Best practice guide for charities conducting private prosecutions

The Charities Commission has recently warned that fraudsters are exploiting the spread of coronavirus (COVID-19) in order to carry out fraud and cybercrime against charities.  Unfortunately, in our experience, the likelihood of the police taking action against these individuals is low. The reality is that the police and other traditional law enforcement agencies have suffered massive cutbacks and they no longer have the resources to dedicate to certain types of crime. In the current climate it is easy to understand why the use of private prosecutions is firmly on the rise.
 

A privately brought criminal prosecution can be started by any individual, company or charity, and are particularly useful when the state-run prosecution agencies are unwilling or unable to assist. It can provide victims of crime with an alternative way of accessing justice and can be an effective way of deterring others by sending a public message about intolerable and criminal behaviour.

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. Bringing criminal prosecutions privately should always be a measure of last resort but sometimes conduct is serious enough to justify criminal enforcement.

In the past, some charities have been criticised for having an overzealous approach to the conduct of their private prosecutions.  In this blog, we highlight the importance of taking a few simple steps to ensure that charities who conduct private prosecutions are beyond reproach.

Best practice

To ensure best practice when using private prosecution powers, charities should ideally consider the following steps:

1. An oversight group should be set up to promote accountability through independent monitoring that prosecutions are at all times proportionate and appropriate;
2. Separation between the persons tasked with conducting investigations and those making decisions on prosecution is advisable; as well as clear delineation between any enforcement team and campaigning or publicity teams. An independent chain of responsibility for complaint handling is also prudent;
3. A clear enforcement policy should be publically available, which sets out what factors will weigh in favour of a prosecution and, in particular, considered in the public interest;
4. Proper record keeping is important when deciding to commence a prosecution, namely can the sufficient evidence and public interest tests be met according to the Full Code set out in the Crown Prosecution Service (CPS) Code of Conduct; and
5. Establishing open channels of communication with state-run prosecution agencies is recommended and having memoranda in place with these agencies which define what offences will be reserved to them.

Important considerations

There are significant cost considerations when it comes to bringing a private prosecution as the prosecutor pays for the cost of the criminal proceedings upfront. Increasingly charities, in particular smaller charities, are going down the route of funding prosecutions through crowd-funding. One feature of private prosecutions that may render them more attractive than civil litigation is that the prosecutor can recoup their reasonable legal costs following the trial; provided the prosecution was handled appropriately throughout proceedings.

The Director of Public Prosecutions has the power to intervene and take over or discontinue any private prosecution if there is insufficient evidence or it is not in the public interest for it to proceed. Again, this is a consideration which demonstrates why it is important for the charity to get it right from the outset.

For the public to have confidence in our justice system, it is vital that organisations that bring private prosecutions do so fairly, independently and objectively with a view to achieving justice and without being affected by improper motive or undue pressure from any source. Where charities act with consistency, fairness and balance, private prosecutions are a very useful legal tool to hold to account those that that break the law.

Please note that the information contained in this blog is correct at the time of writing and it does not constitute legal advice and specialist advice should be sought in individual circumstances.

Further information

You may be interested in reading some of our other blogs about private prosecutions or our guide to getting started for further information.

See also our blog series for charities with a range of topics including litigation, crisis management and investigations.

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.

About the authors

Melinka Berridge is a Partner at Kingsley Napley. She is a founding member and the Executive Secretary of the Private Prosecutors' Association and she leads the team at Kingsley Napley responsible for the conduct of private prosecutions.

Shannett Thompson is a Senior Associate at Kingsley Napley. She specialises in helping individuals and organisations who have been the victim of crime hold offenders to account.