Badger baiting and bat nest destruction, seal shooting and raptor persecution are just some of the wildlife crimes that are becoming increasingly common in the UK, according to the recent Wildlife and Countryside Link’s Wildlife Crime report. These cruel and grotesque acts include forcing badgers to fight with dogs for sport, or enabling the illegal trade of products harvested from CITES-listed species. Sadly, successful prosecutions for these offences may represent only a fraction of the number of atrocities committed. Indeed in 2016 only 22 of the 1,300 reported wildlife crimes resulted in a successful prosecution. In light of this apparent failure by public enforcement bodies in the UK, can private prosecutions come to the rescue of badgers, bats and seals?
The key piece of legislation protecting wildlife in England and Wales is the Wildlife and Countryside Act 1981 (WCA 1981), which holds that:
9 (1) Subject to the provisions of this Part, if any person intentionally [or recklessly] kills, injures or takes any wild animal included in Schedule 5, he shall be guilty of an offence.
Specific provisions apply to different species such as birds, sharks or deer within this act alone and on a more general overview, the number of different regimes governing animal protection equals at least 12. As such, both the WCL report and its predecessor, a review published by the Law Commission in 2015, cite the confusion surrounding this framework as part of the problem. The traditional perception of poachers as swarthy hunters or sociopathic businessmen as portrayed in films such as Crocodile Dundee (1986) or Free Willy (1993) is equally unhelpful, and can distract from the many different forms of wildlife crime such as property developers destroying nests to make space for buildings, or the capture of wild animals to be used as pets.
There are also numerous state agencies currently involved with prosecuting wildlife crimes. These include the National Wildlife Crime Unit, the Environment Agency, Natural England, Natural Resources Wales, Border Force (particularly where the crime relates to the trade of illegal animal materials), as well as local councils and police forces. Indeed, the CPS even has its own Wildlife coordinator to specifically prosecute cases of this kind.
Yet despite the surfeit of legislative mechanisms under which a prosecution can be brought, and despite the large number of statutory bodies claiming responsibility for enforcement, referrals to the police for crimes against wildlife are simply not translating into prosecutions. Writing in The Times, Ben Webster observed how the police had “failed to accept reports of crimes” and that many officers were without the power or the training to investigate such matters which, in any event, they believed to be the responsibility of the RSPCA. This is further compounded by the existing pressures on the police and the CPS as a consequence of a significantly reduced budget, set against a back drop of stark media criticism for the mishandling of a number of rape cases and mistakes made in disclosure. As such, many charities or non-profit organisations feel compelled to exercise their right to bring a prosecution privately, as afforded under section 6(1) of the Prosecution of Offences Act 1985.
The RSPCA is perhpas the most well-known animal welfare charity that privately prosecutes wildlife crimes in England and Wales. In November 2016, an Environment, Food and Rural Affairs Select Committee into Animal Welfare in England considered whether it was appropriate for the charity to prosecute and decided ‘that the RSPCA should retain the ability to bring private prosecutions where it reasonably believes that there is no statutory alternative and where such a prosecution would further its charitable objectives’. The Select Committee recognised that for crimes of cruelty against animals, if the RSPCA didn’t prosecute, then no one else would.
By bringing a private prosecution, an organisation involved with animal welfare will be able to exert greater control over the process, and ensure that its particular expertise and knowledge is properly utilised in the case. Before initiating proceedings however, it is worth considering the following points:
- Specialist advice should be sought at an early stage to help identify the applicable offence and assess the evidence available;
- Because charitable organisations will be subject to additional regulatory obligations and regimes, an oversight group should be established to monitor the appropriateness of prosecutions;
- If possible those charged with investigating the offence and those bringing the prosecution should be distinct and independent of each other. The campaigning and publicity arm of the organisation should also be isolated, so as to avoid an suggestion that a prosecution is politically motivated;
- Careful record keeping to document evidence and to support any decision making is essential and will be useful to demonstrate that the CPS’ Full Code Test has been applied to the decision to prosecute;
- An enforcement policy should be established and made publically available to set out what factors influence a decision to prosecute, and how the public interest test will be met; and
- Memoranda should be drafted to enable and govern any cooperation with state-run prosecution agencies and define what offences will be pursued by which organisation.
Where state agencies are without either the appetite or the resources to take action, charities and other not-for-profit organisations have a number of tools at their disposal to hold offenders to account for wildlife crimes in England and Wales. Indeed, until further reforms are enacted to consolidate and streamline the current wildlife protection framework, private prosecutions remain the best route through which the existing regime can bare its teeth.
Melinka leads the team at Kingsley Napley responsible for conducting private prosecutions. She is a founding member of the UK’s first Private Prosecution Association. She is also a member of the RSPCA’s Prosecution Oversight Panel. Kate is an associate solicitor in the Regulatory team and works with Melinka to assist victims of crime who seek justice through the use of private prosecutions.