The recent Animal Welfare (Sentencing) Act 2021 increased the maximum custodial sentence for several key animal welfare offences from six months to five years, but will it result in more prison sentences for animal welfare offences?
Samuel March, a Barrister at 9 King’s Bench Walk and a volunteer paralegal at Advocates for Animals, considers this question in light of the Sentencing Council’s new draft sentencing guidelines for animal welfare offences.
THE 2021 ACT
In 2021, the Animal Welfare (Sentencing) Act 2021 (“the 2021 Act”) came into force. The 2021 Act increased the maximum sentence for specific offences under the Animal Welfare Act 2006 (“the 2006 Act”) from six months’ to five years’ custody.
A predecessor of the Bill proposing substantially the same changes was first introduced by Environment Secretary (as he was then) Michael Gove in 2017 and supported by Government press releases enthusiastically promising that “animal abusers could face up to five years in prison”.
The 2021 Act was many years in the making and followed years of campaigning from some of the UK’s leading animal protection groups, who voiced a sense of distress shared by many voters that prison sentences were rarely imposed in animal protection cases. The release noted that, at the time, while on average about 1,150 people per year are convicted for animal cruelty, fewer than five of them received the (then) maximum sentence of six months in custody.
The move itself is not without controversy. There are a broad range of well-intentioned philosophies across the animal protection movement, from the tireless and committed organisations who campaigned in favour of the legislation, to thought leaders who argue that carceral approaches can do more harm than good and the interests of people and animals alike is better served by moving “beyond cages”. However, such a debate is beyond the scope of this article, which insteade will focus only on whether the 2021 Act will actually result in more people actually going to prison for longer, as the press releases and news stories around it will have led many to expect.
THE DRAFT GUIDELINES
The reason I ask this question now is in light of the Sentencing Council’s ongoing consultation on its new draft sentencing guidelines for animal offences. At any sentencing hearing the court will hear about the facts of an offence that has been admitted or proved and then consider the question of how to deal with the offender. In order to assist sentencing courts and ensure a degree of consistency between courts, the Sentencing Council publishes sentencing guidelines for some offences. These generally encourage the court to determine the level of “culpability” of the offender and the “harm” caused by the offence. These two factors are then plotted against each other to determine the appropriate starting point, which can then be increased or decreased to account for aggravating factors (such as previous similar convictions) or mitigating factors (such as previous good character or genuine remorse). The guidelines can be departed from, but courts will do so only in rare cases.
Taking a look at the new draft guidelines for animal welfare offences, the point to note is that, notwithstanding the five year statutory maximum, the guidelines suggest that in practice the “offence range” would be between a Band A fine (50% of relevant weekly income) and 3 years custody. It is not uncommon for sentencing guidelines to suggest a range that stops well below the statutory maximum, but what it means - if implemented – is that even under the 2021 Act, it would take an exceptional case for a court to impose a sentence anywhere near the five years that was widely announced in the press.
An offence can be expected to be classed as “high culpability” if it demonstrates one of more of the following:
“Prolonged and/or repeated incidents of serious cruelty and/or sadistic behaviour
Use of very significant force
Leading role in illegal activity”
And an offence can be expected to be classed in the highest category for harm (“Category 1”) if it demonstrates one or more of the following
“Death (including injury necessitating euthanasia)
Particularly grave or life-threatening injury or condition caused
Very high level of pain and/or suffering caused”
“Category 1A” is therefore concerned with truly reprehensible behaviour. Not merely deliberate, but repeated or sadistic behaviour resulting in the most serious outcomes imaginable for the animal in question.
Nevertheless, the draft offence matrix suggests a “starting point” for a Category 1A offence would be a custodial sentence of 18 months. The “category range” would be 26 months to three years.
It is important at this stage to note that not all custodial sentences involve actually going to prison. Two factors give reason to doubt whether the guidelines (if implemented) will result in more animal offenders actually spending time behind bars:
Firstly, sentencing courts have the power to “suspend” any sentence of two years or less, meaning that the defendant stays in the community so long as they commit no further offences and comply with conditions similar to those attached to a community order; and
Secondly, any defendant who pleads guilty at the first appearance is automatically entitled to a reduction by 1/3 of any custodial sentence imposed.
The operation of the suggested offence range and these two points of sentencing law, means that so long as a defendant enters an early guilty plea, all but the most exceptional cases will still fall below that critical two-year mark. . So, the most important question at most sentencing hearings will remain much the same as it was before the 2021 Act, namely “can the sentence be suspended?”
The court is given clear guidelines on answering this question. It does not particularly matter whether the underlying sentence is measured in weeks, months or years, the determinative factors will be whether the offender presents a risk/danger to the public, whether appropriate punishment can only be achieved by immediate custody, compliance with previous orders, prospects of rehabilitation, personal mitigation and whether custody would result in significant harmful impact on others.
Courts will very often impose suspended sentences where they are available; unless there are strong reasons not to (such as multiple previous convictions or breaches of current or previous community-based orders). There are very often good and compelling reasons to impose community-based sentences, and in many cases, they are very effective. Merits of suspended sentences aside, their availability gives reason to doubt that 2021 Act and new guidelines will result in a significant increase in custodial sentences for animal welfare offences.
MOVING ANIMAL PROTECTION CASES TO THE CROWN COURT
More prison sentences occur as a function not just of the maximum sentence and relevant guidelines, but of the number of cases prosecuted and the percentage of those resulting in convictions. One possible effect of the 2021 Act may be to reduce both the number of prosecutions brought, and the conviction rate when they are.
Under the law of England and Wales, offences can be grouped into two categories depending on their “mode of trial”: summary offences (which are tried in the magistrates’ courts) and indictable offences (which can be tried in the Crown Court). The maximum custodial sentence that can be imposed in the magistrates’ courts is six months for a single offence (or up to twelve months on summary conviction for multiple indictable offences). So, in order to increase the maximum sentence to five years, the 2021 Act had to turn the main animal welfare offences from summary only offences to indictable offences, because only the Crown Court can impose such lengthy custodial sentences.
This change could impact the number of animal welfare convictions for three reasons.
The first reason is that the conviction rates in the magistrates’ court are consistently significantly higher than in the Crown Court. Between 2015 and 2018 the overall conviction rate in the magistrates’ courts was 84.8%, compared to 79.9% in the Crown Court. Part of this is because people are more likely to plead guilty when the likely sentence is lower, but there is also a significant difference in conviction rate after trial. According to CPS statistics from 2018, 16.8% of prosecutions at the Crown Court resulted in a trial, with a conviction after contest rate of 54.0%; compared to 9.1% of magistrates’ courts prosecutions with a conviction after contest rate of 62.1%.
Possible explanations may be that magistrates are a self-selecting group with certain socio-economic groups disproportionately over or under represented; or that because they hear similar defences day-in-day-out they become cynical and less likely to believe defendants. Contrast this to jurors who are randomly selected and very often have never been involved in a criminal trial before and, in light of the higher stakes, may be more likely to give defendants the benefit of the doubt. Whether juries or magistrates produce more just outcomes is again beyond the scope of this article, but the statistics suggest that moving animal welfare offences to the Crown Court is likely to result in a lower conviction rate.
The second reason is that Crown Court prosecutions require more time, more money, and often more expensive lawyers to prosecute them. Crown Court trials can easily be four or five times more expensive than a magistrates’ court trial. This pressure on resources is likely to lead to fewer prosecutions being brought, because the sums involved may mean that the state feels it needs to prioritise crimes against human beings, and private prosecutors feel they can no longer afford the up-front costs.
The third reason is the coincidence of the 2021 Act with the decision of the RSPCA to step back as the prosecutor of first resort in animal welfare cases. Prior to the 2021 Act, the vast majority of animal welfare prosecutions were not brought by the state, but were private prosecutions brought by the RSPCA and other charities. For information on how animal protection groups can bring private prosecutions for animal welfare and wildlife crime, see our previous blog post. The RSPCA’s teams were trained and resourced to bring magistrates’ court cases effectively. In 2019 the RSPCA secured 1,432 convictions relating to animal welfare offences, with a 93.7% success rate. 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, since the introduction of the 2021 Act, the 2021 RSPCA Strategy sets out the charity’s plan for the coming decade. The RSPCA has now set out to “review [its] role as a prosecutor and look at the potential to transfer this responsibility to the Crown Prosecution Service (CPS).” One of the reasons for this was set out by Chris Sherwood (chief executive of the RSPCA) for this was the movement of animal welfare offences moving from the magistrates’ courts to the Crown Court. Sherwood acknowledged the responsibility involved in trials on indictment and suggested that the RSPCA believed that that responsibility should sit with the CPS.
The various advantages and disadvantages of the CPS taking over from the RPSCA as the animal welfare prosecutor of first resort raises a number of other delicate issues and are the subject of a previous article; but in summary, there are reasons to believe that it will result in fewer animal welfare prosecutions and to doubt whether the CPS is suitably trained and resourced to take on the RSPCA’s workload and bring the same number of convictions with the same success rate.
WILL THE 2021 ACT AND GUIDELINES RESULT IN MORE CUSTODIAL SENTENCES?
The pros and cons of carceral approaches are beyond the scope of this article; however, there are reasons to doubt that the effect of the 2021 Act and the proposed sentencing guidelines will be to put significantly more people in prison for animal welfare offences. For the reasons set out above, it is entirely possible that there will be fewer prosecutions, with lower conviction rates and with suspended sentences still being passed in all but the most exceptional cases.
The consultation runs until 1 August 2022:
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