Fraud’s new frontline: Why civil litigators are thinking criminal

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.

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.

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.

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.

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.

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 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.

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.

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.

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).

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.

For example, a client may in quick succession:

• Seek a freezing injunction to preserve assets;
• Pursue a private prosecution where public authorities do not have the capacity or resources to act, and the facts support criminal proceedings; and
• Engage in parallel civil claims to recover losses.

When properly justified, this approach can support faster recovery and a clear public interest outcome, but must be carefully managed to avoid any appearance of abuse or coercion.

When Should Civil Litigators Think Criminal?

Civil remedies may not always be sufficient where criminal conduct is involved, and in appropriate cases, private prosecutions can provide a pathway to accountability and deterrence.

Litigators should consider criminal options when:

• The fraud involves dishonesty, theft, or deception;
• The alleged wrongdoer has limited UK assets or may abscond;
• Reputational harm is acute, and a public finding of guilt would assist and be in the public interest; or
• There is a chance of criminal recovery exceeding civil loss.

Risks and Ethical Duties

Private prosecutions are not tactical weapons to be misused. Private prosecutors have a duty to act fairly, independently, and with full disclosure - they must be equivalent to public bodies.

Courts will carefully examine motive, especially where there are parallel civil proceedings, the client has a strong financial incentive, and there is a risk of abuse of process. That said, properly managed, they offer a credible route to justice and a growing area of work for litigation departments across the UK.

Conclusion

As public enforcement struggles to meet demand, civil litigators are stepping into the criminal space. For clients affected by fraud, hybrid strategies using private prosecutions, restraint orders, and parallel civil claims are becoming not just viable, but essential.

Knowing when to “go criminal", and how to do it properly, is now part of the modern civil litigator’s toolkit.