Going… going… gone. When is a contract formed at auction?
This week Britain’s first crowdfunded prosecution was conducted in the Old Bailey.
On 25 February 2014, 70 year old Michael Mason was hit by Gail Purcell’s vehicle whilst cycling on London’s Regent Street. Mr Mason died in hospital 19 days later having never regained consciousness. The case was referred to the Metropolitan Police but they decided to take no further action. Mr Mason’s family, not prepared to take no for an answer, pursued justice by commencing a private prosecution. The prosecutor in this case was the Cycling Defence Fund (CDF) a subsidiary of Cycling UK; a charity which acts to raise awareness of the laws relating to cycling in the UK. The costs incurred in bringing the prosecution were met entirely through crowdfunding.
In England and Wales a private prosecution can be started by any individual, organisation or charity. The private prosecutor fulfils the same role and has the same responsibilities as a state prosecutor. This was reiterated to the jurors at the outset of the case against Ms Purcell, where they were advised by prosecuting counsel that the fact that CDF was bringing the case rather than the Crown Prosecution Service (CPS) should not affect their approach.
In a private prosecution the prosecutor pays for the cost of the criminal proceedings whereas the prosecutions commenced by the CPS are paid for from the public purse. The cost considerations can be a significant hurdle to anyone contemplating commencing a private prosecution. To get over that hurdle the CDF created an online crowdfunding webpage. Crowdfunding is a relatively modern practice which involves funding a project or venture by raising small amounts of money from a large number of people. To date crowdfunding practices have predominantly been used to raise funds for new small business ventures or creative projects. This case against Ms Purcell is the first instance in Britain of a private prosecutor raising the fees by way of crowdfunding. In total, the CDF was required to raise funds of approximately £80,000 to see the prosecution funded from beginning to end. It is common that private prosecutions will require at least this scale of investment and in complex or lengthy cases often significantly more.
The case against Ms Purcell is not the first time a cyclist has brought a private prosecution against a driver. In 2016, Martin Porter, the 'cycling barrister', brought a private prosecution for dangerous driving against driving instructor Aslan Kayardi, once again, after the Police decided not to prosecute. The case involved evidence in the form of video footage recorded with a small video camera on the cyclist’s handlebars. Although the prosecution in this case was ultimately unsuccessful, with Mr Kayardi being acquitted by the jury, the judge ordered that Mr Porter be awarded his costs from central funds pursuant to Section 17 of the Prosecution of Offences Act 1985.
Whilst the private prosecution of Ms Purcell ended in an acquittal, Mr Mason’s family should take some comfort from the fact that that she has been required to account for her actions and the evidence has been placed before a jury. With an increase in the prominence of online crowdfunding platforms, it is likely that we will see a rise in the number of cases which are financed using this method. In particular, we expect to see more charities using crowdfunding to enable them to take action when the state prosecution agencies are unwilling to act. The first crowdfunded private prosecution by a charity is in our view a sign of things to come.
Melinka leads the team at Kingsley Napley responsible for conducting regulatory and private prosecutions. She also sits as a member of the RSPCA’s Prosecution Oversight Panel. Luke is a member of the team involved in conducting private prosecutions on behalf of individuals, charities and organisations.
You may also like to read Melinka's article in Third Sector, which was published in May 2016 here.
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