Filling the Gap

David Wurtzel casts the spotlight on a new niche legal disciplinary practice which specialises in private prosecutions for fraud and corporate crime

Edmonds Marshall McMahon (EMM) has been operating since March 2012 in the niche area of representing clients who wish to bring private prosecutions for fraud, counterfeiting and corporate crime. At the moment they say they are the only such firm – but they do not expect things to remain that way for long. As a legal disciplinary practice (LDP), the directors consist of a solicitor (dual-qualified in Australia), a barrister who spent nine years in the Government Legal Service (GLS), and a barrister who works within the company while continuing his self-employed practice at the Bar. The company has no relationship with his chambers.

It has long been known that many police forces lack the resources to prosecute such matters and refer alleged victims instead to the civil remedies available, a situation which is becoming more and not less common. EMM chose to try to fill that gap. Like other new businesses they have begun by trying to build up a client base. Two of the directors fulfil the solicitor’s role of doing the initial advice and vetting with clients, while the barrister provides a “strategic oversight of the case from a barrister’s perspective”. He attends meetings with clients, either after his own court day or in the early morning.

Clarifying roles

The firm is required to have a policy to advise clients throughout what the barrister’s roles are and in what capacity he is acting. Clients, as in any other practice, have to be served with a letter setting out how they can complain and in what capacity the barrister is acting. The client is given the opportunity to choose whether or not to instruct the barrister in their case in his capacity as a self-employed barrister. When I spoke to them early in July, none of the cases had yet reached trial stage, but the company feels free to instruct whoever is appropriate. The barrister is 25 years’ Call so he may not be the obvious person to send to the magistrates’ court, where some private prosecutions would begin.

The firm itself is regulated by the Solicitors’ Regulation Authority, but the two barrister directors are at the same time regulated by the Bar Standards Board. Both regulators were informed of the formation of the LDP. As with other private prosecutors, the Crown Prosecution Service can take over or discontinue one of their cases and they recognise therefore that they have to keep to the same standards of the CPS, including adherence to the Attorney General’s guidelines on disclosure.

Although the company hopes to expand at the moment it would be on the basis of taking on more people in the role of solicitors rather than to develop a group of in-house counsel. It is all still new. For the former GLS lawyer, it represents independence and flexibility; to the barrister it is the chance to take part in a new enterprise with new things happening. So far, no one has any regrets.

David Wurzel is Consultant Editor of Counsel