RSPCA (Prosecutions)

Dominic Grieve Excerpts

Tuesday 29th January 2013 Westminster Hall

[Caroline Lucas]

The hon. Lady makes an incredibly good point. That is exactly where the focus of our ire should be, and not on the RSPCA, which had to step in to fulfil such work.

[The Attorney-General (Mr Dominic Grieve)]

The assertion that has just been made is entirely and completely incorrect, as I will explain in my speech. The CPS will prosecute cases referred to it.

[Caroline Lucas]

I thank the Minister for his intervention, but the evidence and experience that we have is that the CPS does not prosecute in the number of ways in which the RSPCA would. I am sorry that he disagrees, but that is our experience in the area.

Eighty per cent. of people in Great Britain feel that, where there is evidence of people hunting illegally with dogs, such people should be prosecuted. In addition, 70% support animal welfare charities bringing private prosecutions against those whom they believe to have been hunting illegally, provided there is strong evidence and if the police or CPS, for whatever reason, do not proceed. In other words, the public want the RSPCA to prosecute in cases such as that of the Heythrop hunt; to do so is justified by their charitable aims.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

It is a great pleasure, Mr Williams, to serve under your chairmanship. I congratulate my hon. Friend the Member for Carmarthen West and South Pembrokeshire (Simon Hart) on securing this debate. I know from discussions with him that he has considerable experience of the matter and feels strongly about it. I think the matter has been passed to me because, although my Department does not cover hunting—far from it—I superintend the prosecutorial services in England and Wales.

I shall start by dealing straight away with the point raised by the hon. Member for Brighton, Pavilion (Caroline Lucas). The Crown Prosecution Service prosecutes cases instituted and referred to it by the police. They include hunting and wildlife offences. Since 2005, the CPS has prosecuted 378 offences under the Hunting Act 2004, and it regularly prosecutes other wildlife offences. In 2011-12, it prosecuted 298 offences under the Animal Welfare Act 2006, 16 offences under the Deer Act 1991, 43 offences under the Protection of Badgers Act 1992, and 54 offences under the Wildlife and Countryside Act 1981. The CPS publishes legal guidance on prosecutions under the Hunting Act 2004 and of prosecution of wildlife offences generally on its website. If I have time, I will return to that.

[Caroline Lucas]

The RSPCA has a 98% success rate in prosecutions, compared with around 50% for the CPS.

[The Attorney-General]

I am not sure whether the hon. Lady is talking about a general figure for the CPS or about wildlife figures for the CPS.

[Caroline Lucas]

I am talking about wildlife cases—comparable cases, so we are comparing like with like.

[The Attorney-General]

That may well be, but the point remains that the hon. Lady suggested that the CPS does not take on those cases. If a case is referred to the CPS by the police, it will be considered for prosecution, and if it passes the code test for Crown prosecutors, it will be prosecuted.

The RSPCA, on the other hand, is a private prosecutor when bringing prosecutions. It is an unusual set-up, but the right to bring a private prosecution in England and Wales is an ancient right, which has existed from the time when the state did not have prosecution authorities and citizens were required to prosecute cases themselves. That certainly was the position when the RSPCA was set up. Although most prosecutions are now conducted by public prosecuting authorities, the right to bring a private prosecution remains, preserved by Parliament in the Prosecution of Offences Act 1985.

Speaking personally, I once threatened to bring a private prosecution when I was dissatisfied because the police were not taking action, which did at least lead to my getting a proper explanation from the police as to why they were behaving in the way they were. I believe that it is a fundamental and important right that we have in a free society. Private prosecutions allow an individual to bring a prosecution when the state, for whatever reason, does not. Prosecutions by the RSPCA are, however, just that—private prosecutions. It has no public or special status as a prosecutor. The RSPCA sets out, in accordance with its charitable aims and in its own literature, that it applies the full code test for Crown prosecutors. If I may say so—I do not mean this in any way pejoratively—that is a self-assertion. The RSPCA may well be correct, but it certainly cannot be independently verified, and it is in no position to do that.

To pick up on something that was said, I have no doubt that ACPO may well be correct in saying that were it not for the work of the RSPCA, the burden that would be placed on the police to investigate such crimes would be considerable. I am the first to recognise, as I am sure everybody in the room today does, that the RSPCA, through its charitable work, has performed an extremely valuable role in dealing with animal welfare and cruelty issues.

[Emily Thornberry]

Is it not right that the police go further than that? They actually say that no other public body would pick the work up, which takes that further and underlines the work of the RSPCA even more.

[The Attorney-General]

There must be no doubt that if the police do not feel they have the resources or expertise to take on that work, in those circumstances it might be difficult to do it, unless some other private body were to emerge. The point I picked up from the hon. Member for Brighton, Pavilion is that the CPS will take on cases referred to it and consider them.

[Chris Williamson]

Will the Minister give way?

[The Attorney-General]

I must make some progress.

A point was made about cautions. The RSPCA has no power to grant cautions at all. That must be done by the police. Obviously, if the police are involved with the RSPCA in an investigation, although they are fully entitled to use the RSPCA’s expertise to help them on a joint investigation, the police must apply their own criteria and codes when deciding how a case should be disposed of—whether it should be prosecuted or dealt with in some other way. The police should not be influenced—I have no reason to consider that they are being influenced—by any private organisation with its own agenda.

Although the 1985 Act preserves the right to bring a private prosecution, it also provides—this is absolutely key to the debate—that the DPP can take over the conduct of such proceedings. The CPS will always consider a request to exercise that power and take over such a private prosecution, including from defendants, and has received requests in relation to some RSPCA cases. I will come back to that in a moment. The approach that the CPS will take in such cases is published on its website. It will review the case in accordance with the full code test contained in the code for Crown prosecutors and consider first whether there is sufficient evidence to provide a realistic prospect of conviction, and if there is, whether a prosecution is in the public interest. It will also consider whether there is a particular need for the CPS to take over the prosecution, either to stop it or to continue it. That is entirely a decision for the CPS. The DPP’s policy is that a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the full code test is not met. The Supreme Court has recently upheld the DPP’s policy on private prosecutions in the case of Gujra.

The RSPCA says that it applies the full code test when deciding when to prosecute. It undoubtedly has its own prosecutions department and is seen as having expertise in this field, both as an investigator and prosecutor. However, if an RSPCA prosecution is referred to the CPS, and the CPS considers that the prosecution does not satisfy the code for Crown prosecutors, the CPS will take over that case and discontinue it. Since the CPS began to keep records in that area, it has been asked to review RSPCA prosecutions on only four occasions. One of those requests is still under consideration, but in relation to the other three, the CPS saw no reason to take over the prosecution, and it continued in the hands of the RSPCA. There are also safeguards in the trial process itself, including the court’s ability to exclude evidence from the trial, and to stop a case entirely if it is satisfied that the proceedings amount to an abuse of process—for example, when the court judges that a fair trial will be impossible.

As some hon. Members have mentioned, the Environmental Audit Committee’s report on wildlife crime reported in September last year. It recommended:

“The CPS should review its performance on prosecuting wildlife crime in England and Wales with a view to either employing specialist wildlife crime prosecutors or introducing specialist wildlife crime training for its generalist prosecutors.”

The Government are finalising their response to the recommendations in that report, and that will be sent to the Committee shortly. The response is being prepared by DEFRA in liaison with the CPS.

The CPS is prosecuting wildlife crime where wildlife crime is referred to it, and where it considers that such a prosecution is justified. It has a multi-agency approach and works closely with the police and other relevant agencies in case building, so that cases can be effectively prosecuted. There are 13 area co-ordinators. To support its wildlife specialists in assessing evidence in cases, the CPS has published legal guidance. It delivers wildlife training to prosecutors and has done so for some time. In particular, in 2006 and 2009, the CPS worked closely with the police and other stakeholders to hold a Partnership for Action against Wildlife Crime court training day, exploring how to investigate and prosecute cases involving wildlife issues. It is likely that further such events will take place. In February 2011, the CPS held a seminar on prosecuting wildlife and heritage crime for CPS prosecutors, which looked at specific cases involving the Hunting Act 2004, the convention on international trade in endangered species of wild fauna and flora, and the Control of Trade in Endangered Species (Enforcement) Regulations 1997, as well as the National Wildlife Crime Unit, the Bat Conservation Trust, gamekeeping and trade in plants. Those are offences that the CPS takes very seriously, and when cases are brought to it that pass the full code test, they will be prosecuted.

Another issue raised by hon. Members is that when the RSPCA prosecutes, a cause for concern is that if the RSPCA prosecution is unsuccessful, costs are awarded to the defendant from central funds, and not from the RSPCA. I want to make it clear that, first, that will happen only on indictable offences, and secondly, exactly the same rules apply to any other public or private prosecutor. The reason is that if somebody is acquitted, it does not necessarily mean that the prosecution was wrong in principle. There would be a detrimental effect on prosecutors if they were liable to pay costs each time a defendant was acquitted. That may result in prosecutors being more reluctant to bring prosecutions if they feared the cost consequences. Cases that are properly brought can end in an acquittal. Even those cases that are dropped before the trial begins may well be properly started. Although the decision to prosecute anyone should not be taken lightly, I suspect that nobody in the House would wish prosecutions to be brought only if there was an absolute certainty of success.[Official Report, 4 February 2013, Vol. 558, c. 1MC.]

However, in the event that a judge or magistrates thought that the prosecution had been wholly inappropriate, they would have enormously wide discretion in how to deal with the matter, including the possibility of ordering a prosecutor to pay the defendants’ costs out of their own pocket. Or on a conviction—as happened in the Heythrop case—they have the power to say that only a small part of the costs should be paid by the defendant, and the rest has to be borne by the RSPCA itself. It is a matter for the court’s judgment.

Finally, I have been asked whether Her Majesty’s Crown Prosecution Service inspectorate could review the work of the RSPCA. That produces quite a big problem. The HMCPSI exists to review prosecution arms of the state. Applying that to a private prosecution would, I think, be extremely difficult.