Author: Nicola Sharp
1 December 2022
3 min read
Nicola Sharp of Rahman Ravelli outlines the potential for foreign individuals and companies to bring prosecutions in the UK.
In the UK, the issue of bringing a private prosecution is seen as being the exception rather than the rule. When it comes to holding individuals or even organisations to account for crime, most people will make the police, another enforcement agency or even the regulator of the relevant business sector their first port of call. And they will hope for action.
The unfortunate truth is that action is not always the outcome. Most criminal prosecutions are brought by the state, yet any individual or body can bring a private prosecution against a person or corporate. Such a prosecution can be brought for most crimes, ranging from offences against the person and sexual offences through to financial wrongdoing.
Private prosecutions are often utilised by victims of fraud, who favour such an approach over civil litigation as a private prosecution is often considered to be cheaper and quicker – and can have a stronger deterrent effect.
The right to bring a private prosecution is reserved in section 6(1) Prosecution of Offences Act 1985. The proceedings are conducted in exactly the same way as if the prosecution had been brought by a law enforcement agency. But it may have added benefits.
People or companies may choose to bring a private prosecution when the police have refused to investigate a crime or they do not have the resources to investigate, or when a state prosecution has failed. In such circumstances, bringing a private prosecution can be a very effective Plan B.
Yet there are numerous reasons why bringing a private prosecution could or should be Plan A. Bringing a private prosecution gives whoever is bringing it more control over the timing, planning and execution of their case. A private prosecution can often be much quicker and more efficient than one brought by an under-resourced enforcement agency. It can also be a more realistic route in cases involving complex financial crime, where state enforcement agencies may lack the understanding, expertise and resources to make it a high priority and bring a successful prosecution.
When considering the benefits of the private prosecution system, it is important to remember two factors. The first is that private prosecutions are not available in many jurisdictions and, therefore, the UK private prosecution regime is attractive to many. The second is that there is a wide range of situations where it is possible for an overseas individual or company to bring a private prosecution in the UK. UK private prosecutions can be issued by and against overseas individuals and companies as long as there is a sufficient UK connection. Obviously, if the offence was committed in the UK, a private prosecution is a possibility. But if the intended defendant is a British citizen, entered the UK at some point during the commission of the offence or conspired with someone in the UK there would then be a sufficient connection to bring a private prosecution in the UK. There would also be a sufficient connection if the suspect is a director, employee or person of significant interest in a company registered in the UK.
Taken as a pair, these factors could – and arguably should – make bringing a private prosecution in the UK a very attractive proposition for many individuals and organisations based abroad.
While the UK law on private prosecutions provides plenty of scope for taking action over events that may not necessarily be restricted to the UK’s borders, it is also worth pointing out the wide range of offences that could be considered a “natural fit’’ for a private prosecution.
Without wanting to turn this piece into an exhaustive, textbook-style list, there are a number of statutes that enable the UK to exercise extra-territorial jurisdiction for criminal activity, including offences such as fraud and bribery. If an aforementioned UK connection exists, then a private prosecution is an option. Similarly, money laundering, computer misuse, tax evasion and a range of conspiracy offences may all take place – at least to some extent – beyond UK borders. But if that all-important UK connection exists then there is the potential to bring a private prosecution.
A crime may cross many borders and have only a partial connection to the UK. But that connection makes a private prosecution in the UK a viable option - more viable than it would be in many countries. To establish just how viable an is may require consultation with specialists who can ascertain both the potential for a private prosecution and the likelihood of it being successful.
There is little doubt that for many around the world, such a course of action could prove worthwhile.
Nicola is known for her fraud, civil recovery, arbitration and business crime expertise, her experience of leading the largest financial disputes and multinational investigations and her skills in devising preventative measures and conducting internal investigations for corporates.