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Date
26 November 2015

Mishcon Thinks: Private Prosecutions and Economic Crime

Interview with Alison Levitt QC, Head of our Business Crime Group, and Michael Hayman MBE of Seven Hills.

Transcript

Mishcon Thinks

Private Prosecutions and Economic Crime

Michael Hayman MBE
Seven Hills

Alison Levitt you are a partner in the Dispute Resolution Department and Head of the Business Crime Group.  We are here today talking about economic crime and where does the State stop. What are your opening thoughts?

Alison Levitt QC
Partner

Quite rightly the last Government and the one before has placed a premium on the importance of victims getting a better service from the Criminal Justice system than it often has in the past.  However with the impact of austerity and the cuts in the public sector it has created what perhaps you might describe as an expectation gap so the victims expect more from the system but in fact the public sector has less money with which to deliver it.  Quite uniquely in England and Wales there is the ability to bring a private prosecution as well as a State funded prosecution and private solicitors can act on behalf of individual clients if they have been a victim of some kind of economical business crime in order to try and get redress for them.

Michael Hayman MBE
Seven Hills

So when we talk about an economic crime or business crime, give us a sort of sense of what that might include?

Alison Levitt QC
Partner

The definition of economic crime most obviously is fraud and theft and to a certain extent bribery and all of those can be and have been the subject of private prosecutions.  More widely economic crime can include things like insider trading, offences against the tax  laws, money laundering. Those tend more usually to be the province of State prosecutions.

Michael Hayman MBE
Seven Hills

Right. And is the State just not able to cope now?  Has austerity just sort of led to the fact that it has just sort of overwhelmed by how much it has to do?

Alison Levitt QC
Partner

I think that many parts of the State Prosecution system function quite well but undoubtedly they have  fewer resources than they have had in the past.  The Serious Fraud Office usually doesn’t look at crimes involving less than about a million pounds.  The City of London Police plainly has had its budget cut along with everywhere else and has to make operational decisions about those cases it’s prepared to investigate and those which it feels for operational reasons it is not.  The question there is about how people who have been a victim of crime in that situation get justice for themselves.

 

Michael Hayman MBE

Seven Hills

Give us a sense of what the private sector can do?

Alison Levitt QC
Partner

Well the law says that a prosecution can be brought either by one of the State prosecuting authorities which for these purposes are in effect the Crown Prosecution Service and Serious Fraud Office.  But that also any private individual has the ability to bring a prosecution  in their own right; as long as they are prepared to fund it because there is no public funding for private prosecutions.

Michael Hayman MBE
Seven Hills

Right.

Alison Levitt QC
Partner

The private prosecutor stands in exactly the same position as the public prosecutor.  The rules are the same, the system is the same, the procedure is the same and in the end, the sentences and the outcomes are as available to a private prosecutor  as to a State prosecutor.

Michael Hayman MBE
Seven Hills

So does the private sector have a mind-set if you will that the State will look after them?  I mean, is that what stops this being taken up in a greater volume?

Alison Levitt QC
Partner

When a public prosecution takes place, the prosecution is brought in in the name of the State because the conventional thinking is that there are two victims if you like of any crime; one is the person who is most directly affected by it but also the public at large is also a victim and for that reason people feel strongly that the State should step in and bring people like that to justice.  But sometimes either the State is unwilling or is unable to commit the resources to this form of investigation and prosecution.  The question then is where is the victim of crime left?  We would say they have and are able to exercise the right to bring a private prosecution.

Michael Hayman MBE
Seven Hills

But is it right to say, sort of businesses and the private sector look after themselves in this sort of way.  I mean is that a reasonable expectation?

Alison Levitt QC
Partner

I think there are two sides to this really.  Some might say, well the State should be able to deal with all these cases.  There are other aspects of life in which the State says that it will allow its functions to be augmented by the private sector.  Health is obviously quite a good one where there is of course the National Health Service but people also have private health insurance.  What I believe firmly is that for those who are victims of crime it can be important to have redress and perhaps some people might say that in fact the private sector is doing well because it is supporting  and making extra resources available that the public sector just doesn’t have.

Michael Hayman MBE
Seven Hills

Do you worry it may go too far the other way in terms of a sort of litigious culture that the private sector is sort of really sort of understanding that it can prosecute for virtually anything?

Alison Levitt QC
Partner

I think that if people have been victims of crime then they are entitled to a remedy.

Michael Hayman MBE
Seven Hills

And in terms of a message that you would give to those that are considering it now, is it a question of seize the day?

Alison Levitt QC
Partner

If someone has been a victim of crime and either the police won’t investigate it or the Crown Prosecution Service has declined to prosecute  it then they are entitled to a remedy, they are entitled to justice and they have a right to bring a private prosecution and should consider doing so.

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