In recent years, a number of charities, mainly animal welfare causes, have used private prosecutions to great effect: in 2015 the RSPCA secured convictions against 796 defendants for cruelty in private prosecutions, a 92 per cent success rate. Other charities, such as the League Against Cruel Sports and the Christian Legal Centre, have dabbled with bringing or backing private prosecutions.
But the idea of charities bringing their own prosecutions in cases where they feel the police or other authorities might not take action has caused concern in some quarters. Four years ago the RSPCA was heavily criticised in the media and by some politicians for spending £327,000 on a successful private prosecution against the Heythrop Hunt in Oxfordshire (see Legal Diary, below). Now its use of private prosecutions is coming under the scrutiny of the Environment Food and Rural Affairs Committee's review of the Animal Welfare Act.
Nevertheless, Melinka Berridge, a partner at the law firm Kingsley Napley, predicts a rise in the number of charities taking the law into their own hands. "Unfortunately, because of budget constraints, the state prosecution authorities are under pressure to ensure their resources focus on investigations and prosecutions that are government priorities," she says. "Some charities will have difficulty getting the state to prosecute on their behalf, so I think more charities will look to private prosecutions as another way to represent beneficiaries' interests."
She says a range of charities might start going down this route: cycling charities might start bringing prosecutions against motorists, for example.
But Thomas Lillie, an associate at the law firm Bond Dickinson, does not agree. "The number of charities that would take the very serious step of launching a criminal prosecution would be small," he says.
Part of the problem, he says, is the party bringing the prosecution normally has to pay thousands of pounds in costs up front. They can apply to have reasonable costs refunded by the crown, regardless of the outcome, provided there is no improper motive in bringing the case, says Berridge. But costs are usually granted at the end of a case, which means the charity funds will be tied up as long as it lasts. "You'd have to be sure the result would be worthwhile," says Lillie.
There's also a reputational risk if the defendant is cleared. Berridge acknowledges that a private prosecution should not be taken lightly, and charities should use the Crown Prosecution Service's Code for Crown Prosecutors to judge whether a case is in the public interest.
But she says more charities should consider using this option as a "last resort" in their enforcement toolkits. "Sometimes conduct is serious enough to justify criminal enforcement, and if a charity has the right set-up there's no reason they should hesitate," she says.