As the Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) announces plans to transfer its animal welfare prosecuting role to the Crown Prosecution Service (“CPS”), Sam March outlines what this might mean for animal protection and other animal protection groups.
The RSPCA Steps Back as Prosecutor
Since 1824, the RSPCA has been a leading organisation in the prosecution and enforcement of animal welfare offences. Over the years it has established itself as the primary prosecuting body for animal welfare in England and Wales.
The RSPCA did not do this by virtue of any special status as compared to other charities: it became the go-to prosecutor for animal offending simply by exercising its right under Section 6(1) of the Prosecution of Offences Act 1985. This is the right of all private individuals, organisations and bodies (including charities and NGOs) to institute and conduct private prosecutions.
By exercising this right, In 2019 the RSPCA secured 1,432 convictions relating to animal welfare offences, with a 93.7% success rate. This is significantly higher than what the CPS achieves for prosecutions generally, indicating that the charity chooses its cases carefully. The RSPCA’s past successes illustrate some of the advantages of private prosecutions by specialist organisations. As well as high success rates, private players are able to instruct specialist lawyers, investigators and forensic experts.
However, the RSPCA operates in a delicate and controversial political landscape. For some time, there have been calls for the charity to step back from acting as a prosecutor of first resort. It is widely recognised that prosecutions should normally be brought by state prosecutors. Reasons for this include impartiality and funding, but also that it is the state’s responsibility to enforce the laws that it creates.
The 2021 RSPCA Strategy sets out the charity’s plan for the coming decade. It seems the RSPCA has heeded to the concerns about its role and has set out to “review [its] role as a prosecutor and look at the potential to transfer this responsibility to the Crown Prosecution Service .”
The strategy states:
“We believe the time is right to explore moving away from the ‘end-to-end’ role the RSPCA provides by investigating and prosecuting animal welfare offences, and look towards separating these responsibilities. This would mirror the arrangements on animal welfare in other jurisdictions such as Scotland and Ireland, and would enable the RSPCA to concentrate on its investigatory role, transferring investigation files to the CPS to make decisions on prosecutions.”
In a recent statement, Chris Sherwood (chief executive of the RSPCA) noted two interesting factors that have influenced the move:
Firstly, Sherwood alluded to promised legislation that would see some animal welfare offences move from the magistrates’ courts (where the maximum penalty is 6 months on summary conviction) to the Crown Court where custodial sentences as high as five years could be imposed following conviction on an indictment. Sherwood acknowledged the responsibility involved in trials on indictment and suggested that the RSPCA believed that that responsibility should sit with the CPS.
Secondly, Sherwood noted the changing nature of animal crime: “trends with cases with hardened criminal gangs involved in puppy farming, dog fighting, cockfighting or hare coursing, sometimes with millions of pounds changing hands. We're an animal charity and our concern is welfare but these complex cases can involve serious offences such as fraud or weapons. We've already seen puppy farming reports to us increase five-fold in a decade and with the increasing demand for puppies during lockdown we believe more of these complex cases will come our way.”
Although the RSPCA is stepping back from its role as prosecutor, Sherwood insisted that this did not mean it would not be involved in prosecutions entirely, promising that inspectors would still be rescuing, investigating and collecting evidence of cruelty and abuse before handing this over to the CPS.
Is the CPS Ready to Step In?
This move would see the CPS become the main body for animal welfare prosecutions in England and Wales. The CPS is already responsible for the vast majority of prosecutions in England and Wales. It therefore certainly benefits from vast experience in dealing with Crown Court trials, complex cases, serious or organised criminality and tracking and recovering the proceeds of crime. It is also a key role of the CPS to make impartial decisions on whether there is sufficient evidence to prosecute a given case, and whether it is in the public interest.
However, this is not the first time that a transfer of the RSPCA’s prosecuting role to the CPS has been considered. In 2016 an Environment, Food and Rural Affairs Select Committee found that the CPS was not “suitably resourced and trained in the area of animal welfare” to take over the RSPCA’s work load.
The CPS is already overburdened. In terms of general crime, BBC reported that in 2018 less than one in ten crimes led to anyone actually being charged. Transferring the RSPCA’s caseload into the hands of overwhelmed state prosecutors’ risks asking them to do the impossible with their strained resources. The RSPCA has made it clear, however, that it will only hand over its prosecution role if it is satisfied that the CPS will prosecute appropriate cases.
It remains to be seen whether animal offences will be properly prioritised by state prosecutors, but unless the CPS has suddenly been the beneficiary of a significant influx of resources, there is a real risk of an enforcement gap. Animal crime is simply not the primary mandate of police or the CPS. Whilst many animal advocates would see human and animal suffering treated equivalently, the law as it stands plainly does not.
The ongoing dog theft crisis illustrates the potential risks of leaving animal crime to state prosecutors in a system that systemically undervalues animals and their importance: only one in 100 dog theft cases in 2019 resulted in the thief being charged and prosecuted, according to figures obtained under Freedom of Information laws. Another example is wildlife crime: of 1,300 reported crimes involving bats, marine mammals, badgers and raptors in 2016, only 22 were successfully prosecuted.
In an ideal world, we could and should count on the state alone to provide protection to animals. Hopefully one day this ideal world will materialise but it seems divorced from the reality of the criminal justice system in England and Wales in 2021. As mentioned above The RSPCA has stressed that it “will reserve the right to prosecute in an individual serious case if government agencies will not”; but with the charity having made clear its intention to step back as prosecutor, other animal charities, organisations and advocates may need to be gearing up to step in.
For information on how animal protection groups can bring private prosecutions for animal welfare and wildlife crime, see our previous blog post.
A Brief Statement From Our Co-Founder
Responding to the RSPCA’s announcement that it plans to transfer its animal welfare prosecuting role to the CPS, animal protection solicitor and Advocates for Animals Co-Founder Edie Bowles gave the following statement on behalf of the firm:
“The duty to prosecute any offence, including animal offences, should generally fall on a public body. The state needs to take its responsibility, and crimes against animals, seriously. Whilst much valuable work has been done by charities such as the RSPCA in filling gaps in enforcement, animal crime has too long been left to private players to deal with.
There have been concerns raised in the past about resources and expertise at the CPS so what will be key is the RSPCA working with the CPS to ensure they have the necessary resource and expertise to prosecute the offences as successfully as the RSPCA. If the CPS and RSPCA can give those assurances, then the transfer would be a positive development.”
This blog post is not legal advice. If you’re an animal advocate, organisation or charity and think that private prosecutions might help achieve your objectives, it is vital to seek expert advice at the earliest possible stage. This will help ensure you comply with your obligations, maximise your prospects of success and avoid disappointment and wasted costs. For more information on the services Advocates for Animals offers please contact firstname.lastname@example.org