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    DEFENDING RSPCA PROSECUTIONS

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    Joe

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    Join date : 2008-11-14

    DEFENDING RSPCA PROSECUTIONS

    Post  Joe on Mon Nov 24, 2008 11:07 am

    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.

    Example One

    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.

    Example Two

    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.



    Arrest

    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.

    Lessons

    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.



    Experts

    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!


    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.

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