Duncan Lewis

Legal Aid

Lawyers London

Can private criminal prosecution applied to some areas of family law matters?

Date: (7 February 2013)    |    

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Private criminal prosecution is being used more frequently in commercial disputes as an additional measure as an alternative to conventional civil litigation. A group of Family lawyers have argued on how it could be applied to financial disputes in matrimony cases in some exceptional cases.
In a few exceptional financial remedies cases there may be scope for private prosecutions to be brought against the alleged associates of a spouse, as a deterrent against the associate who has sought to evade the claims of the other spouse by foul means.
Associates who assist a spouse to side-step the conventional course of justice may have committed a criminal conspiracy. In appropriate cases, family lawyers may wish to consider the scope for adopting some of the tactics utilised by their commercial litigation colleagues.
Why would a wronged spouse choose to turn to the criminal courts? There are various potential reasons:
• To seek to punish those who have done wrong.
• To apply very direct and intense personal pressure upon the other party and his or her associates
• To reach those situated outside the jurisdiction
• To broaden the scope of the law to be applied
• Deterrence
• Compensation
Private criminal prosecution of certain offences needs the consent of either the DPP or the Attorney General especially in cases where an arrest warrant and extradition to the UK of a defendant who might be in another jurisdiction is likely to require highly specialised representation and the inevitable involvement of the Attorney General or the DPP.
Where a defendant is outside the EU then it would be in all likelihood involve a case where spouse’s affairs involve offshore financial havens which would be more complex.
Even once these problems are all resolved, the trial will proceed according to the Criminal Procedure Rules 2012. The criminal laws of evidence will apply which would be difficult for many specialist family lawyers to deal with and furthermore, the criminal standard of proof will apply.
Private prosecutions neither can be taken lightly nor will become a routine affair. However, there may be cases where it could be an option worthy of consideration when all other avenues have ended in a dead end.
Once in an occasion a family lawyer may try to discuss the issue with his criminal practicing colleague to discuss venturing into an entirely different forum in order to progress an intractable family dispute. As ever in family law, creative thinking may find a solution to an exceptional case when initially none seems to exist.