RSPCA approach to private prosecution: As crooked as a dog’s hind leg?

The RSPCA is firmly in the limelight following criticism that the charity has a heavy-handed approach to enforcement against animal cruelty.  Those who raise the hue and cry say it is impossible for them to take a measured approach given the charity’s assumed responsibilities as both investigator and prosecutor.  This challenge to a hitherto respected charity raises important questions as to how such bodies should operate to ensure they at all times are, and are perceived to be, fair and proportionate prosecutors.

The RSPCA, like many charities, regulators and non-departmental government bodies (NDGBs) prosecutes as a private prosecutor under the powers afforded in section 6(1) of the Prosecution of Offences Act 1985. These bodies can refer cases to the Police or CPS but most choose to retain control of their investigations and then commence prosecutions in their own right. To date the CPS has not interfered this approach; perhaps recognising that they have neither the resources or specialist knowledge to run these cases as effectively as those with a vested interest do. However, that may change if criticisms of the RSPCA are upheld by the parliamentary inquiry that will be convened to look into the way that prosecutions are handled by the charity.

I work with a range of regulators and NDPBs who both investigate offences and conduct their own prosecutions.  Drawing on that experience I suggest the following basic safeguards are essential to being able to demonstrate that you are prosecuting in an even-handed way:

• a separation between the persons tasked with conducting the investigation and those making the decisions on prosecution.  Appropriate governance arrangements should be clearly defined before embarking on any criminal enforcement;
• identifying at the outset of the investigation which person will act as Disclosure Officer and ensuring that anyone acting in that role fully understands their responsibilities set out under the Criminal Procedure and Investigations Act 1996;
• a clear enforcement policy should be produced which sets out clearly in plain language what the public can expect from the prosecutor. The policy should be publically available. All decisions on enforcement should be made in accordance with the enforcement policy.  On the rare occasion that and any deviation from the policy is required that should be clearly recorded so that it can be articulated at a later stage should that be necessary;
• when deciding whether to commence a prosecution the prosecutor should use the two-stage test set out in the CPS Code of Conduct, namely;
  • is there sufficient evidence and if so, is it in the public interest.  A record should be kept of the decision to prosecute (or not to prosecute) in every case.  Seeking advice from external lawyers on the application of the two-stage test is an effective way to demonstrate impartiality in the decision to prosecute;
  • where there is any risk that a prosecution could be challenged as being malicious or motivated by self-interest, such as to support of a particular campaign of a charity, the body should offer the CPS the opportunity to prosecute on their behalf in order to minimise the prospect of a future legal challenge.

In my view, for charities, NDGBs and regulators to operate effectively and to be trusted it is vital that they can hold to account those that break the law.  Prosecution will always be an enforcement tool of last resort but where the conduct is serious enough to justify criminal enforcement then there should be no impediment to this course of action. The RSPCA has welcomed the inquiry into its operation saying that it is satisfied it has the necessary safeguards in place. I trust that in due course the inquiry will come to the same conclusion.

Further information

Kingsley Napley advises charities, NDGBs and regulators on the lawful use of criminal investigation and prosecutorial powers. Melinka Berridge leads the team responsible for criminal regulatory and private prosecutions at Kingsley Napley. For further information, please visit our Private Prosecutions page, or contact Melinka.