Ready, Sett, Stop: lessons from a doomed prosecution under the Protection of Badgers Act 1992 in R (DPP) v Northampton Magistrates Court [2024] EWHC 2324 (Admin)

A recent High Court decision in an application for Judicial Review considers two issues highly relevant to any prosecutor: the risks of commencing a prosecution without the necessary evidence, and the correct test for the making of a costs order under s.19 of the Prosecution of Offences Act 1985.

Background

The Interested Parties, Mark Beaty and Gareth Phillips, were accused of interfering with badger setts during land clearance activities and charged with offences under section 3 of the Protection of Badgers Act 1992 (“POBA”).

Section 3 of POBA creates the offence of interfering with badger setts and specifies the ways in which an offence can be committed (namely, by damaging, destroying or obstructing access to a sett, by causing a dog to enter a sett, or by disturbing a badger when it is occupying a sett). Section 14 defines a sett as any structure or place which displays signs of “current use by a badger” (emphasis added).

The prosecution failed to obtain expert evidence to confirm that a badger sett was in use at the site at the relevant time, relying instead on statements from one RSPCA inspector and two members of the Northamptonshire Badger Group (a voluntary organisation that in addition to rescuing injured badgers and advocating for their protection, collects and records data on local mustelids). The prosecution applied the Full Code Test and concluded that it was met on the basis of this evidence.

Shortly before the trial was due to start, the defence served an expert report which argued that the sett in question was a subordinate sett that was in “casual use”. Accepting that their witnesses could not be considered expert witnesses, the prosecution requested an adjournment to obtain their own expert report, which was granted. The prosecution’s expert, Mr. Pearce, concluded that there was an active sett at the site and that the sett had been there for many years. The issues appeared black and white. However, the experts then provided a joint report in which they agreed that they could not “categorically state or prove that the sett was active or inactive when the event occurred in March 2022”.

Several months later the prosecution was discontinued, and the defence applied for costs under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 on the grounds that the charges were improper, largely because the expert evidence on whether the site was an active badger sett had not been obtained prior to prosecution, and the decision to charge without first having obtained that evidence was an “unnecessary act or omission” for the purposes of s.19. The District Judge agreed and ordered that the Claimant pay the Interested Parties costs in the sum of £37,909.04.

The DPP sought judicial review on two grounds:

  1. That the District Judge had erred in concluding that the Claimant should have obtained expert evidence before bringing charges under POBA, and
  2. That even if the District Judge had been correct in his conclusion on point 1, the error was not such as to justify the making of a costs order, and the District Judge had erred in his understanding of the law.

High Court Decision

On the first ground, the High Court found that while in some cases lay evidence may suffice, expert testimony is usually needed to prove the technical aspects of offences involving wildlife. The Court found that in this specific case it was critical to establish that the badger sett in question was active, and that without expert evidence the Claimant could not properly have concluded that there was a real prospect of a conviction. Therefore, the District Judge had been correct in finding that the prosecution’s failure to secure expert evidence made the charges baseless.

On the second ground concerning the award of costs under s.19(1) of the 1985 Act, the High Court reviewed the correct approach to the making of such an order, as summarised in R v Cornish & Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 779 (QB) at [16]:

“From these various authorities therefore, I consider that the principles to be applied in respect of an application under s.19 and Regulation 3 are as follows:

(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of s.19 (R v P, Evans).

(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly (Denning).

(c) The test is one of impropriety, not merely unreasonableness (Counsell). The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it (Evans).

(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because “no one has a monopoly of legal wisdom, and many legal points are properly arguable” (Evans).

(e) It is important that s.19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions (R v P, Evans).

(f) In consequence of the foregoing principles, the granting of a s.19 application will be “very rare” and will be “restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him” (Evans).”

The Court then considered the District Judge’s approach, and concluded that he had not applied the correct test, noting at paragraph 95 (emphasis added):

“[The District Judge] did not approach the matter on the basis that something more than an error resulting in costs being incurred and even more than an error leading to an unsuccessful prosecution was needed. Having concluded that the Claimant had erred in charging the Interested Parties without having obtained expert evidence the judge did not take a step back and consider whether the error was of such a grave or stark kind that a costs order under section 19 was appropriate.”

As such, the costs order was quashed, and the case remitted for determination of costs on the correct legal basis.

Opinion

It is perhaps of interest that the High Court (and indeed the court below) do not appear to have considered the issue of the causation of the Defence costs. If the Prosecution had indeed obtaining expert evidence as the District Judge found they ought to have, and assuming that Mr. Pearce was the expert instructed, they would have had sufficient evidence to charge the defendants. It is difficult to see how the costs in question were incurred by virtue of the failure to obtain such evidence; the Defence costs, or at least a significant portion of them, would likely have been the same even if Mr Pearce had been instructed at the outset.

Carolina Cabral

October 2024