“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
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:
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.
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.
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