The UK companies acting like the police

This is an audio transcript of the FT Weekend podcast episode: ‘The UK companies acting like the police’

Lilah Raptopoulos
The other day, I was reading a magazine story by my colleague Kadhim Shubber. And it kind of confused me because it went against everything I understood about prosecuting a crime. We know how it usually works. Something happens like a robbery or another offence. The police are called in and then the state. The police and the prosecution’s office decide whether the suspect goes to court. But in the UK, there’s another option. Private companies can prosecute the crimes. And that means not just file for damages, but actually put people in jail.

Kadhim Shubber
They can walk into court and not just file a lawsuit, not just bring, you know, civil proceedings to, you know, get money from you. They can come into court and try to criminally prosecute you and they can get, you know, the persons that they feel have wronged them, you know, sent to jail.

Lilah Raptopoulos
It turns out that the UK’s prosecutor, which is known as the Crown Prosecution Service, is kind of broke. Its budget has been slashed. So partly to fill the gap, it’s been outsourcing its work to private companies. This concept is known as private prosecution.

Kadhim Shubber
It’s an artefact of the past. It’s the way that in lots and lots and lots of places all prosecutions used to be done. You know, today we have a modern state which has the capacity to investigate crimes, prosecute crimes. In the past, you know, that didn’t really exist. And so really it used to be that a person, you know, it was their responsibility to seek vindication, you know, if somebody assaulted them or committed some other criminal wrong against them.

Lilah Raptopoulos
The system is supposed to be fair because the courts actually reimburse the private prosecutors. So it’s meant to be accessible to anyone. But in reality, you need a lot of money upfront to hire these lawyers. And Kadhim is concerned about how this could play out long term.

Kadhim Shubber
You know, the reason we have a public sort of system of policing and of prosecuting and so on is, you know, whether you’re rich or poor, if somebody has assaulted you, it shouldn’t depend on whether you can fund a private prosecution, you know, to have somebody do something about that. The whole reason for having a public system for that is that you don’t have a two-tier system where poor people suffer crime and rich people, you know, can fund their own prosecutions.

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Lilah Raptopoulos
Today Kadhim and I get into this. We talk about how private companies are filing criminal cases, even when the police think the case shouldn’t be tried. And we ask what’s at risk when you privatise justice? This is FT Weekend. I’m Lilah Raptopoulos.

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Before we jump in, I would like to acknowledge that we don’t usually do stories about the legal system. It’s happened once or twice. But mostly, we stick to our bread and butter: arts, culture mysterious sounds. But we want to tell this story because it’s pretty bonkers. Its impact is not huge in the UK yet, but it touches the core of what we think justice is. Do we want the state’s judgment involved when we’re prosecuting serious crimes, or do we think people should be allowed to go after whoever they think has wronged them if they can afford it?

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Kadhim, welcome to the show.

Kadhim Shubber
Thank you for having me.

Lilah Raptopoulos
So, you know, I was going to start by saying I’m excited to talk to you about private prosecution in the UK. But then I thought like, that is not a thing that sounds exciting to talk about at all. And yet your piece made it extremely interesting. And I wonder if you can start by just telling me why this is so interesting. Like, what are the stakes of this story?

Kadhim Shubber
It’s a peculiar idea. You know, we imagine whenever people are prosecuted for crimes they’ve committed, it’s the police who are involved and investigating, and then it’s government prosecutors who are in court trying to convict someone and then maybe they go to jail. Private prosecutions are this thing that we have in England and they have in other places where a private individual, private entity can do all of that by themselves.

Lilah Raptopoulos
Right. Wow. What brought you to this story?

Kadhim Shubber
My background as a reporter has been sort of almost entirely at the FT for almost nine years. And I spent a three-year stint in Washington, DC, covering the Department of Justice and the sort of US legal system during the Trump administration. And that was really my introduction to legal reporting, law enforcement reporting. So when I moved back to London at the beginning of 2021, I’ve done sort of a variety of stories that are about, you know, the UK legal system or court reporting. And I’ve been learning about how English law works despite being from the UK, having had that US sort of background, as it were.

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Lilah Raptopoulos
Kadhim says that a lot has actually been written about private prosecution, but it’s all been about cases at the corporate level. A company will have rights to something and they want to prosecute fraud, but the government is slow to take action, so they do it themselves. But what really got him interested in this was that he was seeing private prosecution happening against low-level criminals: shoplifters and really small-time counterfeiters. And when he tracked those cases back, they led him to the same set of companies which were all founded by one man.

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OK. So let’s get into that. Let’s meet these people.

Kadhim Shubber
So, yeah, the main character is a guy called David McKelvey. He is a retired police officer. He is sort of his early sixties. He’s been out of the police for about 13 years. And he has a company called TM Eye.

Lilah Raptopoulos
Is it deliberate wordplay? [laughter]

Kadhim Shubber
[laughter] Yeah, I mean, I think, the name is, relates to the origins of the company. Originally, he did investigations for copyright holders. So if you imagine companies like Louis Vuitton have an interest in clamping down on sort of fake handbags. So I think TM is sort of trademark.

Lilah Raptopoulos
Trademark eye and then, like, an eyeball.

Kadhim Shubber
Exactly.

Lilah Raptopoulos
It sounds to me like too much information which . . . 

Kadhim Shubber
(laughter)

Lilah Raptopoulos
So, OK, so he runs this company and what do they do now? Broadly, what do they do across the board?

Kadhim Shubber
So historically, they only did sort of counterfeiting trademark, copyright-type investigations. By David McKelvey’s telling, you know, what he saw after running this business for a few years was that as spending cuts were hitting various parts of the criminal justice system, that he couldn’t get, you know, the police or there’s a consumer protection agency called Trading Standards in the UK, he couldn’t get them interested in these fake goods he was finding, and they couldn’t get people to do these cases because, you know, the police had to prioritise violent crimes, for example. So he said, “Well, OK I’m going to start prosecuting these things myself.” And then as he’s gone on, he made this interesting move into what they call prolific crimes. So shoplifting. And this dovetails with another company he has, which is called My Local Bobby. Bobby is a, you know, a sort of old English word for policeman, basically. And it’s like a private security firm.

Lilah Raptopoulos
Right. They make it sounds so friendly.

Kadhim Shubber
I mean, I’m sure for the people who use the service that it gives them reassurance and that they appreciate it. But where this dovetails is that now they’re being called to shoplifting incidents and or they’re catching shoplifters themselves in the act and prosecuting them. And now you have these private companies who are doing something that, to my mind, feels, you know, really almost like quintessential like if you imagine something that the police do, right, it’s, you know, catch thieves on the street.

Lilah Raptopoulos
OK. So most of what Kadhim has said so far is not that unusual. Private investigators have existed forever. Think Sherlock Holmes, Poirot, Veronica Mars. And private security is pretty common too. You see them in department stores. You see them in gated communities. You know them. But what’s weird here is that often these guys aren’t hired by a particular client. They’re sort of just hanging around looking for crimes and hoping that the state will reimburse them later for their trouble.

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OK. So I would ask you at this point, like who were their clients? But it feels like it kind of tricky the way it works in the UK, Is that right? Who are their class? I mean, are they going to a big brand or a big department store and saying, would you like to pay us to catch your shoplifters? And then when they prosecute, they’re asking the court to reimburse them if they win. Is that how it works?

Kadhim Shubber
So this is the really fascinating thing. I completely agree with you. If you were thinking about this, you would say the way this works is companies hire the prosecutor. It’s actually a little bit different. You know, they do have, like relationships with big brands or with the shops. You know, they have sort of power of attorney from the brands they work with on counterfeiting cases. But the brands don’t actually pay TM Eye because the way that they get funded it is they self-fund the case. Then they go to the court and they ask to be reimbursed and the court has to reimburse them unless there’s a, quote, “good reason” not to.

Lilah Raptopoulos
Really? Here’s how this works in practice. A private detective will be in a busy shopping area, not in a specific store, just walking around, going to different shops. They’ll see someone who looks suspicious and then they’ll follow them until they can basically catch that person red-handed. They can also stop people who have an intent to shoplift. Like if they’re carrying a bag that’s lined with something that can fool the safety alarms. At this point, the detective will turn on a body camera and then they’ll go up to the person and ask them if they just stole what’s in their bag or pocket. David told Kadhim that people almost always just confess immediately because they’re just surprised to be stopped like this by a random stranger in the first place.

Kadhim Shubber
They don’t necessarily have their wits about them to think about whether they’re generating evidence or not.

Lilah Raptopoulos
After that, the detectives act like the real police.

Kadhim Shubber
They’ll, you know, generate a file, think about whether they want to prosecute, pass it to their lawyers. And then you go to court and the court treats you as if you were, you know, the government bringing a case before the court.

Lilah Raptopoulos
As I understood it, the securities companies, like, don’t actually have the power to detain people and they can’t force them to tell them who they are. Only the police can do that. So how are they even able to hold them? Like if they catch a shoplifter? How do they get them, let alone prosecute them?

Kadhim Shubber
It’s funny, there’s lots of things in, like, pop culture that have their roots in something that’s real. Right? So I remember, you know, growing up, you’d watch, I don’t know, like, crime shows or cop shows, and there’d be this, you know, I’m going to make a citizen’s arrest.

Lilah Raptopoulos
Yeah.

Kadhim Shubber
But that exists. Like, that’s a thing. And so in in England, you can arrest someone.

Lilah Raptopoulos
Wow. Like, I can just, you could just go and arrest someone.

Kadhim Shubber
I could just. If somebody, you know, if I saw someone and they’ve committed a crime, I could go and detain them.

Lilah Raptopoulos
Right.

Kadhim Shubber
And arrest them.

Lilah Raptopoulos
Like handcuffs?

Kadhim Shubber
Yes, with handcuffs [MUSIC PLAYING]

Lilah Raptopoulos
OK. As part of this process, TM Eye actually has to call the police to the scene. And that’s where the police decide whether or not to charge the suspect. That’s how it normally works. Usually things end there. But with private prosecution, it doesn’t end there. A private prosecutor can basically bypass or ignore the police. So let’s take, for example, this case that Kadhim writes about. The police decided not to press charges and TM Eye decided to do it anyway.

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So you talk about a case that involved a woman shoplifting from this British department store, Fortnum & Mason. Could you walk me through it?

Kadhim Shubber
Yeah. So you have, you know, it’s a pretty straightforward case of, you know, shoplifting perfume, two boxes of perfume. And that’s just the thing about shoplifting stuff like perfume is they’re small and they’re very valuable.

Lilah Raptopoulos
It’s a good thing.

Kadhim Shubber
Ideal if you’re a shoplifter. This woman is apprehended on the scene by sort of store security, and My Local Bobby, TM Eye. And police have come attend and they say, “Well, why don’t we do a community resolution order?” And that’s basically, you know, you admit the crime, you return the goods, you apologise, and the victim, the store says, you know, that’s fine.

Lilah Raptopoulos
Something tells me TM Eye does not want that resolution.

Kadhim Shubber
Well, so in this case, you know, Fortnum & Mason said, “No, we don’t want that. We want this person to be prosecuted.”

Lilah Raptopoulos
Right.

Kadhim Shubber
And so, therefore, the police left and it went to private prosecution.

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Lilah Raptopoulos
Right. Did you catch that? The police basically said, forget it. This is not worth the court’s time. And then Fortnum & Mason, the department store, said to TM Eye, don’t listen to them. Charge them anyway. You can see why all of this might be problematic. It means that theoretically anyone can hire one of David Mckelvey’s companies and the government will pay you back. In practice, though, really only wealthy people and companies can afford to just pay them for now, hoping that the government will reimburse them. By the way, if you’re not one of those wealthy people, things just don’t look good for you right now overall. The system just doesn’t have that much time or money for you.

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So Kadhim, how bad is it? Like, how underfunded is the justice system in the UK.

Kadhim Shubber
In terms of the criminal justice system in the UK, it is quite hard to overstate just how degraded it’s become. And in certain areas these problems are, you know, I think it’s, you know, slowly being addressed to some extent. But you have sort of really bad court backlogs. You have a whole swath of crimes where you look at the difference between the statistics for, like, the recorded instances of those crimes and, you know, the number of arrests or prosecutions of those crimes. And there’s an enormous gap. And so and the other thing is, you know, in England, we have this system where you have solicitors who are, you know, the lawyer that you call up when you have a problem. But the people who actually go into court and advocate are called barristers. Those rates have been slashed quite significantly and lots of them have left, which has made it even more difficult for this whole part of the law to operate.

Lilah Raptopoulos
Yeah, that makes sense. But I imagine that money isn’t the only reason that, like, a state prosecution would decide not to prosecute a case, right? Like, I’d assume the police have policies about this kind of thing.

Kadhim Shubber
And this is where you get to the sort of the . . . one of the critical differences between private and public prosecutions. So with the police and the Crown Prosecution Service, with the government, you know, the country can have a view of how certain crime should be dealt with. And you can see, you know, and this is the case in lots of countries. It is not the case that every crime is dealt with a prosecution. That’s just, you know, as a matter of public policy in England and in lots of places, we’ve decided, well, that just wouldn’t be a good use of everyone’s time. It may not be the best way to get good outcomes in terms of reducing crime. So in this particular case of Fortnum & Mason, when the CPS reviewed it, they said, well, you know, this person, you know, they’re apprehended on the scene. You know, they apologised, they showed remorse. The goods were returned.

Lilah Raptopoulos
It’s not a big deal.

Kadhim Shubber
Well, well, or rather, rather than it’s not a big deal, if the police had, you know, arrested this person and taken them to the station, they would have applied the policy approach that we have to this sort of crime at this sort of level and with these factors. And they would have said we’re going to resolve this with a caution. And so they said, well, and so therefore, we think that this person, weirdly was prejudiced by the police not arresting them. Because they wouldn’t have been prosecuted if the police had taken over the situation on the day.

Lilah Raptopoulos
Kadhim knows all this because Crown Prosecution actually reviewed this TM Eye case and they blocked it. They agreed with the police that it was right to let the shoplifter go because the crime just wasn’t a big priority for the court. What bothers Kadhim is that these reviews don’t happen nearly enough. Of the 1000 or so cases that TM Eye has filed, only 12 have gotten a review like this. And of those 12, three or four have been blocked. That’s a pretty high percentage for something that’s supposed to be acting in place of the state.

Kadhim Shubber
Now, obviously, 12 is a small sample size, but that’s you know, that’s potentially, if you extrapolate it like a lot of cases where the state may have taken a different view to the private prosecutor.

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Lilah Raptopoulos
Kadhim describes David McKelvey, the founder of all these companies, as a guy who just loved being a cop. He’s the kind of guy who thinks that it’s just not fair that there are crimes out there that we know about but aren’t getting prosecuted. So he found a way to keep doing his job while also filling this gap in the legal system. The thing is, as it turns out, trying to catch every person who’s ever broken any law is not the way that we form public policy. But should it be?

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The other side of the ethical questions around this is like the questions that come up when, as you were saying, crimes aren’t prosecuted, around fairness. Like is it fair that somebody can commit a crime and then even get caught but get away with it? I don’t even know how much I . . . I’m struggling. I feel about this, but I’m curious how you are feeling about that after writing the story.

Kadhim Shubber
I think about the fairness like a little bit differently.

Lilah Raptopoulos
Yeah.

Kadhim Shubber
Which is that I don’t think it’s fair to expect people to have to vindicate themselves when they’ve been a victim of crime. At the same time, I don’t want to be too rosy about, you know, the status quo anyway. I mean, the reality is that poor people do suffer more crime. But I think that’s the thing about private prosecutions. It enables the rich to get themselves a better chance of being vindicated against people who’ve wronged them. But it doesn’t really solve the problem of crime for people who don’t have those resources.

Lilah Raptopoulos
Right. Right. I don’t, I know that you can’t predict the future, but like knowing what you know and having reported on this, if you were to look to the future, what are you thinking?

Kadhim Shubber
I think it goes one of two ways. So take the United States, for example. If you have the police or local or district prosecutors not tackling crime, you just get more crime. And people, you know, people get very upset about it. Maybe you have a change of, you know, of who’s in charge in that area, in that city or in that state and so on. And that’s the kind of response mechanism for people not dealing with crime. Right? People vote in people who are going to tackle the problem. So in the UK, we’ve got this other valve, which is the private sector can come in and to some extent to tackle this crime and that has other factors that you got to then worry and think about. so then the question is in UK, well, is there going to be a change that means that there’s greater funding of the public system and then that kind of reduces the need and demand for these private actors? So I think it just depends on what government does in terms of the funding of the public criminal justice system.

Lilah Raptopoulos
Yeah. Yeah. Kadhim, this is really fascinating. And thanks so much for coming on the show and telling us about it.

Kadhim Shubber
Thanks. It’s been really fun chatting with you.

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Lilah Raptopoulos
That’s the show this week. Thank you for listening to FT Weekend, the life and arts podcast of the Financial Times. Kadhim’s story is in the show notes alongside a link to an excellent discount on an FT subscription. There’s also an FT.com/weekendpodcast. Thank you to everyone who sent in your summer suggestions. They were exceptional. You’re going to hear those next week where Matt Vella and I will tell you what we’re also looking forward to this summer. Can’t wait. As you know, we love hearing from you. You can email us at FTWeekendpodcast@FT.com. The show is on Twitter @FT Weekendpod and I am on Instagram and Twitter @Lilahrap. I post a lot of behind the scenes stuff about the podcasts on my Instagram. I am Lilah Raptopoulos and here’s my wonderful team, Katya Kumkova is our senior producer. Lulu Smyth is our producer. Molly Nugent is our contributing producer. Our sound engineers are Breen Turner and Sam Giovinco with original music by Metaphor Music. Topher Forhecz is our executive producer and our global head of Audio is Cheryl Brumley. Have an incredible weekend and we’ll find each other again next week.