DEFENDING RSPCA ANIMAL WELFARE PROSECUTIONS
Introduction - The Emotional Attitude
If there is such a thing as an honest criminal, then the offences committed by him would in all likelihood fall into the category of dishonesty or violence. By that I mean that there are certain criminal offences which have little emotional effect upon the general public because they identify with the perpetrator as much as they do with the aggrieved. For example, whilst shoplifting is generally condemned the numerous reports of shoplifting court cases in local newspapers receive scant attention by the readers unless of course they have some personal contact with the incident. Likewise an assault at a night-club raises little sympathy with the general public who may well see such people at such premises as deserving what they get. Even professional villains themselves will see it as fair play if having committed a burglary they are caught, plead not guilty but are convicted. On the higher levels of dishonesty complicated fraud matters will raise condemnation at arms length by observers but underneath quite possibly a covert smile if the fraudster has got away with “ripping off” the Inland Revenue, Customs & Excise or one of the big banks.
Then there are those offences which in legal or criminal terms are at the lower end of the scale but which raise disproportionate emotions in the general public. Whilst an indecent assault may be seen as less culpable than murder and the rape of a girl by her boyfriend as less culpable than a violent armed robbery, these classes of offence will result in the public's attention and it will form a much more narrow view of both the victim and the perpetrator than in the former but more serious cases. Even with this class of offence views are polarised. There may be no great argument with the assertion that a sizeable minority of the general public would support the abolition of certain drug offences such as the possession of cannabis. Others would whole- heartedly condemn it in the belief that it leads to far more serious drug-taking and thereby to other offences of a serious nature. But, offences involving animals fall into a totally different category.
There is a small proportion of the population which has either no care for suffering in animals or delights in witnessing or perpetrating suffering. These would be seen by 99% of the population as a sub-species of human endowed with pure evil. Where such persons are convicted of cruelty to animals they are likely to receive sentences of imprisonment and quite properly so, most people would say. Such cases are very well publicised for a number of different reasons. These include deterrence so that the public knows that such people have been caught, convicted and imprisoned. Another reason for publicity, however, is that it is a "purse-opener" for the organisations and individuals involved in the prosecutions. I will however go on to that later.
The Consequences of the Emotional Response
These are far more reaching than those not directly involved with this subject would realise. Animal cruelty prosecutions raise immediate barriers in people's minds and so affect fairness. Witnesses who are involved in shoplifting cases, road traffic accident prosecutions and most criminal cases are at arms length. They may never have been involved in court proceedings before and have no axe to grind with either side in the proceedings. They give their evidence to the best of their ability even though they might be genuinely mistaken and it is clear that people do not always accurately see or hear what is the truth of the matter; only what they believe to be the case. But in animal welfare prosecutions the emotions come into play, colouring and distorting logic. The accusation itself is generally enough to rouse these emotions and it applies not only to witnesses but to the mind of the individual be they a witness, a prosecutor, a court official or a magistrate. Of course such an attitude would be denied not least because the people concerned often do not believe they have been influenced by the subject matter and even if they did realise it they certainly would not admit it. Now this is no idle claim. Although I have been involved with either prosecution or defence of criminal matters for the past 36 years, the past 13 years have been involved in either prosecuting or defending these cases. Examples are numerous but to give two out of hundreds should make the point.
In a certain north country magistrates' court an electrician, who as a hobby possessed some Jack Russells for fox and other vermin control found himself before the magistrates' court for causing cruelty by neglect. His daughter suffered from epilepsy and was at home from school on her own. The day before, an estate agent had called as the house was to be sold. In surveying the house he saw in cages at the back a number of Jack Russells, one being old with one eye and a few old scars. This is not unusual in terriers which have been used for fox control and which are well into the 10-20 year age range. The result of this observation was a complaint to the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) by the estate agent that the vendor had a seriously injured dog locked up in his backyard. The result of that without any prior notice was the attendance at the man's premises by three uniformed RSPCA employees and two police officers without any form of warrant and without any intention to arrest. Upon their arrival the girl got out of bed and answered the door. The door was pushed open and she was told that they wished to search the premises. Knowing no different she let them in and they found not the dog which was old but a younger dog which had indeed been recently bitten, which had not been seen by the estate agent, but which was being treated in accordance with veterinary instructions. Nevertheless, the terriers were seized and at court the veterinary surgeon gave evidence that he was aware of the case, had given the owner instructions which were being followed and indeed by the time of the court case the injury had properly healed up. The magistrates nevertheless convicted and gave a conditional discharge. An appeal to the Crown Court would have resulted in an acquittal but the stress and abuse received by the defendant from members of the public who had read about the case was such that he did not wish to pursue the appeal and prolong the agony further.
Such cases receive high publicity, not only after or during the court case but even before because the RSPCA in particular circulate press releases announcing their forthcoming prosecutions to local, regional and sometimes national media.
The second concerns a farmer in the south east of England whose 16 year old daughter had over a matter of three years built up for herself a small flock of sheep. The farmer and his daughter attended the local market and paid £25 each for three sock lambs. The lambs were apparently fit and healthy but ten days later they were attacked by a fox and injured. The veterinary practice had supplied the farmer with antibiotics and other drugs in the normal course of business for treating small injuries such as this. Two of the lambs got better and the other was getting better when a member of the public on a farm visit saw the lamb and called the RSPCA. An RSPCA employee arrived, seized the lamb and by the time it reached the veterinary surgeons it was dead. The farmer was interviewed by the RSPCA employee at the veterinary surgeon's clinic in the presence of two police officers and knowing no better and having no rights under the Police and Criminal Evidence Act 1984 (“PACE”) because the interview was not at a police station, he answered questions which were later used against him despite his Counsel's accurate advice to the magistrates that the interview should not be admissible in evidence. The application under s.78 of PACE Act 1984 to exclude the interview from evidence was rejected. After a two day case in which the prosecution alleged that he had caused unnecessary suffering by not calling his own vet out to the lamb and despite evidence being given by two veterinary surgeons, one an expert in sheep care, that he did all that could have been done by a vet he was nevertheless convicted and fined £500 with £1,000 costs. Again he would not appeal to the Crown Court in accordance with his Counsel's advice because of the financial and emotional strain on himself and his family.
Tiers of Justice
Had either of these, and many other cases, been dealt with in the same manner as straight forward criminal cases there would not have been convictions because where similar cases have been appealed the appellants have been successful in the Crown Court. So what is the difference? The obvious difference is that an impartial professional judge views the facts in accordance with the law, and time and time again in the magistrates' court three ordinary citizens without professional legal training differ from that approach in their decisions. Animal cruelty cases can be dealt with at first instance only in the magistrates' court, being summary only matters. They cannot ever be tried by a judge and jury.
Law and Offences
I now come to what is the hub of this lecture. Animal cases tend mainly to deal with horses, dogs and farm animals although there is a smattering of cases involving exotic animals and wild animals.
The Protection of Animals Act, 1911 has remained unchanged for 88 years. It deals with domestic or captive animals only. The latest cruelty case in the Divisional Court upon the subject of what is or what is not within the definition and in which case my firm was instructed maintained the strict difference between a wild animal and a domestic or captive one. Other than that case (Barrington v Colbert & Ors 1996), there are very few decided cases upon the subject because the main ratio is that decisions are made by the court upon the facts (Dee v Yorke 1914).
What is clear is that section 1(i)(a) is a remarkable section drafted with perspicacity and which in one sentence can create many offences out of one action. Any combination of the adjectives or verbs contained within that section can amount to a single offence and many offences can be charged based upon the same action by the defendant, (Johnson v Needham 1909). Nevertheless, where this occurs only one sentence can be passed for one action no matter how many are charged. Furthermore it is not only action but inaction that can result in a prosecution. The intention to cause cruelty is not required to be proved by the prosecution only that unnecessary suffering was caused whether it was intentional, through neglect or omission and by not only the owner but by any other person having a duty of care in these circumstances.
While the Protection of Animals Act 1911 does provide a power of arrest for police, case law has defined very clearly that Parliament did not intend any other organisation such as the RSPCA to be empowered under the Act and therefore the RSPCA does not have any powers of arrest, or entry or of search (Line v RSPCA 1902). Like any other person or organisation that the law deems to have a duty to investigate - e.g. HM Customs & Excise, Local Authority Trading Standards - the RSPCA is expected to conform to the rules in PACE so far as they relate to matters of investigation.
As I have suggested, while the rules apply in a police station (for instance, to inform someone of an accuser's presence there), they do not apply to interviews outside of a police station. Nevertheless, RSPCA employees are trained to tell suspects that they are not under arrest. This is an indication at the least and an inference more assuredly to a person that the uniformed RSPCA employee, does indeed have a power of arrest but is not exercising it. There is no doubt that the wearing of a police-like uniform tends to influence an accused. The lay person is then put in a position where he feels that he is actually obliged to answer questions, even though he is told in the caution that he need not do so. Emphasis is put upon the new ingredients of the caution - i.e. “but it may harm your defence when questioned if you do not mention something you later wish to rely on in evidence".
Some of you may recall the controversy which was raised about the actual wording of the new caution. To find a simple formula of wording was difficult. It is now so short that its meaning has to be explained to suspects who are to be asked to convince the interviewer that he or she does indeed understand it. It is a pity that taken literally the new caution indicates that the suspect will indeed find himself in court.
As in all formal investigations with police or otherwise, we find time and time again an attitude whereby a person is led to believe prior to interview that it is not a particularly serious matter and a little help would be appreciated to clear it up and then the person finds just within the six month limitation on proceedings, a summons requiring him to defend himself in court or admit that he has committed the offence. It is surprising just how long it seems to take from the time of an alleged offence to lay the informations: they tend to be laid a week or two before the six months' limitation expires. This, of course, has the effect of making it very difficult for a defendant to gather evidence because so much time has passed since the incident. With the new moves in the courts to hasten matters, the defendant is left with a very short time, often a matter of weeks, to decide upon plea and a matter of a month or two in which to prepare a defence if the matter is to be contested. The prosecution have had almost six months in which to prepare their case.
The Protection of Animals Act 1911 provides the police with no power of entry - other than to a knacker's yard - they do have a power of entry under the provisions of PACE if they intend to make an arrest. Having made an arrest and entered premises then, the police are in a position to seize evidence. The RSPCA does not have any powers that are not afforded to the ordinary person.
The usual procedure by RSPCA employees who deal with the majority of animal cruelty allegations is, upon the receipt of information, to visit the person and attempt to gain entry to obtain evidence and interview them. Where a person has either refused them entry or has refused to answer questions, they will immediately caution the person and then tell them that they will get the police. The police rely a great deal upon RSPCA expertise in these matters and therefore usually comply with the RSPCA request to accompany them to a suspected offender. The appearance of one or two uniformed police officers usually results in compliance with the RSPCA request. However, once property has been seized, the police then often leave it with the RSPCA to issue the proceedings. Animals which are seized are usually examined by a veterinary surgeon appointed by the RSPCA and thereafter usually disappear to a safe- haven and remain there until the end of the court case. Contact with the RSPCA is difficult. They have a national telephone number for regional centres and only messages can be left there. The speed with which the RSPCA answers, if at all, is entirely in the hands of the RSPCA; the longer an animal seized by them remains unexamined by a veterinary surgeon appointed by the prospective defendant, the more difficult it is for the defence to prove the condition of the animal at the time of the alleged offence.
I am not suggesting that this is a deliberate ploy. While the RSPCA does a magnificent job in dealing with animal welfare throughout the UK, it has a large legal and public relations team at their headquarters at Horsham in West Sussex, nationally-advertised policies reflecting its attitudes, it lobbies Parliament, influences the Royal College of Veterinary Surgeons and is increasingly using the media and television to improve and secure its position in respect of animals and animal welfare as it sees it. For instance, whatever an individual thinks about hunting, Parliament has not made it an offence to hunt foxes. Nevertheless the RSPCA believes it to be cruel and has made it clear that it will do all that it can to make hunting a crime. It is co-operating with the League Against Cruel Sports and the International Fund for Animal Welfare under one banner - The Campaign for the Protection of Hunted Animals - an organisation directly concerned with using all lawful means to ban hunting.
Whilst this address is primarily concerned with horses, specific matters about which I will cover shortly, animal welfare prosecutions are regularly aimed at cases involving dogs, sheep, cows, chicken, badgers and birds.
The RSPCA's representations to the Government and to the RCVS resulted in tail- docking by lay persons becoming an offence and by veterinary surgeons risking allegations of professional malpractice. Puppy farming is also abhorred. Of all farm animals the creature with an inherent propensity to incur injury or illness is the sheep and it is very difficult to examine in detail each of a flock of a thousand sheep each day. The badger has become sacred and now a badger-related allegation receives more attention in terms of police time than a robbery because the Badger has become the highest priority of all protected animals both in legal terms and in response times. Likewise a warrant to search premises granted to police under s.19 of the Wildlife and Countryside Act, 1981 will usually be executed with all the facilities expected to be used on a top class criminal.
Horses pose a particular problem to prosecutors because of their size and weight. A dog can be put in the back of a van but to remove a horse requires far more organisation. Cases usually start with a well meaning person telephoning RSPCA to report what he or she believes to be a case of a suffering horse. The first visit is usually by one or two RSPCA employees, occasionally with police. The greatest cause of public concern is emaciation. However, anyone who has any reasonable knowledge of horses will know that a horse whose ribs are showing or whose back bone is prominent is not necessarily emaciated. There may be many causes of apparent thinness: lack of or ineffective worming, age or an illness being properly treated. Sometimes it is just a horse which is not a “good-doer” but which has been well-fed and properly wormed.
It is at this stage of an investigation that a defendant's problems begin. Whilst neither the RSPCA nor police has any legal right to enter a field or stable they will often ignore the deliberate and wilful commission of the tort of trespass or conversion and enter the premises in the knowledge that a defendant will not usually issue proceedings in the civil courts and even if that happened a judge would be most unlikely to award any sort of meaningful damages, especially if a successful conviction resulted from the trespass and conversion.
It is a moot point whether the seizing of a horse from a field upon the assertion that it is evidence of an offence of cruelty is lawful. Clearly police have power to seize property when lawfully upon premises but what of an unlawful seizure during an unlawful trespass? Of late some forces have claimed to use the power contained in s.17(1)(e) PACE - i.e. that granted to police officers to enter and search any premises for the purpose of saving life or limb or preventing serious damage to property. Animals, they claim, are property and serious illness would cause serious damage. This idea has yet to be tested in the higher courts.
Being summary only offences magistrates are limited to passing a sentence of 6 months in custody on a single offence and no more than one year on two or more offences plus fines of up to £5,000 on each conviction. Of course, there are standard guidelines as to the monetary penalties such as the defendant's ability to pay off fines within a year.
In addition to monetary penalties the courts have power under s.3 of the Protection of Animals Act 1911 to order the forfeiture of the animal concerned if it were owned by the offender but not otherwise. However, before the court can exercise this power it must be satisfied by evidence being called that the offender has a previous conviction or that the animal is likely to suffer further cruelty.
Also, under the Protection of Animals (Amendment) Act 1954, the court has power to disqualify an offender from having the custody of animals or any specific species of animals for any length of time.
Where a case is not strong but a conviction has resulted, a conditional discharge is often applied. In an average case fines extend from a few hundred pounds up to the thousands and where the cruelty is deliberate without good cause and a positive act of cruelty, very often imprisonment results. One thing which is also a regular feature is a request for prosecution costs from those private prosecutions which normally run into thousands. Of course, courts are guided in their penalties and a defendant should be in a position to pay off any monetary penalties within one year. Other than that, the normal considerations of sentencing apply. The penalties for animal cruelty are generally higher than the penalties for shoplifting or equivalent standard of criminal behaviour.
It is not, however, just a court that the defendants have to contend with. Hate- mail, abusive telephone calls, criminal damage to homes and vehicles are all a regular result of a conviction for cruelty. There seem to be more nutters concerned with animal welfare than with child abuse or for ordinary criminal offences by the honest criminal involving dishonesty or violence or both. There is remarkably little interest although the serious effect of these crimes is much greater.
There are two areas that the defence lawyer must address as swiftly as possible when involved in the defence of animal welfare prosecutions. The first is, as with most offences, trying to advise the prospective defendant before he undertakes any interview. So often the defendant does not realise the position he or she is in, does not realise the relevance of questions that are being asked by the investigator and often makes unfortunate and misleading answers to questions which result in a prosecution or a conviction which otherwise might have been avoided.
Competent and recognised experts, often veterinary surgeons, must be put into a position to gather evidence on behalf of the defence at the very first opportunity. In animal cruelty cases the veterinary surgeon must be experienced in the type of animal concerned. In badger cases it is an expert on badgers; likewise with birds you have to decide whether it is an ornithologist or an aviculturist that you need to support the defence contentions. Knowing the procedures and personalities concerned is very important. For instance, in a case of a horse trampling on a person a few years ago we discovered that there were few experts on the subject. The British Army no longer use horses in battle and the only real expertise lay with mounted police officers who have experience in riot situations involving horses. Because it is an emotive subject there are few experts upon badgers who are prepared to act for defendants whereas every member of a badger watch group seems to consider himself or herself an expert upon the subject and will willingly see badgers emerging from any hole in the ground at any hour of the day or night. There are probably half a dozen avian veterinary surgeons in this country who regularly deal with bird related prosecutions and defences and there are even fewer veterinary surgeons who are experts with elephants, tigers, monkeys and the like.
Fortunately, there is no shortage of veterinary surgeons specialising in equine matters; however, they do vary. Always consider the client's own horse vet first but do not reject a higher level specialist to support his evidence. Many veterinary surgeons specialise but they do not all pass the necessary examinations for additional qualifications. The RCVS and the universities will often provide an individual who can throw unexpected light on a particular case. Reference sources for equine experts can also be found in the Law Society Directory of Expert Witnesses, other directories and more directly The Equine Lawyers Association, which lists over a hundred members concerned with the equine legal world. Little things often make a difference such as whether the prosecution veterinary surgeon carried blood samples in a refrigerated container in the boot of his car; or were they left on the back seat in the sun!
Good funding is essential for a successful defence in an animal welfare prosecution. Many of the experts are very busy and financially successful in their expert areas. Do bear in mind, however, that the Costs in Criminal Causes (General) Regulations created under the Prosecution of Offences Act 1985 lay down the basic rule that witnesses are paid out of Central Funds unless the court directs otherwise. The allowances are laid down in the regulations and although they are not generous they are certainly a substantial way of resolving a defendant's dilemma when it comes to funding expert evidence. While Legal Aid is possible in some of these cases, especially where there is a genuine risk of imprisonment or a loss of business through a conviction, there can generally be no topping up of funding once a Legal Aid Order has been made. Do not forget the exception which is where the Legal Aid Board have refused to cover a disbursement then you may be at liberty to obtain funding from elsewhere. Any person with any sense these days either individually or through an organisation to which he or she belongs should have or obtain Legal Expenses Insurance. Many of the national organisations which my firm represents have such insurance packages and it is a life-saver for members who find themselves in trouble.
Do not fall into the trap of believing that in an animal welfare prosecution your client will be treated in the same way as an honest criminal. It is a much more arduous journey to reach a successful conclusion when defending animal cruelty prosecutions. It is not just a matter of fact and law but gaining the court';s sympathy for the client as well as for the animal. This is the pathway which leads to acquittals. Many cases should not and would not have been brought had the subject matter not been about animals. But a court will quite often make a criminal of a well-meaning and caring defendant just because his or her husbandry did not reach the standard insisted upon by the prosecutor.
The author, Jeffery Hide, is one of the lawyers at Knights Solicitors, a specialist litigation practice well-known for representing clients with animal and countryside interests on a national level. He is a Fellow of the Institute of Legal Executives and a Commissioner for Oaths. Formerly a Police Inspector and lecturer in criminal law, he is an examiner for the British Horse Society in Riding and Safety and is presently Vice-Chairman of the East Sussex County Committee of the BHS.
DEFENDING ANIMAL WELFARE PROSECUTIONS
Notes prepared by
Knights, Solicitors of Tunbridge Wells, Kent.