Wednesday, December 10, 2008

Cruelty Prosecutions

As the purely volunteer side of the RSPCA, we have comparatively little to do with prosecutions. If animals are signed over to the Society early on in the course of a case, then we may be asked to take them in for rehoming. If animals are confiscated by the court and transferred to the RSPCA at the end of a case, we may be involved. However, in general, we have no knowledge of ongoing investigations beyond what is available to the published media. This is as it should be, because investigation and prosecution is something which should only involve trained professional staff.

However, the campaign on the Petstreet site to stop the RSPCA carrying out prosecutions made me wonder about the way cruelty investigation and prosecution is organised in other countries. (I should point out that Petstreet don't want to stop cruelty to animals being treated as a crime; they simply want the process of prosecution to be restricted to the Crown Prosecution Service because they think the RSPCA is too willing to prosecute people.)

In Scotland, the SSPCA actually have statutory powers but this doesn't include the ability to take out prosecutions. The SSPCA's submission to Holyrood during the enquiry into the provisions needed for operation of the Animal Health and Welfare (Scotland Act) said:
"It is essential that the Scottish SPCA have use of these powers under Sections 29-32 in order to carry out the functions outlined above to relieve animals from suffering on a daily basis. Due to Scotland’s system of public prosecutions, unlike its counterpart in England and Wales the Scottish SPCA does not and cannot carry out private prosecutions. Like all prosecutions in Scotland, all prosecutions under the 1912 Act are pursued by the Procurator Fiscal, to whom the Scottish SPCA reports cases and not the Scottish SPCA itself. This will remain the case under the new Bill.
Without recognition under the new Bill, Scottish SPCA Inspectors would not have the same authority to report cases to the Procurators Fiscal as they do now. If the express powers under Sections 29-32 were to be given to local authorities and to the police, and not to the Scottish SPCA, a defence solicitor may well challenge Scottish SPCA evidence based on the manner in which the evidence was collected. This would be undesirable and damaging for animal welfare, for the prosecution of malefactors, and for the standing of the Scottish SPCA."
There appears to be some discontent among other animal welfare groups in Scotland who believe that the SSPCA is too cautious about using its powers.

The USPCA has no statutory powers and no citizen's right to prosecute

The legal situation in Australia appears to be virtually identical to that in England and Wales, with RSPCA Australia taking out private prosecutions, using the common-law right of ordinary citizens. Interestingly, there seems to have been a vociferous attempt to strip RSPCA Australia of its right to prosecute in the belief that this would lead to a higher, rather than lower, number of prosecutions of animal owners.

The New Zealand SPCAs have more statutory powers than any of the UK SPCAs (including the RSPCA):
"There are approximately 90 SPCA inspectors in New Zealand

Inspectors duties vary greatly depending on their locality but the priority for all inspectors is to enforce the Animal Welfare Act 1999

An inspector is issued a warrant by the Ministry of Agriculture and Forestry after successfully completing a series of assignments and examinations.

A warranted inspector has powers under the Animal Welfare Act 1999 to enter at any time - by force if necessary - into any vehicle, aircraft, or vessel, or on any land or premises, for the purpose of inspecting any animal, where he is satisfied on reasonable grounds that an offence against [the Animal Welfare Act 1999] is being, or has been, committed in respect of any animal.

Inspectors can remove (seize) an animal and take it to a safe location while enquiries are made."
The New Zealand SPCAs take out private prosecutions in the same way as the RSPCAs in England and Australia.

The situation in the US is more complicated, because all the states have slightly differing animal cruelty laws. However the SPCAs and Humane societies do not take out private prosecutions (the citizen's right of private prosecution seems to have fallen into disuse). The normal course appears to be for the SPCA to call the local police and request them to investigate if they suspect animal protection laws have been broken. This appears to result in a relatively high acquittal rate. Part of the problem appears to be lack of resources; cruelty investigations may be shelved because other crime is considered more urgent, and they may be "hived off" to Animal Control, which is itself very over-stretched (rather as though cruelty complaints in this country all had to go via the dog warden). 

The CPS itself states:
"The right of individuals to bring private prosecutions (with certain exceptions) was included under the Prosecution of Offences Act, which set up The CPS. The CPS has the right to take over the prosecution and continued it; OR to take over the prosecution and discontinue it; OR to allow it to continue. The CPS recognises that the right to bring a private prosecution should remain and that The CPS should not take over a private prosecution unless there is a good reason to do so."
What's the lesson from all this? I would be unhappy if we ended up with the chaotic system we see in the US. Ironically the least complained-about system is the one where the SPCA has the greatest powers — possibly because the fact that SPCA inspectors are also sworn as law enforcement agents increases confidence that those powers will be used responsibly. Possibly the legal status also reduces criticism from groups who think the SPCA don't do enough to change the way animals are treated, because it's clearer that a quasi-statutory body can't go beyond what is acceptable to the majority of people (by advocating universal adoption of vegetarianism, for instance).

It seems that the position of RSPCA Australia is less similar to ours than I thought. 
"TICKY FULLERTON: One message councillors did receive came as a warning. The State Government relies heavily on the live trade economy. The RSPCA's $250,000 annual funding from government could be under threat.

YVONNE PALLIER: The chief executive was very clear to the council. He said that if we proceed... If we proceed with this prosecution, we will lose our government funding.

TICKY FULLERTON: He actually said that at a meeting?

YVONNE PALLIER: He said that. Mm-hm.

ERIC BALL: Uh, that's got to be put in perspective. What he said was that the council needs to recognise, needs to recognise, that if we succeeded in stopping the live export trade, you may well then alienate any funding from any State Government.

TICKY FULLERTON: If you succeeded in stopping the live export trade in Western Australia, wouldn't that be worth a couple of hundred thousand dollars?

ERIC BALL: Oh, yes, and he wasn't suggesting that we...we should be influenced by that. But he did say we need to recognise that not only will it cost us funds to prosecute, but it may also stop the future flow of funds. And that may be...may be important in our sustainability.

TICKY FULLERTON: Just last Friday, Eric Ball told Four Corners that the case was not closed. He has further reports to present to this week's council meeting. But there's another factor that could influence the decision - a fear that government could strip the RSPCA of its prosecution powers.

MARK PEARSON, ANIMAL LIBERATION: I asked Dr Hugh Wirth quite clearly, "Why is it that the RSPCA aren't proactively investigating, and when necessary, prosecuting intensive farming corporations for cruelty to animals?" And he said to me very clearly, "Well, look, Mr Pearson, if I were to do that - if the RSPCA were to do that - proactively as you say, we would lose our powers. The government would take away our powers as a prosecution authority."

DR HUGH WIRTH, RSPCA NATIONAL PRESIDENT: Well, it is true that the governments in Australia have in the last 15 years, uh, tightened up on who can prosecute and have tightened up on who can be an RSPCA inspector. And remember that Labor governments are throughout Australia now. Labor party policy is to remove all private organisations from enforcing criminal law."
That was in 2004, and seems to have been something of a nine-days wonder as I couldn't find any later references. 

The whole thing is a bit odd, because the people complaining RSPCA Australia was too subservient to government influence seem not to appreciate that this is not a very good argument in favour of making cruelty prosecution entirely dependent on the state. 

If you read the full transcript, you'll see there were also some complaints from the other side of the spectrum that RSPCA Australia was "emotional" and the five freedoms are anthropomorphic. 

It would be an interesting project for a law student to do a real in-depth comparison of all the different systems. 

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