Abstract
This article discusses the RSPCA’s recent decision to abandon bringing private prosecutions. In a statement from the charity’s Chief Executive, Chris Sherwood, he explained that the charity is “stepping back” from its role as prosecutor and seeking to pass its caseload onto the Crown Prosecution Service. By reference to the charity’s illustrious history as a prosecutor, this article explains why the policy shift is a great shame. Not only does the decision run counter to the charity’s founding principles, which championed the robust enforcement of animal welfare offences, it will most likely lead to a decline in prosecutions and consequential lack of the enforcement principle. The criminal justice system has been decimated by budget cuts in the last decade and in this COVID-19 era, where cybercrime and domestic abuse have spiked, there is no reason to believe that the Crown Prosecution Service will prioritise offences against animals – indeed, it already has too many human victims to represent.
Background
In the UK, few charities have greater clout than the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”). The RSPCA was founded just under two centuries ago, making it one of the world’s oldest animal welfare organisations.[1] Given how sentimental Britons are about their pets, the charity’s success and longevity is hardly surprising – indeed, in the UK we are famed for being more attentive to our horses, dogs and cats than our own relatives.[2]
Since its founding in 1824, one of the RSPCA’s principal work streams has been to investigate and prosecute instances of animal cruelty. In the words of the charity’s co-founder, Richard Martin, “if legislation to protect animals is to be effective, it must be adequately enforced”.[3] As such, commitment to the robust prosecution of animal welfare offences was one of the charity’s founding principles.
However, on 28 January 2021, the charity announced that it is “exploring the transfer of our animal welfare prosecuting role to the Crown Prosecution Service to focus on our frontline work rescuing and caring for animals and investigating cruelty”.[4] This is a great shame and, we consider, potentially misguided. Notwithstanding the well-publicised mistakes, the RSPCA has an impressive track record in bringing prosecutions. For example, in 2015 alone the charity secured 1,781 convictions for animal welfare offences and only spent 3% of its budget doing so.[5]
Additionally, without more, an inevitable consequence of this policy shift will be a fall in the prosecution of animal abusers. The primary piece of animal welfare legislation in the UK is the Animal Welfare Act 2006 (“the Act”) – based on a parliamentary report from June 2020, the RSPCA is responsible for 85% of the enforcement effort.[6] It is difficult to imagine how stretched government agencies will find capacity to prosecute offenders under the Act to anything like the same degree.
By way of background, the majority of criminal prosecutions in England and Wales are conducted by public agencies, including the Crown Prosecution Service (“CPS”) and the Serious Fraud Office (“SFO”). However, the historic right to pursue a private prosecution is expressly preserved by statute. Under section 6(1) of the Prosecution of Offences Act 1985, any person or entity that has “legal personality”, including charities, has the right to bring a prosecution – it is this power on which the RSPCA has relied in order to hold animal abusers to account for 200 years.
Although many are unaware of this right under the Prosecution of Offences Act 1985, it dates back to the 16th century. In fact, until the 1800s, a victim’s only option was to commence a private prosecution against the accused. The state would only be involved where a crime was committed against the state itself (instances of treason, for example). Ultimately, an organised police force was introduced in 1829, followed by the office of the Director of Public Prosecutions (“DPP”) in 1879.[7] Notwithstanding the creation of government prosecutors, the right to bring a private prosecution has endured – and for good reason. More on this later.
The RSPCA’s record as a prosecutor
At this stage, it is important to explain that the RSPCA has used this historic right to great effect. In 2019 it secured 1,432 convictions relating to animal welfare offences. Based on the “RSPCA Prosecutions Annual Report – 2019”, this figure translates to a success rate of 93.7% from all its cases that year.[8] Broadly speaking, in relation to securing convictions, the RSPCA has a success rate of around 90% annually.[9]
Unfortunately, precisely because of its success in this area, the charity has attracted the attention (and indeed criticism) of minsters and MPs. For example, in a 2013 parliamentary debate, Conservative MPs criticised the charity for bringing prosecutions, rather than referring alleged offences to the CPS.[10] The catalyst for this attention was the RSCPA’s decision to bring prosecutions in relation to fox hunting. In particular, in 2012 the RSPCA secured convictions against members of the Heythrop Hunt in Oxfordshire, in which (according to the BBC) the incumbent Prime Minister David Cameron had previously ridden.[11] Although outlawed in 2005, fox hunting remained a politically sensitive issue and the RSPCA’s activities provoked resentment among certain MPs.[12]
In 2016, the then Chief Executive Jeremy Cooper conceded that the charity had become “too adversarial” and that the bringing of prosecutions for illegal fox hunting made it too political. After all, Mr Cooper noted, “we are not a political organisation”.[13] Notwithstanding this concession, pressure from MPs and senior police officers continued to mount, as did claims that the charity was alienating key supporters. As such, it seems reasonable to conclude that the charity’s recent decision was, at least in part, the result of this consistent pressure from government officials.
The RSPCA’s review of its role
As already mentioned, on 28 January 2021, the RSPCA announced it would turn its caseload over to the CPS. Chief Executive, Chris Sherwood, sought to justify this policy shift in the following terms:
“Let me be clear that we wouldn’t be stepping back from prosecutions, only from our role as the prosecutor. Our inspectors would still be rescuing, investigating and collecting evidence of cruelty and abuse and seeking to hand this over to the CPS. We believe that there may be a better way to ensure animals get the justice they deserve by bringing together our expertise in investigations with the CPS’ skills and resources.”[14]
The challenges faced by our criminal justice system suggest that Mr Sherwood’s perspective is optimistic at best. Only last week, the BBC reported that the UK’s fraud epidemic is now a “national security threat”. The article explained that cybercrime costs the UK £190 billion a year, that a meagre fraction of these cases is prosecuted and that the “police response is underfunded and lacking focus”.[15] This is, of course, part of a wider crisis in this country – in the last decade, the criminal justice system has been decimated by budget cuts and the CPS has found itself under immense strain. By way of example, in 2019-2020, the total Ministry of Justice budget was around 25% lower than it was in 2010-2011.[16]
The COVID-19 context has simply exacerbated resourcing problems. As reported by Action Fraud, the UK’s reporting centre for fraud and cybercrime, our national lockdowns have created new opportunities for criminals. In November 2020, Action Fraud reported that it had received over 17,000 reports of investment fraud between September 2019 and September 2020, resulting in losses of over £657 million. This represented a 25% increase from the same period last year.[17]
The spike in instances of domestic violence during lockdown has also been widely reported. The Office for National Statistics has published data showing that from March to June 2020, the police recorded 259,324 offences related to domestic abuse – this represents a 7% increase from the same period in 2019.[18] Given the plethora of new lockdown crime, there is no guarantee that prosecuting authorities will treat animal rights as a priority. Therefore, the last part of the above quote – the intended future reliance on “the CPS’ skills and resources” – is likely to be a chimera.
More fundamentally, the envisaged relationship of the RSPCA working alongside the CPS remains to be seen. The CPS are referred cases by the police and other public bodies and do not deal directly with private bodies, investigators or complainants. How does the RSPCA, not being a public body, envisage it will have access to the CPS other than via the police? Should the police route be the only option, this opens up another set of issues. In short, the RSPCA may soon find their position to be like many other non-public investigators – they can investigate away but will have no effective means of doing anything with it unless the police take it on. It is therefore entirely accurate to state “Our inspectors would still be rescuing, investigating and collecting evidence of cruelty and abuse and seeking to hand this over to the CPS”, but this aspiration may not spell out the heavy-lifting being done by the words “seeking to”.
The importance of the RSPCA’s prosecutorial role
In light of funding cuts, and the consequential lack of resourcing, the private prosecution of certain offences by specialist bodies, such as the RSPCA, should be celebrated. Unfortunately, however, the RSPCA is not the only body to have attracted criticism for its prosecution work. The rise in private prosecutions, more broadly, has brought with it a raft of criticism.
Some argue that private prosecutions lead to malicious accusations, brought by vexatious litigants. There are, however, statutory safeguards in place to prevent this. Not least, the DPP has the power to intervene in any private prosecution, for the purpose of continuing proceedings or quashing them. Moreover, although not applicable to animal welfare offences, prosecutions for many other serious offences cannot be instituted without the consent of the Attorney General, or the DPP.[19]
Other commentators have suggested that private prosecutions create a two-tiered justice system or, crudely put, justice for the highest bidder. However, private prosecutors do not stand apart from the state. They are subject to the same standards as public prosecutors and must prove any criminal allegation beyond reasonable doubt – in other words, the same standard of proof applies.
Fundamentally, the right under section 6(1) of the Prosecution of Offences Act 1985 is about access to justice and ensuring perpetrators are held accountable, regardless of the Ministry of Justice budget. Where prosecuting bodies lack the resources or political will to prosecute certain offences, specialist bodies like the RSPCA should step in. Not only is this not unethical, it is a constitutional imperative. Indeed, in a 1975 case, Lord Wilberforce described private prosecutions as an “historical right which goes back to the earliest days of our legal system”. He further explained that this right “remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.[20]
In this way, Mr Sherwood has not emphasised the constitutional importance of the RSPCA’s role as prosecutor. It may be true that cases have become more complex and that “hardened criminal gangs” are involved in puppy farming, cockfighting and other animal welfare offences. However, the RSPCA should be building on its vast prosecution experience and improving its decision making, rather than dismantling a well-oiled machine. Indeed, many people donate to the RSPCA precisely because of its track record in holding offenders to account.
In his statement, Mr Sherwood said that the charity was proud of its 200-year history of being the primary prosecutor of animal cruelty in England and Wales, but that it was time to hand over its caseload to the CPS. On the contrary, as emphasised in the RSPCA’s own 2019 publication:
“The RSPCA’s prosecution role has a place in our criminal justice process and is as important now as it was in 1822 when Richard Martin worked on his first case”. [21]
In the same report, the RSPCA’s Chair René Olivieri explained that the charity’s prosecution work is not simply about enforcing the law and punishing offenders – “the ‘P’ in RSPCA stands for ‘prevention’, and that is our long-term aim”.[22] It is undeniable that the charity’s dogged pursuit of private prosecutions has deterred would be animal abusers. The charity has an international reputation for its practical knowledge and expertise in this area – the deterrent effect of this should not be underestimated.
Conclusion
In conclusion, the RSPCA’s recent decision to abandon bringing private prosecutions is a great shame. Not only does the decision run counter to the charity’s founding principles, which championed the robust enforcement of animal welfare offences, it ignores the constitutional importance of the RSPCA’s work. Crucially, the RSPCA’s remarkable record in bringing prosecutions has filled an enforcement gap and provided a deterrent for would be animal abusers.
Animal cruelty has not gone away; the last few months have seen a sharp rise in illegal puppy farming and the passing off of sick puppies as healthy ones to buyers.[23] Robust enforcement of animal welfare offences is crucial at this time, as is private-public sector collaboration in bringing offenders to account. Of course, the RSPCA should reflect on the comments of MPs and mistakes that have been made, but it should seek to improve its practice, rather than giving up and adopting a likely-illusory future for enforcement, certainly in anything like the numbers we are used to. This change in policy is taking place at a time when other charities are moving in the opposite direction and finding it necessary to draw on the historic right to bring private prosecutions.
Camilla Turner
Edmonds Marshall Mcmahon
5 February 2021
[1] “Our history”, RSPCA, available at: <https://www.rspca.org.uk/whatwedo/whoweare/history> last accessed 31 January 2021
[2] “Hunted down – on the trail of an animal welfare organisation”, The Economist, 19 November 2019, available at: <https://www.economist.com/britain/2016/11/17/hunted-down> last accessed 31 January 2021
[3] “Prosecuting animal cruelty and neglect”, RSPCA, available at: <https://www.rspca.org.uk/whatwedo/endcruelty/prosecution> last accessed 30 January 2021
[4] “We’re reviewing our prosecutor role to focus on frontline cruelty” RSPCA, 28 January 2021, available at: <https://www.rspca.org.uk/-/news-reviewing-prosecutor-role-to-focus-on-frontline-cruelty> last accessed 30 January 2021
[5] “Hunted down – on the trail of an animal welfare organisation”, The Economist, 19 November 2019, available at: <https://www.economist.com/britain/2016/11/17/hunted-down> last accessed 31 January 2021
[6] “The role of private prosecutions and safeguards against injustices”, UK Parliament Committee, June 2020, available at: <https://committees.parliament.uk/writtenevidence/8221/pdf/> last accessed 31 January 2021
[7] Tamlyn Edmonds and David Jugnarain, “Private Prosecutions: A Potential Anticorruption Tool in English Law”, Open Society Foundations, May 2016, available at:<https://www.justiceinitiative.org/uploads/d95e470e-54e6-4379-89e4-3fc81acafd53/legal-remedies-4-edmonds-jugnarain-20160504_0.pdf> last accessed 1 February 2021
[8] “RSPCA Prosecutions Annual Report – 2019”, RSPCA, available at: <https://view.pagetiger.com/bessstj/prosecutionreport2019> last accessed 1 February 2021
[9] “The role of private prosecutions and safeguards against injustices”, UK Parliament Committee, June 2020, available at: <https://committees.parliament.uk/writtenevidence/8221/pdf/> last accessed 31 January 2021
[10] “RSPCA criticised over private prosecutions”, Democracy Live, 29 January 2013, available at: <http://www.bbc.co.uk/democracylive/house-of-commons-21230353> last accessed 30 January 2021
[11] “Heythrop Hunt members admit illegal fox hunting”, BBC News, 17 December 2012, available at: <https://www.bbc.co.uk/news/uk-england-oxfordshire-20758022> last accessed 1 February 2021
[12] “Hunted down – on the trail of an animal welfare organisation”, The Economist, 19 November 2019, available at: <https://www.economist.com/britain/2016/11/17/hunted-down> last accessed 31 January 2021
[13] “RSPCA to become less adversarial under new boss”, BBC News, 14 May 2016, available at: <https://www.bbc.co.uk/news/uk-36292580> last accessed 1 February 2021
[14] “We’re reviewing our prosecutor role to focus on frontline cruelty” RSPCA, 28 January 2021, available at: <https://www.rspca.org.uk/-/news-reviewing-prosecutor-role-to-focus-on-frontline-cruelty> last accessed 30 January 2021
[15] “Fraud epidemic is now a national security threat”, BBC News, 26 January 2021, available at: <https://www.bbc.co.uk/news/business-55769991> last accessed 1 February 2021
[16] “The spending of the Ministry of Justice” UK Parliament, 1 October 2019, available at: <https://commonslibrary.parliament.uk/research-briefings/cdp-2019-0217/> last accessed 1 February 2021
[17] “Action Fraud warns of rise in investment fraud reports as nation enters second lockdown”, Action Fraud, 9 November 2020, available at:<https://www.actionfraud.police.uk/news/action-fraud-warns-of-rise-in-investment-fraud-reports-as-nation-enters-second-lockdown> last accessed 1 February 2021
[18] “Domestic abuse during the coronavirus (COVID-19) pandemic, England and Wales”, Office for National Statistics, November 2020, available at: <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticabuseduringthecoronaviruscovid19pandemicenglandandwales/november2020> last accessed 1 February 2021
[19] “Consents to Prosecute”, Crown Prosecution Service, 31 October 2018, available at: <https://www.cps.gov.uk/legal-guidance/consents-prosecute> last accessed 1 February 2021
[20] Gouriet v Union of Post Office Workers (1975) AC 435
[21] “RSPCA Prosecutions Annual Report – 2019”, RSPCA, available at: <https://view.pagetiger.com/bessstj/prosecutionreport2019> last accessed 1 February 2021
[22] “RSPCA Prosecutions Annual Report – 2019”, RSPCA, available at: <https://view.pagetiger.com/bessstj/prosecutionreport2019> last accessed 1 February 2021
[23] “Illegal puppy trade warning as sales boom during the Covid pandemic”, BBC News, 18 November 2020, available at: <https://www.bbc.co.uk/news/uk-scotland-54981798> last accessed 2 February 2021
