The use of private prosecutions is a growing trend in England and Wales, particularly in the creative industries, where lawyers acting for film, music and broadcasting rights owners have achieved a string of successes in the last few years.
Last July, Ketan Somaia was convicted at the Old Bailey for obtaining US$19,5m by deception in the largest private prosecution brought by an individual in the UK. He was sentenced to eight years’ imprisonment.
Last August, Philip Danks was sentenced at Wolverhampton Crown Court to 33 months in prison for distributing pirate copies of films in a private prosecution brought on behalf of the Federation Against Copyright Theft (FACT).
Alastair Rhodes, chambers director, QEB Hollis Whiteman, says: “As the Somaia case demonstrates, their revival is not confined to the protection of intellectual property rights: they are also proving a useful and effective tool in the prosecution of more mainstream white-collar crimes, with City law firms and the big four accountancy firms becoming more interested in their use.”
However, Rhodes points out that while the ancient legal remedy of private prosecution—previously used by victims of crimes that the Crown had decided not to prosecute—may be popular, it is not without risk.
He quotes the comments of former Director of Public Prosecutions, Sir David Calvert-Smith that it is essential that they be accompanied by “the highest standards of fairness and prosecutorial responsibility” since “any high profile prosecution which is found to have been mounted unfairly or without the application of standards applicable to the ordinary public trial will lead to renewed calls for the abolition of the power”.
QEB and FACT are running a conference on private prosecutions and the potential pitfalls when bringing them, on 2 July at The Banking Hall, London.
