JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK
The way in which large organisations conduct private prosecutions; RSPCA
Navigating the submission.
Submission summary in bullet points page 2
POINT NUMBERS BELOW
The RSPCA in a prosecution role, with the reasons it should not continue 1 – 36 Lawfulness of any RSPCA prosecution? 6 – 36 Role of the police, 37 – 43 Role of the RSPCA 44 – 85 A. Charitable status 44 -46 B. Prosecution lack of legal oversight 47 – 49 C. Crown Prosecution Service not involved 50 – 68 D. Lack of oversight by the courts 69 – 85 RSPCA double standards 86 – 91 RSPCA without police present and where police do not have a warrant 92 -105 RSPCA witness statements 106 – 115 RSPCA and the Courts 116 – 122 RSPCA and the legal profession 123 –125 RSPCA and the cost to the charity of a prosecution policy 126 – 129 Cost to the public from an RSPCA prosecution 130 – 135 RSPCA relationship with local authorities 136 – 144 Benefit to animal welfare 145 – 147 Cost to local authorities of implementing section 51 inspectors 148 -162 Proposals - page 30 Additional material in support of points made in the body of the submission Twenty ways to have your animals taken unlawfully page 32 RSPCA recruitment – demonstrating that ‘inspector’ level employees are unqualified to inspect animals. (Direct from RSPCA ) page 33. Wooler report page 35 RSPCA, firearms, and killing animals page 40 CASE FILES PAGE 44 - 57 end off submission.
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The author of this submission.
The writer of this document re ‘private prosecutions’ by organisations has been researching the subject of the RSPCA since 2015, including many cases in depth, having graduated with a law degree, completed examinations to become a solicitor, and lectured within a university setting to law undergraduates. As submissions should be published, attempts have been made to keep the language simple for members of the public. A unique perspective is claimed, having both a legal background, and in-depth knowledge of various breeds of animals, domestic, equine and farm. Individual cases, if referred to, are only to illustrate important points, and not by name, date or venue. Where abuses of process occur, these will, if ongoing be dealt with through the Courts. However, that itself raises serious issues. RSPCA cases, as they deal with animal welfare, are rarely heard by the courts, due to early guilty plea, the spread of magistrate’s courts, the huge number of magistrates, and the specialist knowledge that is lacking in defence solicitors.
This is the summary of three years research, it covers virtually every reason why the RSPCA should never prosecute offences, supported by evidence.
SUBMISSION SUMMARY, the RSPCA in a “private” prosecution function.
The RSPCA conduct prosecutions by virtue of the Prosecution of Offences Act 1985 section 6(1). The writer does not consider that the RSPCA has the right to bring a ‘private’ prosecution, for legal reasons that involve – - the Charities Act 2011, sections 1,2,3,4,11 - the RSPCA Act 1932, section 4. - the Code for Victims, definition, and chapter 4, - the Police and Criminal Evidence Act 1984, - PACE Code B, from 2008, entire code , NB 6.9 , 6.9A, 7.11 - Human Rights Act 1998. Section 6 (1) , 6(3)(b) Articles 6,8,P1A1 - Criminal Justice and Courts Act 2015 section 26. - Animal Welfare Act 2006, sections 10, 18,19, 20, 23, 30, 32 – 41, 51, 52, Schedule 2 (all) NB section 10, and 15.
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The position of the RSPCA is briefly considered under subject headings, some of which overlap, relationship with police, Crown Prosecution Service, the Courts. The narrative of the RSPCA vis a vis other authorities is long but explains most scenarios that occur. The RSPCA does not have to follow the Codes for Crown prosecutors, where there is no redress in real terms, where either evidence was unlawfully obtained, the defendant had no access to the means to rebut prosecution evidence, or the public interest test not satisfied. There is no place in a country that prides itself on being a democracy for two tiers of justice, the independent police investigation, with a file handed to an independent Crown prosecution service, neither of which BENEFIT from a prosecution, or have any personal interest in the outcome. The RSPCA is never a victim of the offence, but derives BENEFITS from the publicity generated to enable it to self perpetuate the organisation, by donations, to conduct prosecutions to self perpetuate….. The RSPCA as charity employees have no specialist knowledge or training for the roles. (unqualified in animal care, promoted to prosecutions with no legal qualifications) Due to lack of adequate safeguards for defendants in RSPCA cases, trials are unfair. This is a combination of – - Public perception - Lack of defendants solicitor knowledge of specialist law - Lack of knowledge and experience of lay magistrates and judges - The inability due to geography for experience to be built up - Reliance on RSPCA prosecutor, (for interpretation of the law), with his own agenda, in cases that are heard. - Failure of the Courts to allow Cases to be Stated on legal points - Failure of the courts to allow Judicial Review over errors of law and abuse of process. The narrative that follows attempts to describe how and why the RSPCA should be stripped of any prosecution function, which should be taken
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over by a planned transfer of that role to Local Authorities for Welfare and the police and CPS for sustained or deliberate cruelty.
THE RSPCA IN A PROSECUTION ROLE, WITH THE REASONS IT SHOULD NOT CONTINUE.
1. The RSPCA appears to be unique as an organisation which undertakes literally hundreds of prosecutions annually without ever being a “victim” of any offence, purporting to be a “private prosecutor”. 2. The RSPCA have no lawful right of entry to premises, no right to apply for a warrant, and frequently rely on police powers to gather evidence. 3. Where no reliance has been placed on police presence, there is often wholly misleading information given to the animal’s owner that qualifies as coercion. 4. Evidence offered will demonstrate widespread abuse of process, leading to miscarriages of justice on a grand scale. 5. These invariably activate provisions of the Human Rights Act 1998, section 6, (actions of public authorities) together with Articles 6, (fair trial), 8, (intrusion into private life) and Protocol 1, Article 1, (unlawful deprivation of property).
The effectiveness of existing safeguards that regulate private prosecutions
Summary, wholly ineffective, multiple inter-related factors.
LAWFULNESS OF ANY RSPCA PROSECUTION?
The most serious point in this submission is the question of whether any purported prosecution by the RSPCA is ever lawful, given the relevant legislation.
6. There are three major factors to consider, the first is that there has been no statutory empowerment specifically that would allow a charity to exceed the provisions of the Charities Act 2011, to perform public functions.
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7. The second is that the traditional position for any private prosecutor is that they are a victim of the crime alleged. (Supreme Court in R (on the application of Gujra) v CPS [2012] UKSC 52) ALSO, Victims Code. 8. By the definition, the RSPCA cannot act as a “proxy” prosecutor, as legally, there is no victim to the alleged crime, where the “victim”, is an animal, it is classed in law as “property”. 9. The RSPCA have frequently used that an animal is “property” when persuading the police to enter premises without a warrant, under PACE section 17, “risk of serious damage to property”, as the ‘save life or limb’ provision applies only to human life. Breaches of the HRA Protocol 1 Article 1 occur on every occasion where animals are removed following entry under this provision. (PACE section 17). 10. PACE Code B section 6.9, 2008, in force from 1ST February, provides that a search must end when the original purpose of the search is achieved. Removing animals for a proposed prosecution is “another purpose” that requires a separate warrant. Explained later that this has modified PACE 1984 section 19 (3)(a), “any other offence” no longer applicable law. 11. Victims Code. . quoted directly,-
4. For the purposes of this Code, a “victim” is: “• a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence2 5. Legal persons (e.g. businesses) are not included within the definition of a victim”
12. The third is the position created by the Human Rights Act 1998 section 6(3)(b). “(3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature”,
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13. An individual, that is, a ‘natural person’, who is a victim of a crime, is not performing functions of a public nature, as his right has been preserved in the Prosecution of Offences Act 1985 section 6(1). 14. Prosecuting a crime becomes a public function, where the prosecutor is an unrelated “third party” to the alleged crime. 15. The RSPCA cannot become a “proxy” private prosecutor as there is no victim in law, as defined, “property” can NOT be a natural person. 16. Some agencies have been given power to prosecute a limited range of offences, relevant to their particular area of expertise. E.g. TV licenses. 17. A prosecutor, as in the Crown Prosecution Service, or a Local Authority with powers for specific offences, is performing a public function. 18. Both are empowered to prosecute animal welfare offences. There is no lacuna to be filled by a charity, whose donations are dependent on its publicity attracting public outrage, due to RSPCA’s own press releases from its prosecutions. 19. The RSPCA motives are self-serving, to continue their own existence, via public donations. 20. The CPS has been created by the government, for a particular purpose, and is a “public authority”.
21. The Human Rights Act section 6(1) makes public authorities accountable for their actions. Quoted - “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”.
22. Hypothetically, the CPS could be accountable for an unfair trial, a convention right, Article 6, if they prosecuted an individual where the evidence for prosecution was a weak, tiny, fraction set against a greater volume of credible evidence that completely exonerated the defendant - against their own requirement for evidence, giving a more likely than not, better than evens chance, of conviction, where exculpatory evidence was not disclosed to the defence.
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23. The RSPCA are not bound by CPS rules on evidence, and historically abuse the public interest test. – Wooler Report into RSPCA investigation and prosecution practice was ordered by the Attorney General in 2013 due to number of complaints to Charity Commission on the public interest test. 33 recommendation were made in the report published in September 2014, none of which had been implemented after two years. (EFRA Committee report, November 2016)
24. A submission by another person (NH) gives a clear example of the potential for an unfair trial, and other breaches, where the RSPCA prosecute. (in accordance with the guidance, this individual case is not forming part of any action required by the Justice Department, but provides very clear, very recent factual examples of Abuse of Process in every area involving the RSPCA, Police, veterinary surgeon, legal representatives of the defendant and prosecutor, including refusing to allow the CPS access to the file, pre-trial, and the defendant having been denied a right of appeal as required by the convention, Protocol 7, Article 2, by the Magistrates Court (refusal to state a case) where an application for Judicial Review was denied as “totally without merit” with no hearing whatsoever. TWO courts denying the right of hearing in a higher court.)
25. The RSPCA remain unaccountable, despite their position as a hybrid public authority under the HRA Section 6(3)(b). they simply refuse to engage in any way with questions put to them by defendants, including actual refusal for a DSAR.
26. The parameters for this inquiry are organisations that are victims. However, such a narrow focus will give no satisfaction that concerns over 10,000 families where RSPCA poor practice are not being addressed, if their role as an organisation, that has no statutory empowerment for prosecution, is not considered.
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27. Powerful organisations, may be victims, particularly of fraud, for indictable offences, but prosecute fewer case than the RSPCA, who institute summary proceedings against 700 or more defendants every year. 28. The RSPCA are never “victims” of the alleged crime, where they prosecute an owner for an animal welfare offence. 29. The Prosecution of Offences Act 1985 section 6(1) refers to “person”, where organisations have used the section as “legal” persons; as a tool ‘legal person’ allows businesses to sue and be sued, which are civil matters. 30. It might be that since the enactment of the Victims Code, that no business, that is, ‘legal person’, is correct in taking private prosecutions under the Prosecution of Offences Act due to the wording, where in the definition in the code, point 5, above, is clear that legal persons, i.e. businesses, can never be victims. The definition and meaning must remain the same, both for being a victim to benefit from the right to bring private prosecutions, and the status in receiving any services under the code. Businesses and charities are excluded from the benefit of the overwhelming majority of the Codes provisions.
31. The leading Supreme Court case in 2012 was that of Gurja, an individual who initiated a private prosecution for a relatively minor offence against him, of a physical nature. The CPS did not consider prosecution appropriate in the circumstances. 32. The Supreme Court judgment on the rights and value of private prosecutions in the 21st century made between them, 113 references to the nature of the private prosecutor, (citizen, individual etc.). NONE made any particular reference to organisations, other than a mention that the RSPCA initiates private prosecutions. 33. Case law, from Marcel 1992 recognises “the investigation and prosecution of crime” as a “public function” of the state. Scopelight, 2009, another Court of Appeal case, felt bound by the Marcel precedent, which was use of police-seized evidence for private purposes, a civil case. 34. Scopelight appears not to have been referred to the provisions of the newly enacted PACE Code B, “This code has effect from 1 February 2008”. The circumstances in the Scopelight case arose from July 2008, when
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Code B was applicable. It therefore applied to the entire investigation process.
35. The effect of Code B section 7.11, is that where the police are involved and seize evidence, that evidence cannot be used by a third party without an application to the court, consolidating the reasoning in Marcel, 1992. –
Writer comment on Scopelight. It may be, that if the three Court of Appeal judges had other evidence presented to them, and not merely the submission by the RSPCA as an Intervener, then the enactment of PACE Code B with its specific requirement under section 7.11 for the police “ to secure evidence” and “not allow it to be put to any other use” … “unless in accordance with directions of the appropriate judicial authority”, that the appeal, in relation to both Scopelight itself and the RSPCA could have been decided purely on the basis of a different recent statutory enactment, that effectively modified the originating statute, PACE 1984, including that section 6.9 and 6.9A no longer permits police constables to go beyond the remit of the actual search warrant.
36. PACE Code B is made under the authority of PACE 1984 section 66, therefore having full legal status to be binding under the Act.
PRELIMINARY CONCLUSION
– If the Justice Committee are not persuaded by the above argument, that no prosecution taken by the RSPCA can ever be a lawful one, then the detail in the following sections exposing wholescale ABUSE OF PROCESS, should be sufficient evidence for steps to be implemented to prevent all future prosecutions by the RSPCA, and set in motion a process whereby persons who believe their conviction has been wrongfully engineered, can apply to have that conviction quashed, with compensation by the RSPCA where losses, both financial and to reputation, have occurred.
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The way in which large organisations conduct private prosecutions.
Organisational structure and relationships with the police, legal profession, courts, and veterinary surgeons all affect how the RSPCA conduct a prosecution.
RSPCA.
ROLE OF POLICE.
37. The police are, in law, fully responsible for the entire entry, search and seizure, including retention of property, where RSPCA employees are referred to on the warrant. Police and Criminal Evidence Act 1984. PACE Code B, enacted under PACE section 66. Sections 6.9, 6.9A, 7.11. 38. The police universally take no part in the search, decide what to seize, or keep records of seized property, required by Code B, leading to –
Abuse of process.
39. The police refer all enquiries to the RSPCA. 40. The police do not interview the suspect at a police station, where there is a right to a ‘no comment’ answer, have a free duty solicitor present, and give a copy of the recording to the suspect. The police do not charge suspects, leaving the suspect in limbo for up to six months before a summons arrives from the RSPCA.
41. Complete abdication of all responsibility from warrant application to trial, by the police, leads to both miscarriages of justice and breaches of the Human Rights Act that occur.-
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- NB, the individual police officers are technically liable under the Criminal Justice and Courts Act 2015, section 26. The explanatory note -
- “266. Section 26 makes it an offence for a police officer and certain other persons to exercise improperly the powers and privileges of a constable. It supplements the existing common law offence of misconduct in public office.” - The section –“26 Corrupt or other improper exercise of police powers and privileges
(1) A police constable listed in subsection (3) commits an offence if he or she— (a) exercises the powers and privileges of a constable improperly, and (b) knows or ought to know that the exercise is improper. (2) A police constable guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).”
42. Prosecution is a public function of the state, see Marcel 1992 Court of Appeal case, referring to reasoned judgment of the lower court, Sir Nicolas Browne-Wilkinson VC, “In the case of this Act, it is plainly necessary to trench upon the individual’s right to his property and privacy for the purpose of permitting the police to investigate and prosecute crime….. But in my judgment Parliament should not be taken to have authorised use of seized documents for any purpose the police think fit….. the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner” (Marcel v Commissioner of Police of the Metropolis: CA 1992 References: [1992] Ch 225, [1992] 1 All ER 72,
43. Appended is a compilation of 20 different ways property, animals, are unlawfully obtained or retained.
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ROLE OF THE RSPCA
A. Charitable status. See also point D., Courts. “Marcel” quote, above.
44. The RSPCA as a charity are not compliant with the law regarding registration as a charity under the Charities Act 2011, by the use of donated funds to pursue an investigations and prosecution policy. 45. The resources devoted to pursuing an investigations and prosecution policy are not minimal, 45 million annually from an income average of 130 million pounds. 46. Prosecution of crime is a public function of the state. Prosecution cannot fit into any of the categories within the Charities Act.
Charities Act, 1(1)(a) – charitable purposes only. 2(1)(a),(b) – comply with section 3(1), and public benefit, section 4. 3(1)(k) -– advancement of animal welfare. (the only category applicable to RSPCA) 4(1) ,4 (2),- “not to be presumed, public benefit”. 11, - exclusively charitable purposes. (to maintain registration).
NOTE, prosecution has not been advancing animal welfare. State regulation, that always requires the police or local authorities to enforce, is the mechanism for advancing animal welfare. Historically advancements in welfare have been brought about by compliance with EU legislation, to which all member states had to comply. Regulations are highly specific in farming, due to the human health safety implications, which can be enforced by DEFRA appointed Inspectors under the Animal Welfare Act. New regulations currently are to protect bitches from poor conditions in puppy farms. The requirement for buyers to be able see the pup interacting with its mother at 8 weeks old could be a powerful deterrent from early weaning and bitches caged 24/7/365.
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B. Prosecution lack of legal oversight. 47. RSPCA had no legally qualified person supervising prosecution decisions, made usually by promoted ex ‘inspectors’ who compiled the most successful case files, where prosecutions followed.
Refer to section on RSPCA ‘inspectors’.
48. Hayley Firmin was appointed in time for the 2016 parliamentary EFRA committee to examine the working of the 2006 Animal Welfare Act. 49. In 2016 RSPCA evidence given to the EFRA committee was explicit that it is not usual practice for there to be any other oversight within the prosecution department of decisions, which had made by their non legally-qualified staff.
C. Crown Prosecution Service not involved. 50. The Crown Prosecution Service must use a two stage test of evidence that has been independently gathered by the police. 51. The RSPCA are not obliged to consider either of these tests when instituting a prosecution. 52. An RSPCA prosecution does not afford the suspect the protection of the police independent investigation, including the requirement to investigate all reasonable lines of enquiry, including exculpatory evidence and mitigating circumstances.
53. The lack of observing the public interest test led to the Wooler Report, September 2014, due to high volume of complaints to the Charity Commission. Stephen Wooler was a highly regarded senior person within the CPS. He made 33 Recommendations to improve RSPCA practice. None had been implanted two years later when EFRA committee were reporting back to parliament. (November 2016.) 54. The Charity Commission has since changed its policy and does not accept this type of complaint.
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55. The only oversight would have been if the CPS were obliged to consider every case brought by the RSPCA, where the defendant has the opportunity to present the evidence that the RSPCA failed to include in their investigation. This would require a change in practice, which simply is not going to happen, given that the RSPCA have continued to ignore Woolers recommendations. – - Cases heard in 2019 demonstrated complete disregard to recommended fair working practices both in investigation and prosecution. Five years after the 33 recommendations.
56. NB a submission by NH given the reference number AEV189578, has set out many of the applicable legal provisions, relevant to a real case, where privacy is being observed. It also touches on police malpractice, that cannot be publicly expanded, as it is ongoing. There is also reference to Disability harassment, that can also not be expanded. This writer is also familiar with the case, having seen the entire case file, complete with its defects. Crucially, refer to the point on the CPS, point 81, of that submission, where the CPS requested the file, and where the RSPCA prosecutor refused that request. 57. An RSPCA prosecution does not have a fully independent Crown Prosecutor evaluating the strength of police obtained evidence, where the two stage test must be passed. 58. Evidence given to the EFRA committee in 2016 by Hayley Firmin in relation to referring all RSPCA cases to the CPS was met by her, somewhat contemptuously, implying that the CPS would not be interested, and that they, as the RSPCA, “had no access” to refer evidence to them. She claimed only the police could submit evidence to the CPS. (EFRA transcript of live TV questions). 59. This is a falsehood by a person who has worked for the CPS and should be familiar with the CPS guidance on private prosecutions. 60. This is taken directly from the CPS codes of practice, available to any member of the public on the internet. There are six ways listed, one being a defendant request, but this below is specific that a private prosecutor has an access route, denied by ex CPS employee Hayley Firmin, in her capacity as Head of RSPCA prosecutions..
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61. “where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution;” (https://www.cps.gov.uk/legal-guidance/private-prosecutions) 62. There has been a proven case of collusion between a defence solicitor and the RSPCA choice of prosecutor, see CASE STUDIES, and submission submitted by NH, where in a 2018 summons, finally decided in July 2019, by both defendant and RSPCA prosecutors solicitors agreeing NOT to send the RSPCA evidence file to the CPS. 63. The CPS had knowledge of, and asked for the file, see D. Courts. 64. In a different case, a previous referral to the CPS, in 2016, a junior clerk made a decision not to accept a referral, (from a defendant), that decision should have been made by a more senior person within the CPS. 65. This refusal by a junior clerk in 2016, where there was no paper trail of any description for police entry, search and seizure, (owner absent from premises) with “disclosed” documents that were missing from the defendant’s bundle, delivered a few days before first court appearance. Photographs that rebutted the RSPCA assertions were only in the “unused” evidence file. 66. A litigant in person would not have known to request the unused evidence, and would not know until it was disclosed, whether it assisted the defence. It would be unlikely to arrive in time for an evaluation by a legally qualified person at short notice. 67. There had been no previous notice on this occasion or in other cases.
CASE STUDIES OF GROSS MISCONDUCT, RSPCA, VETERINARY SURGEON, POLICE, are essential reading to understand the scale of abuse of process
68. The EFRA committee chair, Neil Parish, had enunciated that the CPS had the capacity to undertake RSPCA prosecutions. (EFRA committee, 2016.)
D. Lack of oversight by courts.
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69. The RSPCA are not entitled to use “evidence” obtained by the police, see “Marcel” point above, discussed in “Scopelight” 2009, Court of Appeal, where the victim of a crime had to follow the rule to make an application to the court before the police could release evidence necessary for a private prosecution. There were virtually simultaneous applications from the owner and victim. PACE Code B section 7.11,(police must secure evidence and not allow it to be put to any other use….except by request of owner, or application to the court.) This provision was enacted in 2008 and remains in the current version.
“The officer in charge of the investigation is responsible for making sure property is properly secured. Securing involves making sure the property is not examined, copied, imaged or put to any other use except at the request, or with the consent, of the applicant or in accordance with the directions of the appropriate judicial authority. Any request, consent or directions must be recorded in writing and signed by both the initiator and the officer in charge of the investigation”
70. There are no records disclosed in any prosecution evidence, that the RSPCA has ever made an application to the court, for the use of evidence seized by the police, in any evidence disclosed to the defendant. 71. This is a continuing Contempt of Court by the RSPCA in every case where police were present and purported to seize evidence. 72. The true owner must have a right of audience where an application to the court is made. No owner has ever been given notice of such an application. 73. All defended cases are heard first by lay magistrates, unless at the first hearing, the plea hearing, the defence raises a point of law, where a district judge is usually allocated to hear the case. 74. Lay magistrates statistically have only a very slim chance in their career as a magistrate that they will ever hear an animal welfare case. There are over 16,000 lay magistrates, who may serve for as few as five years, where defended not guilty pleas going to court since 2006 are number in the
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region of one to two thousand maximum. (RSPCA does not publish defended cases as a number of individuals, so figure can only be extrapolated against guilty pleas) 75. Lay magistrates rely on their clerk to the court for clarification of legal issues. In practice, the RSPCA solicitor or barrister will offer up ‘advice’, even where that advise is “selective”, to ensure that misconduct is not under consideration. See Case Studies, Crown Court appeal on abuse of process. 76. The way the court system operates by, generally, only the RSPCA’s regular solicitor, or barrister as the prosecutor, has any inkling into animal welfare law, where winning a conviction is more important than due process. 77. 140,000 solicitors are qualified to practice. Very few of these statistically have any animal welfare law experience to defend cases. 78. The graphic , (some people have alleged, ‘staged’), photographs, used in evidence, convince the magistrates of guilt, and the illegal tactics are ignored, for example, removal of animals, that makes any contemporaneous veterinary examination impossible, to challenge the professional evidence. 79. Breaches of the Human Rights Act occur. Article 8, respect for home and private life, when no notices of intended entry search and seizure are given. Protocol 1 Article 1, unlawful deprivation of property, animals, when the police use powers of seizure to benefit a third party, the RSPCA, who have no statutory rights, occurs when removal has not been conducted “in accordance with the law”. P1 A1 also occurs where destruction of an owners animal occurs, without a warrant for that purpose, (AWA Section 19, for a section 18 purpose). PACE Code B section 6.9A. 80. The level of the Court’s LIABILITY is yet to be determined, as lay magistrates are fully dependent upon evidence presented to them. Their decisions are, like a jury, limited to ‘facts’, that have been made impossible to refute by defendants.
81. The courts are extremely reluctant, to exclude unfairly obtained evidence under PACE section 78. The notable exception being the ruling in the High Court in 2015, ‘Colchester Magistrates’ [2015] EWHC 1418 (Admin).
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“A warrant was only issued pursuant to one of those statutes but those who executed the warrant proceeded as though a warrant had been granted under one of the other statutes as well. They then sought to seek to defend what they did on the grounds that serious ill animals were in fact found. It was in truth an argument that the end justifies the means.’ “ 82. The writer has followed cases since 2016, where the above case has been referred to as authority, where there was an equally unlawful entry search and seizure, where the Courts refused to exclude evidence “because the RSPCA has sufficient factual evidence”. As this hearing was presided over by a Recorder, his refusal to follow that and other case precedents could not be challenged within the cour.
83. These cases include three where police entered premises in the absence of the owners, without any warrant whatsoever, and removed animals given directly to the RSPCA, where there was no evidence produced that the police had made any records whatsoever of the search and seizure. In all of these, there was RSPCA silence on location, so making contemporaneous veterinary examination impossible by an independent veterinary surgeon. 84. That the Courts refused to exclude evidence in all three cases, and failing to defer to the ruling of the High Court, is a shocking condemnation of the lower Courts ability, and willingness, to uphold the LAW.
85. The writer has been apprised of many more cases, but only refers to those where she has seen the evidence. Factually, non of the three cases met the standard, two were animals that had been treated for diseases, the third involved weight in winter of ponies that had access to a dry shelter, but were choosing to stand in the rain. RSPCA records in this case proved that the ponies following removal weighed exactly the same after 12 months in RSPCA placed care. Weight was gained in the summer, and lost again in winter. By the RSPCA’s own records.
RSPCA DOUBLE STANDARDS
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86. If the owner had ponies described as emaciated by the RSPCA, yet having gained weight, and lost it again when weighed exactly one year later, at the “emaciated” weight, then surely the RSPCA should either have withdrawn the case, or summonsed their ‘approved’ boarding facility for neglect.
87. The zeal with which magistrates rush to convict an ‘animal abuser’ is an issue that needs to be addressed. Due to defended cases often having complex and contentious veterinary issues, the decision can be made on who they ‘preferred’, a trained RSPCA employee in a police lookalike uniform, or a scared, nervous and angry defendant, without the magistrate or District Judge fully understanding the relevance of particular evidence. 88. The case referred to in NH submission, caused the questionable removal of 7 horses kept on deep litter beds, with no health or other welfare issues alleged. That is an abuse of process, for various legal reasons, without bringing in factual issues regarding the suitability or other wise of this choice of bedding. An unsuitable environment is a subjective opinion, particularly where the RSPCA ‘inspector’ has no specialist knowledge of animal care.
89. A combination of failures in meeting CPS evidential and public interest tests, inexperienced lay magistrates, inexperienced legal representation, reliance on prosecution advice, lack of any challenges to the evidence gathering not complying with PACE Code B, or compliance with the Animal Welfare Act specific provisions on the section 52, and Schedule 2, create a situation where the trial cannot be factually fair, as all RSPCA evidence presented to the court, where the police have seized it, has not had an application for permission to use that evidence by the RSPCA.
90. Conclusion. The court system cannot function fairly where the organisations, the police and RSPCA, are not following correct procedures to ensure a fair trial within the meaning of the Human Rights Act 1996 Article 6.
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91. This should not occur, ever, if the RSPCA did not both investigate and prosecute offences, as they can and do flout laws designed to make the penal system work fairly, and have consistently remained unaccountable for their actions.
RSPCA WHERE THEY ACT WITHOUT POLICE PRESENT, AND WHERE POLICE ATTENDANCE IS WITHOUT ANY WARRANT.
RSPCA prosecution statistics. See separate breakdown from confusing figures. 92. A second more dubious pathway to prosecution occurs where the police are not involved. Current figures are not available, but in the Scopelight Case, 2009, Court of Appeal, the Judgment of Lord Levinson referred to the RSPCA claiming that 20 out of the last 100 cases ‘required police assistance’. In these cases the police purported to use PACE 1984 section 19 to seize property, as it appears that warrants were not obtained. (A warrant is always required under the Animal Welfare Act section 19(4) or 23) 93. Broadly speaking, in Scopelight, the Court upheld the status quo of the RSPCA, without having sufficient facts that contradicts the legality of RSPCA and police actions, affecting literally thousands of individuals. 94. PACE Code B came into law in 2008, preceding the Scopelight entry search and seizure, in July 2008, and Court of Appeal decision in November 2009. 95. Section 2, warrant applications must comply with PACE 1984 sections 15 and 16. 96. Section 3, actions before application for a warrant, e.g. checking the accuracy of information given. 97. Section 4, deals with ENTRY without warrant. “Conditions are set out in PACE section 17. This section does not confer power of arrest”. 98. PACE s.17, gives lists of offences for which a warrant of arrest has been granted, to search premises for that purpose. This includes arresting a
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person for Animal Welfare Act offences under sections - 4, 5, 6(1) and (2), 7 and 8(1) and (2). (PACE, 1984, section 17, 1(c )(v).) 99. The section that has been used repeatedly by the police, when a householder has raised an objection, is section 1(e), “of saving life or limb or preventing serious damage to property.” 100. The life must be human, animals are covered under “property”. The courts have determined that the risk of damage to property must be grave. 101. A barrister employed by the RSPCA, in a Crown Court appeal, when challenged by the appellant, for entry without any warrant to a premises where the occupier was absent, tried to persuade the judge that entry was lawful under PACE 17, life or limb, but asked for “authority”, could find non, as it doesn’t exist for animals. Despite this the Recorder ruled that entry was lawful!
102. Section 17 PACE is restricted by PACE Code B sections 6.9 and 6.9A. 6.9 Premises may be searched only to the extent necessary to achieve the object of the search, having regard to the size and nature of whatever is sought. 6.9A A search may not continue under: • a warrant’s authority once all the things specified in that warrant have been found • any other power once the object of that search has been achieved This section is repeated exactly the same in later versions of Code B.
103. The conclusion to be drawn where the RSPCA did not request police presence, is that gullible members of the public, virtually indoctrinated by the sheer volume of television advertising and programs, believe that the visiting RSPCA employee had actual powers to remove animals. The public know that the RSPCA prosecutes, the employees give press statements as soon as a guilty verdict is announced, for publication in local newspapers and in some cases the national press. 104. Owners are often persuaded to part with animals, by subterfuge: the promise of a surrender negating the need to prosecute is a frequent complaint made by defendants. This is deliberate lying, by the RSPCA
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employee without police presence, as the act of “surrender” is used as apparent evidence of guilt. 105. Police presence, in the eye of the owner, assumes that it is lawful and there is no choice, whereas the reality is the police do not keep a paper trail of their own attendance as they are required to do under PACE Code B.
RSPCA, WITNESS STATEMENTS, difficulty having coerced evidence excluded.
106. It might be useful to refer to the RSPCA handbook, on gaining “lawful” access to “help animals”. This is issued to all RSPCA ‘inspector’ grade employees. It blatantly discusses that the police do not have actual knowledge of the lack of RSPCA powers, and will be ‘guided by you’. 107. It is geared to RSPCA employees getting evidence once they are on premises, whatever method is used. It is particularly enlightening to see that it stresses obtaining a witness statement as soon as bundling up the collected evidence has been accomplished, and NOT TO DELAY FOR A PRE ARRANGED TIME FOR A FUTURE INTERVIEW FOR A STATEMENT FROM THE SUSPECT. 108. It is institutionally ingrained into RSPCA employees to take statements when the animal’s owner is at their most vulnerable. They have refused to allow a suspect to have another person present, the interview is not recorded, there is no copy for the suspect, until the statements become part of the evidence bundle. There is usually no solicitor present, when the owner is overwhelmed by the events that have just occurred. 109. These ‘admission’ statements are not excluded, despite very clear legal guidelines in a very long document, detailing law and case history, that does render them inadmissible as evidence. 110. This paragraph from an EU case Allan v. United Kingdom, 48539/99, 5 November 2002, at para. 52 in many ways typifies an RSPCA witness taking methodology. 111. “52. In the present case, the Court notes that in his interviews with the police following his arrest the applicant had, on the advice of his solicitor, consistently availed himself of his right to silence. H., who was a longstanding police informer, was placed in the applicant's cell in Stretford
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Police Station and later at the same prison for the specific purpose of eliciting from the applicant information implicating him in the offences of which he was suspected. The evidence adduced at the applicant's trial showed that the police had coached H. and instructed him to "push him for what you can". In contrast to the position in the Khan case, the admissions allegedly made by the applicant to H., and which formed the main or decisive evidence against him at trial, were not spontaneous and unprompted statements volunteered by the applicant, but were induced by the persistent questioning of H., who, at the instance of the police, channelled their conversations into discussions of the murder in circumstances which can be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview, including the attendance of a solicitor and the issuing of the usual caution. While it is true that there was no special relationship between the applicant and H. and that no factors of direct coercion have been identified, the Court considers that the applicant would have been subject to psychological pressures which impinged on the "voluntariness" of the disclosures allegedly made by the applicant to H.: he was a suspect in a murder case, in detention and under direct pressure from the police in interrogations about the murder, and would have been susceptible to persuasion to take H., with whom he shared a cell for some weeks, into his confidence. In those circumstances, the information gained by the use of H. in this way may be regarded as having been obtained in defiance of the will of the applicant and its use at trial impinged on the applicant's right to silence and privilege against self- incrimination.” 112. The court found a violation of Article 6 (1). 113. If the RSPCA deliberately train their employees to takes statements from suspects to use against them at a future trial, immediately and on the owners premises, all the evidence from those statements prejudices the right to a fair trial. It cannot be a “fair and public hearing”, where the RSPCA employee learns the statement taken by him, to stand up in court as ‘direct evidence’ of a conversation between two people, when one was in a coercive situation, trying to make sense of the situation, and
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‘admitting’ to things that could be used against him. (Did you know water bowls were empty – yes – when did you last fill them – 6 pm yesterday – did you not fill them since then – no) .Such a statement might have arisen without reference to the circumstances. Water bowls empty because owner heard them knocked over at 7 am when RSPCA arrived and were disturbing the animals. Usual routine that animals were used to started at 8 am. Owner then prevented from routine by RSPCA presence and search. 114. This sort of scenario has been reported to the writer by many defendants. It is not hypothetical. Probably few if any solicitors know or try to apply the EU case above to an RSPCA coerced owner’s witness statement. 115. The link here is the text of a research study on the subject within an EU setting. https://rm.coe.int/council-of-europe-georgia-european-court-of- human-rights-case-study-ev/16807823c3 . It demonstrates more than anything from the cases that it is a very difficult threshold to meet to have evidence excluded.
RSPCA AND THE COURTS
116. There is frequently an assumption by the Magistrates that an RSPCA case is as fully warranted as those initiated by the CPS. 117. That is, any case that is heard carries not a presumption of innocence until proven guilty, but a presumption that the prosecutor has sufficient evidence to convict. 118. RSPCA can and does coach its witnesses. Some transcripts would show, (if they were part of magistrates courts standard procedures,) that the written witness statements are word perfect under oath, many months later under the RSPCA’s solicitors directed questions. 119. RSPCA staff are trained to give evidence. Examination of batches of witness statements in the same case are often identical, cut and pasted with only a witness name change. Volume weighs heavily with lay magistrates, at their peril would they ignore it.
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120. Quality of evidence can be poor, insofar as RSPCA employees as witnesses are not trained in animal care at a veterinary level, where a dirty and unkempt appearance that cause no welfare issues whatsoever, is used to cloud the magistrate’s perception of care in general. 121. It is highly likely that a lay magistrate will have no previous experience of an animal welfare case. 16,000 plus magistrates at two per case, in their term as a magistrate, are unlikely to have heard even one of the 10,000 or so animal welfare prosecutions since the 2006 Animal Welfare Act. 122. Magistrates are lay people advised where necessary by a legally experienced Clerk to the court. In the 300 or so magistrates courts, each with several courts in session at any time, the chances of a court Clerk having specific animal welfare knowledge is also slim to nil.
RSPCA AND LEGAL PROFESSION
123. The Courts will therefore place some reliance on the RSPCA’s prosecutor, as the RSPCA tend to use the same person in each area, building up prosecutor knowledge of what works. 124. There are around 140,000 practicing solicitors. Not all take on criminal case work, not all take on legal aid cases, of which only a handful will have ever had a case involving the RSPCA. 125. The early guilty plea ensures very few cases are ever heard in a court.
RSPCA AND COST TO THE CHARITY OF PROSECUTION POLICY.
RSPCA prosecution statistics. 126. Comparative statistics for 2017, 18 and 19 show that convictions from early guilty pleas account for around two thirds of all convictions, giving an average conviction percentage at 92%. 127. Only 16, 20 and 12 defendants had all charges dismissed at trial, with another 44, 46 and 48 having the charges withdrawn, whether before or during the trail. Another 680, 531, 595 that inspectors presented as cases for prosecution were not taken to trial.
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128. Of the 744, 696, 747 individuals convicted in the years 2017, 2018, 2019, they averaged two or three charges securing convictions per defendant. 129. The cost of the administration to the society for the convictions of an average of 729 people over each of the three years is over sixty one thousand pounds per person.
COST TO THE PUBLIC FROM A PROSECUTION BY THE RSPCA
130. There will be additional public costs through taxation for police time, which applies to both prosecutions by the RSPCA and the CPS. 131. There will be additional public costs following conviction, to monitor the punishments. Prison costs at a minimum of a thousand pounds each per prisoner per week, probation costs for supervision, collection of fines and court costs not recoverable from defendants income, follow up on deprivation and disqualification orders, are at public expense. 132. There is no available data for comparable costs for a CPS trial. A figure from 1999, put an average magistrates court case cost at 1,700 pounds, to ten times that for a Crown court case. The court cost does not include costs 133. associated with police involvement, often a whole day with a large team. 134. The cost to the public could rise if the proposed maximum five year prison sentences, or any period in between, are applied. Defendants who could face a prison term of up to five years may be able to elect for a Crown Court trial.
135. A great number of these public costs would be completely avoided if Local Authority Inspectors fully replaced all RSPCA investigation, and applied the statutory improvement notices under section 10 of the 2006 Act.
RSPCA RELATIONSHIP WITH LOCAL AUTHORITIES.
136. The RSPCA do not have any lawfully granted rights to prosecute offences under the Animal Welfare Act or any other legislation.
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137. Under the AWA 2006 section 30 all Local Authorities in England and Wales have the power to prosecute all offences under the AWA. 138. Due to the lack of public awareness, being hijacked by extensive media promotion, especially on television, the general public have adopted the assumption that the RSPCA are the “animal police” and the first port of call for welfare concerns. 139. The result is that very few local authorities have appointed an Inspector under section 51 of the act, as a local authority employee designated to investigate animal welfare complaints. 140. A section 51 Local Authority Inspector has the same power, in relation to the police, to apply for a warrant of entry, searching and seizing for suspected offences, and using the provisions of section 18 in relation to animals in distress, the ‘emergency’ provision. 141. In addition to the police powers allocated to them, they have two powers not granted to the police under the 2006 Act. The first is entry onto farmed premises under section 28, including searching for any offences. 142. The second power is given under section 10. That is the power to identify non-deliberate-cruelty welfare offences that are amenable to improvement and thereby avoiding the need for any prosecution. 143. A notice given by a section 51 Inspector is legally binding. And its remit totally discretionary, as with animals there is no ‘one size fits all’ prescribed procedure. 144. Thus the section 51 inspector would work with the owner on a scheme to rectify the defects perceived in the care of the animal or animals. This might be as simple as an owner agreeing to an old, sick, lifelong pet being euthanised in its best interests, or even simpler, flea treatments, to advice on the correct requirements for the particular species being implemented. A negotiated time frame is agreed, which is not rigid if improvements are commenced and ongoing, it can be extended.
BENEFIT TO ANIMAL WELFARE
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145. This has enormous beneficial implications for animal welfare, given the threat of prosecution for non-compliance, most owners will adopt the recommendations, knowing they will be a target for future monitoring. 146. The animals remain in any social groups they have formed, with people they know, in a familiar environment. Animals are sentient. 147. Obviously this cannot be used where there is deliberate intentional cruelty, causing unnecessary suffering under the AWA section 4, but covers the vast majority of cases brought.
NB, on this point, the RSPCA choose the charges, and will chose a section 4 charge where there is an easily correctable welfare issue. Section 4 does not require actual mens rea, and the fact of “suffering” is a debateable point. An animal could “suffer” if it was stung by a wasp: or had knocked over its water bowl, on a hot day, or in the case of animals living in a paddock, one had passed droppings into the water source. An animal owner cannot be ‘on duty’ 24 hours a day to ensure perfection, but this is a standard that the RSPCA exploits. The snapshot in time is promoted as a permanent state of neglect. A wasp sting may be a large painful lump by the time an owner sees it. Grazing animals in particular are vulnerable to biting inspects during the summer. The impact of threats to welfare can be reduced, not eliminated.
COST TO LOCAL AUTHORITIES OF IMPLEMENTING SECTION 51 INSPECTORS.
148. There are 343 Local Authorities in England, roughly the same number as there are RSPCA ‘inspector’ level investigators. Using RSPCA statistics, and the number of working days in a year, each ‘inspector’ visits on average two welfare cases per day. (Number of cases passed down for investigation by telephone operators, from over a million calls made annually.).
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149. In a working year, allowing for holidays, only 2 or 3 visits per year are considered ‘prosecution worthy’ by the individual RSPCA ‘inspectors’ from an average of ten actual investigation visits each per week.
150. With allowances for annual leave, sickness and 2 days per week off, that would average per inspector per year, (230 worked days) 460 individual visits, resulting in only two cases deemed to fulfil criteria for prosecution. That is less than half a percent of calls investigated per inspector results in prosecution. (0.43%).
151. RSPCA figures again, that would average two prosecutions per ‘inspector’ per year taken up by the prosecution department, with a further one per ‘inspector’ not actioned for prosecution.
152. There are approximately the same number of RSPCA ‘inspectors’ as there are Local Authorities in England. 153. The cost to the RSPCA is 61,000 pounds per successful case. (45 million “Inspectorate” budget divided by 729). That can also be expressed as support costs including inspectors at two prosecutions each per year, is 122,000 pounds. 154. RSPCA salaries are between 24 – 27 thousand pounds per year plus benefits, a van for personal use all expenses paid. See RSPCA recruitment. 155. Recently qualified veterinary surgeons earn between 30 – 40 thousand pounds per year. Employing qualified veterinary surgeons, by local authorities as section 51 Inspectors, who have police powers of entry and do not require additional personnel, is how national authorities operate in relation to farmed premises. 156. For all but complicated cases, or where there is a threat to the safety of the Inspector, police presence is not required, freeing the police and its budget up for different crime. 157. A veterinary surgeon is a well-educated individual with the extensive knowledge of many species, knowledge lacking in the RSPCA employees who seek to impose their opinion, often on people with a lifetime’s experience.
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158. Local authorities could share resources, to make an efficient use of resources, (given that the work load is not oppressive for the average RSPCA employee,) and improve animal welfare by employing qualified veterinary surgeons, possibly with the assistance of trainees in colleges, where they offer animal care, equine and farming courses. Or on the apprenticeship schemes, with a low wage, but valuable experience. 159. It is proposed that it should not cost each local authority more than sixty thousand pounds to replace the RSCPA ‘inspectorate’ in its entirety, freeing up donations to fund animal care centres staffed by animal-care qualified personnel. 160. A tight reporting system to Local Authorities could ensure that ‘nuisance calls’ are minimised. For example the RSPCA responded, calling out the fire brigade to a squirrel at the top of a telegraph pole. It immediately scampered down and away up a tree. (genuinely reported in the local newspaper). 161. It should lead to fewer prosecutions, by use of the section 10 improvement notice. 162. It should lead to animal owners in reduced circumstance having better access to care for their animals before a minor problem escalates into a more expensive problem, with RSPCA donations spent assisting owners who qualify, in the early stages.
PROPOSALS.
- Local authorities to be compelled to take over all investigation and prosecution of animal welfare offences that do not come under the specific remit of a police investigation, or any offences where farm specific regulations are broken, and could be taken up by national authorities.
- The RSPCA to be investigated by the Charity Commission in relation to the scale of misuse of Charity donations.
- The RSPCA to cease all prosecutions with immediate effect, and hand casework files to (1), Local Authorities where there is a section 51
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Inspector in place, or (2) to the police, for action or as agency to pass onto (3) the CPS. - An agency to be set up, independent of the police, to investigate all RSPCA cases, in relation to police misconduct for entry , search and seizure, where there is either (1) no warrant, or with a warrant, (2) where the police do not investigate but allow others to make use of seized property, (3) where the police have not completed the post seizure paperwork, and (4) any other circumstances that are similar. - An independent body be established to investigate complaints, arising from at least 2008, to coincide with PACE Code B, when prosecution has occurred, where the defendants were found guilty by the court, (due to the inability of the defendant to obtain evidence to rebut the RSPCA assertions, as that defendant was prevented from doing so directly by RSPCA actions),and a separate enquiry into those who opted for the early guilty plea, in circumstances where they felt coerced into doing so. - The RSPCA be ordered to set aside a compensation fund, where defendants are found where they are coerced as owners, or the police misused the provisions in PACE Code B, and /or those specifically in the Animal Welfare Act. - Compensation should include all costs, value of animals removed, killed, or otherwise not returned to the owners, with related costs, eg loss of employment, or business income to be taken into account. - All convictions to be quashed, where the police disregarded the provisions of Code B, enabling the RSPCA to secure a conviction. - Publicity and time frames to be drafted for members of the public who wish to take advantage of the complaint enquiry. - The RSPCA to hand over all prosecution case files, to an independent agency, in order to trace persons who might wish to take up a complaint. - The police to hand over copies of all paperwork generated by involvement with the RSPCA, or full explanation of why PACE Code B requirements were not followed.
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END NOTE. Those responsible for deliberate animal cruelty should be punished. However it is essential in the 21st century not to be swayed by a charity founded 200 years ago, that still maintains its pre-Victorian values, where the power belongs to those who are not accountable.
The RSPCA is not accountable, or lawfully empowered to investigate or prosecute. Its current structure allows totally unqualified staff, both in animal care and legal matters, to make life changing decisions that affect a person’s whole life, morale, mental health, social standing, economic status due to employment implications with a criminal conviction, frequently the first ever conviction in a hitherto blameless life.
ADDITIONAL MATERIAL IN SUPPORT OF POINTS MADE IN THE BODY OF THE SUBMISSION.
EXERCISE IN TWENTY WAYS an owner can be unlawfully deprived of animals for the purposes of the Human Rights Act 1998 Protocol 1 Article 1.
TWENTY WAYS TO HAVE YOUR ANIMALS TAKEN UNLAWFULLY
CONCLUSION, unlawful deprivation under Article 8., Protocol 1 Article 1. Unlawful deprivation occurs – POLICE 1. Whenever there is a police seizure of animals, where the police do not intend to investigate the alleged offence. 2. Where the police fail to complete ‘book 101’ the term used to describe completion of post seizure records. 3. Where the police enter premises without any warrant or informed consent of the owner. 4. Where the police purport to use section 17 of PACE, entry without warrant, under the pretence of “ saving life or limb or protecting property”.
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5. PACE 17 is only for arresting a person; for removing animals, in danger, the relevant law is Animal Welfare Act section 18, animal in immediate need. 6. Where the police authorise destruction of an animal on site under the Animal Welfare Act section 18, where there was neither a warrant of entry for that purpose, or the owners informed consent. 7. Where the police enter under a warrant granted under section 23, for offences, and purport to use section 18 for destruction, where the owner is not informed to give consent. 8. Where the police fail to acknowledge a request for the return of animals seized prior to trial, often prior to charges, in accordance with PACE section 22. 9. Where the police knowingly transfer the care of animals to the RSPCA, where they are aware that the RSPCA intend to prosecute, and use the animals as evidence, preventing the owner from independent examination, prejudicing the right to a fair trial under Article 6. 10. As above, where the police breach their own PACE Code B, section 7.11, that requires evidence seized by the police to be secured from any third party use. 11. Where the police enter premises under a warrant, but the magistrate has not authorised “others” to accompany the police, but the police disregard the limitation to the warrant. 12. Where the RSPCA visit premises, misleading the occupier into allowing them to inspect and remove animals owned by the occupier, or the occupiers family, often by the ‘threat’ of coming back with a warrant and the police.(no true informed consent, coercion) COURT 13. Where the Court makes an order for disqualification but makes a similar order for deprivation prior to the time period for appeal elapsing. 14. As above, the court makes an order for deprivation simultaneously to a disqualification, where there were no offences in relation to those animals. 15. Where the court makes an order for deprivation prior to the defendant being charged with a new offence under the AWA section 34(9), keeping animals while under a disqualification. 16. Where the court makes an order for deprivation simultaneously to a conditional discharge.
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17. Where the court makes an order for disqualification simultaneously to a conditional discharge, where the length of disqualification is effectively deprivation. 18. Both of the above orders are unlawful under any circumstances in relation to animals. 19. Where the court orders deprivation of animals not owned by the defendant. 20. Where the court orders deprivation of animals where there was not a conviction in relation to the particular animal.
It is also arguable that it occurs when deprivation is ordered when there is only a conviction under the Animal Welfare Act 2006 section 9. Section 9 is a relatively minor welfare offence amenable to an improvement notice issued by a Local Authority Inspector appointed by the power in section 51. Compliance negates prosecution. Where no section 10 Improvement notice was issued, it is argued this is also a miscarriage of justice.
RSPCA RECRUITMENT – demonstrating that ‘inspector’ level employees are unqualified to inspect animals. Copied Direct in 2019 https://www.rspca.org.uk/utilities/jobs/becomeaninspector/information
Information for candidates If you know you can meet the demands of what we expect from our inspectors, then take a look at the requirements for the role. We're not currently hiring, but as soon as vacancies become available they'll be listed on our jobs page.
Entry criteria The minimum entry criteria for our inspector training course are 5 GCSEs at grade C (pre-2017) or grade 4 or above (geographical equivalents e.g. Scotland, Ireland, European or historic equivalents e.g. `O¿ Level, CSE grade 1). A full, current, UK licence to drive a car with a manual gearbox. The ability to swim 50 metres fully clothed within 2.5 minutes. Feel comfortable with working at heights and from ladders. A good level of physical fitness. Proven experience of working both as part of a team and independently.
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Proven interpersonal skills - experience in the successful management of confrontational situations is essential. Experience of working with animals. Good administrative skills. The flexibility to work unsociable hours including some evenings, weekends and bank holidays. Ability to be away from home for a 16 week period (this will include some weekends).
Training to be an RSPCA inspector Part of your training will include a 16 week residential, modular training programme. Full-board accommodation will be provided for you during your attendance for these modules.
Criminal offences Due to the nature of the work, a conviction (or formal caution within the past ten years) for a number of criminal offences, will mean a rejection of your application. The offences include (but not exhaustively) violent crime, public order, corruption or dishonesty. Section 21 of the Firearms Act sets out restrictions on the possession of firearms by certain categories of persons convicted of crimes. In short, persons who are sentenced to a term of imprisonment of three years or more are never allowed to possess firearms, and persons who are sentenced to a term of imprisonment for three months or more but less than three years must not possess firearms until five years have passed since the date of release. Consideration may also be given to any previous convictions or cautions and in particular, any conviction which involves the use of a firearm and, offences involving violence, or offences involving dishonesty or a disregard for public safety. Rehabilitation of Offenders Act This post is not protected by the Act. You will be required to declare details of all convictions and police cautions, including those regarded as 'spent' under the Rehabilitation of Offenders Act. Important information If you or your family or partner have any business or financial connection with animals, you are required to disclose it. You should notify the learning and development department of any potential or perceived conflict with the Society's policies or reputation.
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https://www.rspca.org.uk › utilities › jobs › information
It costs £50,000 to train each inspector and get them on the road; investigating cruelty and rescuing animals. Please, help us train more vital inspectors, give what you can today. ( the begging phrase on every single RSPCA document for public consumption) RSPCA inspectors investigate complaints about animal cruelty, and rescue animals and provide medical treatment.
(another claim not supported by analysis of its own statistics.)
NOTE below added by the writer.
(The Independent RSPCA local branches that pay for a franchise to use the logo, are the ones that take in and support unwanted and sick animals, without any funding from the parent organisation, that only investigates and prosecutes. Local centres with RSPCA logos are doing an excellent job, but many have been forced to close due to underfunding, having an obligation to house RSPCA ‘seized’ animals that “bed block” for many months.)
Average salary (a year) £19,250 Starter. £30,000 Experienced. Typical hours (a week) 38 to 40 a week. You could work. evenings / weekends / bank holidays on shifts.
WOOLER REPORT – Lack of legal qualifications RSPCA prosecution team (published on RSPCA web site September 2014).Note, Jason Fletcher who is now a senior prosecution case manager has only recently undertaken training to be a paralegal. That is still non-compliant with the requirement of the Crabb Review, or that of Wooler for those taking prosecution decisions to be solicitors or barristers.
WOOLER PAGE 75
Prior to the creation of the Prosecutions Department, cases had been referred upwards within the Inspectorate to four Legal Chief Superintendents who considered the papers and decided whether to initiate proceedings. When a prosecution was launched, the local inspector would engage a solicitor locally but
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the brief would emanate from the relevant Legal Chief Superintendent. Legal Chief Superintendents had the benefit of advice where necessary from a Senior Assistant Solicitor within the Legal Services Directorate. Legal Chief Superintendents reported, in a command sense, to the Chief Inspectorate Officer although they were “functionally accountable” to the Chief Legal Officer i.e. deferred to him on legal matters. The Crabb Review recommendations included:
• a Chief Prosecuting Solicitor should be appointed to head the new Prosecutions Department; • the work of the Legal Chief Superintendents should be undertaken by lawyers; • the Legal Chief Superintendents should eventually be redeployed.
Not all the above recommendations were implemented. A Head of Prosecutions was appointed and was succeeded in 2007 by a barrister who remained in post until 2012. At the time of the review, the Deputy Head of Prosecutions (a former Legal Chief Superintendent who had remained as a Senior Prosecution Case Manager) was Acting Head of Prosecutions. Although he brings a wealth of experience to the post, he is not a solicitor or barrister. The Head of Prosecutions reports to the Chief Legal Officer. A review of RSPCA structures generally was in progress during the review. It is important that the head of the Prosecutions Department should not report to anybody other than the Chief Legal Officer.
There were effectively five Prosecution Case Managers in post at the outset of the review: one was a former police officer and the remaining four were former inspectors. Two left during the course of the review and, at the time of writing, one has yet to be replaced. 6.3.1
Separation of the functions: the Philips Principle Critics assert that the role of the Prosecutions Department is inappropriate because the RSPCA is:
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• an organisation that both investigates and prosecutes; and • has other roles that are incompatible with its position as a de facto prosecuting authority.
The arrangements described above do provide separation of functions insofar as prosecution decisions are not taken by those who investigate. It was clear too that Prosecution Case Managers strongly assert their operational independence that prosecution decisions are for them alone and nobody else within the RSPCA. But, they do not accord with the Philips Principle as regards the separation of investigation and prosecution into different organisations in the same way as between the police and Crown Prosecution Service.
The lack of organisational separation is not an insuperable impediment to the RSPCA’s prosecution role. There remain many other organisations whose responsibilities combine investigation and prosecution. Local authorities are a prime example. ….. Most (other organisations) have clearly defined arrangements for separating out the prosecution decision and ensuring that it is either taken by a suitably experienced lawyer… It is therefore possible for the RSPCA to build on the existing arrangements in order to achieve similar safeguards but the current reliance on so many former inspectors within the Prosecutions Department does not sit comfortably with the Philips Principle.
The more important considerations relate to the second head of criticism and the need for decisions to be taken objectively and impartially and free from any extraneous and improper influence; and for that to be seen to be so. These are more problematic because, whereas all the organisations mentioned have policy responsibilities and other overarching activities, few have the level of campaigning and lobbying activity that the RSPCA does. Indeed, the activity of the RSPCA was an important driver in bringing about
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enactment of the Animal Welfare Act 2006 and the Hunting Act 2004 The former dominates its current work… . In addition, the RSPCA remains heavily involved in campaigns which touch on the areas of law with which the RSPCA concerns itself – the transport of live animals and the badger cull, with prosecutions for badger interference being frequent. Moreover, the RSPCA statement of its strategic objectives until 2024 is an ambitious commitment to further improvement of animal welfare likely to involve significant changes in social attitudes.
Further potential for calling into question the objectivity and impartiality of RSPCA prosecutions arises from its open stance that some public authorities (including the courts who are frequently encouraged to tougher sentencing) are insufficiently robust in their enforcement of animal welfare laws.
For example, as recently as March 2014 the RSPCA said in a press statement that it continued: “…to have concerns on the inspection regime undertaken by Government veterinarians and believe our presence adds another layer of enforcement which is sorely needed in this trade.”
This stance could be taken to imply that the RSPCA would wish a different standard to be applied than that of the public authorities
Some would also infer that its application of the Code for Crown Prosecutors would also be likely to differ. Whilst the review found some instances where the application of the Code was flawed, that does sometimes occur in all prosecuting authorities. There is no direct evidence of extraneous influence but it is the perception that is crucial to public confidence. . In addition, there is inevitability that the culture of the organisation will become imbued in the approach of the PCMs. Prosecution Case Managers see no difficulty with the present arrangements, asserting that they are scrupulous in deciding each case fairly on its individual merits. Their bona fides is unquestionable.
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But the crucial question must surely be whether a reasonable and informed third party would be confident as to the impartiality and objectivity of decision-making.
This gives rise to a situation where, on any objective basis the RSPCA is best placed to undertake most of the prosecution work in terms of resources and technical expertise, but is compromised to some extent by its other roles. Even so, the difficulties can be overcome by some adjustment to the structure of the Prosecutions Department. Some categories of case should be referred elsewhere.
The review concludes that the time has come to complete the process started by the Crabb Review. The RSPCA should move incrementally to a position where all prosecution decisions are taken by or under the supervision of qualified solicitors and barristers.
The first step will be to appoint a new Head of Prosecutions who should once again be a solicitor or barrister.. The individual chosen should have substantial experience not only in conducting prosecutions but in managing a prosecution authority – or a division of one. There are other business reasons for a change of modus operandi that would place more reliance on in-house lawyers and the options are canvassed later in this chapter.
RSPCA, FIREARMS, AND KILLING ANIMALS.
From Hansard 1969
R.S.P.C.A. Officers (Firearms) HC Deb 24 July 1969 vol 787 cc2124-52124
R.S.P.C.A. Officers (Firearms) ... The 0.32 calibre Webley and Scott pistols are in the hands of only those inspectors to whom a firearms certificate has been issued.
§27. Mr. Brooks
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asked the Secretary of State for the Home Department whether he is aware that officers of the Royal Society for the Prevention of Cruelty to Animals travel about the country armed with guns with which they are entitled to shoot animals on the spot; and, in view of the potential danger to the public, whether he will introduce legislation to end this practice.
§Mr. Elystan Morgan
An officer of the R.S.P.C.A. has no special dispensation from the requirements of the Firearms Act, 1968. He may not possess the humane killers provided by the Society unless he has a firearm certificate, which is granted only if the chief officer of police concerned is satisfied, inter alio, that an applicant can be permitted to have the firearm without danger to the public safety or to the peace. My right hon. Friend sees no need for any new provision.
§Mr. Brooks
Is it not slightly disconcerting that several hundred heavy 2125 calibre 0.32 weapons are in the hands of inspectors throughout the country? In view of the obvious risk that these weapons might fall into criminal hands, would it not be more sensible if the inspectors were supplied with the relatively safe but effective incapacitating device which many veterinary surgeons use?
§Mr. Morgan
The 0.32 calibre Webley and Scott pistols are in the hands of only those inspectors to whom a firearms certificate has been issued. I am not aware that there is any reason to suppose that firearms held by R.S.P.C.A. officers constitute a source of danger to the public.
From an independent web site…Conversation, names removed
What is the position today re firearms and the RSPCA?
P. one of them shot a pony of X with blood everywhere even though a vet was present and X asked for her own vet to be able to kill by injection
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P. http://rspcanotwhattheyseem.blogspot.com/.../rspca...
P. Which RSPCA inspectors or other employees in your area hold firearms licences? A. There are 12 RSPCA employees in the S**** W**** Police area that hold firearms certificates.
P. If licensed, what type and calibre of firearms are carried by each RSPCA employee? RSPCA Inspectors are certificated to possess and use a .32” single shot pistol with a ported barrel. They are also issued with a captive bolt utilising a .22” blank cartridge but these are not subject to firearms certificate control. There are a number of additional officers who are certificated to possess and use a 12g shotgun and
P. What reasons were given by the RSPCA employees for requiring the firearm(s The Inspectors possess the firearms referred to for the humane despatch of animals
P. Where do RSPCA employees indicate that they will use the firearms?
RSPCA Inspectors seek to use the firearms wherever they have good reason to do so and wherever they can lawfully be.
P. Do they have an 'open certificate'
In the sense that the firearms can be used wherever they have lawful access then the certificate might be likened to one possessed by a shooter in the form that is known as an “open” certificate . However it is legally possible for an Inspector to have access to land without the landowner’s permission, which would not be the case for a certificate holder with an open condition in the usual understanding of that term. There may be other detailed legal considerations of this nature, that can be considered on a case by case basis .
P. they refused to answer names of those issued with firearms certificates
NOTE ADDED JULY 2020.
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The answer copied and bolded above, from a reply from RSPCA source is totally incorrect. The RSPCA have no authority whatsoever to enter any premises without the valid permission by a person entitled to give it. If the police are required in all circumstance to obtain occupier permission, then members of the public have less rights to do so, without occupier permission. The “Inspector” would have to be appointed under the AWA section 51, and another person applying for a warrant, (unless under different rules eg for wildlife).
A captive bolt gun is not lawful for euthanasia, but the RSPCA in the presence of police used such a device to kill German Shepherd dogs that had been surrendered. The police officers were traumatised by the event. Death is not instantaneous, the brain is damaged by the percussive force, where several attempts might be made until the extent of brain damage causes death. It is barbaric.
References - https://www.ourdogs.co.uk/News/2009/Sep2009/News040909/rspca.htm
‘A decision was made following a discussion between eight RSPCA officers that the most humane form of euthanasia would be to use a captive bolt.’
https://www.walesonline.co.uk/news/wales-news/rspca-threatens-sue-critics-row-2075611
“THE RSPCA has threatened legal action against a group running a protest campaign against the charity for destroying 10 German shepherd dogs in Wales”
https://www.germanshepherdrescue.co.uk/shot-rspca-i-415.html
Carolyn clearly sounded distinctly unimpressed by Mr Wass.
“A captive bolt is a weapon used in an abattoir to stun animals prior to pithing and bleeding out. It does not kill, it does not stop the heart. The World Society for the Protection of Animals deems the captive bolt to be an unacceptable method of “euthanasia” stating: As there is a high risk of mis-stunning through inadequate use of the penetrating captive bolt, and hence causing pain and distress, WSPA considers this an unacceptable method for the euthanasia of dogs and cats”.
RCVS Codes of Practice
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8.1 Euthanasia may be defined as ‘painless killing to relieve suffering’
8.4 Generally, only veterinary surgeons and veterinary nurses acting under their direction and in accordance with Schedule 3 of the Veterinary Surgeons Act, have access to the controlled drugs often used to carry out the euthanasia of animals. An exception to this is the use of pentobarbitone by RSPCA Inspectors in England and Wales for the euthanasia of wild animals.
NB, pentobarbitone is part of a cocktail of drugs used in certain states of America for human execution. As such, many drug manufacturers in Europe will not supply the product to the United States.
CASE STUDIES
(summary of main points, essential reading to understand the scale of abuse of process).
CASE STUDIES OF GROSS MISCONDUCT, RSPCA, VETERINARY SURGEON, POLICE.
NB, These cases are a sample, where the writer has met with the defendants, and seen the case file material, and for animals where the writer also has a life time of experience .
Factors on entry search and seizure, lack of police accountability, apply as with every other case.
Case A, 2016. Abuse of process hearing.
The case involved the RSPCA unlawfully entering onto private premises in the absence of the owner, even though he had the means to contact the owner. He called the police who advised they would not attend without a veterinary surgeon. The police then attended, without any warrant whatsoever. The veterinary surgeon is quoted in police written statements to say, ‘not to bother to contact the owner as
44 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK she is satisfied the animal could be euthanised.’ The police authorised the vet to kill the animal.
NOTE, in this case it was a ‘farmed premises’, where power of entry is not granted to the police, (section 28) but only to an Inspector duly appointed under the Animal Welfare Act section 51.
The RSPCA barrister, in court, argued a defence of “necessity” to trespass. Necessity by case law is limited and only applies to human life or death situations, similar to a walker trapped by a rising tide entering the garden of a beach front property.
She argued that “the RSPCA couldn’t do their job if they didn’t trespass”. The Recorder who refused to State a Case, for the High Court, also refused a transcript of the trial that would have disclosed all the legal mistakes of law made during the trial. Self preservation for his career?
The Animal Welfare Act section 19(1) can only be used to be ‘lawfully’ on premises with occupier consent, or upon the application for a warrant.
The AWA does not create an offence under section 18, for which section 19 authorises access. It does not allow for any action for an offence, ‘another purpose”
Following destruction, the RSPCA asked the police for the carcase of the animal, as he, the RSPCA employee unlawfully on premises, (not named on warrant under PACE section 16, as there had not been any application for a warrant), was “conducting an investigation.”
Evidenced in the written police statements, and emails that disclosed that the poice had kept no records whatsoever of the entry search or seizure.
The police statement purported to use PACE 1984 section 19, to permit the RSPCA to remove the carcass for their own purposes. This could never have been lawful, as the police entry was wholly unlawful, ie, the police were not lawfully on premises under PACE sec 19(1), as there had been no valid consent,
45 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK in the absence of a warrant of entry. (PACE, PACE Code B, sections 5, (no consent for search, warrant required),
section 6.9, (search has to end when purpose of entry achieved), 6.9A ‘any other authority’ (no assumed permission) ,
section 7.11, giving property to a third party for that parties own purposes, ie to conduct an investigation, including attempting to gain evidence by necropsy..
7.16. and 7.17, There could be no independent veterinary evidence, due to the RSPCA refusing to inform the owner the whereabouts of the carcass. The carcass had a necropsy performed (post mortem), and the carcass itself destroyed within five days.
Section 8, action after searches, NO record whatsoever kept by the police.
Defence?
When a very experienced accredited expert veterinary surgeon examined the RSPCA’s veterinary surgeons report, and the necropsy, together with RSPCA photographs, he was adamant that the animal’s condition did not warrant euthanasia, and that the treatment given by the owner was correct. (the animal had lesions caused by insects).
These points and more were raised on appeal to the Crown Court, in an Abuse of Process hearing, where the Recorder actively assisted the RSPCA barrister when she became out of her depth on the law. He incorrectly interpreted case precedents given in the Written Abuse of Process statement. He then refused to State a Case on the relevant mistakes of law, which was then rejected in an application for Judicial Review, based on the flawed reasoning for rejecting to State a Case.
The Crown Court appeal including the RSPCA’s veterinary surgeon saying in her oral evidence, that there was “no evidence of treatment”, despite that a more experience vet had seen the same photographs and read the same evidence, saying that correct treatment had been given. The previously withheld RSPCA photographs were then displayed at the request of the owner, showing quite
46 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK clearly antibacterial spray on the lesions. Despite the obvious lie under oath from a well-coached witness, her ‘evidence’ was “preferred”!
Case B, 2018
Refusal to allow CPS to see file.
Disability harassment under the Equality Act 2010.
1. There has been a proven case of collusion between a defence solicitor and the RSPCA choice of prosecutor, (from a 2018 summons, finally decided in July 2019), agreeing NOT to send the RSPCA evidence file to the CPS, even though the CPS had been made aware of the file by the defendants appropriate adult, at least six months prior, and had requested the file. The defence solicitor did not acknowledge the request, although admitting it had been made to him. 2. The CPS requested an adjournment of the trial date for them to make their own decision, but the RSPCA appointed barrister persuaded the District Judge that he had the discretion to hear the case, without an independent assessment of the RSPCA evidence by the CPS. This was in the absence at court of the defendant who has long standing and well documented mental health problems, including suicidal thoughts and agoraphobia. 3. The CPS had the medical evidence and detailed information concerning unlawful destruction of horses, and the police failure to keep any records whatsoever. 4. The police kept no records of entry, search or seizure, failed to respond to DSAR, failed to respond to request under Police Property Act 1897 for the return of horses, still the property of the owner, who had suitably experienced new homes lined up for them. 5. The police made a series of unannounced calls, following the verdict, that amounted harassment under the EA 2010. 6. The District Judge refused to State a Case as he said it was ‘frivolous’ and ‘academic’, basically, that the legal provisions that had been totally disregarded, needed higher clarification. It was argued that
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there was a grand scale Abuse of Process, that caused breaches of the Article 6, 8, P1A1 of the Human Rights Act. 7. On that basis, Judicial Review was refused as “totally without merit”/ 8. This defendants rights have been breached by both the Magistrates Court and the High Court. 9. The EU convention applies to all states that are signatories. The UK was a signatory before joining the EU. Article 2, right of appeal in criminal matters “ right to have his conviction or sentence reviewed by a higher tribunal” 10.It is yet to be decided how to approach this, as the convicted person pointed out, the animals seized were by law the responsibility of the police, where the court ordering deprivation made no order that transferred ownership to the charity. 11.The police who kept no records whatsoever ….. it is known that more horses have died or been killed by the RSPCA following the verdict.
Many legal features of this case appear in the submission number AEV189578, both myself and that contributor have detailed knowledge of the above case.
Case C. 2016
Circumstances similar to Case A.
Human Rights Act, Article 7 breach by the Courts
1. Owner absent from premises , but here the premises were the curtilage to a private dwelling. Owner returned to discover a wagon waiting for ponies within the garden area to be loaded and removed. A police constable arrived soon after. 2. RSPCA ‘inspector’ was present with a representative from World Horse Welfare, who is a former RSPCA employee, and a recently qualified vet. 3. They ALLEGED that the ponies were hypothermic and emaciated. The ponies had been stood at the far end of the garden waiting for titbits from
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passers by. Waiting in mud for treats in the rain, not further up the slope and in a dry open shelter fully accessible to them. I wont bore the reader with ‘why’, but it would be 99.9% impossible for Shetland ponies to become hypothermic. In the prevailing weather. 4. The police constable was led by what the RSPCA inspector had asked him to do. Authorise seizure of the ponies. 5. For all the reasons given, in Case A, and the submission number AEV189578, nothing that occurred that day was within the legal parameters allowed. 6. The Magistrate returned a guilty verdict, which was unsuccessfully appealed. This was despite the production by the defence of the monthly weight records kept from seizure to the following December, showing that the ponies were the same weight exactly one year later, in RSPCA ‘care’. They had gained weight in summer, as they should, but lost it in winter to the alleged emaciated state that was the alleged reason for removal. 7. There should have been ‘no case to answer’ on the facts. 8. This case is exceptional for a further two reasons, both relevant to post conviction powers. (i) The first is that there has to be an appeal window elapsed prior to sentence commencing. Sentence was wrong in law. It was disqualification from keeping ponies. The RSPCA arrived on the second day, within a 21 day appeal window, to remove a group of ponies from a livery yard where they were kept. After much distress, the RSPCA left that day, but returned the next. The defendant agreed under protest to sign ‘some’ of the ponies over to the RSPCA, within an appeal window period, where they were not acting lawfully. Those signed over were recorded on their passports to belong to the defendant. They were however the ‘kids ponies’ bought for a relative who had reached the age of majority, but there seemed to the family little point in a name change. The RSPCA had offered not to return for the other ponies, if these were signed over to them. They did return, but the defendant held fast, as these ponies were later acquisitions, and in the registered ownership of the relative who was an adult.
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(ii) The second reason that this is exceptionally bad law, is that the Recorder who heard the appeal, asked the RSPCA what the ponies were worth, and what penalty did the RSPCA wish to have imposed. The judge obliged by mis-using the Animal Welfare Act section 35, that allows for a deprivation of animals where it will prevent a breach of a disqualification. Under disqualification, a reasonable time should be given for the convicted defendant to make arrangements for the animals that they are disqualified from keeping. There is a separate offence of breaching a disqualification, under section 34.
At this point, bear in mind that the remaining ponies had never belonged to the convicted defendant, but to a relative who was an adult, and responsible for their keep. Fearing that the RSPCA would swoop and remove them by force, under the guise of a “Court Order”, the adult relative moved them elsewhere.
9. Under the Human Rights Act, Article 7, “No punishment without law”, a person who was related to a convicted person, who had no input into the original alleged crime, as this was a person not living in the same household, but had ponies accommodated on the same livery yard, not the private dwelling that the Shetland ponies were removed form, was going to be the victim of an unlawful punishment. 10.The RSPCA were relentless, dragging the convicted party back to court with threats of further punishment, supported by the Recorder, who refused to State a Case for the High court on the deprivation order, that affected an third party, solely due to the RSPCA belligerence in wanting the acquisition of the considerably more valuable horses belonging to a relative. 11.The relative put an application in to the High Court, but was unavailable to put her case due to a work commitment abroad. The relative had at all times had her own horses at livery, where the yard owner took all care duties. 12.The Court itself at the insistence of the RSPCA, who had demanded the sentences, had breached the Article 7 rights of a person who had not, and could not, have been charged with any crime.
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Case D. 2017
Disability harassment, HRA Article 5, unlawful detention. COSTS.
Another horse case, person with a detailed statement of needs in relation to physical affects arising from neurological damage caused by an accidental head injury, with delayed processing ability. In many ways, still as intelligent, but absorbing and understanding NEW information is delayed. The defendant would not have been able to participate in the trial process.
1. Police detained D in own home, removing mobile phone, not even allowing use of WC without being watched. 2. RSPCA had arranged several wagons to attend, and rounded up and herded every horse on the premises into the wagons. 3. D’s vet was astounded. The vet was in attendance for one of the horses. 4. This was not appropriate for “sort and sift” procedure. 5. Charges when laid were spurious. A condition called ‘sweet itch’ caused by an allergy to midge bites, where the affected horses were in the process of being included in a trial for new treatment options. Others for ‘unsuitable environment’, a section 9 welfare offence, where a section 10 Improvement notice could have seen the couple of broken fences repaired the next day, the stakes and rails were there on the premises. 6. D’s vet made arrangements to visit the horses. Some had travel injuries. Some mares no longer had the young foal born with D with the dam. There were no explanations. 7. Horses died of conditions that they did not have when being removed, some even one year later. Eventually, the District Judge virtually ordered the RSPCA not to offer evidence. 8. The writer attended the meeting with D, to arrange for the return of the surviving horses. The RSPCA’s new head Equine vet was present, she had examined all horses the previous week, and was identifying them with D. She had to agree that the photographs taken a few days after seizure did not show a single horse in poor health. She no longer works for the RSPCA.
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9. Horses returned unhandled since birth, they were feral, like wild west rodeo horses, going to a smaller premises, as the owner had been forced to move out of the immediate area. 10.There had been much pre trial publicity, in the local paper that was wholly inaccurate, but caused a great deal of condemnation within a small community. 11.The RSPCA ‘inspector’ responsible for causing the seizure of valuable and rare horses, had been promoted by the RSPCA before the trial collapsed. 12.Costs that the RSPCA had hoped to recover, for boarding, were in excess of one million pounds. THAT became a cost the Charity had to bear.
Case E. 2017/8
More ponies, owned by experienced person of many years standing, and a local show judge.
1. Entry onto premises by police, and RSPCA, in the absence of the occupier, without any warrant. 2. RSPCA had the means to contact the owner/ occupier of the land by telephone and failed to do so. 3. A padlock was cut off, to remove two young, thin ponies. The RSPCA put their own padlock on, without leaving a key for the occupier. The owner was unable to access the land when attending later for a regular visit with food and water barrels. 4. The owner had great difficulty trying to lift 25 litre barrels of water over the gate, when the RSPCA were not contactable for four days for a key, as the RSPCA switch board alleged that the relevant ‘inspector’ was now on four days leave. 5. The ponies removed had contracted infectious disease “strangles”, that can, like foot and mouth, be carried by persons unknown. 6. They were under a treatment regime recommended by the owners veterinary surgeon. Strangles can cause rapid and dramatic weight loss. No other pony in that field was in poor condition.
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7. The usual legal factors, unlawful entry, search and seizure, ponies removed some considerable distance. 8. Kept following removal were proved by a life long expert veterinary surgeon, with particular expertise in horses, to have exacerbated the condition. 9. A cardinal rule of nursing a sick animal is avoid added stress. 10.Incompetent strangers travelling sick horses is a recipe for disaster. 11.At court, the District Judge still fond ‘guilty’ with a small fine, but refused the RSPCA request to order disqualification from keeping animals, or deprivation. 12.The ponies were returned. 13.The following year, the owner was tracked down to new premises, where the RSPCA had persuaded police to dig up and entire midden ( the pile of composting bedding and faeces removed from the stables), to look for bodies of dead ponies that they alleged the owner had buried there. None were found! 14.Nevertheless, animals were removed, including pets from the owner’s home. This is not uncommon. Where the RSPCA do not ‘win’ the animals, follow up raids are usually initiated.
Case F, 2018. Ponies, dogs, cats.
1. A premises where the local authority were refusing planning permission to replace an ancient and crumbling barn with decent new barns and stabling housed a number of well kept ponies, in show condition, with the exception of an elderly mare and her foal. The mare had been fine prior to the pregnancy, but the additional burden of feeding a foal had become too much. Note that the foal itself was in excellent condition, proof that the mare was producing good supplies of milk to her own detriment. 2. Storm damage to the roof occurred, with the RSPCA visit occurring while parts of the barn were still not dried out inside. 3. The RSPCA insisted that the condition of the old brood mare was such that she needed to be killed. The RSPCA led her away from the barn, where she and the un-weaned foal were calling to each other. The foal was so stressed
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it took the owners all their time to contain it in the stable, as it tried to escape to follow its mother. 4. The owner had begged the RSPCA to allow their own vet to attend to euthanase the old mare, if that vet had considered it the ‘only option’. 5. The RSPCA had a vet in attendance.
6. A member of the RSPCA shot the old mare within yards of a public road, causing torrents of blood over the path.
7. The writer has not only visited the premises, but has read all the RSPCA evidence. this is the reason for the inclusion of the fact that the RSPCA carry guns. (Hansard 1969, ongoing!) The writer has attended equine euthanasia on behalf of owners who could not bear to watch those last moments. Killing with a gun by an experienced licensed slaughter-man is extremely traumatic. Lethal injections just make the horse slightly wobbly where it lies down and passes away peacefully. 8. There was no evidence in the case file that a member of the public, the RSPCA employee, was licensed to kill large animals. 9. The owner had the presence of mind to film other ponies being led towards trailers for their removal. Calm ponies who were then herded and chased into the transport , when they were trained show ponies who led in without any fuss. 10.Injuries occurred during the journey, which were added as charges. 11.The defence solicitor made an arrangement with the RSPCA prosecutor, for the defendants to plead guilty to any six charges out of 16, and the others would be dropped. Factually, none of the charges were merited. 12.The defence solicitor refused to drop the ‘plea bargain’. The defendants in court ‘wobbled’ but pleaded guilty. 13.As a result, they damned any future appeal, and lay the path for deprivation under the “guilty pleas”, with disqualification from keeping animals. 14.One of the defendants lost their livelihood in the equine business, although well qualified and popular prior to the court case.
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15.One defendant was married. The partner died of a heart attack before some ponies that had not been removed on the day, could be rehomed under disqualification. 16.This put the surviving partner automatically in a “beaching a disqualification order”, situation, not allowed to grieve, and threatened with further court action.
Case G. 2018 -19
1. An older person, with a great deal of experience and success with horses, was living in retirement with the horses that were also now, older and retired. 2. The RSPCA and police arrived without warning, with a warrant obtained by alleging under the Animal Welfare Act section 52(5)(a), “it would defeat the object of entering the premises”. The supporting evidence was entirely untrue, that the occupant had firearms and by giving (correct) notice to the occupant, would not be appropriate. Without notice, not a single firearm was discovered. 3. Use of section 52(5)(a) always an abuse, (unless there is a dog fight in progress when time was of the essence.) 4. Animals, be they pets, horses or farm stock, cannot be quickly removed or hidden, with a policeman at the door waiting for the warrant to arrive. 5. This case has two other exceptional features. 6. The RSPCA ‘s vet, had persuaded the owner that one of the horses had a cancerous lump , and persuaded the owner to permit euthanasia. 7. In the event, when a vet visited a short time later, to kill the horse, a horse of a different colour was brought out and killed by “mistake”. 8. The horse in immediate need of euthanasia was alive a year later without any deterioration. 9. At the Magistrates Court, the owner was given a conditional discharge as the case was basically quite frivolous. The impact of a conditional discharge is that a period of ‘no further offences’ must elapse before any sentence can be passed for the original offence. 10.The Judge ordered deprivation of the horses seized, which under the Animal Welfare Act, section 33, is a punishment.
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11.The owner appealed. At the Crown Court appeal, that judge also did not upset the conditional discharge, but instead of deprivation of the horses, ordered disqualification from keeping any horses for a fairly long period of time. This is also a punishment under the AWA section 34, therefore not lawful without being charged, with any other offence, being found guilty, at which time sentencing for the original offence can be made.
“HUMAN RIGHTS ACT
ARTICLE 7 No punishment without law 1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
12. A NEW offence has to be committed, as above, before the punishment can be given. Two Courts breached this persons rights.
Summary of the sample.
ONE case is bad, these 7 demonstrate a PATTERN .
The cases selected are within a geographical radius of approximately 50 miles of the writers base, for the purpose of meeting the defendants in person.
They are relatively recent.
They involve a species that the writer has extensive knowledge to critically assess both the evidence file and the owners version.
All the cases involved misconduct to a lesser or greater degree.
All cases involved Human Rights Act abuses.
All bar one, Case D, involve poor decisions in the Court.
All involved deterioration of the animal seized following seizure.
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All bar one are known to have involved the death of an animal at the hands or, or at the behest of, or under the care of, the RSPCA.
Two Case C and Case G, are known where the Court ordered punishment that was unlawful.
Pat Wallwork
July 2020. Taken from material by the author in preparation for publication.
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RESPONSE TO THE RSPCA SUBMISSION – PAT WALLWORK
I have been researching RSPCA prosecutions since 2016, having read the report of Stephen Wooler when it was published in September 2014. I have attended courts, seen evidence files, visited premises of defendants, and had many prolonged conversations with them. I am a law graduate and former lecturer, now retired. I suppose I would be perceived as a ‘due process’ advocate, but sadly must take issue with the RSPCA submission that produces a near perfect ‘model’, but from my research, the model is not in accord with actual practice.
In my opinion, the Justice Committee should concern itself with the reality of what actually happens in practice, when coming to any conclusions on private prosecutions. Having read submissions by ordinary people given instant notices of penalties, (rail fares), to those post office personnel who have lost both financially, by punishment and reputation, due to convictions that are flawed, this is a golden opportunity to re-level a playing field that is as bumpy as a demolition site.
It is not beyond the wit of legislators, to set up a specialist unit for the bulk of private operators concerned with huge financial frauds, where the evidence that they collect is processed by an independent unit, for which a commercial charge is made, where the new unit has the power to involve the police in investigating the missing pieces, if there are any. This would result in a prosecution by the CPS, which could have confidence in the evidence file, from the organisation funded screening.
Nor is it beyond their wit to cap the excess rail fare charge to double the unpaid fare, to stop it being a profiteering racket, with a built in identity data base where repeat ‘offenders’ have the excess fare trebled, then quadrupled.
I would suggest that in relation to animal welfare, the availability of affordable, charity funded if necessary, veterinary care would actually prevent suffering, as would non judgmental ‘no kill’ rehoming centres. Both of which could be well funded if the RSPCA devoted its prosecution costs to prevention, as in its name , PREVENT.
People matter. In relation to the RSPCA both animals and people should matter, and an overdue change in direction for the RSPCA from prosecution into the three R’s, Rescue, Rehabilitate, Rehome, could divert massive resources, so that it does not have to carry on killing over half of all the animals taken in.
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Comments posted within the RSPCA submission in numbered points under the relevant sections. Pat Wallwork, 2020.
Written evidence from RSPCA (PPS0010)
THE ROLE OF PRIVATE PROSECUTIONS AND SAFEGUARDS AGAINST INJUSTICES
Summary
The RSPCA has been undertaking private prosecutions since 1824 to enforce animal welfare offences. The Animal Welfare Act 2006 in England and Wales is primarily enforced by the RSPCA, accounting for around 85% of enforcement effort under the Act. The RSPCA undertakes this task as it has nearly 200 years experience, it fills a gap in the provision of public service, it meets its charity objectives. The Governments in England and Wales are content for it to fulfill this role. The RSPCA follows the guidance set out in the CPS Code for Crown Prosecutors and applies the two DPP tests to conduct prosecutions and has an annual success rate of around 92%. Since 2016 the RSPCA has put in a number of additional safeguards to ensure there is transparency, review and redress in its prosecution work.
INCORRECT.
1. NO GAP, police and local authorities do not hear of cases directly to enforce the legislation. Public perception ensures that the first call is to the RSPCA, they in turn only call the police for “assistance” to gain entry onto premises that they are not lawfully permitted to have otherwise.
2. Police using their power of entry to assist a third party is misconduct under the Criminal Justice and Courts Act 2015 section 26.
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3. Public services as admitted by the RSPCA in their own submission makes them a hybrid public authority under the Human Rights Act 1998 section 6(3)(b), liable for any breaches of the Articles, frequently Art. 6 (fair trial) Art 8 (respect for home and private life) Protocol 1, Art 1 (unlawful deprivation of property.
4. A public function, investigation and prosecution of crime, is not recognised as a charitable function within the tight drafting of the Charities Act 2011, sections 1 to 4 and 11.
5. The RSPCA does not apply the CPS Codes. It is not required to, and virtually every case will demonstrate that the CPS codes are ‘lip service’. For example, a charge was brought of “not providing food or water”. RSPCA photographic evidence was in the “unused” evidence bundle and not available 6 days before a pleadings hearing to the defendant. Photographs showed food and water in close proximity to the animal. This case can be proved by the documents retained, and the fact that the District Judge dismissed that charge.
The way in which large organisations conduct private prosecutions
1. The RSPCA has been undertaking private prosecutions since 1824 to enforce animal welfare offences. The Animal Welfare Act 2006 in England and Wales is primarily enforced by the RSPCA, accounting for around 85% of enforcement effort under the Act. The RSPCA carries out this function because it currently meets its charitable objective and fills the gap on enforcing this area of law because the public prosecuting body currently only does a small quantity. The Animal Welfare Act 2006, under which the majority of these prosecutions occurs, does not make its enforcement a statutory responsibility, for either local authorities or the police.
2. Decisions to prosecute are decided by a stand alone dedicated prosecution department. Once the investigation is completed the file is sent to the Prosecutions department. The Prosecutions department adheres to the provisions of the Code for Crown Prosecutors when assessing a case file of evidence. There are two principal
60 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK tests:
● that there must be sufficient evidence to provide a realistic prospect of a conviction against each suspect on each charge; and
● it must be in the public interest to prosecute.
Following an assessment under the two tests the decision is made that there is a realistic prospect of conviction then the summons would be sought and proceedings commenced.
INCORRECT
6. SEE POINT 4 ABOVE. (charitable objects)
7. The Animal Welfare Act 2006 does not need to specifically say that the police have power to investigate, as the EFRA committee in 2016 had made the point that the police have inherent power to investigate any criminal offence.
8. Local Authorities under section 30 were empowered to prosecute offences. Local authorities can only act on that power if they are informed that an offence has been committed.
9. This cannot happen until there is a change in public perception. Public perception cannot be changed - due to the massive publicity machine used by the RSPCA at a cost of approx. 24 million pounds a year, from public donations, for animal welfare.
10. SEE POINT 5 . anybody who has ever seen their own RSPCA prosecution case files “knows” the CPS Codes were not used. 11. Decision to prosecute is made, by not following police practice on ‘all reasonable lines of enquiry’, including circumstances that exonerate the suspect.
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The effectiveness of existing safeguards that regulate private prosecutions
3. The Law Commissioners did consider the position of private prosecutors in 1998 and concluded that there were adequate safeguards in place to ensure the right to bring private prosecutions was not abused1. Those safeguards in place are;
● Anyone subject to a private prosecution by the RSPCA has the right to request that The Director of Public Prosecutions (DPP) intervenes with that prosecution. They
1 “Consents to Prosecution” (report no 255) 2 apply a review process and can take the case over either to continue it or to stop it. It is essentially cost free to the defendant as a referral can be made completely independent of an instructed lawyer.
● The judicial process in itself provides for a further layer of oversight. From the Magistrates court there is an automatic right to appeal to the Crown Court providing another layer of scrutiny of the evidence in the case.
● The court’s powers to make costs orders which punish a party who pursues unjustified proceedings.
● The right to bring a civil claim for malicious prosecution.
● The case can be referred to the Criminal Cases Review Commission for their scrutiny and review at the end of the judicial process.
INCORRECT
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MISLEADING using 1998 guidance when the circumstances are very different in 2020, hence the need for the Justice Committee to re-examine the role of the private prosecutor.
12. PROOF that the RSPCA does not respect the position of the CPS is from the 2019 case of RSPCA v NH, heard at Blackpool Magistrates Court. The CPS had not received the case file from either the defendants solicitor or the RSPCA , that the, the CPS, had requested over four months before the trial date.
13. In the last week before the trial, the CPS once again asked for the file, with an official letter to the Court requesting an adjournment, as they wanted to see the file to make their own assessment.
14. The RSPCA’s barrister, Carmel Wilde, assured the District Judge that he did not have to adjourn to allow the CPS to make their own decision. The defendant was not present, due to the mental health conditions.
Background. 15. The CPS had been given facts by the defendant, that the police had kept no records and had allowed evidence to be removed by the RSPCA, for their own purposes, contrary to PACE Code B, section 7.11.
16. This is an abuse of process contravening Articles in the Human Rights Act. (6, 8, P1A1)
17. Both the police and RSPCA admitted knowing that the suspect was a person classed as disabled under the Equality Act 2010, where the CPS could have made an impartial judgment on the public interest test, as to whether prosecution was a “proportionate” response, for a person with substantial and long term mental health issues, including the legal issues also involved that the CPS had been made aware of.
“Further layer of oversight”
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18. The automatic right of appeal to the Crown Court is completely irrelevant as “oversight” of a prosecution decision.
19. It is an avenue for a remedy after the fact.
20. Any post conviction oversight does not address the actual issues, the investigation and prosecution not having the benefit of independence on both counts, prior to a defendant having their life in tatters by being charged with a criminal offence.
21. It, the Crown Court Appeal, is on the same facts or points of law that could have been presented to the Magistrate. There is a strict and very short window of opportunity in which to make an appeal. 21 days where the defendant has not expected a guilty verdict, and where the defendant still has never had the benefit of independent contemporaneous veterinary advice.
22. The issue is that the case material can rarely be challenged, as the RSPCA’s modus operandi is the removal of any animals in the possession of the owner, to a secret location, where the owner has been prevented from any contemporaneous independent veterinary examination.
23. Points of law are rarely brought up at the Magistrates Court. When they are, for example the RSPCA v Colchester Magistrates 2015 case in the High Court, where the precedent was set on the exclusion of evidence under PACE section 78, it is frequently ignored by the Judge. (2019 case at Crown Court, District Judge, 2017 case by a Recorder at the Crown Court, 2018 application for Judicial review refused, 2019 application for Judicial Review refused. ) In the 2017 case, the Recorder also ignored destruction of evidence, from a virtually parallel High Court case, quoted at the Crown Court, rendering that trial unfair.
Costs orders, for unjustified proceedings.
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24. The availability of a costs order for what is basically groundless prosecution does not provide a statistical deterrence effect for any large organisation who are not footing the cost personally.
25. A malicious prosecution would have to be withdrawn before trial. it is far simpler for the RSPCA to allow a flawed case to proceed, as an acquitted defendant is not allowed to claim his costs back from Central Fund. The only way, would be for the judge to order the RSPCA not to proceed. There is only one case in 2018 where this has happened. There did not appear to be a cost order made for the benefit of a legally aided defendant.
26. A ‘cost – benefit’ analysis with literally hundreds of cases, where the early guilty plea removes any court costs from the equation, the ‘risk’ of an improperly conducted malicious prosecution claim is going to be slight, in relation to other cases, which might be equally unmeritorious slipping through this alleged safety net.
Civil claim for malicious prosecution
27. This is not a safeguard against a wrongful prosecution but a route for a remedy.
28. It is highly unlikely ever to be used, as a person who has suffered a good deal of adverse publicity around the prosecution, is equally unlikely to want it dredged up again through a long and costly court process
Criminal Cases Review Commission.
29. Another red herring. Cases can only be brought to the CCRC on fresh evidence that was not available to the previous courts who had heard the case and any appeals.
30. The CCRC process is lengthy. Cases where the greatest miscarriages of justice occur, for example a person who has been incarcerated for a murder that new evidence proves he did not commit, would be prioritised over summary offences
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where the convicted party has completed a sentence, for example, community payback hours, as prison terms are still less common.
31. If the ‘fresh evidence’ is something that a legal representative could, or should, have introduced into evidence at the trial, a dim view is taken that it is “fresh”, and the application can fail.
32. Not only is time a factor, but also this is a remedy, not a layer that prevents the prosecution from going ahead.
Alternative legal and administrative safeguards that could be used to regulate the way in which large organisations use the right to bring private Prosecutions
4. The RSPCA considers that there are a number of additional safeguards which they have in place to ensure there is transparency, review and redress in its prosecution work namely;
● Following the recommendations made in a 1981 report from the Royal Commission on Criminal Procedures the person who is responsible for the decision to prosecute should not be the same person who investigates the crime. That principle is reflected in the separation of function and structure of the Inspectorate and Prosecutions departments within the RSPCA.
● When the RSPCA commences a prosecution it instructs lawyers in private practice to conduct the prosecution on its behalf. Those lawyers are officers of the court. They are asked to provide an independent assessment on whether the evidential and public interest tests have been met. This provides two things: firstly, another level of separation to the case and secondly, a further level of review and scrutiny of the RSPCA decision making process providing further assurance to the public.
● The RSPCA has a robust complaints procedure which includes an external reviewer. Having a clear well publicised appeals process is also one of 20
recommendations in the Regulators Code2 issued by the Government’s Better
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Regulation Delivery Unit which is followed by the other enforcement agencies. The Independent Complaints Reviewer (ICR) judgement is independent. It can include a recommendation to compensate. The RSPCA acts on its findings.
● In 2017 the RSPCA created an Independent Oversight Panel to monitor the performance of the RSPCA’s prosecution function. The panel conducts a review and audits the cases the Society prosecutes, looking at the application of the DPP code tests, the investigatory processes and drawing up reports for the Society to act on if changes are required. Their findings are published on the RSPCA website.
● The Charity Commission can investigate the RSPCA and ascertain if they are operating legally and in line with their charitable objects.
2 https://www.gov.uk/government/publications/regulators-code 3 ● The RSPCA has membership with the Private Prosecution Association which launched a Code for Private Prosecutors in July 2019 which provides guidance and standards regarding the conduct of private prosecutions. There are currently 140 members of the Association who follow this code.
“Additional safeguards”
33. The RSPCA are playing with words. The 1981 Royal Commission correctly identified that the investigator and prosecutor should not be the same person. This led to the creation of the CPS, with the police taking a back seat on prosecution. It is known as the Philips principle.
34. The RSPCA carried on promoting its ‘inspector’ grade into the prosecution side. Investigators became prosecution decision makers.
35. Wooler report identified that fact in 2014, four out of five senior prosecution case managers were from former inspectors, the fifth was an ex policeman, non had any legal qualifications. Promoting non animal qualified ex inspectors who were also not legally qualified is not any separation as recognised in 1981, the “Philips principle”
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Further, at least one former inspector is still in 2019 employed as a senior prosecution case manager. (Jason Fletcher, who has two other family members who are employed by the RSPCA).
36. In 2016, the EFRA committee found than non of the 33 recommendations in the Wooler Report, 2014, were in place.
37. The EFRA committee chair when considering Wooler, (EFRA 2016 enquiry into the Animal Welfare Act 2006) mentioned that the RSPCA had framed the terms of reference to be, ‘how can the RSPCA improve’ and NOT “ should they be prosecuting at all?” The report, within the terms of reference, could not comment on the latter proposition.
38. Stephen Wooler has submitted his own evidence to the Justice Committee, in which he forms an opinion against the continuance of private prosecution. One can only speculate whether reviewing RSPCA practices and procedures helped him to this conclusion.
“Solicitors in private practice”
39. There is proof from 2016 that solicitors in private practice do not provide any safeguard oversight. (case material is available).
40. A solicitor in a Northern town, Birkenhead, had an exclusive contract with the RSPCA for all prosecutions in the area. Over time he “might” have become sloppy, as he sent an evidence bundle with the summons to appear for the Plea Hearing, without the necessary notice period, and crucially missing a bundle of disclosed evidence, the post mortem “necropsy” report of an animal killed by the RSPCA’s vet.
41. There was a charge of “ not providing food or water” under the AWA section 9. This was wrong on several levels –
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The disclosed RSPCA veterinary report expressly stated “food and water was available”. (along with no other abnormal findings, pulse, temperature, breathing). (despite no abnormal findings and evidence that the animal was eating, ie not in pain, this vet recommended euthanasia, in the absence of the owner, breaching her own RCVS codes of professional conduct section 8, where there is no owner consent, a second independent veterinary opinion must be sought). The vet report also body condition scored the animal, as 2, where 3 is ideal and 4 is fat. BCS of 2 is expected when an animal has become ill. NB the animal had been correctly treated and expected to make a full recovery. RSPCA photographs in the undisclosed bundle showed both evidence of food and water, but also the correct treatment, the application of a topical antibacterial to the lesions. This evidence is available if necessary for proof. The disclosed (but absent) necropsy found no abnormalities, and stated “the animal was NOT emaciated”, with abundant “ingesta” ie, food, passing right through the entire digestive system from a full tummy of very recently eaten food, to food ready to be excreted. The undisclosed photographs showed the water and food close to the animal. The RSPCA’s long standing prosecution solicitor, obviously did not provide the necessary “layer of oversight” of the charges proposed. This brings into question all other cases in that town. (13 in total in 2016)
42. There was a ‘mention’ hearing. The RSPCA solicitor had handwritten and photocopied a submission for the District Judge. In it he twice said that the animal was emaciated.
43. Evidence in the case file that he should have scrutinised, not only did not support that contention, (RSPCA’s vet and qualified pathologist who performed the necropsy), but could be argued was an attempt to influence the District Judge before the trial, in a defended case.?
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44. This District Judge accepted that the evidence did not support the charge and dismissed it. But only because he had in his possession the written submission from the defence that pointed out that there was no evidence and the charge was malicious.
45. Despite this, a ready prepared press statement by the RSPCA appeared in the on- line local newspaper alleging “cruel owner” did not give the animal food or water, immediately at the conclusion of the plea hearing, where the defence had argued there was no case to answer in relation to the section 9 charge. The newspaper withdrew the allegation following a complaint, complaint, but not until it had been “shared” multiple times on the internet. “guilt by allegation – not guilty by fact”.
46. A single case may not be important of itself, but this solicitor had many years of being the sole prosecutor for the RSPCA where one of the RSPCA’s inspector – investigator leading lights had amassed 13 successful prosecutions in a single year. The majority of which were early guilty pleas. 47. The defendant is rarely able to obtain independent veterinary advice. In this case the carcass was destroyed before independent examination – which independent examination should have been possible while the animal was alive.
IT IS NOT TO BE ASSUMED THAT SOLICITORS (acting for the RSPCA) GIVE AN ADDED LAYER OF SAFEGUARD.
“Robust complaints procedure”
48. Another myth. Having a procedure on paper is not the same as having it work in practice.
49. Using the case above, (section 9, no food or water), the RSPCA’s own on-line complaints procedure was used well in advance of the actual trial date, after the missing disclosures had been provided.
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50. It was given an automated reference number, but there was no response. Weekly follow up emails were sent, quoting the reference number, still no response.
51. The “independent” complaints reviewer is selected by the RSPCA, is always the same person, and is paid, by the RSPCA.
52. Similarly the panel, may not be the RSPCA’s prosecution case managers or inspectors, but they cannot be independent of the society.
The private prosecutors association.
53. Membership cannot guarantee compliance with its professional codes it has devised for its members. 54. There is no external oversight. 55. There are no sanctions. 56. It does not create actionable breaches .
CHARITY COMMISSION.
57. The Charity Commission only investigate if complaints over mismanagement come to their attention.
58. They have a limited remit, basically limited to governance and accounting irregularities.
59. They stopped taking complaints in relation to prosecutions around the time that the Attorney General ordered an investigation, in 2013, that resulted in the Wooler Report 2014.
60. The CC is concerned with correct administration. If the books add up, then the CC could have no cause to investigate HOW the RSPCA runs its charity. There are issues with its politically motivated campaigning role to change legislation, but nothing is done. The RSPCA have successfully, if dubiously, argued that the “public benefit” requirement is satisfied by some nebulous notion that the public are “happy”
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that “animal abusers” are found and punished. (response from CC on public benefit point in 2016).
CONCLUSION.
61. In short, nothing that the RSPCA has mentioned is an effective safeguard for preventing an unfair prosecution, but simply a list of remedies that are incredibly difficult to obtain.
Whether the existing investigatory standards and duties of disclosure that apply to private prosecutions are effective
5. The RSPCA believe the standards and safeguards can be met by;
● Training and learning and development around this area of both the investigators and decision makers
● The second review which takes place with the independent legal providers instructed to conduct RSPCA prosecution work.
INCORRECT
62. SAFEGUARDS cannot be met, (as Stephen Wooler pointed out in his report), due to the CULTURE within the RSPCA. New entrants as employees may filter in, but learn to adapt the long standing cultural norms.
63. In evidence given to the EFRA committee in 2016, it was openly stated that there is no “second review” of the individual prosecution case managers decision whether to issue a summons and which charges to allege. (Dermot Murphy).
64. This begs the question, are there any genuine solicitor led “second reviews”, given that this writer has amassed case material where various areas and RSPCA prosecution solicitor should have “reviewed” the case file, that arguably fell far short
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of the CPS standards that the RSPCA profess to follow in relation to both evidence, public interest, and police misconduct in relation to that evidence.
https://www.fairforanimals.co.uk/videos?fbclid=IwAR3U3FIgCNxgmbtSqeB0t9OiqL- AoJCYDkV5j0JJJ2XwUEJKupsIATXtiRM
The last shorter video on the bottom of the page is of a young RSPCA inspector trying to convince an older and wiser occupier that she is an inspector appointed under the AWA section 51 with both statutory rights of entry and the power to issue Improvement notices under section 10. She is neither, but this culture pervades the RSPCA, in the reported experiences related to the researcher commenting on this RSPCA submission.
The effectiveness of different safeguards in preventing miscarriages of injustice resulting from the right to bring private prosecutions
6. The safeguards as outlined above should provide sufficient safeguards but additionally;
● A magistrates court may order defence costs from central funds when a case does not proceed.
● If following a private prosecution the defendant is acquitted the court may order the prosecutor to pay all of, or a proportion of, the defendant’s costs if the court considers that the case was improperly brought.
The role of the Crown Prosecution Service in taking over private prosecutions and the role of the Attorney General in supervising private prosecutions;
7. The CPS provide oversight when requested as they have the power to
73 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK intervene and take over a case at any time. Normally the CPS will only take over and discontinue a case if it believes that either the evidential and or public interest tests are not met.
SAFEGUARDS AND OVERSIGHT.
65. These points have been covered in earlier responses. Refer to points 12 to 17 above, a provable example of the RSPCA refusing to hand over a case file requested by the CPS. (2019)
8. Private prosecutors need to be cognisant of the quality of the review and who conducts that within the CPS .
This varies from area to area so decisions can be inconsistent and have been known to be wrong after it has been discontinued and the communication between them and the prosecutor before a decision is communicated can be wanting depending on which CPS area deals with the review.
THE CPS?
66. This reviewer is stunned by the unsubstantiated criticism of the CPS, who take half a million prosecutions every year; for an infinite variety of cases.
67. This sounds like sour grapes, for the very few times that the CPS have actually review any RSPCA case, by their own statistics, on cases referred to the CPS.
68. “known to be wrong”, in the opinion of the RSPCA! The CPS MUST FOLLOW the Code for Crown Prosecutors, available to any member of the public with the internet, or a local library internet provision.
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69. The CPS might err on the side of caution, where the fine balancing act for the evidence to secure a conviction could be borderline.
70. The CPS consider how the evidence was obtained, including the possibility of unlawfully obtained evidence being excluded under the discretion that the Court has under PACE Section 78.
71. The RSPCA ignore the 2015 case of RSPCA v Colchester Magistrates, where the RSPCA had been struck off the Warrant application, but still entered premises for their own purposes. The evidence was struck out by the Court using PACE section 78.
72. The CPS are cognisant of the Court’s inherent power to do this. The RSPCA on the other hand use evidence files with impunity, even though the files prove unlawful access, unlawful search, unlawful seizure of evidence, failure to comply with the CPS Code for Crown Prosecutors that they profess to follow.
73. The RSPCA are used to using graphic photographs to secure convictions. THESE delivered in an evidence bundle induce the early guilty plea.
74. The CPS accused of making “wrong” decisions in a tiny handful of cases in over 15 years, that even reached the CPS for consideration, where the CPS took over and discontinued the case, does not substantiate the “wrong decision” claim or the vitriol levelled at the CPS, in their submission.
75. Points 12,13,14 and 15 are a strong indication that the RSPCA refuses to co- operate with the only official statutory prosecutor for any offence.
76. That is the case outlined where the RSPCA and defence solicitor ignored the CPS request for the case file, which shows an arrogance not befitting an organisation that wishes to retain an investigation and prosecution function.
9. The RSPCA is not aware that the Attorney General has direct oversight over private prosecutions unless one is referred to the Law Office for consideration as an
75 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK unduly lenient sentence.
The role of the courts in private prosecutions
10. Cases are subject to scrutiny by lawyers representing defendants and by the independent arbiter of the court itself who adjudicate on guilt or innocence and the propriety or otherwise of the prosecution case. There is an appeal process which adds in additional scrutiny. 4
LAWYERS AND THE COURTS
77. Lawyers for the RSPCA are considered in points 39 through to 47, as the RSPCA prosecutor.
78. As for those representing the defendant, many rely on legal aid funding for the client, which is capped for summary offences. Additional funding may not be approved for complicated cases that require much input from the solicitor.
79.Solicitor numbers with actual experience of animal welfare law is a less than 1% chance from over 140,000 solicitors in private practice. This is not going ot get any better, with less than a hundred cases a year actually being heard in any court, spread throughout the whole of England.
80.The Courts, have the same fundamental issues, lack of experience, from 16,000 Magistrates who are unpaid part timers, with no legal training, advised by a clerk to the court who may also be hearing an animal welfare case for the first time.
76 JUSTICE COMMITTEE, PRIVATE PROSECUTIONS BY ORGANISATONS BY MS.P. WALLWORK
81.Contrast to points raised, in relation to the RSPCA prosecutor, there is potential reliance on the RSPCA’s PROSECUTOR for clarification of legal points.
OVERALL CONCLUSION
82. The RSPCA’s submission is misleading in every aspect. Theoretical safeguards when explored have more potential NOT to work, than they do to provide the fair processes required for the RSPCA to have any future investigation and prosecution function.
(PW, 6th August 2020, reviewed)
The way in which private prosecutions are regulated in other jurisdictions
11. Investigations and prosecutions on domestic animals in England and Wales are undertaken by the police, RSPCA and local authorities.
In Ireland investigations are undertaken by the Irish SPCA, local authorities and Gardai and prosecutions by the Gardai and Department of Agriculture.
In Scotland investigations are undertaken by the Scottish SPCA and police and prosecutions undertaken by the Procurator General.
In Northern Ireland investigations and prosecutions are undertaken by the local authorities. Despite these different models, the per capita rate of cases and convictions and success rates are similar.
June 2020
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