David McKelvey had the relaxed dress of a former police officer whose days of sprinting after suspects are well behind him: shorts, Crocs, a polo shirt. I met him last summer at the headquarters of his company, TM Eye, which investigates shoplifters and counterfeiters for private clients. The office is located in a small suburban business park on the outskirts of London, a collection of low-rise brick buildings tucked alongside blue corrugated-roofed garages.
It was cramped inside and filled with files, surveillance equipment and pinboards tacked with pictures and string linking apparent suspects. Many of the staff are retired police officers like McKelvey. The headquarters includes a control room fitted out with a dozen or more screens where he can oversee operations in the field. One of the displays showed the central London office of My Local Bobby — the name of McKelvey’s private security service — where two employees were taking a lunch break, one with his feet on a table. “Lazy sods,” McKelvey joked.
Sixty years old, with short, neat brown hair, McKelvey is enjoying his second career in law enforcement, this time in private practice. TM Eye initially specialised in corporate investigations, pursuing counterfeiting cases for big brands. The company would look into fake luxury handbag smugglers, for example, then report its findings to the police or Trading Standards, the UK authority that enforces consumer protection laws. “We used all the skills we got from inside the police,” he said.
But, after a few years, McKelvey noticed the authorities were becoming less interested in the type of crime he was uncovering. “It would be almost impossible to get them to do any raids, searches, or investigate any fake goods cases . . . So you had situations where you’d get a lorry-load of fake goods and nothing was happening.”
McKelvey began prosecuting counterfeit cases himself, using the law firm Edmonds Marshall McMahon (EMM), which calls itself “the private prosecution specialists”. He also runs a roving detective service to catch shoplifters in the act. He estimates that TM Eye has prosecuted more than 800 cases since 2015. “We’ve lost one,” he boasted. “Sometimes juries make silly decisions.” Most are resolved before trial with guilty pleas.
TM Eye is at the forefront of a growing wave of private prosecutions in England and Wales, underpinned by the ancient constitutional power of every citizen to don the robes of a prosecutor even if the state refuses to take up your case. Once a little-known peculiarity of English law, the tool has become the foundation of a burgeoning industry filling the gap left by a retreating state. For those who can shoulder the costs up front — typically companies and the wealthy — investigators and lawyers will work, literally, to imprison your enemies. Whether the case succeeds or not, the government will cover at least some of your expenses afterwards.
TM Eye’s clients have included Apple, Louis Vuitton, Mulberry and Fortnum & Mason, while its targets have ranged from organised crime operatives to young women on benefits hawking fake designer jewellery and tracksuits on Facebook. After more than a decade of austerity, the wheels of British justice have ground almost to a halt for a broad swathe of crimes. Private prosecutions allow those with money to buy their day in court.
On a bright, chilly November morning, Shaun Kerrigan, a TM Eye detective, was scouting the King’s Road in west London. In white trainers, jeans and a beige gilet, the 22-year-old blended in with the shoppers browsing the luxury boutiques and upmarket chain stores. Originally, Kerrigan wanted to join the police but was put off by a short-lived requirement, introduced in 2019, that trainees have a degree. Instead, he became a store detective, then an investigator at TM Eye. When he was offered the job, Kerrigan felt intimidated by the company’s ranks of former police officers, but a friend at Trading Standards persuaded him to accept, telling him: “If David McKelvey offers you a job, take it.”
Kerrigan and his colleague Anthony, a bearded man in his mid-forties, strolled up and down a half-mile stretch of the King’s Road for hours, from Sloane Square at the eastern end to Chelsea Old Town Hall, on the lookout for shoplifters. It’s a hazy sort of task. Kerrigan said they had a “knack” for spotting people who were out to steal. Some of their targets are people they’ve caught before. Others engage in suspicious behaviour, such as walking past a shop several times before entering. “Anyone who looks sort of out of place, we monitor them for a bit,” said Kerrigan. Sometimes they’ll then detain the person immediately, other times they’ll follow the person into multiple shops as they build up a cache of stolen goods. “Is this person just starting out their day shoplifting or do we think they’ve got what they want — they’re gonna jump on the train now?” Kerrigan said.
He wears a body camera and carries a pair of handcuffs he said he rarely needs. When they do stop a suspected shoplifter, it’s under the power that every person in England and Wales has to make a citizen’s arrest. The arrest itself is a key part of the evidence-gathering process. Investigators read out the standard police caution, noting that anything a suspect says may be used in court, and then ask questions to try to extract an admission of the offence.
Their primary challenge is not aggressive suspects or a lack of evidence — when people are caught red-handed, they often just admit what they’ve done — but knowing who they’ve caught. You can’t prosecute someone if you don’t know their name and don’t know where to send the court summons, and only the police can compel a suspect to identify themselves. But, given the choice of standing around for hours waiting for the police or receiving a court summons in the mail for a relatively minor offence, Kerrigan said suspects usually take the latter option.
We set up watch outside the Saatchi Gallery, across the road from a branch of Boots, the health and beauty shop, which Kerrigan said is a frequent target for shoplifters. Toiletries and perfumes are ideal from a thief’s point of view; they’re small and valuable. Kerrigan said they recently spent weeks in the west London district of Ealing where he and Anthony made almost 100 arrests. Local stores were happy that shoplifters had been driven away, but Kerrigan conceded that “we do end up unfortunately just displacing them.” He said a “large percentage” of the people they caught were stealing to fund drug habits or had been to prison before. “The reality is they’re probably going to other areas. They still need to get their fix.”
Later, Kerrigan told me there was a learning process every time he talked to shop managers about how TM Eye could help tackle shoplifting. The idea that policing crime is the job of the state is deeply ingrained. “Everyone just assumes that it’s the role of the police,” he said. “Which it should be.”
TM Eye’s private prosecutions of petty crimes — which it calls “prolific crimes” — is one of the most controversial aspects of its business. Though the private sector has had a longstanding role in helping curb trademark crimes, the use of private prosecutions against shoplifters is a throwback to another era of criminal justice. Before the creation of the Crown Prosecution Service (CPS) in 1985, it was not uncommon for supermarkets to prosecute thieves, according to Peter Hungerford-Welch, a law professor at City University. “We’re kind of going back to where we were before.”
Penelope Gibbs, founder of Transform Justice, a criminal justice reform charity, said the idea that prosecutions can solve the problem of crimes like shoplifting is “pie in the sky”. “Most of those who are prolific shoplifters have a drug addiction problem . . . They’ll go to magistrates’ court and get fined, and that’s not going to help with the cycle of offending. Or they’ll get a short prison sentence, but that’s equally useless at changing the behaviour.”
Last year, Andy Cooke, Chief Inspector of Constabulary, said that, given Britain’s cost of living crisis, officers should use their discretion in deciding whether to charge shoplifters. The then policing minister Kit Malthouse criticised the comments, arguing that police forces “should not be ignoring those seemingly small crimes”.
McKelvey agrees. More criminals should be put in front of judges, he argues, not fewer. He dismisses the use of cautions (formal warnings given by the police to someone who admits an offence) as spur-of-the-moment decisions that should be the domain of the courts. “There’s far too much at the moment of the police being given the responsibility of making decisions as to whether someone’s guilty or not guilty,” he said. He scoffed at current arrest rates. In the year ending March 2022, police in England and Wales made 663,000 arrests. There were 140,000 officers on duty that year, so around five arrests per officer. “As a young police officer there wasn’t a day went by that I didn’t arrest someone,” he said.
McKelvey joined London’s Metropolitan Police in 1982. In his early career he shone as a “thief taker”, a plain-clothes officer doing the kind of work he would later send Kerrigan out to do for TM Eye. He went on to become a detective in the criminal investigation department, receiving multiple commendations for leadership and bravery. In 2007, while head of a crime squad in Newham, east London, he was investigating a notorious organised crime group when he received a tip that a £1mn bounty had been put on his head and those of two colleagues. Rather than taking the plot seriously, McKelvey claims the Met’s anti-corruption unit investigated him instead. “I remember at the time just thinking, I’m being fitted up,” McKelvey told the BBC’s Panorama programme years later. He was ultimately cleared of wrongdoing and retired in 2010. He sued the Met and won an apology and damages in 2016.
Despite the way his police career ended, McKelvey sees life in the private prosecution business as an extension of his life-long vocation. “We’re good detectives, you know. We dealt with armed robberies. We dealt with drugs offences. We dealt with rapes, murders and everything else,” he told me. “We ain’t making loads of money, but . . . we’re doing something we love.” The financing of the cases works like this: TM Eye bears the upfront costs of finding and investigating suspects, then passes a file to its outside law firm to prosecute. Once each case is wrapped up, the law firm asks the judge to reimburse its costs, and those of TM Eye, from central government funds. The law requires courts to agree, unless “there is good reason for not doing so”.
Since 2014, the company has been the number one applicant knocking on the government’s door each year and asking for private prosecution costs to be paid, in terms of number of claims. The companies that TM Eye acts for never pay a penny. In all, the firm has claimed costs of around £12mn and been paid £6mn by the government, according to data obtained by the FT through a freedom of information request. The company declared about £1mn in profits overall and has made losses in recent years, its accounts show. “We’re policemen, we’re not business people,” McKelvey said. “I didn’t set the business up because I want to make millions and millions of pounds. I set the business up because I still wanted to do that sort of work. And I still want people employed here to do that sort of work.”
Private prosecutions in England have their roots in the Middle Ages, when victims of crime were expected to seek justice by petitioning justices of the peace, clergy or the monarch. After the creation of professional police forces in the 19th century, the police became both investigators and prosecutors of most criminal cases, along with county prosecutors and private individuals. It was only in 1985 that England and Wales finally got around to creating a single prosecuting agency. The right to privately prosecute remained throughout as a safeguard, as one top lawyer put it in 1977, “against capricious, corrupt or biased failure or refusal” of the authorities to prosecute offenders.
The most famous private prosecution in recent history fit that description. In 1994, the parents of the murdered black teenager Stephen Lawrence brought a case against four of his suspected killers after the CPS declined to pursue them. The case ultimately collapsed but helped keep public attention on the crime. Two men were finally convicted of Lawrence’s murder in 2012 after four police investigations, a judicial inquiry and an inquest. Private prosecutions can be “kind of a safety valve”, said Hungerford-Welch. But they have also created serious controversy. The Post Office wrongly prosecuted hundreds of postmasters using unreliable evidence. The RSPCA, the primary enforcer of animal cruelty laws, has faced criticism over its dual role as a campaign group and private prosecutor of those who violate these laws. In 2021, it announced that it would stop bringing prosecutions.
The dangers of private prosecutions are obvious. Government prosecutors, zealous as they may be, are not the victims in the cases they bring, nor are they paid specifically per case. Private prosecutors can lack distance. Then there is the inherent unfairness of putting the burden on victims to put criminals in jail, Hungerford-Welch argues. “It’s being used [as] much more than a safety valve these days,” he said. “There seems to be a clear link with the lack of resourcing on the part of the police to investigate cases . . . I’m thinking of it from the point of view of victims of crime. Why should they have to bring their own prosecution?”
Behind the resurgence of privately obtained justice is the slow and steady degradation of publicly funded criminal justice in England and Wales since at least 2010. Successive Conservative-led governments cut funding for police, CPS, the defence bar and other parts of the judicial system. The Ministry of Justice’s budget fell by double-digit figures in real terms in the decade after 2010. Court buildings have become seriously dilapidated after years of poor maintenance. Many have closed altogether. “Even in the most serious cases involving terrible personal and societal distress, and fatality, the chronic underfunding of the system is still causing justice to be delayed significantly,” said Mark Harries KC, a top defence barrister.
In such circumstances, it is inevitable that the well-resourced would look to privately funded options. The undesirable outcome is a split between those who can afford to pursue a case and those who, as Harries put it, “are deprived of justice that someone else could pay to give themselves, at the very least, a better chance of achieving”. But the opportunities granted by private prosecutions are not without limit. While they can help well-resourced victims avoid delays caused by overworked police and CPS staff, the advantages are curtailed when it comes to bottlenecks in the courts themselves. “A private prosecution is at the same mercy of the court estate,” Harries said. “They have to get in line and wait with everyone else.”
McKelvey, whose LinkedIn profile begins with the unattributed quote, “The Only Thing Necessary for the Triumph of Evil is that Good Men Do Nothing”, concedes that the growth of private prosecutions is a symptom of a broken system. If the state won’t tackle crime, “someone’s got to do it”, he told me. He also sees TM Eye’s work as keeping the flame alive for an older style of policing that emphasises arrests and convictions, even for petty crimes. “Why should someone get away with committing a crime? It’s not right. It’s about justice.”
A security officer at Fortnum & Mason, the upmarket department store in central London, first spotted the woman in the perfume section on the second floor. It was a Tuesday afternoon in August 2021. The woman was 21 years old, wearing a blue dress and carrying a large yellow bag from the department store Selfridges. The officer watched on CCTV as she picked up two boxes of expensive perfume — Maison Francis Kukdjian’s Baccarat Rouge 540 and Oud Silk Mood — worth £640. The woman walked to the scarf section near the tills and chatted with staff. Then she circled back around the perfume aisles, leaving the boxes at the tills. When she returned, she put the perfumes in her bag and ducked into the ladies’ toilets. Two minutes later, she emerged and made a beeline for the exits on the ground floor, heading down a side street on the west side of the shop, where she was finally apprehended.
Fortnum & Mason’s first call was not to the police, but to McKelvey’s My Local Bobby service. Kerrigan soon arrived on the scene. The woman was taken to a “secure holding area”, court documents later showed, where she was asked to empty her bag. She admitted the theft. “I don’t know what it is, maybe it was the temptation. I am so sorry for it,” she said. “I don’t know what was going through my mind.” The police were called. When they arrived, they confirmed her details and discovered she had given the wrong name and date of birth to Kerrigan and to store security. The police decided not to investigate the theft and instead opted for “community resolution”, an informal option for minor offences that requires a victim’s consent. That wasn’t good enough for Fortnum & Mason. It asked TM Eye to prosecute.
The case proved to be one of the rare instances where the CPS intervened to halt proceedings after the woman’s lawyers approached them directly. (According to an FT freedom of information request, only 12 out of hundreds of TM Eye cases were referred to the CPS between 2017 and 2022; four were blocked.) If the police had investigated the Fortnum theft, the likely result would have been a formal caution, an outcome that avoids prosecution. The woman had no prior convictions, had readily admitted the crime and expressed remorse, and the goods had been recovered — factors that typically weigh in favour of an out-of-court resolution for lower-level crimes.
The CPS lawyer who reviewed the case said it was not in the public interest to continue TM Eye’s prosecution. “The defendant did not have the opportunity of making admissions in the police interview to be considered for a police caution . . . It is fair to say that the defendant has been prejudiced by [the police’s] lack of action in that the defendant is now facing a private prosecution,” the CPS lawyer told EMM, TM Eye’s lawyers, the court record shows. The CPS also took into account unspecified “personal circumstances”.
TM Eye opposed the FT’s attempt to obtain certain court documents regarding the case, including its initial application for a summons and its application for costs. At a court hearing about the FT’s request in March, Andrew Marshall of EMM said the prosecution was an “exceptional” case that had no bearing on TM Eye’s wider work and was unlikely to ever be repeated. The judge said the police had been wrong to offer a community resolution process and that TM Eye’s decision to prosecute had been “properly made”, but also granted the FT access to the documents. TM Eye and EMM were ultimately paid £8,000 by the government for the case, according to Ministry of Justice data obtained through an FOI request, the bulk going to the lawyers.
TM Eye has a complicated relationship with the government. It works alongside police forces, including Greater Manchester Police, to tackle the sale of fake goods. Christopher Mossop, a GMP detective, told the FT that TM Eye’s prosecutions often laid the groundwork for follow-up action by the police and freed them to work on more serious crimes at a time when they needed to make tough choices. “It does assist in filling the gap,” he said. Along with EMM, the company has permission to submit information about convictions to the Police National Computer, a database that includes details of criminals.
Historically, the government has had little idea what cases were being prosecuted privately. Courts only began keeping a private register of such cases in 2021. The CPS has successfully argued against regulations that would require it to be notified of every case, saying it would be forced to review each one, an enormous administrative burden. It has even argued against requiring private prosecutors to tell defendants they have the right to appeal to the CPS. It’s enough, the CPS argues, that the information is on its website.
In early September 2020, a 44-year-old woman from Southampton appeared in crown court to plead guilty to charges brought by TM Eye. The woman had run a Facebook page selling counterfeit clothes and accessories. The previous year, an “undercover operative” employed by TM Eye purchased three fake items from her: a £45.70 Pandora necklace, which would normally retail for around £100; a £33 Louis Vuitton handbag, which would usually cost £1,100; and a £26 Hugo Boss tracksuit, usually £119. The operative paid via PayPal and received the products in the post.
TM Eye had been granted power of attorney by Pandora, Louis Vuitton and Hugo Boss to protect their intellectual property and to bring prosecutions. In court, TM Eye’s barrister, Claire Cooper, told the judge that the woman’s Facebook sales “appeared on the face of it to be a very lucrative business”. Messages on the page made it “abundantly clear that she knew that she was trading in counterfeit articles”, Cooper added. TM Eye was seeking to have the costs of the case paid, at over £30,000, and wanted £2,500 of that to come from the woman in the case. The biggest chunk, £14,132.80 was due to EMM. The itemised bill also included £3.92 for “Post Office” costs.
The presiding judge, Nicholas Rowland, was withering in his response. “On the face of it, the taxpayer is paying for very large companies to proceed against this defendant who has probably very little money, which is, some may say, unpalatable,” he told Cooper. She replied that TM Eye’s court-awarded payouts were typically reduced on review by the Ministry of Justice so that they were “nowhere near” the amount initially claimed. This argument had the “opposite effect to that intended”, Rowland later wrote. In the hearing he referenced the Criminal Procedure Rules that require private prosecution costs to be paid unless there is good reason not to. “A good reason for not doing so may be that the effective prosecutors, the three companies, are extremely wealthy,” said Rowland. Cooper replied: “I couldn’t possibly comment.”
The idea of the woman paying £2,500 was far-fetched. She was a single mother with a three-year-old daughter. She previously worked night shifts, but since separating from her daughter’s father had been working just 12 hours a week. “The motivation in relation to this offending came from her dire financial situation,” said her barrister, Gemma White, adding that the scheme had generally involved skimming just a couple of pounds on each purchase after connecting buyers to China-based sellers. Her most recent bank statements had shown a starting balance of £19.16 and an end balance of £63.94. As the judge put it: “She has no money. That’s the reality of it, isn’t it?”
Rowland gave the woman a suspended sentence, meaning she avoided jail, though he was unsparing in his assessment of her conduct. “It was just out-and-out dishonesty in relation to those fraudulent goods. So a prison sentence is highly justified in this case,” he said. But he declined to order her to pay any costs, or to grant TM Eye’s broader request for compensation given the trio of well-resourced companies affected. “In the circumstances of this case, with those three losers, [it] doesn’t seem to me it’s appropriate that the taxpayer should bear the burden of financing this prosecution,” he said.
When I spoke to McKelvey about the case some two years later, he was still annoyed about the outcome. He said the judge’s argument called into question the entire premise of trademark law, which inevitably protects wealthy brand owners. “What’s the point in having a trade marks act if you’re not going to enforce the law?” He believes that petty crime is often the thin edge of a much bigger wedge of criminal activity. “People say, oh, yeah, what’s the problem in selling a Mulberry handbag? The problem is that behind it sits organised crime on a massive scale, that is funding terrorism, organised crime, human trafficking, human slavery.” TM Eye tried and failed to overturn Rowland’s decision at the High Court, where judges said the wealth of the brands was irrelevant but criticised TM Eye’s failure to involve the CPS in the case or reconsider the prosecution when the woman offered compensation.
In July 2020, McKelvey provided written evidence to a parliamentary committee looking into private prosecutions. He described succinctly what had led his company to pivot from private investigations to prosecutions, and from fake goods and IP crime to more general offences such as shoplifting and theft. “TM Eye began prosecuting . . . following the government austerity cuts and reduction in police and law enforcement activity,” he wrote. “The reality is that victims of crime are finding it more difficult to report a crime, have that crime recorded or investigated and are very unlikely to see the perpetrator prosecuted or convicted.”
He noted that even in instances where there was strong evidence of guilt, police in England and Wales were sometimes still unable to bring a perpetrator to justice due to their stretched resources. “Private criminal prosecutions have become a realistic alternative,” he concluded. In defending the value of TM Eye’s work he had underlined the shrinking of the criminal justice system for ordinary people. Left unsaid was what such a fundamental shift might mean for justice as a whole.
Kadhim Shubber is an investigative reporter at the FT. Additional reporting by Max Harlow
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