Private Prosecution In Jersey – The Way Forward?

It has been reported in the United Kingdom that public resources are so stretched that police officers have attended the scenes of crime by bus. There have been repeated press reports of the reductions in the number of investigating police offices. There have been suggestions that police forces should be sponsored by commercial organizations.

Within that context it is unsurprising that in the United Kingdom it appears that there is no expertise, no will and no resources to deal with certain crimes.

Those crimes are frequently financial crimes, where the sheer volumes of paper and electronic material, and the layers of complexity can seem overwhelming to all bar the most battle hardened investigatory fraud lawyers. Why would public sector decision makers set any store on tackling such cases in circumstances where there are continuing cuts to the resources necessary to do the job even to a minimum acceptable standard?   Fraud is a low priority and public attention is focused elsewhere. The United Kingdom limps today towards deferred prosecution agreements as it tries to gain some grip on this difficult topic.

In Jersey, the picture has until comparatively recently been something quite different. The Jersey Law enforcement agencies did a remarkable job a decade or so ago in changing the perception of the informed international observer as to the island’s approach to serious international crime. The Law Officer’s Department was proactive and well ahead of the curve in taking action against financial crime and money laundering including such crimes bred of political corruption overseas and crime against foreign exchequers. Many millions of pounds were confiscated as a result of such prosecutions; it is no exaggeration to say that during the period in question Jersey was a world leader in tackling complex financial crime, including crime with highly visible international components, and on occasion in circumstances in which the Serious Fraud Office declined to act.

Performance at this level was seen to be indispensable to the Island’s international standing and consequently to the well-being of the financial services industry. Without such criminal justice activity there is the spectre of the Island’s return to international community black lists with the resulting deleterious effect on the industry. To put it no higher, without visible application of the rule of law in the area of financial crime it becomes more difficult properly to describe the island as a ” well-regulated low tax area ” and the pejorative terms “offshore”, “tax haven” , “fiscal paradise” revive  and become ever more difficult to counter.

Persons who wish to invest and do business in the island whether they are institutions or individuals want to be certain that there is a functioning rule of law. That includes being satisfied that if something goes wrong there are law enforcement agencies which are fully equipped to investigate and prosecute financial crime, no matter how apparently complex. That condition was very easily met during the times just described.

Yet for the past decade or so in Jersey there has been relatively little action taken in relation to complex financial crime and money laundering. The authoritative international bodies which monitor and evaluate country performance – IMF, Moneyval, FATF are examples – are fully aware of this and are frankly critical. There will inevitably be consequences to the detriment of the Island.

The strictures in public finances are well enough known, so how might Jersey respond to the lack of public sector criminal enforcement in straightened times?

It is at this point that thoughts might sensibly turn to questions of private prosecution.

There is not, and never has been, a State monopoly on the prosecution of crime. For by far the greater part of English legal history prosecution was not conceived of as a public matter. It was a matter of private rights and prosecution for their infringement lay at the suit of the injured party. The interest of the State was at best peripheral. The idea of a private prosecution is therefore not in the least revolutionary and they have never fallen into desuetude within the English legal system. A private prosecution can be brought by any individual or any company and the right is expressly reserved in section 6(1) Prosecution of Offences Act 1985 – and the right is being used.

In England, against the background set out earlier, it is perhaps unsurprising that private prosecutions are on the rise, bringing Confiscation proceedings in their train. Characteristically, such prosecutions are investigated and conducted by the private prosecutor through the instruction of a specialist private prosecution firm, private investigators, forensic accountants, and such experts are germane to the matters under prosecution.

While the private prosecutor does not have the powers and resources the police have in the form of production orders and search warrants, there are a number of investigative avenues and powers available that can be used by the private prosecutor to uncover a compelling case against the defendant easily to the criminal standard.

Generally, the advantages of a private prosecution are recognized to be the speed, efficiency and focus which can be brought to bear, particularly in cases of fraud and economic or large-scale crime that have not been understood, taken on or prioritised by traditional law enforcement agencies. Moreover, such prosecutions can be cheaper and quicker than the alternative of civil proceedings.

There can be little doubt as to the efficacy of such proceedings when it is noted for example that a combined confiscation and compensation order of £38,855,647 resulted from the private prosecution in the much publicised case of Ketan Somaia, a person best known for his involvement in the Goldenberg affair, a corruption scandal that helped wreck Kenya’s economy and implicated its former president.

The point of all this is to highlight the fact that there is nothing quirky or unorthodox about private prosecutions. They provide a powerful option to make good the deficit in public sector criminal justice activity brought about by spending constraints, lack of expertise or simple inertia. This has been recognized on more than one occasion by the senior English judiciary.

Notably, in the case of R (Virgin Media) v Zinga [2014] EWCA Crim 52, the Lord Chief Justice commented: ‘There is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions.’

In a time of state retrenchment, the words of Lord Wilberforce in Gouriet v Union of Post Office Workers and Others [1978] AC 435 ring true more than ever: the right to bring a private prosecution is ‘… a valuable constitutional safeguard against inertia or partiality on the part of authority.

In Jersey it has traditionally been the province of the Attorney General to prosecute serious crime. It is yet to be demonstrated that he has a monopoly on that function, or that if he does it is justified or immune from change in times when the function is impaired by financial or other constraints.

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