Expertise

Areas of Expertise

Freedom of Information

Information is the lifeblood of any campaigning organisation. Without information to influence the public and politicians, change cannot be effected. This is particularly important with animal cruelty, most of which takes place behind closed doors. And, of course, animals cannot articulate what is done to them.

Freedom of information laws are the primary way of obtaining information held by public bodies. In England, Wales and Northern Ireland, the Freedom of Information Act 2000 creates a right to information on request (there is similar legislation in Scotland). There are a number of exemptions, covering matters such as confidentiality, safety and the development of policy. A number of other laws also contain prohibitions on disclosure. Many of the exemptions are qualified, which means that, even if they apply, the public interest may require disclosure.

Public bodies may also seek to argue that a request would take too long to deal with or is otherwise ‘vexatious’, but there are limits to both of these.

There is now a mass of caselaw about FOIA. We have taken numerous cases on behalf of animal protection organisations, with a high degree of success. How requests are worded is extremely important and it is also essential to be able to assess whether a public body is justified in refusing to disclose information.

We are also very experienced in making requests for information of EU institutions and governments around the world.

The other main way of getting information is via undercover investigations

 

Judicial Review

Judicial review is a type of legal action under which decisions of ministers and other public officials can be challenged. It is the means by which the judiciary ensures that public bodies keep within the law. As such, it is a vital tool in a democracy and there have been many famous cases, including recently the successful challenge to the Government’s attempt to circumvent Parliament over the Brexit Article 50 process. ‘Decision’ is interpreted broadly, such that (for example) a failure to make a decision can be challenged, as can secondary legislation falling outside the ambit of an Act of Parliament.

Note that judicial review can only be used where there is said to be an error of law. You cannot normally challenge a finding of fact or the way a public body has exercised a discretion or judgement entrusted to it by Parliament. However, you can do so if the finding of fact etc is unsupported by evidence or the public body has failed to take into account a material consideration (or taken into account an immaterial consideration). Procedural irregularity can also be challenged, such as a failure to consult properly or give adequate reasons.

Animal protection organisations with expertise in a relevant area will usually be accorded standing to bring a case and they may also be allowed to intervene in a case brought by someone else. In these ways, the animals’ voice can be heard. There are strict time limits for bringing a case.

Legal costs can be an issue. However, in a public interest case it is often possible to get a protective costs order, which limits exposure to costs if a case is ultimately unsuccessful.

Often with judicial review, a successful outcome can be achieved without needing to take a case to a full hearing. Public bodies will frequently concede a point of principle if a case is well-articulated, especially if a judge grants permission for a case to proceed (the first stage in the process). Indeed, they may do so after a pre-action letter. Because public bodies have a duty to be candid, the letter before action can be an useful way of obtaining documents.

There is a similar process available to challenge planning decisions.

Other countries have similar mechanisms for challenging administrative decisions, some modelled on English judicial review.

We have extensive experience of bringing judicial reviews on behalf of animal protection organisations as well as other NGOs.

 

Achieving a Level Playing Field

Organisations campaigning for better protection for animals need to get their messages out there. Only thus can the public be informed about how animals area treated and the pressure for change created.

Unfortunately, the playing field is rarely level. It can be very difficult to get the traditional media interested and, even when it is, facts may be distorted and prominence given to the views of industry and governments. All this reflects where power lies in society: monied interests dominate and the voice of exploited animals reduced to barely a whimper. It is all too common for suffering to be played down and organisations campaigning for greater protection to be misrepresented, even ridiculed.

Judicious use of the law can, however, make a real difference. Because of the potential cost, libel proceedings should be considered as a last resort only but sometimes they may have to be contemplated, where an organisation’s reputation has been seriously traduced and loss can be shown. Often, the threat of proceedings can be used to extract a correction, which is usually all an organisation wants.

It is extremely important to avoid being on the wrong end of libel proceedings. Sadly, there are those who see animal protection organisations as a threat and would like to put them out of business. Accuracy and fact-checking are key. Clearly, too much caution will stifle messaging but there are various techniques which can be used to ensure impact while ensuring that risk is kept to a minimum. It is important to differentiate fact from opinion and, where the latter is based on facts, to make sure that they are accurate.

Complaints can where appropriate be made to ombudsmen (UK and European), press regulators, the Advertising Standards Authority, the Market Research Society (with misleading opinion polls) and various other bodies. These carry no risk of a legal costs order. It may be necessary to defend a complaint made to the ASA.

Social media has spawned its own mass of law. Bypassing traditional media can have real benefits but there are pitfalls too.

Advocates for Animals lawyers are hugely experienced in advising in all these areas. We are happy to review copy prior to publication.

 

Undercover Investigations

It is a truism that nearly all cruelty to animals happens behind closed doors. Freedom of information laws and other techniques can help lift the lid but unquestionably the most effective way is via undercover investigations. Undertaken properly, they can be hugely beneficial in advancing animal protection. An image is worth a thousand words and video footage hard to dispute.

Undercover investigations come in many shapes and forms, ranging from placing an employee with a hidden camera for an extended time, leaving a camera on site for a short period, gathering evidence on a permitted visit and trailing vehicles.

Each involves a range of complex legal issues, including confidentiality, libel, trespass, copyright and data protection. A targeted company may allege that a criminal offence has been committed. Inevitably, undercover investigations carry risks, but they can be minimised. For example, it is vital to identify prior to launch the public interest in information being available, because that can represent a defence to a breach of confidentiality action. Factual assertions should only be made where they are demonstrably true.

We have advised on numerous investigations, here and abroad, including animal experiments, the fur trade, live transport and intensive farming and would be happy to assist.

 

Animal Protection Law

Animal protection law is any law which affects the welfare of animals. It is distinct from animal health law which is really designed to protect human beings or other animals and the law assigning liability for damage caused by one’s animals, although each of these can have welfare implications too.

A great deal of UK animal protection law comes from the European Union and that will continue to be the case whatever happens with Brexit. A huge swathe of EU legislation has an impact on animals. There are several other international treaties which affect animals, too, such as the World Trade Organisation, the Convention on the Trade in Endangered Species (CITES), the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention) and the World Organisation for Animal Health (OIE). There is burgeoning caselaw arising out of many of these, some of it highly technical.

In the UK, the law takes the form of Acts of Parliament, secondary legislation (such as regulations), caselaw, codes of practice and guidance.

A fundamental problem with animal protection law is that, gratuitous cruelty aside, it seeks to balance the interests of the animal against some human interest. The human interest could be cheap meat, research, entertainment, clothing, religious or cultural tradition. Inevitably, human beings get to decide when their interest trumps that of animal welfare and it is no surprise that welfare is often relegated in importance. This, allied to technological and commercial secrecy, explains the exponential increase in animal suffering at the hands of human beings, despite attitudes being generally more enlightened.

Advocates for Animals sees its role as to help clients achieve the maximum protection from existing laws and to suggest and draft new laws. We can also help with various parliamentary techniques such as questions and early day motions (or EU equivalents) and in responding to consultations.

Enforcement is a massive issue, too. All too often, public bodies fail to enforce properly even the inadequate protection given by legislation. There are various ways of ensuring that they do. Or you may need advice about what the law is in a particular area, here or abroad.

 

Private Prosecutions

The main prosecuting authority in England and Wales is the Crown Prosecution Service (CPS). In Scotland, it is the Prosecutor-Fiscal and in Northern Ireland the Public Prosecution Service. Each of these organisations bring prosecutions on behalf of the state. They are independent of the police, who investigate crimes.

Other specialist agencies also prosecute: for example, the Food Standards Agency, the Health & Safety Executive (UK) and local Trading Standards (consumer issues, including misleading fur labelling). So do local authorities for a range of offences.

Private prosecutions can be a valuable campaigning tool, especially on issues where animal protection organisations have greater expertise than the state authorities or may perhaps have conducted an undercover investigation revealing inadequate regulation.

A private prosecutor has to persuade a magistrate to issue a summons or warrant against the proposed defendant. There must be some evidence indicating that an offence has been committed. The Director of Public Prosecutions (the head of the CPS) can take over a prosecution, and can then discontinue it. In principle, it is possible to judicially review a decision to discontinue, but in practice that would be difficult unless, perhaps, the decision was overtly political.

It is often possible for a private prosecutor to recover at least some legal costs, either from central funds or occasionally a convicted defendant.

It is important to ensure that private prosecutions are done properly, with compelling (admissible) evidence and full disclosure to the defendant, and other procedural requirements followed. If not conducted properly, there is a risk that the defendant may recover costs from the prosecutor. Advocates for Animals can help navigate your way through each step of the process.

For more information, please contact info@advocates-for-animals.com