Our submission to the RSPCA prosecutions review.

In December 2013 the RSPCA announced a review of its prosecutions policy, to be led by Stephen Wooler, a former Chief Inspector of the Crown Prosecution Service Inspectorate. It was announced that Mr Wooler would spend four months examining how and why prosecutions are taken. His findings will most likely be published in the middle of 2014. The Countryside Alliance met with Mr Wooler and gave him the below submission which makes clear our view that investigation and prosecution are two separate issues and prosecution should not be the first step. Jamie Foster, the solicitor advocate who acts for hunts, has written an article on the review which appears in our Spring 2014 magazine. We will keep you updated on Mr Wooler's findings in due course.

SUMMARY DOCUMENT - Countryside Alliance submission to the Wooler Review

Overview
The RSPCA currently has three conflicting roles: as a campaigning charity; an investigator of alleged criminal offences; and a prosecutor. It must fundamentally restructure its internal culture and practices towards investigation, prosecution and campaigning.

Investigation and prosecution are two separate issues and a criminal prosecutor should not direct an investigation. The police and CPS have very separate and defined roles, yet the RSCPA assumes both roles.

Investigations
The scope of the Review – A key issue is how the RSPCA conducts investigations; not its overall role as an investigator. Presently the RSPCA 'inspectorate' closely resembles a police unit.
Covert surveillance – The use of unauthorised cover surveillance evidence, often unlawfully obtained through trespass, in prosecutions by a charity purporting to be a responsible prosecutor is extremely questionable.
Political prosecutions – Prosecutions brought under the Hunting Act in the last 2 ½ years have all involved hunts and there is strong evidence to suggest this is part of the RSPCA's campaigning agenda.
Personal data – It is highly likely the RSPCA and statutory bodies with which it deals are breaching data protection legislation on a regular basis.

Prosecutions
The scope of the Review – The Alliance is extremely concerned the Review seeks to exclude examination of the RSPCA's role as a prosecutor and why it prosecutes. It does not need to do so.
The RSPCA's role as a prosecutor – Prosecution should not be the default position for the RSPCA. It must be made clear to the Reviewer that animal welfare is protected by legislation and the CPS has a duty to prosecute such cases. Both the NSPCC and RSPB work with the police and prosecutions are brought by the CPS.
Size and number of prosecutions - Currently the RSPCA is the second biggest criminal prosecutor in England and Wales and the only NGO that regularly uses private prosecutions as a means of enforcing legislation.
Other models – In Scotland private prosecution is not an option and organisations report directly to the statutory prosecutor. There is no reason that the RSPCA could not report directly to the CPS.
Charitable funds/Costs – The RSPCA is an enormously profligate prosecutor, yet is encouraged by the costs regime around private prosecutions, where defendants cost orders are met from central funds.
Political campaigning Vs Prosecution – A political campaigning organisation like the RSPCA cannot remain objective if it brings prosecutions and engages in campaigns that relate to those prosecutions. Many issues it is involved in are high profile, political and controversial.
RSPCA Council – The Reviewer must advise the Council to reconsider its strategy on prosecutions to create a clear separation between prosecution and investigation, and prosecution and campaigning.
Accountability – The RSPCA prosecution operation is only accountable to the RSPCA Council and there is no complaints process. It must prove objectivity and demonstrate accountability.



Countryside Alliance Submission to the Independent Reviewer

Review of the RSPCA's Prosecutions Policy

Scope of Review

The Countryside Alliance is concerned that the terms of reference for the Independent Review from the RSPCA Council seek to exclude any debate as to the RSPCA's role as a prosecutor. The online consultation response form asks whether the RSPCA's role as an investigator is appropriate but not whether its role as a prosecutor is appropriate. Its role as an investigator, as opposed to how it conducts investigations, is not an issue. The Alliance is also concerned by subsequent comments from the Reviewer quoted in the Daily Telegraph with reference to the RSPCA's role as a prosecutor:

"bearing in mind there is no obvious alternative, the main issue … is what needs to be done to make it work better." He added: "One of the things I want to find out is what would happen if the RSPCA did not do those functions. It is all well and good throwing the baby out with the bath water, but you have to put something in its place."

The Alliance disagrees with this statement on a number of grounds. There is, of course, an obvious alternative to the RSPCA as a prosecutor. Animal welfare legislation is passed by Parliament in exactly the same way as any other legislation and The Crown Prosecution Service (CPS) has a duty to prosecute such cases just as it has under any other criminal law.

The RSPCA prosecutes because it chooses to prosecute, not because it has to prosecute. The RSPCA is unique both in the scale of its prosecution operation, which we believe makes it the second biggest criminal prosecutor in England and Wales, and because it has continued to use private prosecution as a first resort.

All other non-governmental organisations which regularly used private prosecutions as a primary means of enforcing legislation prior to the creation of the CPS in 1985 have ceased to do so. Two examples of organisations in very similar situations to the RSPCA are particularly relevant. The NSPCC was regularly involved in highly complex and extremely sensitive private prosecutions for child abuse but now works with the CPS and other statutory authorities to investigate allegations of child abuse and support CPS prosecutions. It retains the right (as do we all) to bring private prosecutions, but has not done so for many years. The RSPB was also a regular private prosecutor with specialist expertise in wildlife crime. However, it now states: "The RSPB's Investigations Section's main role is to support the statutory authorities by providing advice, expert witness and investigative help on wild bird crime. It works closely with the police Wildlife Crime Officers (WCOs), the Crown Prosecution Service (CPS), Procurators Fiscal and HM Revenue and Customs. The RSPB has not taken a private prosecution since 1992."

That 1992 prosecution was an example of a case where the use of private prosecution by a non-governmental organisation was clearly justified. New DNA techniques suggested birds, or eggs, had been taken from the wild. The CPS declined to rely on the evidence to prosecute. The RSPB disagreed, brought a private prosecution and won a landmark case which secured a conviction and a change in prosecution policy.

Therefore, if the Reviewer wishes to see what would happen if "the RSPCA did not do those functions" of prosecution he could consider whether there is any evidence that child protection legislation, or wildlife legislation relating to birds, is less effectively prosecuted than legislation which is of interest to the RSPCA.

For an even clearer comparison he need look no further than Scotland where private prosecution akin to the English and Welsh model is not an option. The SSPCA has a special status as an organisation which can report directly to the statutory prosecutor, but it never prosecutes itself. There has been no suggestion either that this puts an exceptional strain on the budget of the Procurator Fiscal or that animal welfare legislation in Scotland is less effective than it is in England and Wales.

ACPO Animal Welfare Act Debate

It is clear from the consideration given to the Animal Welfare Act as it was formulated and passed through Parliament that there was widespread recognition of the RSPCA's important role in responding to, and investigating, reports of animal welfare and cruelty offences. However, the investigatory role of the RSPCA's work is not at issue in the current review. What is at issue is the RSPCA's role as a prosecutor. Investigation and prosecution are two distinct issues.

In evidence to the Environment Food and Rural Affairs Committee Richard Brunstrom, the Chief Constable of North Wales, on behalf of the Association of Chief Police Officers expressed the concern that with the creation of the new welfare offence the police would no longer be dealing with only the more serious cases of cruelty but that they, and not the RSPCA, would also become the first point of contact for animal welfare generally. His concern is summed up when he said to the Committee: "I think it is right we [the police] have powers to deal with the welfare offence—somebody has to and we are the public authority and the RSPCA is not. It is really: how do we deal with the person who rings up when a cat has not been fed? It is perhaps a facetious example but a very real one." The police's concern then was with the practical question of their ability to replace the work that the RSPCA does in responding to and investigating reports of less serious offences around welfare. This issue is entirely distinct from the question of who should decide whether to bring a prosecution following an investigation and then conduct that prosecution. In fact the roles of the RSPCA and police have not changed as a result of the Animal Welfare Act.

What the police did not argue is that if the RSPCA ceased to prosecute as a first resort and instead handed evidence to the police to process and pass to the CPS for prosecution, that the police could not cope. Even if that was the police's argument there is no reason why consideration could not be given to enabling the RSPCA, like the SSPCA in Scotland, to report directly to the CPS rather than having to go through the police.

The Alliance, like many other individuals and organisations, therefore rejects the Reviewer's suggestion that the "main issue" is not whether the RSPCA prosecutes, but how it prosecutes. It also believes that the RSPCA Council's statement that it: "regards the prosecution of animal welfare offences in appropriate cases to be an integral component of its strategy for fulfilling its charitable purposes" as evidence that the RSPCA is unwilling to address the fundamental question of whether it should be the prosecutor of first resort. The examples of other charities operating in England and Wales, and the RSPCA's sister charity in Scotland, prove conclusively that prosecution is not necessary for the fulfilment of its charitable purposes. Indeed, given that the CPS exists, it is arguable that the RSPCA should prosecute only as a last, not first, resort. To expend charitable monies where it does not need to seems contrary to the fiduciary duty of the trustees with regard to the use of charitable funds.

Why the RSPCA Should not Prosecute as a First Resort

The principal finding of the Royal Commission into Criminal Procedure, which reported in 1981, was that the police should not investigate offences and decide whether to prosecute. The Commission led directly to the 1985 Prosecution of Offences Act which created the Crown Prosecution Service.

The Runciman Royal Commission on Criminal Justice (1993) further considered whether the CPS should have powers to direct police investigations but recommended it should not:

"We do not consider it appropriate for the CPS to supervise police officers in the investigation. It is the responsibility of the police to investigate crime...Although, therefore the CPS must be in a position to advise on the evidence that is required if the case is to go forward to trial, it should not be put in the position of supervising the gathering of evidence."

The RSPCA 'Inspectorate' models itself on the police. Its employees wear police style uniforms and adopt police ranks. Those inspectors investigate criminal allegations, take statements under 'caution' and prepare case files yet the RSPCA also makes the decision whether to prosecute and, in at least some cases, it is clear that those investigations are being directed by the prosecutions department of the RSPCA. In other words the RSPCA is operating in exactly the way that two Royal Commissions and Parliament have concluded that a criminal prosecutor should not act.

The fundamental concerns about the RSPCA's role as a prosecutor are not, however, limited to the failure to separate the roles of investigator and prosecutor. As concerning is another of the RSPCA's roles: that of a political and campaigning organisation.

It is, of course, open to any organisation to campaign on any issue within relevant legal and regulatory boundaries. It is, however, much more difficult for an organisation that brings thousands of criminal prosecutions every year to claim that it is doing so objectively if it is engaged at the same time in any campaign that relates to those prosecutions, let alone campaigns that involve radical, controversial and high profile political issues.

There are three possible effects that the RSPCA's campaigns might have on decisions whether to prosecute in related cases.

• Those taking prosecution decisions may consciously weight their decision as a result of the RSPCA's campaigns. There is at least some evidence that this has happened in some cases to which will be referred later.
• Those taking prosecution decisions may unconsciously weight their decisions as a result of the RSPCA's campaigns. It is almost impossible to suggest that the position of the decision maker's employer, especially vocally and enthusiastically repeated, would not have an impact on the decision making process.
• There is no impact on those taking prosecuting decisions as a result of the RSPCA's campaigns. However, the perception of those who disagree with any prosecution decision will always be that political campaigns have had an influence on prosecuting decisions.

By choosing to make decisions over prosecutions whilst acting as a political campaigning organisation the RSPCA is putting itself in a no win situation. The RSPCA's Deputy Chairman Paul Draycott identifies the problem, if not the solution, when he concludes his paper on the problems facing the RSPCA by saying: "we appear to be fighting too many battles on too many fronts".

For this reason, and those articulated above, the Countryside Alliance submits that the Independent Reviewer should advise the RSPCA Council to reconsider its strategy in relation to prosecutions in order to create a clear separation both between prosecution and investigation, and also between prosecution and political campaigning.

Abuses of the Prosecution Process

The Countryside Alliance would also like to highlight a series of concerns about the way the RSPCA currently carries out prosecutions which emphasise both the need for urgent reform and support the argument for separation of the prosecution role.

Political Prosecutions
In the last 10 years the Countryside Alliance has had direct experience, supporting its members, of several cases in which the RSPCA has brought a private prosecution. With the exception of one case, brought under Section 5 of the Hunting Act dealing with competitive coursing, they all involved hunts and have all occurred in the last two and a half years. The Alliance has evidence that there is a direct link between a change in campaigning policy at the RSPCA, a more radical political agenda and the decision to prosecute hunts and hunt supporters.

The RSPCA brought no prosecutions involving registered hunts under the Hunting Act (or any other legislation) from the Act coming into force in February 2005 until June 2011 when it launched its first prosecution against Julian Barnfield of the Heythrop Hunt. Subsequently the RSPCA has brought 4 further prosecutions under the Hunting Act, including the extraordinary second prosecution involving Mr Barnfield and the Heythrop Hunt. Over the same time period it has also brought three prosecutions against hunt members concerning Badgers Act allegations.

This timescale fits exactly with that described by RSPCA Deputy Chairman Paul Draycott in an internal memo, dated August 2013, that said: "in the last 18 months the Society has become more vocal in campaigning, especially in the area of foxhunting and the proposed badger cull".

The Alliance believes that the prosecutions brought against hunts in that period are part and parcel of the "campaigning" described by the RSPCA's Deputy Chairman. There can be no explanation that relates to objective and independent prosecution decisions which can explain why the RSPCA only chose to prosecute hunts and hunt members after that change in campaigning policy.

The Alliance has not had direct involvement in RSPCA prosecutions concerning rival animal sanctuaries or RSPCA Freedom Foods farms, but there is a clear perception that, as with hunting, there are political and commercial imperatives which mean that, on the one hand the RSPCA is keen to prosecute animal sanctuaries, and on the other it does not want to prosecute Freedom Food farms.

Prosecution Statistics
The RSPCA claims a "98% success rate" in its prosecutions. The Alliance has not been able to establish exactly how that figure is calculated. It is able, however, to provide statistics relating to those prosecutions which the RSPCA has brought against hunts since June 2011. In total the RSPCA issued 74 summonses of which 15 led to convictions, a success rate of 20%. Whatever the basis of the figures the RSPCA is using, the comparative 'success', or lack of success, recorded in prosecutions involving hunts suggests that the decision to prosecute is being influenced by other factors and is not being taken on the same basis as those not involving hunts.

It is not clear either what proportion of 'successful' RSPCA prosecution statistics refer to summonses which have attracted absolute or conditional discharges. If, as some lawyers suggest from anecdote, that proportion is significantly higher than comparable CPS prosecutions it would be further evidence of over-enthusiastic prosecution.

Cost of Prosecutions
In its publicity, which it has admitted is in itself one reason for bringing prosecutions, the RSPCA gives figures for the cost of 'prosecutions' which actually conflate investigation, animal care and the actual cost of the prosecution. Especially in relation to the debate around the RSPCA's role as a prosecutor it is important to understand what part of such costs actually relates to the prosecution. In many cases, such as the appalling Spindle Farm case involving James Gray and cruelty to horses which the RSPCA says cost £1.6 million, the majority of the cost actually relates to the care of rescued animals.

It is also the Alliance's experience that the RSPCA can be an enormously profligate prosecutor. The use of a QC and other extremely expensive lawyers to prosecute a summary case against the Heythrop Hunt and its members was not an isolated incident, although the total costs in this case were, as the District Judge noted, "staggering". Highly paid lawyers were also used to prosecute the hopeless Hunting Act case against members of the Avon Vale Hunt.

The Alliance believes that the costs of RSPCA prosecutions are sometimes recklessly inflated by a deliberate policy of over-charging designed to elicit guilty pleas. The second Heythrop case, in which 52 summons were issued against four individuals and the body corporate is the most obvious example, but equally unjustified were the summons issued against Hannah Watson and Tanya Norlander daughter and partner of Cheshire Forest terrierman Keith Watson. We do not believe that the RSPCA ever thought that there was any realistic prospect of conviction against the two women, but summonsed them to encourage Mr Watson not to fight the case.

Undoubtedly such behaviour is, at least subconsciously, encouraged by the costs regime around private prosecutions. The high barrier to any costs order being made against a private prosecutor means defendants costs orders are met from central funds in nearly every instance so there is no financial penalty for failure for part or all of any prosecution.

The Alliance also believes that recent changes to rules relating to defendants costs which mean successful defendants can be left with significant legal costs put an added responsibility on any prosecutor to ensure prosecutions are justified and limited.

Prosecuting Elderly People
The Alliance has been involved in two cases where elderly people were prosecuted for minor offences in cases in which it does not believe the CPS would have contemplated prosecuting. The first involved Mr Les Anderson (80) and Ms Mary Birkbeck (77). The facts of the case are laid out elsewhere, but we believe that both the decision to prosecute and the manner of the prosecution were utterly disgraceful, especially the prolonged cross examination of Mr Anderson. We also suggest that the conditional discharge handed down by the District Judge was as much a verdict on the prosecutors as it was on the defendants.

Likewise, we do not believe that any objective CPS prosecutor would have taken the decision to prosecute 79 year old Brian Nuttal on Badgers Act charges. Mr Nuttal has a reputation as a breeder of working terriers and the Alliance believes that his reputation was one reason why the RSPCA decided to prosecute him.

Covert Surveillance
The RSPCA 'special investigation unit' carries out covert surveillance operations which would be considered as 'Directed Surveillance' under the Regulation of Investigatory Powers Act (RIPA). As a non-statutory body it is not directly affected by RIPA or the Human Rights Act, but in the past has claimed to operate an internal authorisation system based on RIPA. RIPA was amended by the Freedoms Act in 2012 to include judicial oversight for all RIPA authorisations involving non-police bodies. It is not clear how the RSPCA can now claim to carry out a parallel RIPA process.

The RSPCA has also brought at least 4 prosecutions that the Alliance is aware of in the last 2 years based on covert surveillance evidence provided by third parties that had not been authorised under RIPA, or through any internal RSPCA authorisation process. A statutory prosecutor adopting the product of unauthorised covert surveillance for prosecution could be open to a claim under the Human Rights Act. The RSPCA as a private prosecutor could not, but the use of unauthorised covert surveillance evidence, often unlawfully obtained through trespass, by a charity that purports to be a responsible prosecutor is extremely questionable.

Personal data
The Countryside Alliance is aware of one extremely serious breach of data protection legislation involving the RSPCA which cannot be discussed in detail at present because of ongoing litigation. On the evidence it has seen the Alliance believes it is highly likely that the RSPCA and statutory bodies it deals with are breaching data protection legislation on a regular basis. There seem to be few, if any, controls on the collection and storage of data for prosecution purposes. As is the case with other parts of the RSPCA's prosecution operation its collection and storage of personal data is unregulated and seemingly without any functioning internal systems even attempting to ensure compliance with the relevant legislation.

Accountability and complaints
The RSPCA prosecution operation is unaccountable to anyone other than the RSPCA Council. There are no statutory barriers to it bringing prosecutions, there is no statutory or independent inspectorate, there is no published prosecutions policy, and there is no complaints process. Any criticism is met with assurances that prosecution decisions are taken on the basis of the Code for Crown Prosecutors Full Code Test although there has been no scrutiny or review of any of those decisions or of the individuals who are making them.

Reference is sometimes made to the power the CPS has to 'call in' private prosecutions which do not meet the Full Code Test. In reality, however, the evidence of cases like that involving the Avon Vale Hunt, where the CPS refused to take over a case the RSPCA later dropped because of a lack of evidence, show the CPS is unwilling to use that power.

If the RSPCA is determined to continue to bring thousands of criminal prosecutions it will continue to attract considerable criticism unless it can prove that all its processes are objective, fair and free from political, ideological and commercial influence. The Alliance believes that this can be most simply achieved by leaving that decision making process with regard to prosecutions to the CPS. The only alternative would be for the RSPCA to achieve an extraordinary cultural change and open itself up to a level of independent inspection and public scrutiny equal to that of a public prosecutor.