A victim of fraud has the option of pursuing criminal and or civil proceedings. Criminal proceedings are commenced by the relevant prosecuting authority. Civil proceedings are commenced by the victim of the fraud.
I want to commence criminal proceedings… what do I do?
In order to commence criminal proceedings the victim will need to report the fraudulent activity to the authorities. The case is then in the hands of the prosecuting authorities who will decide whether or not they are going to investigate. The authorities are under no obligation to bring proceedings against the suspected perpetrator of the fraud. If the authorities choose not to bring proceedings a victim can in some situations bring a private criminal prosecution. If however, a victim decides to pursue civil proceedings they will be able to commence proceedings sooner and they will have much more control over their case.
Although the victim will have less control in criminal proceedings, the police may be able to obtain information that a civil investigation may not uncover as the police have additional resources and the power, for example to search bank accounts and execute search warrants.
Burden of Proof
However, it should be noted that the burden of proof in civil proceedings is lower than the burden of proof in criminal proceedings. In civil proceedings the claimant need only prove their case on the balance of probabilities. In criminal proceedings, however, the prosecution must prove their case to a higher standard, beyond reasonable doubt. In addition, in civil proceedings the defendant will need to disclose documents to the claimant during disclosure.
Whether civil or criminal proceedings are the most advantageous for a particular claimant will largely depend on what the claimant is looking to achieve. If the aim is to quickly recover assets and money stolen by the defendant then civil proceedings are likely to be the best option. Civil proceedings are focused on the recovery of the claimant’s assets and money from the defendant or alternatively damages for the loss suffered.
In civil proceedings the Judge can make interim orders such as an order to freeze the defendant’s assets which will prevent the defendant from disposing of the assets. Such orders can improve the claimant’s chances of recovery. In criminal proceedings a compensation order which orders the defendant to pay compensation to the victim of the fraud can be sought by the Crown but the victim will not be able to recover any money until the perpetrator of the fraud is convicted. This process can take considerable time. Once the defendant is convicted the victim will then need to wait for the compensation order to be enforced and as such there will usually be a longer wait for recovery in criminal than in civil proceedings. An important point is that there is no guarantee that the Crown will seek a compensation order. This means that the victim of the fraud may not be compensated financially for their loss. Whilst amendments have been made to the Proceeds of Crime Act 2002 by the Serious Crime Act 2015 which could improve recovery in criminal proceedings, if the aim is recovery civil proceedings may still be the best option. If the aim is not recovery but rather to see the perpetrator of the fraud convicted and sentenced then criminal proceedings could be pursued.
The Cost of Proceedings
Another important consideration is costs. If civil proceedings are pursued the victim of fraud will need to pay legal fees and the costs associated with taking the matter to court. However, if the claimant is successful, the Court will normally order that the defendant(s) pay the claimants costs. Such an order and the amount that the defendant(s) are ordered to pay is at the discretion of the Court. In criminal proceedings the costs are borne by the Crown. Although the financial cost to the claimant of pursuing civil proceedings will be greater, this factor must be balanced against the better and quicker recovery prospects in civil proceedings.
This article outlines some of the factors for victims of fraud to consider when deciding whether to pursue civil or criminal proceedings. A victim of fraud can look to bring both civil and criminal proceedings. Both proceedings can even run at the same time. There are however important considerations when deciding whether to bring both criminal and civil proceedings such as whether evidence obtained for and used in one trial can be used in the other.
Whether pursuing civil or criminal proceedings or both will be the most advantageous will depend on the facts of each case. It is recommended that victims of fraud seek legal advice as soon as possible so that they can achieve the best outcome.