“Justice delayed is justice denied”. One could also say, "justice denied, is justice denied". With resources in the criminal justice system at breaking point at every level - from policing, to the Crown Prosecution Service (“CPS”), to the courts - victims of crime are increasingly struggling to access justice.
The charity sector is particularly vulnerable to crime. In 2024, it was reported that 42% of UK charities reported fraud or attempted fraud against them in the prior 12 months (BDO Charity Fraud Report 2024).
This amounts to around 10,000-20,000 instances of fraud in one year. Fraud (internal and financial fraud) is the most common crime reported by charities, but charities can be victims of a range of crimes, including cyber-crime and theft.
While crimes against charities are prevalent, enforcement against those criminals is not. Charities frequently find that police are either uninterested or unable to investigate the vast volumes of crimes suffered in the charity sector. This experience leads to apathy in the reporting of crimes, which exacerbates the pernicious cycle of underenforcement.
Private prosecutions
Private prosecutions can offer a more efficient and effective way of accessing justice for victims and deterring further criminality.
The right to bring a private prosecution is afforded under section 6(1) of the Prosecution of Offences Act 1985, and many organisations, including charities, are now regularly using those powers.
This power is not completely unfettered – the Director of Public Prosecutions can intervene and take over or discontinue any private prosecution. It is important that the private prosecution is brought and handled in a way that is fair, independent and without improper motive or undue pressure from any source.
When might a private prosecution be appropriate?
- Lack of police time or interest
As mentioned above, the unique characteristics of charities (for example, high trust environments, use of volunteers and complex, high volume cash handling and funding) make them more susceptible to crime. Charities will also take an interest in crimes committed against others if it falls within that charity’s interests, causes and objectives.
Crimes suffered by charities, or falling within a charity’s specific interest, may be deemed by the state (the police and CPS) to be too minor and/or not in the public interest to pursue. This can be highly damaging to a charity or their particular cause.
Where the state is unwilling or unable to take action in these circumstances, private prosecutions can be a useful route to justice. Private prosecutions can achieve compensation or other ancillary orders (such as behaviour or restraining orders) for the charity. Importantly, a successful prosecution can send out a robust message deterring others from participating in similar criminal behaviour.
While it can be costly to bring a private prosecution, the private prosecutor’s reasonable costs can, in certain circumstances, be recouped from the state following the trial, regardless of the outcome – conviction or acquittal.
- Where the state lacks the tools or expertise to handle specialist legislation
Charities operate in highly specialised or niche areas, and with that comes uncommon legislation or regulation. Examples (non-exhaustive) can include legislation relating to animal welfare, environmental or rural crime, safeguarding and exploitation, mental health, housing, immigration and hate crime.
When local police and CPS units lack the particular expertise or experience in certain areas of law, prosecution activities can be lacklustre. Sometimes the wrong offences are charged, or the right offences charged out of time, leading to an avoidable collapse in the prosecution.
Charities, with their highly specialised knowledge in their areas of interest, are well equipped to conduct prosecutions in these areas. By utilising private prosecutions, charities can harness their expertise to take action against criminals harming their interests.
Private prosecutions, unlike prosecutions by the state, allow the private party to retain a high degree of control over the process. While the prosecution must always be fair, independent and consistent, the private prosecutor can control the amount of resource that goes into the prosecution, timescales (to some extent), and visibility by the victim.
- Action against individuals working within charities who defraud the charity/misuse charitable funds
As has been mentioned already, the method of employing individuals within charities (typically use of volunteers) and the structure of governance (sometimes informal or casual), can make them particularly susceptible to crimes perpetrated by their own employees.
Such fraud is typically deemed by police and the CPS to be civil in nature, meaning that prosecutions are deprioritised. The document heavy and technical side to such crimes - such as false accounting, fraud and proceeds of crime offences – can mean police investigations take years to conclude.
Private prosecutions can cut through these issues. As the victim, the charity is in the best position to collate the evidence proving that a crime has been committed. Again, the charity can control the pace and scope of the prosecution. The charity can apply for asset recovery, compensation and other orders (such as restraint and confiscation) on sentence. In optimising private prosecutions, where appropriate, a charity can demonstrate serious governance and zero tolerance to fraud.
Should you have any questions about private prosecutions, please contact a member of our team of regulatory, criminal and civil litigation lawyers, who are experts in private prosecutions. We regularly help charities, other organisations and individuals bring private prosecutions when the public investigation and enforcement agencies are unable or unwilling to act. By involving us from the earliest stage, we can advise you on what course of action is best suited to your particular case.
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