Many charities make effective use of "public interest litigation" to seek to deliver changes that help pursue their charitable objectives, for example environmental charities seeking to enforce laws against polluters, or requiring governments to do so as they should. But as the Government seeks to limit the scope of judicial review as a means of holding it to account, and in other areas statutory enforcement bodies, such as the police and trading standards, have faced substantial budget cuts, organisations are increasingly looking to protect their rights and those of their beneficiaries via private prosecutions in the criminal jurisdiction. But there are limits to what they can do.
On 2 November 2021, sitting at Manchester Crown Court and handing down his ruling on matters involving Animal Protection Services (APS), a recently registered charity, His Honour Judge Nicholas Dean QC set the proverbial cat amongst the pigeons. APS had sought to pursue their objectives of “promoting humane behaviour towards animals” and to “prevent and suppress cruelty to animals” by bringing prosecutions for offences relating to animal welfare.
What is a private prosecution, and why would a charity bring one?
A private prosecution is a criminal case brought by a private individual or organisation rather than by the state. Private prosecutions can help charities deliver their charitable objectives. For example the RSPCA is well known for bringing prosecutions under the Animal Welfare Act and other legislation. It brought over 1,400 cases in 2019. There may be other circumstances where a crime has been committed that affects the charity or its beneficiaries, but the authorities can’t or won’t intervene. An example might be where the police will not, or cannot, bring charges in a domestic abuse case or where trustees have been found to have acted fraudulently in order to make illicit financial gain. There may also be circumstances where a private prosecution gives the charity more control over a case and how it’s conducted, rather than relying on the state to pursue the matter. For example the charity may have access to specialist expertise that the state doesn’t.
The tests
In the context of private prosecution, a lawyer (or an individual with certain proscribed powers) must follow the Code for Crown Prosecutors and ensure that they are:
- “…satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction.” (The Evidential Stage); and
- “where there is sufficient evidence to justify a prosecution go on to consider whether a prosecution is required in the public interest.” (The Public Interest Stage)
If the lawyer is of the view that either test is not passed they cannot start a criminal case regardless of the client’s wishes.
Criticism by the Court for bringing private prosecutions
APS claims to further its objects by investigating and prosecuting individuals who breach animal welfare regulations. However APS was criticised by the Court for the way it had conducted itself in bringing the prosecutions. APS and its trustee were working closely with two organisations: a law firm and a prosecutions company, and appeared “connected” to them. In considering the case, the Court criticised APS and the law firm because:
- they had provided no real evidence about the alleged crime
- there had not been an impartial review of the evidence to consider whether there was a realistic prospect of the case being successful and insufficient consideration given to whether a prosecution was in the public interest, as opposed to other remedies such as the issuing of a formal warning and
- the whole case appeared to be set up with the aim of getting financial recompense for APS and the law firm
The Court said that it couldn’t go so far as to say there had been fraud, but there was clear evidence that the case had been brought for improper motives and the solicitors did not care whether the evidence demonstrated realistic prospects for conviction or whether there was a public interest in prosecuting.
It would be surprising if there were not regulatory investigations instigated by the Solicitors Regulation Authority into the law firm and the Charity Commission into APS and its trustee. Given charities must only act to deliver “public benefit” and that any “private benefit” must only be incidental to the public benefit, it might be that APS will have failed to act solely for the public benefit if ultimately the purpose of the prosecutions were to generate fees for the law firm and prosecution company.
What should charities do before starting legal action to avoid similar criticism?
When deciding whether to bring a private prosecution, charity trustees must take account of all the usual legal requirements that apply to trustee decision making including having a clear understanding as to how the case seeks to achieve the charity’s objects. It is important that charity trustees consider all relevant factors before pursuing any form of litigation. The Charity Commission has issued guidance for trustees in relation to taking and defending litigation which sets out key principles to consider.
However, the bringing of proceedings for the purposes of delivering a charity’s purposes, as would be the case in bringing a private prosecution, will fall within the Commission’s guidance on campaigning and political activity. Seeking to ensure existing laws are enforced is regarded as “campaigning” for the purposes of the Commission’s guidance.
The case shows that charities and their trustees, and anyone considering a private prosecution, must ensure that they have taken proper and pragmatic advice on considering both whether a private prosecution is required and then how best to begin the process. They should be aware that if they do not do so regulatory and other statutory investigations into their actions will, ultimately, follow.
Private prosecutions are important for the state and the citizen. They allow organisations such as charities, which represent the interests of victims of crime, to pursue justice in the criminal jurisdiction by seeking to instigate their own proceedings without the involvement of law enforcement agencies. They can offer an alternative remedy in cases where an investigation or prosecution has not been pursued by the police or other statutory bodies.
Russell-Cooke solicitors have brought numerous criminal prosecutions on behalf of private individuals, regulatory bodies and businesses with successful outcomes but always observing the correct procedures at law and advising our clients accordingly.