The Director of Public Prosecutions, R (on the application of) v Northampton Magistrates Court

A prosecution under section 3 of the Protection of Badgers Act 1992 does not invariably require expert evidence as a matter of law. Where whether a structure is a badger sett in current use is disputed, however, expert evidence will almost invariably be needed to establish the statutory elements and the nature of the use. A costs order against a prosecutor under section 19 of the Prosecution of Offences Act 1985 requires more than an error which causes costs or an unsuccessful prosecution. The error must be starkly improper and the case must be exceptional. A decision-maker must apply that heightened test expressly.

The Interested Parties were prosecuted for interfering with badger setts contrary to section 3 of the Protection of Badgers Act 1992. The prosecution was discontinued after expert evidence was obtained. The magistrates’ court ordered the Director of Public Prosecutions to pay the Interested Parties’ entire defence costs under section 19 of the 1985 Act and regulation 3 of the 1986 Regulations, finding that expert evidence should have been obtained before charge and that the prosecution would inevitably have failed.

The DPP sought judicial review on the grounds that the magistrates’ court had misunderstood the need for expert evidence and had applied the wrong test for awarding costs. The central issues were whether the pre-charge evidence was sufficient and whether the costs decision applied the requirement for starkly improper conduct.

1. Statutory elements. A badger sett under section 14 of the Protection of Badgers Act 1992 requires a structure or place displaying signs indicating current use by a badger. The use must be more than transient and must be in the nature of occupation of the structure. The court identified five elements: a structure or place; signs displayed by it; signs indicating current use; use by a badger; and use which is more than transient and akin to occupation.
2. Expert evidence. Expert evidence is not required as a matter of law in every section 3 prosecution. Where the existence of a sett in current use is disputed, it will nevertheless be difficult to conceive of a case in which expert evidence is unnecessary. Lay observations may require expert interpretation, including whether marks are badger signs and whether observed use is sufficiently settled. The position may differ where the existence of a sett is not disputed and the issue concerns intention or recklessness.
3. Ground 1. On the evidence available when the charges were brought, the DPP could not properly establish interference with a sett in current use. The magistrates’ court was therefore entitled to find that expert evidence was required in the circumstances of this case and that charging without it was an error. Ground 1 failed.
4. Costs against a prosecutor. Section 19, regulation 3 and the Practice Direction require consideration of whether there was an unnecessary or improper act or omission, whether it caused costs, and whether the discretion should be exercised. The authorities require stark impropriety, not merely unreasonableness, and such orders are very rare. The magistrates’ court moved directly from identifying an evidential error to ordering all costs, without deciding whether the error was sufficiently grave or stark. It therefore applied the wrong legal test.
5. Relief. Section 31(2A) of the Senior Courts Act 1981 did not preclude relief because it was not highly likely that application of the correct test would have produced the same order for the entirety of the costs. Judicial review was not barred by the availability of an appeal by case stated. The costs decision was quashed and the matter was remitted for reconsideration on the correct legal basis.

This was a first-instance judicial review in the Administrative Court.

• Northampton Magistrates Court: on 21 September 2023 ordered the DPP to pay the Interested Parties’ costs of the entire prosecution.
• High Court (Administrative Court): quashed that decision and remitted the costs application for reconsideration.