Private prosecutions by animal rights charity criticised as ‘profoundly flawed’ by senior judge

A judge has admonished an animal rights charity and its solicitors for bringing a private prosecution ‘with no evidential basis’ and ‘for wholly improper reasons and purposes’ without any regard as to whether any offences had been committed purely to recover ‘grossly exaggerated fees’.

The Honorary Recorder of Manchester Judge Nicholas Dean QC issued a damming ruling following a stay of proceedings against Alex-Kaye Carrigan and Elisha Brown who had been separately prosecuted with selling pets unlawfully.  The evidence against the two defendants (facing separate trials) consisted of ‘near identical’ witness statements and exhibits downloaded from the internet.  The Judge said that the prosecutions bought by the charity Animal Protection Services (APS) who had instructed Parry & Welch from Liverpool had used a ‘perverse interpretation’ of the law where ‘no one could properly conclude that there were realistic prospects for conviction’.  The original decision to charge was so ‘profoundly flawed, so flawed that it requires me to consider why the decisions were taken’.

Around 80 to 100 private prosecutions had been bought by APS this year alleging similar offences with many cases being conducted by the same law firm.  Most of the cases had concluded in the Magistrates' Court.  Where Crown Court trials were elected the Judge noted that the law firm were instructed to withdraw proceedings.  When Carrigan and Brown appeared before Judge an application was made by the prosecution to withdraw proceedings.  The Judge refused to allow the application stating that the withdrawal of the charges in the Crown Court ‘provides clear evidence’ that there was ‘improper motives’ for initiating the proceedings.  He further accused the charity of avoiding ‘judicial scrutiny of their decisions and actions’ which would have occurred during any Crown Court trial. The Judge went on to stay the proceedings for abuse of process.

Referring to an earlier ruling by a different Judge at Preston Crown Court Judge Dean expressed his concerns that ‘APS, sometimes in conjunction with Messrs. Parry and Welch, may have been involved in systematic fraud and in perverting the course of public justice’.  A copy of his ruling was to be sent to the Attorney-General, the Solicitors Regulation Authority (SRA), Greater Manchester Police and the Charities Commission requesting that a ‘full and holistic investigation’ be undertaken.

Animal Protection Services have issued a position statement on their website stating 'We strongly deny any allegation that we have acted improperly or maliciously. We maintain that the CPS Full Code Test was considered and met in all cases. We are not lawyers, but rather private animal welfare investigators, and therefore rely on the support of the qualified legal professionals to conduct our criminal proceedings'.

Post Office cases

This case further shines the spotlight on private prosecutions in the wake of the Court of Appeal’s decisions in April this year to overturn 39 fraud convictions against subpostmasters whom had been privately prosecuted by the Post Office.  In Britain’s biggest miscarriage of justice Lord Justice Holroyde in the Court of Appeal heavily criticised the disclosure process of the Post Office who failed to be ‘open and honest’ about issues effecting the credibility of the computerised Horizon system.  Further applications for appealing convictions remain pending.

Private prosecutions

A private prosecution is one not bought by the Crown or its agents (usually by the Crown Prosecution Service).  An individual or a company can bring a private prosecution under section 6(a) Prosecution of Offences Act 1985, but proceedings must be undertaken and procedures complied with as if they had been bought by the Crown.

Under the same Act power is given to the Director of Public Prosecutions (DPP) to take over any private prosecution and to either continue them or halt them.  However, figures from 2019 show that over half of the prosecutions that were referred to the CPS were discontinued.  Of the 49 private prosecutions referred the CPS took over 32 but discontinued 29 cases.

In a private prosecution the prosecuting party are entitled to recover all their costs from public funds – even where a defendant is acquitted.  However an acquitted defendant is only entitled to recover their costs capped at legal aid rates which is usually at least a quarter of what has been paid if not less.  This leads to an inequality of arms where costs arising from unmeritorious prosecutions are recompensed whereas an acquitted defendant is left significantly out of pocket.

Justice Committee’s Inquiry

Following the Post Office cases the Criminal Cases Review Commission (CCRC) made a request to the Justice Committee to mount an inquiry.  The inquiry’s report was published in October 2020 and made several recommendations including a review of the funding arrangements to address the current inequality and the creation of a central register of all private prosecutions in England and Wales.

In the Carrigan and Brown case the Judge expressed a concern that some defendants may have pleaded guilty to offences due to being misled as to the nature of the evidence against them by APS and Parry & Welch.  Although there is a time limit of 21 days to appeal a conviction from the Magistrates' Court (as an automatic right to the Crown Court), given this ruling, a compelling reason for leave to appeal out of time may well arise where prosecutions have been undertaken by APS and/or Parry & Welch.

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