Two bites of the apple- limitation in professional negligence cases
In April, a jury at the Old Bailey acquitted Gail Purcell of killing a cyclist, Michael Mason, by dangerous driving. Such a case would not, ordinarily, have attracted media attention. However, this case made front-page news because it was the first private prosecution in Britain to be brought by a charity and paid for entirely through crowdfunding.
In England and Wales most criminal trials are prosecuted by the Crown Prosecution Service. In this case the CPS did not refuse to prosecute; rather the Metropolitan Police never even referred the file to prosecutors. The Mason family requested a review of that decision, which was refused. The family then invited Cycling UK’s Cyclists’ Defence Fund (CDF) to exercise its right to commence criminal proceedings as a private prosecutor under section 6(1) of the Prosecution of Offences Act 1985.
A private prosecution can be started by any person or organisation and operates to all intents and purposes like a public prosecution. Such prosecutions are becoming increasingly commonplace when the state authorities, for budgetary or other reasons, decline to get involved in a case. A private prosecution is an alternative way to publicly bring an alleged criminal offender to justice and can be effective where the prosecutor wants to deter others and send a message to the public about intolerable behaviour.
Private prosecutions are privately funded by the party bringing the prosecution rather than the taxpayer. Accordingly, sufficient funds need to be available to conduct the case from beginning to end. In the Purcell case, CDF is reported to have raised over £80,000 to cover the legal costs of bringing the prosecution. Of course, private prosecution costs will vary significantly depending on the complexity of the case.
Historically, it has been uncommon for charities to prosecute criminal offences in their own right. The Charities Act 2006 requires charities to prove they have been established for a charitable purpose and act for the public benefit. Many charities have not been willing to commence criminal proceedings because of the costs involved and risk of reputational fallout if things go wrong.
The RSPCA is perhaps the most well-known exception here, having exercised its right to prosecute animal welfare offences. It recently found itself subject to criticism not only for the way in which it carries out enforcement, but also for the fact that it has a role in enforcement at all. In November 2016, an Environment, Food and Rural Affairs Select Committee into Animal Welfare in England carefully considered those criticisms and decided ‘that the RSPCA should retain the ability to bring private prosecutions where it reasonably believes that there is no statutory alternative and where such a prosecution would further its charitable objectives’.
Given this important endorsement and the recent growth of crowdfunding platforms, there is absolutely no reason why charities should not become more active in the field of private prosecutions, provided they can demonstrate that they act with consistency, fairness, and balance in holding to account those who break the law.
For charities whose interests align with policing priorities, such as those working towards preventing child cruelty, race crime, or domestic abuse, the state will take on the responsibility of prosecuting on their behalf. Unfortunately, the state does not have limitless funds to dedicate to prosecuting all crimes. Charities representing the elderly or disabled, the environment, and those with a retail shop network, might well be among those in the third sector who will become more active in the field of private prosecutions in future.
Critics may say that the acquittal of Ms Purcell shows that criminal prosecutions are better left to the state rather than private individuals and organisations. However, in my view, such criticism is short-sighted. First, the bringing of the private prosecution ensured that evidence was placed before a jury to enable them to decide on the guilt or innocence of the accused. Second, the role of the prosecutor, whether public or private, is to ensure that a just verdict is reached at the end of the trial process and hence not all prosecutions will result in a conviction. That is the nature of justice.
Notwithstanding the jury’s acquittal verdict, the Purcell case is important and a sign of things to come. It shows that in the right circumstances the commencement of criminal proceedings provides a visible way for charities to act in furtherance of their charitable objectives and for the public benefit. And crowdfunding makes this ever more possible.
This blog was first published on Solicitors Journal on 10th May 2017
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