Typically, criminal offences are prosecuted by the police or other prosecuting authorities but what happens when the authorities do not pursue a case? This is when there is an opportunity for a private prosecution.
“A private prosecution is a criminal prosecution started by an individual or body, who is not acting on behalf of the police or any other prosecuting authority or body that conducts prosecutions”, Fraud Advisory Panel, April 2013.
Anyone can make the decision to privately prosecute a crime.
The RSPCA has proven how effective private prosecutions are for bringing those that harm animals to justice. In 2019, they secured convictions in 93.7% of their cases. In 2021, the RSPCA announced that it was taking a step back from its role as the most active animal charity prosecutor, giving other animal protection charities and individuals who are passionate about animal protection the opportunity to step into the realm of private prosecutions too.
In some cases, private prosecutions have a better chance of success than those led by the authorities. Their success is not limited in the same way by the lack of resources that limit cases brought by the typical authorities: time and money, and consequently more time and expertise can be dedicated to the proceedings. The individual or body leading the prosecution can pick and choose a suitably qualified lawyer with expert knowledge to advocate for them which in of itself increases the case’s chances of success. The criminal burden of proof is extremely high: ‘beyond all reasonable doubt’ and it is the prosecution’s job to prove that the burden is met. A lawyer with expert knowledge in the relevant area is going to be in a better position to present the prosecution case and scrutinise evidence raised by the defendant and, in doing so, prove the defendant’s guilt.
Nonetheless, bringing a private prosecution is not a decision to be taken lightly. Before committing to start proceedings, it is key to make sure that it is the most appropriate means of redress and that you have what you need to ensure that there is a good likelihood of success:
1. Is there a more appropriate means of redress?
Is the crime one that the police or other prosecuting authority have decided not to prosecute or are they not aware of it? If they are not aware of it, consider whether you should report the alleged crime to the appropriate authority and share any evidence you have with them. It may be that the most appropriate means of redress is to consider a private prosecution. Expert legal advice should be sought to determine this.
2. Do you have the right motive?
Have you considered whether pursuing a private prosecution is in the public interest? Are you pursuing the case to legitimately secure justice?
Making sure you are acting properly in bringing a prosecution will protect you from cost orders and help the strength of your case.
3. Do you have the right support?
Before you start proceedings, you need to make sure you: (a) understand the private prosecution process; (b) have a strong case; and (c) are the most appropriate person/body to prosecute the offence. The best way to do this is to contact independent counsel, typically a solicitors firm like Advocates for Animals, who can explain this to you, carry out an independent and unbiased review of the evidence, give you their opinion on the strength of your case and advise on next steps.
4. Do you have credible evidence?
This is the most important thing to consider. The strength of a private prosecution will largely depend on the quality of the evidence gathered. Evidence includes documents, communications, witnesses, pictures, videos, and recordings.
Have you kept detailed and complete records of the provenance of all of the evidence? Is the evidence admissible? Is the evidence credible and reliable? Have you identified any gaps in evidence? Can you fill those gaps in evidence?
Independent counsel will be able to scrutinise the credibility of your evidence, advise on further evidence that you may need to gather and how to do that. It is often necessary to get expert evidence to support your case. Independent counsel will be able to advise on what type of expert evidence will be most valuable to your case and help you identify appropriate experts.
5. Do you have the funds to cover the case from start to finish?
The costs involved in pursuing private prosecutions are not insignificant. You must be in a position to fund both the investigation and trial process.
If your case is an either way offence, which some animal welfare offences now are, you will be able to recover reasonable costs incurred in investigating and prosecuting the case from either the defendant or central funds whether the defendant is found guilty or not guilty. However, recovering costs is not a guarantee and so you need to make sure that you are in a position to fully fund the case and are comfortable with the risk that you might not recover your costs.
Whilst the defendant can seek cost recovery from you, this is only if you have acted improperly resulting in the defendant incurring costs. Having independent legal counsel will mitigate any risk of allegations that you have acted improperly.
If funding is an issue, independent counsel can help identify other potential sources of funding for your case.
If you are interested specifically in understanding how the right to privately prosecute may help you, please let us know.
This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws please contact email@example.com.