Role Reversal: the story behind the RSPCA's recent decision to give up its role as prosecutor

From the Spring issue of 'My Countryside' magazine, our Director of Public Affairs, James Legge recounts the story behind the RSPCA's recent decision to give up its role as prosecutor.

The RSPCA recently announced that it is to cease acting as prosecutor in most animal welfare cases and focus instead on assisting with investigations. In doing so it is finally following other leading charities, such as the NSPCC and RSPB, which ceased bringing private prosecutions decades ago. This decision comes after several years of campaigning by the Alliance to highlight the serious anomaly of the RSPCA being the main prosecutor of animal welfare offences in England and Wales, routinely using private prosecutions, even in cases where the evidence was weak and there was little, if any, public interest, especially in prosecuting older and more vulnerable individuals.

In 2013, following several high-profile cases brought by the RSPCA, which had drawn very public criticism from the judiciary and public, the Alliance's former Chairman, Simon Hart MP, introduced a parliamentary debate in Westminster Hall to raise this matter. It quickly became clear that there were serious and widespread concerns about how the RSPCA was prosecuting, who they were prosecuting and the motivation behind some prosecutions. The result was a letter from the then Attorney General suggesting that the RSPCA might wish to review how they conducted prosecutions. It also led to confirmation from the Solicitor General that, contrary to what the RSPCA was claiming, the Crown Prosecution Service (CPS) could, and would, prosecute animal welfare offences if a case satisfied the evidential test and the public interest test. The question was then asked why a charity like the RSPCA should be spending charitable funds on prosecutions when an independent and publicly accountable prosecuting authority already existed to do so? Also, how were the trustees of the RSPCA ensuring that charitable monies were being properly used while decisions to prosecute were taken objectively, and to whom was the RSPCA accountable?

With parliament, the Law Officers and the Charity Commission all asking questions, the RSPCA asked the former Chief Inspector to the CPS, Stephen Wooler, to review the role of the RSPCA as prosecutor. Significantly, however, Wooler was not asked to examine the fundamental question of whether the RSPCA should be acting as a routine prosecutor at all.

Despite its limitations the Wooler Report, published in September 2014, highlighted the serious shortcomings in the way in which the RSPCA was acting and the very real and unavoidable conflict of interest between its role as a charity, a campaigning and fundraising organisation, and an investigator and prosecutor of welfare offences. The Report noted that the RSPCA's role as prosecutor had evolved "largely outside the mainstream and owes more to history than any strategy". The RSPCA "stands alone as a non-public body with a substantial prosecution function". The Report noted that while the RSPCA seeks to apply the CPS criteria in deciding whether to prosecute and tries to separate its investigative role from its prosecution role, "the current arrangements are not satisfactory" and "its prosecution role has failed to develop to accord with contemporary expectations of transparency and accountability".

It also noted that any enforcement strategy "must take account of the Society's campaigning, commercial and de facto regulatory roles that do not always sit comfortably with the role of prosecutor". The Report made a series of recommendations, none of which answered the main question as to why the RSPCA needed to be the main prosecutor of animal welfare offences since the creation of the CPS.

The CPS was created precisely because the principle that there should be a separation between investigator and prosecutor in criminal matters was the main finding of the 1981 Royal Commission into Criminal Procedure. Meanwhile, the evidence of enforcement of animal welfare law in Scotland, where there is no right of private prosecution, was comparable to that in England and Wales. The Scottish Society for the Prevention of Cruelty to Animals was – and is – able to operate just as effectively as the RSPCA, and a similar situation was found in Northern Ireland. The RSPCA's arguments were unsustainable.

When in 2016 the Environment, Food and Rural Affairs Select Committee under its Chairman Neil Parish MP held an inquiry into animal welfare, including enforcement, the RSPCA came under renewed scrutiny, not least because implementation of the 2014 Wooler Report had still not made significant progress. Unlike Wooler, parliamentarians were free to consider the question Wooler could not, namely whether it was necessary and appropriate for the RSPCA to be acting as both investigator and prosecutor in most animal welfare prosecutions. The Committee not only reinforced Wooler's concerns but conclude that: "The Committee does not believe that the current model in England and Wales where the RSPCA brings private prosecutions alongside its investigative, campaigning and fundraising functions can ever provide the necessary separation to ensure that there is no conflict, or perceived conflict, of interest… The Committee recommends that the RSPCA should continue its important work investigating animal welfare cases and working closely with the police and statutory prosecutors. It should, however, withdraw from acting as a prosecutor of first resort where there are statutory bodies with a duty to carry out this role. We are not convinced by its arguments that it is in a better position than the CPS to prosecute animal welfare cases."

Finally, in 2021, following years of internal issues and discussions with the Charity Commission, the RSPCA has started to get its house in order, including accepting that prosecutions should ordinarily be a matter for the CPS and that its charitable funds should properly be spent on helping animals and assisting the police. It is good news for animal welfare and for the proper administration of justice, as well as the reputation of a once great charity. It takes the RSPCA a step back in the direction envisaged by its founders, including the fox hunting MP Richard Martin who noted about the newly formed, and not yet Royal, Society for the Prevention of Cruelty to Animals that "it would be ill judged for it to become known as a prosecuting society and the prime aim should be to alter the moral feelings of the country". The RSPCA should be congratulated on a brave step in the right direction. Let us hope this is a step in a journey taking the RSPCA away from the destructive ideology of animal rights and back to a genuine animal welfare agenda, based on principle and evidence