for a long time been a ‘divvy’ between the Crown Prosecution Service and the Police, following Proceeds of Crime Act Restraint or Confiscation Orders.
Very recently, concern has been raised within Police ranks that a danger of constitutional corruption has emerged whereby Home Office Crime Statistics have dictated what crimes are, and are not investigated, or considered to be ‘non-crimes’. This led to a Parliamentary Select Committee being formed to consider the same.
With funding being cut for various reasons in various places, why is it wrong to look to find funding elsewhere from the public sector? There are commercial factors to be taken into consideration, by the Police as well as the Crown Prosecution Service.
If you think that a crime should be pursued by the Police irrespective of the prospects of recovery or enforcement of Court Orders following a successful prosecution, simply on the premise that crime is wrong, then I could not agree more.
Without a firm stamping out of crime, irrespective of the cost, we have disorder and anarchy. The Police were not formed with a view to making a profit, or indeed, to be commercially answerable to its paymasters. They were formed to maintain order, and to make our country a safer place. They existed to stamp out indecency and corruption, surely?
Nevertheless, they are accountable to their paymasters, but to what extent?
Do commercial factors fall into consideration?
I have been a Prosecutor on a number of Private Prosecutions. The following safeguards are in place by way of a brief overview:
A private investigation commences with the interviewing of suspects, the gathering and consideration of information pursuant to the Police and Criminal Evidence Act 1984, and thereafter a review of that evidence to consider whether 2 tests have been satisfied, namely:
The Evidential Test, to establish beyond reasonable doubt, that a crime has been committed, and there is sufficient evidence to support such charges;
The Public Interest Test, to establish, using the Crown Prosecution Service Guidelines, that it is in the public interest for such a crime to be prosecuted.
Some crimes can not be privately prosecuted without the approval of the Attorney-General or Department of Public Prosecutions, but generally speaking, cases of fraud and theft, do not require such approval.
Information is laid before a Magistrates’ Court, and if satisfied, a Summons is issued, and a Criminal Prosecution commences.
What if the Police assisted, or even carried out the investigation and gathering of evidence? They would not be doing anything differently to what they already do under PACE Codes of Conduct, and other Memorandum of Understanding.
Consider for example,
There is a Service Level Agreement between the Association of Chief Police Officers, the Department of Public Prosecutions, and the Crown Prosecution Service in respect of roles and duties, but it also refers to who pays for what, under the Proceeds of Crime Act 2002.
12.1 The cost of investigations will be borne by the police. This will include the submission of witness statements and evidential material in a suitable format and any costs associated with the personal service of the order by the police
12.2 The CPS will bear the costs of the prosecution and any relevant administration costs associated with restraint, confiscation, and receivership.
But, all Parties concerned in the Service Level Agreement will expect to recover some or all of their costs, expressed as a percentage of monies recovered.
It is unclear what percentage the Police obtain from recovery, but why shouldn’t they?
In a civil case, costs of investigation are recoverable, subject to tests or reasonableness and proportionality to the value and complexity of the case.
What is wrong with that, and why should it be any different for the Police not to enter into commercial agreements with Private Prosecutors?
The only concern ought to be that a Prosecutor, defined loosely as anyone with conduct of a criminal case, must follow the Crown Prosecution Service Guidelines, dealing with evidence etc…
The Crown Prosecution Service have a general right to veto, or to take over a private prosecution, subject to 3 tests. Usually however, the CPS take over, only to discontinue proceedings brought vexatiously, frivolously, or maliciously, without any evidence whatsoever.
I am in favour of the Police agreeing to have conduct of an investigation leading to a private prosecution, and for they in turn to be paid for their time. That way, they do their job without concern for Home Office statistics imposed upon them, they ensure they are paid either some or all of the costs of investigation, and more importantly, they assist to fight crime and to ensure we all live in a safer place. What is wrong with that?
Professor David Rosen, is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors LLP, London, EC4. He is Strategic Director and a Certified Fraud Examiner with the Association of Certified Fraud Examiners UK Chapter, a member of the Royal United Services Institute, RUSI, a member of the Society for Legal Scholars, and an associate Professor of Law at Brunel University where he lectures regularly on Civil Fraud and Criminal Fraud.
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