Private prosecutions: The investigator’s view

To succeed in a private prosecution you need a high standard of evidence.  Just like a Police/CPS prosecution, the jury must be convinced beyond reasonable doubt that an individual is culpable for the offence to find that person guilty. The jury must be sure of guilt.

I am not a lawyer. I joined Edmonds Marshall McMahon from the Serious Fraud Office having investigated serious and complex cases for over 12 years. As such I have been faced with having to reach this high standard of proof for many years. It can be very challenging – but rightly so because the stakes are high. For the cases that I dealt with at the SFO, and also at Edmonds Marshall McMahon, it can be an individual’s liberty that is at stake. Both public and private prosecutions require the same commitment.

Whilst it might be easy to imagine what an “investigation” is in a law enforcement context – what is it in the context of a private prosecution?

Well, the objectives of an investigation are exactly the same; that is to collect, analyse and account for information that you believe to be relevant to the case. There is an obligation to follow all reasonable lines of inquiry whether they point toward or away from your case theory. This serves as an important reminder that as an investigator you must keep an open mind as to what has happened. Our clients, who are usually the victims of a crime must understand this – if you cut corners with your investigation there is a very real chance the case will fail before a trial even starts, so it is a false economy to not investigate properly.

The components of an investigation are as follows:

Collecting information

Our clients will often be the starting point for us gathering information, and this will often be the springboard for us to determine what further evidence we need to instigate a prosecution.

Whilst we do not have the same legal powers as law enforcement authorities we can (and often do) compel the production of information in certain circumstances.  Equally important is being able to identify the right individuals to speak to, interviewing them effectively and securing voluntary assistance to the investigation.  Experience and skill is required to identify what evidence needs to be gathered for a case to have the best chance of success. The ways of gathering that evidence are diverse.

Analysing information

Gathered information requires careful analysis for it to become meaningful, and evidential. Where necessary we will use review platforms or other technical tools to interrogate and analyse information. The purpose of this process is to differentiate between information that does and does not have a bearing on the case, and to catalogue the information so that it can be interpreted to the best effect for the case. Close inspection can often reveal nuances in the evidence that strengthen the case. Whilst the technical tools help in narrowing down the information that is reviewed, qualitative analysis is done the old fashioned way – an experienced brain piecing the information together!

Accounting for information

We are bound by the same principles of disclosure as all other law enforcement Authorities. What this means is that we are obliged to inform defence teams of relevant material (“material” being the documents obtained that contain information) in our possession. We are also obliged to provide defence teams with material that undermines the prosecution case or assists with a defendant’s case. In practice this means that as the investigation progresses we must keep thorough records of what material is obtained, as well as other case management records. We understand that disclosure presents a risk to any prosecution and we are highly experienced at mitigating that risk.

It is always important to identify those firms that have a proven track record of successful private prosecutions as they will inevitably have built that reputation on sound investigations. As is often said, a case is only as strong as the evidence. Whilst lawyers might typically believe they are the most important people in a case, there are a few investigators with a different view!

In my view, clients should always identify whether their firm has a strong investigative capability. That can often make all the difference in what are usually high stakes and complex litigation.

Mike Jackson, Head of Investigations