Successful criminal prosecutions can shut down abusive farms or cruel hunts and reclaim thousands from unlicensed breeders, poachers or wildlife traders. In this blog Advocates for Animals paralegal Sam March will outline what the process is for bringing one yourself.
Why prosecute privately?
The criminal law imposes hard limits on how people can treat animals. The Animal Welfare Act 2006 outlaws specific behaviours such as animal fighting, and generally makes it illegal to cause “unnecessary suffering” to domesticated or captive animals. Because the law considers domestic animals to be “property,” animal offenders may sometimes be tried for property crimes such as criminal damage or theft. Wild animals are also protected by various general and species-specific statutes; these seek to prevent crimes like poaching, disturbing wild birds, persecuting badgers, holding salmon “in suspicious circumstances”, trapping wild animals illegally, ill-treating them or illegally importing or exporting endangered species.
This is an ever growing area of law. Last year, Parliament criminalised the use of wild animals in travelling circuses, and just this month the Government introduced landmark new legislation to tackle the low-welfare, high volume kitten and puppy farms, by banning commercial third-party sales.
By criminalising these behaviours, society hopes to deter potential offenders; but the criminal law only works as an effective deterrent when there is a real risk of being caught and convicted. The general approach to criminal law enforcement in England and Wales is that the police investigate and the Crown Prosecution Service (CPS) prosecutes. Unfortunately, these public authorities have limited resources: in 2018 the BBC reported that less than one in ten crimes led to anyone actually being charged.
This is bad news for animals and their advocates. Animal crime is simply not the primary mandate of police or the CPS. To take just one example, only one in 100 dog theft cases last year resulted in the thief being charged and prosecuted, according to figures obtained under Freedom of Information laws. Wild animals fare little better: of 1,300 reported crimes involving bats, marine mammals, badgers and raptors in 2016, only 22 were successfully prosecuted. Many people consider that we have a moral duty to protect the animals in our care and the wildlife that surrounds us from cruelty and neglect. In an ideal world, we could count on the state alone to provide this protection. Unfortunately, it is not always the state’s top priority, so it can fall to private players to fill the justice gap.
Who can prosecute privately?
More or less anyone can commence a private prosecution. Section 6(1) of the Prosecution of Offences Act 1995 enshrines the right of all private individuals, organisations and bodies to institute and conduct prosecutions. This includes non-profit organisations and even charities, who may use criminal prosecutions to further their charitable objectives, so long as they retain their sense of fairness, balance and impartiality.
For animal charities and advocates, there can be many advantages to bringing private prosecutions: these include choosing specialist lawyers, investigators and forensic experts who can secure higher success rates than more generalist crown prosecutors. Some organisations regularly prosecute in this capacity, the RSPCA being an obvious example. In 2019, through private prosecutions, it secured 1,432 convictions relating to animal welfare offences, with a 93.7% success rate. However, the RSPCA operates in a delicate and controversial political landscape, and has been encouraged to step back from acting as a prosecutor of first resort. This risks leaving animals unprotected: in 2016 an Environment, Food and Rural Affairs Select Committee found that the CPS is not “suitably resourced and trained in the area of animal welfare” to take over the RSPCA’s work load. With this in mind, other animal advocates may need to step up to the plate.
What is the process?
The preliminaries to private prosecution can be thought of as a three step process:
the charging decision; and
“laying an information”.
Investigation Impartial, fair investigation is elementary; it is impossible to bring a successful prosecution without evidence. There is a high burden of proof in criminal cases and it rests with the prosecutor. Gathering evidence lawfully and impartially can be tricky in private prosecutions because the prosecutor cannot necessarily count on the police. Instead, evidence may need to be gathered by investigators and experts. There are strict rules of “admissibility” and “disclosure”, so unless expert legal advice is sought early there is a real risk that the evidence gathered cannot actually be used in court.
Charge Once the evidence is gathered, the private prosecutor needs to face a serious and difficult decision: whether to charge, and what charge to bring? It is inadvisable to bring a prosecution unless there is sufficient evidence against each suspect on each charge, and unless it is required in the public interest. Unless expert advice is sought at this stage, the case risks being struck out or taken over and discontinued by the CPS before it even gets to trial.
“Laying an information” This is where the prosecution formally begins. Anyone can try to bring a private prosecution against anyone, but getting a foot in the door means getting a “summons” or “warrant” from the magistrates. This is the document which will require the defendant to answer the charge and ultimately attend trial. This is done by laying an “information”, a document setting out what the case is about, the factual background and the relevant law. If this is laid properly, the magistrates will generally issue the summons/warrant…and then the litigation really begins, proceeding much like a usual criminal trial.
Who pays for all this?
It is important to carefully consider the cost implications of bringing a private prosecution. The person or charity bringing the prosecution will need to fund it, but the good news is that generally a convicted defendant must pay at least a contribution to the prosecutor’s costs if not the whole sum; and that can include the costs of any investigation.
If a defendant is acquitted then they can claim back costs. Normally in a criminal prosecution this is from ‘central funds’; that is to say the Government.
There can be cases where a successful defendant can claim costs from the prosecutor. That is when the charge arises by way of ‘complaint’ rather than ‘information’; although that is unlikely to be the case in most animal law offences.
However courts can also award costs against a prosecutor where the decision to instigate a private prosecution was an “improper act” within the meaning of s.19, of Prosecution of Offences Act 1985 (see Evans v Serious Fraud Office  EWHC 263 (QB) and R. v Cornish (Errol)  EWHC 779 (QB)). That is however unlikely to be the case where a prosecutor acts in good faith.
So worries about costs should not necessarily deter a person or organisation with a strong case from holding animal abusers to account. It is important to take legal advice early though; an improper or mismanaged prosecution can backfire, leaving the prosecutor paying both their own costs and the defendant’s.
This blog post is not legal advice. If you’re an animal advocate, organisation or charity and think that private prosecutions might help achieve your objectives, it is vital to seek expert advice at the earliest possible stage. This will help ensure you comply with your obligations, maximise your prospects of success and avoid disappointment and wasted costs. For more information on how Advocates for Animals can help you bring a private prosecution please visit here or contact firstname.lastname@example.org