EWJ August 62 2025 web - Journal - Page 30
Fraud’s New Frontline: Why Civil
Litigators are Thinking Criminal
by Michael Lewis, Associate - www.insights.devonshires.com
The traditional divide between civil and criminal
enforcement is blurring, particularly in complex fraud
cases. With public agencies overwhelmed and sophisticated fraud on the rise, commercial litigators are increasingly turning to criminal law tools to secure
redress, recover assets, and apply pressure.
choose to continue, discontinue, or assume control
of the case. The CPS will also intervene where it
considers a prosecution to be abusive, vexatious, or
improperly motivated.
In short, private prosecutions are not a means of
circumventing public oversight. When properly
brought, they are an important and valuable route to
access the criminal justice system, but they must be
pursued with integrity, evidential rigour, and in the
public interest. Important risks remain. The Full Code
Test must be satisfied, meaning there must be a realistic prospect of conviction, and it must also be in the
public interest to prosecute.
The growth of private prosecutions, the strategic use
of freezing orders, and the overlapping reach of the
Proceeds of Crime Act 2002 (“POCA”) are creating a
hybrid approach to litigation that many commercial
clients can no longer afford to ignore.
Decline of Public Enforcement and the Rise of the
Private Prosecution
The growing use of private prosecutions does not
represent a shift in legal principle, but rather a practical response to systemic delays and constraints in the
criminal justice system.
Prosecutors bringing private cases are also subject to
the same disclosure obligations as public authorities,
including the duty to disclose material that may assist
the defence or undermine the prosecution. Where a
prosecution is improperly motivated or conducted
unfairly, there is a real risk of proceedings being stayed
for abuse of process or giving rise to a claim for
malicious prosecution. Careful case preparation and
oversight are essential to mitigate those risks.
The CPS and police across England and Wales are
under significant and sustained pressure. Years of underfunding, staffing shortages, and rising case complexity, particularly in areas such as financial crime,
cyber fraud, and crypto asset-related offences, have
left many investigators and prosecutors overwhelmed.
Even when serious frauds are reported with a clear
evidential foundation, it is increasingly common for
victims to be told that it is a civil matter, or that any
decision to prosecute may take several years.
POCA and Asset Recovery in Criminal Cases
Where a private prosecution results in conviction, the
prosecutor can seek confiscation orders under POCA,
enabling recovery of criminal benefit beyond the immediate loss. This can be particularly powerful in investment fraud, business diversion/conflict of interest
schemes, and contract fraud involving dishonest subcontractors or insiders.
The courts are also under strain. Backlogs in the
Magistrates’ and Crown Courts are now well-documented, with delays of 18 - 24 months not uncommon, even in serious cases. Public enforcement bodies
are, by necessity, forced to prioritise cases involving violence, public safety, or matters of political urgency.
For many commercial victims, particularly those in
the private sector, this can result in the feeling of an
absence of justice.
Restraint orders may also be available pre-conviction,
preventing the dissipation of assets. While not unique
to criminal proceedings, POCA-based tools offer a
parallel route to recovery that civil litigants cannot
access alone.
Strategic Use of Freezing Orders and Search Orders
Even in the absence of a prosecution, civil fraud
practitioners are increasingly using the “nuclear remedies” of freezing injunctions (to preserve assets), search
orders (to prevent destruction of documents), and
Norwich Pharmacal and Bankers Trust orders (to
obtain third-party disclosure).
In such circumstances, the legal system provides a
route forward. Under section 6(1) of the Prosecution
of Offences Act 1985 (the “Act”), individuals and corporate entities may bring a private criminal prosecution in respect of wrongdoing. This can offer a
valuable mechanism for holding fraudsters and other
offenders to account, particularly where the evidential standard is met, and public authorities are overstretched and unable to act.
While not criminal in nature, these tools are often
used in dual-track litigation, where a private prosecution or criminal complaint runs in tandem with civil
proceedings.
However, it is important to emphasise that private
prosecutions do not operate in a vacuum. Under section 6(2) of the Act, the CPS retains the power to take
over any private prosecution at any time. It may
EXPERT WITNESS JOURNAL
For example, a client may in quick succession:
l Seek a freezing injunction to preserve assets;
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