Friday, 7 January 2011



A charity with too much power?

I suspect that many readers of Shooting Times have enjoyed watching the current season of Garrow's Law on BBC One. For those who haven't had the chance to watch the series, it is a dramatisation of the life of William Garrow, an 18th century barrister who changed the face of criminal advocacy in his practice at the g Old Bailey. Despite its period setting, the programme has a lot to teach us about current legal issues that may impact on all fieldsports enthusiasts.
Garrow Law is set at a time when most prosecutions were brought privately. Victims who could afford to institute proceedings were often in a position to have defendants brought before the court in order to face hearings that a modern lawyer would not recognise as just or fair. Punishments were draconian. It was not uncommon for children found guilty of small thefts to be transported or even executed on the basis of evidence that amounted, in many cases, to no more than an accusation made by the person funding the prosecution.
William Garrow developed a new style of advocacy that began to introduce a level of fairness to criminal trials that we now take for granted. This brought him into direct conflict with the societies that had been formed in order to promote the public good by instituting criminal proceedings. Organisations such as the Society for the Reformation of Manners brought thousands of actions for brothel keeping and lewdness. It believed that the morals of the nation could best be improved by prosecuting individuals whose behaviour it found objectionable. The evidence provided by informers and reforming constables in the course of these prosecutions was generally regarded by the public as unreliable, but the zeal of those bringing the prosecutions ensured that they continued to be brought well into the early 19th century.
The period between the 1820s and the 1880s saw the formation of police forces across the country, and in 1880 the first director of public prosecutions was appointed. At around the same time, most reforming societies transferred their efforts to charitable works designed to help the poor rather than simply to prosecute them. The State gradually took over the prosecution of criminal offences, until, in 1985, the Crown Prosecution Service (CPS) was formed in order to administer prosecutions brought by the Crown fairly and justly.
Interesting though this maybe, you are perhaps wondering what this has to do with shooting or any other fieldsport. The answer is that, though the CPS is responsible for most of the prosecutions in the criminal courts in England and Wales, there is one category of offence that the CPS rarely has anything to do with. Animal welfare cases tend to be brought by local authorities or the RSPCA.
The RSPCA began life in 1824 as the society for the Prevention of Cruelty to Animals. From its genesis, the objectives of the society were education, promoting animal rights and prosecution. Over time, the society's prosecution function became nore important until, in 2008, it was spending in excess of million per annum on prosecutions and more than million per annum on its inspectorate, which has evolved into a sort of private police force.
Due to the huge resources available to the RSPCA, national and local authorities have become increasingly reliant on it to ensure that animal welfare laws are prosecuted. The RSPCA has taken on the role of investigating and prosecuting almost all offences alleged to take place in the home. It also provides support and assistance to local authorities investigating and prosecuting alleged offences that take place on farms and involves itself in the prosecution of some wildlife crime.
Troublesome points of law
There is little doubt that this works well when dealing with clear-cut cases of animal abuse, where the evidence is overwhelming and the offence might not otherwise be prosecuted. Much more troubling are some of the borderline and novel cases brought. by the RSPCA, and some of the practices that it has employed in enforcing the law. Cases include the prosecution of a 15-year-old girl whose father did not allow her to take her cat to a vet to mend its broken tail. The RSPCA appealed this case to the Divisional Court, despite the fact that the girl's father had pleaded guilty himself from the outset. Other cases have been brought against mentally ill defendants, two separate individuals accused of drowning grey squirrels and a number of defendants subsequequently acquitted accused of neglecting animals on the basis of evidence from a questionable veterinary opinion.
Some of the RSPCA’s recent methods have been called into question. It would appear that it has applied to the court for search warrants despite there being no lawful basis for it to do so; it has issued improvement notices that have no basis in law; and written to defendants, through its lawyers, giving misleading information regarding potential outcomes in criminal proceedings in order to avoid any waste of its own funds in the event that the defendants did not appear in court.
The reason why this should be of concern to fieldsports enthusiasts is that in the current climate of public spending cuts, cash-strapped local authorities may be tempted to allow the RSPCA to take over responsibility for animal welfare law on farms and in the countryside more generally, in the same way that it is now responsible for animal welfare law in the home. It would appear that the first steps towards this happening have already been taken. It is worth considering that the new Code of Practice for the Welfare of Gamebirds Reared for Sporting Pmposes and the Code of Practice for the Welfare of Dogs have been drafted in contemplation of prosecutions under the 2006 Animal Welfare Act for failure to abide by the codes. Keepers and gundog breeders may like to consider how life would be in the event that the RSPCA takes over responsibility for ensuring that these codes are complied with.
The RSPCA opposes fieldsports and campaigns to have the law changed in order to outlaw the killing of wild animals and birds for sport. Should a campaigning charity be left to investigate and administer the law that it campaigns on? William Garrow was opposed to such an arrangement. This may be a good time for shooting groups, BASC, the Countryside Alliance and others to remind the Government that we live in a progressive age and that any return to an older style of prosecution familiar to Garrow will be vigorously resisted.
Jamie Foster is a solicitor-advocate at Clarke Willmott LLP specialising in animal welfare and fieldsports law.