Blog
Malicious prosecution and the risk to private prosecutors
Melinka Berridge
We often act for businesses who have been the victims of crime. The Code of Practice for Victims of Crime (‘the Victims’ Code’) allows an opportunity for the voice of the business to be heard by way of an Impact Statement for Business (ISB).
The purpose of an ISB is to provide businesses, enterprises and charities with the opportunity to address the effect a crime has had on their organisation. This can be an extremely important tool, especially where money has been lost which has had a detrimental effect on the running of the respective organisation. An ISB does not have the same purpose as a witness statement; nevertheless an ISB may be considered by a court, if deemed appropriate, when the judge is determining the sentence to impose on the offender.
An ISB can be made during the police investigation, at the point when witness statements are being taken. An ISB can also be prepared at a later stage by completing an ISB form and sending it to the police contact. It is of note that if an organisation does not take the opportunity to complete an ISB when it is initially offered, the chance to do so later on may be lost. However, in cases that take longer time to bring to the offender to trial an organisation may wish to take their time to provide a comprehensive account in their ISB, and so should make this intention clear to the Police when first asked rather than refusing the offer.
An ISB must:
The ISB should include information about the direct cost the crime has had, in addition to information regarding the wider costs and impact such as reputational damage and the effect on employees. It should only contain information relating to that specific crime, but the exception to this is if the crime is part of repeat offending by the same criminal or organised crime gang. On the contrary, the statement should not include any personal opinion on the sentence that should be imposed.
Once an ISB has been made it cannot be amended, however additional statements may be made where appropriate. The ISB will then be forwarded to the Crown Prosecution Service (‘CPS’) by the police, and if the case reaches court, the ISB will be disclosed to the defence.
The nominated representative can also elect to have all or part of the ISB read out in court by a CPS advocate, and in some cases, the nominated representative may be questioned on the statement at the hearing.
An ISB provides businesses and enterprises with the opportunity to be part of the criminal justice process by allowing their voice to be heard. The ISB may also assist the judge with making a better informed decision on sentencing by considering the overall effect the crime has had on those involved. Furthermore, as Victim Personal Statements only detail the personal effect of a crime on an individual, an ISB allows the Court to take into account the important impact of a crime on an organisation.
At Kingsley Napley we have a team of criminal and civil litigation specialists with expertise in assisting victims of crime to comprehend the criminal justice system. We can assist you with preparing your ISB, helping you understand your rights in the Victims’ Code and support you through the entire criminal case.
In addition to this, the team can support you with other aspects in relation to reporting a crime, seeking the recovery of financial loss through the civil course and commencing a private prosecution in circumstances when the police or CPS are unwilling to act.
Shannett Thompson is a Senior Associate who specialises in helping individuals and organisations who have been the victim of crime hold offenders to account.
Last month, the High Court handed down judgement in R (on the application of T M Eye Ltd) v Southampton Crown Court reinforcing the correct approach to applications for an award from central funds for the costs of a private prosecution. Despite clear ‘Jurisdictional error’ on the part of the Crown Court, the appellant court took the opportunity to warn private prosecutors; applications will not be approved ‘on the nod’.
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether having an ulterior motive in starting a private prosecution can lead to problems down the line.
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.
The House of Commons Justice Committee has made a series of recommendations in its report published today which are likely to have a significant impact on the future of private prosecutions in England and Wales.
A victim has a right to request review of a decision not to prosecute or to discontinue a prosecution, but do they have a right to make representations?
The Charities Commission has recently warned that fraudsters are exploiting the spread of coronavirus (COVID-19) in order to carry out fraud and cybercrime against charities. Unfortunately, in our experience, the likelihood of the police taking action against these individuals is low. In the current climate it is easy to understand why the use of private prosecutions is firmly on the rise. In the past, some charities have been criticised for having an overzealous approach to the conduct of their private prosecutions. In this blog, we highlight the importance of taking a few simple steps to ensure that charities who conduct private prosecutions are beyond reproach.
Tucked in between the “reasonable worst-case” scenarios for food, trade and fuel is a stark one liner: “Law enforcement and information sharing between U.K. and EU will be disrupted”. The reduction in capability of law enforcement agencies that will come from a no deal will, according to government documents, be accompanied by an increase in cross-border crime.
The recent acquittal of our client, Oritsé Williams, once again puts a spotlight on the prosecution of rape and serious sexual offences, and the particular complexities faced by high profile individuals defending allegations of this nature.
A private prosecutor and the lawyers who act on their behalf must meet the same high standards of conduct expected of a public prosecutor. The High Court has recently handed down judgement in a case where the issue of the objectivity of the private prosecutor was subject to scrutiny. The case is a salutary reminder to the putative private prosecutor of the benefits of taking independent legal advice on the merits of their case before commencing proceedings.
On 18 July 2019 the Private Prosecutors’ Association (the PPA) the UK’s only association for professionals with expertise in the bringing of private prosecutions, published the first Code for Private Prosecutors (the Code).
We have previously written on the matter of likelihood of cost recovery in respect of private prosecutions, but return to this topic in light of the recent decision Re Somaia v Lord Chancellor [2019] EWHC 1227 (QB).
Rarely can the saying that a week is a long time in politics have been more true than in the case of Boris Johnson. The telescoped timetable for the election of the next Conservative leader, which was announced last week, clearly favoured him, given the large lead he has over his closest rivals. But the decision of District Judge Margot Colman has turned that advantage on its head. For there is no realistic chance that the prosecution against Johnson can be despatched before Conservative MPs decide on the two candidates to go before the membership.
On the 26th of October 2018 the High Court consisting of Gross LJ and Sweeney LJ granted an order for costs against the private prosecutor in R (on the application of Kay and Scan-Thors (UK) Limited) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin) to the sum of £250,000.
We often act for businesses who have been the victims of crime. The Code of Practice for Victims of Crime (‘the Victims’ Code’) allows an opportunity for the voice of the business to be heard by way of an Impact Statement for Business (ISB).
Last week, a Senior Coroner recorded a verdict that homeowner Mr Osborn-Brooks ‘lawfully killed’ an armed burglar with a kitchen knife. The burglar himself was armed with a screwdriver, leading Mr Osborn-Brooks to believe that he “intended to do [him] harm”, and thereby leading the Coroner to conclude that Mr Osborn-Brooks acted in self-defence. This blog considers the blurry lines underpinning the law of self-defence in the context of home intruder cases and the potential challenges these pose.
Most of us remember our 18th birthday. Finally you are old enough to do a whole list of activities which were previously prohibited – you can vote, buy alcohol, open your own bank account, gamble or even get that tattoo you always wanted. On top of this, you are now deemed an ‘adult’ in the eyes of the law.
On 3 April 2019 Bradford Crown Court has given a 21 months suspended jail sentence and six-months curfew order to Farida Ashraf, who pleaded guilty to fraud in a slip and trip case.
In this blog series, we have been following the progress of one of the latest EastEnders storylines, which centres on a young woman who claims to have been raped by two men after a night of heavy drinking.
Last week the CPS published guidance on prosecuting cases of childlike sex dolls.
One of the more striking features of the government’s draft domestic abuse bill, which was published 21 January, was the proposed extension of the ‘polygraph condition’ to convicted offenders’ licences. In this blog, Matthew Hardcastle questions the inclusion of polygraph testing in the government’s recent draft domestic abuse bill.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Melinka Berridge
Melinka Berridge
Melinka Berridge
Skip to content Home About Us Insights Services Contact Accessibility
Share insightLinkedIn Twitter Facebook Email to a friend Print