The Times - UK (2021-11-25)

64 Thursday November 25 2021 | the times

Law

The RSPCA is in discussions with the CPS and attorney-general over its role as a public prosecutor in animal cruelty cases

Claws out

for private

prosecutions

The ‘misconduct’ of Animal Protection Services

has led to calls for protection. By Catherine Baksi

Last year a Commons committee told
government ministers that more effec-
tive safeguards were needed to ensure
the fairness of private prosecutions.
Experts now say that a failure to heed
that warning has allowed individuals
and organisations — driven by private
interests — to continue misusing the
right to bring private prosecutions,
wasting taxpayers’ money and causing
distress to those charged in the process.
This month, a judge at Manchester
crown court ruled that scores of dog
owners and breeders may have after
being unfairly prosecuted by the
charity Animal Protection Services
(APS) and its law firm Parry & Welch
Solicitors.
Judge Nicholas Dean QC said that
the firm and charity may have fraudu-
lently received taxpayers’ money to
bring private prosecutions in up to
100 cases over the past year. The judge
concluded that the prosecutions had
been brought to punish the defendants
“regardless” of whether they had
committed any offence and to recover
“grossly exaggerated” fees.
He suggested that Jacob Lloyd, the
“prominent animal rights activist” and
the director of APS, was on a “personal
crusade” and that the law firm “closely
identify in their outlook” with the
charity’s objectives.
Referring the case to the attorney-
general, police, Charity Commission
and Solicitors Regulation Authority for

further investigation of the “egregious

misconduct”, Dean said that the two

“may have been involved in systematic

fraud and in perverting the course of

public justice”.

APS and Parry & Welch denied any

wrongdoing. APS told The Times that it

was considering an appeal, while the

law firm declined to comment further.

In the wake of the Post Office’s

wrongful prosecution for fraud of

hundreds of sub-postmasters, MPs on

the justice committee said that private

prosecutions should be subject to the

same standards as public prosecutions.

Accepting that private prosecutions

play an important role, particularly

given the funding constraints on the

police and prosecution agencies, the

committee said that concerns over

prosecutions brought by the Post

Office and the RSPCA suggest that “it

is not sufficient to rely on the courts

alone to identify and remedy problem-

atic prosecutorial practices”.

To avoid the development of a

parallel system where the public inter-

est, accountability and transparency

are secondary to private interests, the

committee’s report called for a binding

code of standards, enforced by a regula-

tor. It recommended that all defendants

against whom private prosecutions are

brought should be notified by the court

of their right to have cases reviewed by

the Crown Prosecution Service (CPS).

The report also recommended that

Carrie Gilgun, a partner at Forbes

Solicitors in Preston who acted for

defendants prosecuted by APS, says

that private prosecutors should have to

satisfy the same evidential and public

interest tests as the CPS to prevent

cases without merit going to court. She

blames magistrates for not sufficiently

scrutinising applications before allow-

ing cases to proceed and says that in

a single day one magistrates’ court

issued summonses for nearly 30 cases.

Christopher Howitt, a barrister at

Three Stone, agrees that more protec-

tions are needed. “One problem with

private prosecutions is that judicial

scrutiny doesn’t kick in until the crown

court, so you could technically have

someone trying to take a punt in the

magistrates’ court.”

Howitt says that, in principle, the

high cost of bringing private prosecu-

tions guards against “cowboys and

opportunists”. Gilgun, however, argues

that the fact that a private prosecutor

can benefit financially by bringing

a case to court, regardless of its merits,

increases the risk of fraud.

The RSPCA has brought prosecu-

tions since 1824, and criticism of its

conduct was raised in 2014 in the

Wooler report and two years later by

the environment, food and rural affairs

committee for its failure fully to imple-

ment the earlier recommendations.

Last year the RSPCA secured 633

convictions involving 320 people, with

a conviction rate of 90 per cent. John

Goodwin of Cohen Cramer Solicitors

says that there should be greater regu-

lation of the charity’s prosecutions,

which he argues result in too many

animal owners being criminalised.

At its own request, the RSPCA is

discussing a transfer of its role as a

prosecutor with the attorney-general’s

office and the CPS. Although the

charity continues to prosecute cases

based on animal welfare legislation.

In 2019 the Private Prosecutors’

Association produced a voluntary code

of practice. Its chairwoman, Annabel

Kerley, a chartered accountant and

a partner at StoneTurn, says that

curtailing the right to bring private

prosecutions would reduce the “ability

of victims to access justice and potent-

ially send the wrong message to would-

be criminals”.

A spokesperson for the Ministry of

Justice said: “We will consider this

judgment and have already accepted

recommendations to limit the costs

private prosecutors can recover.”

organisations that conduct frequent

private prosecutions should be subject

to inspections. Where one is found to

be misusing the power, the right ought

to be removed, or consent from the

attorney-general or the director of

public prosecutions must be granted

before initiating cases.

In March the government agreed to

review the funding arrangements for

private prosecutions and to establish

a central register to keep track of all

those brought in England and Wales.

But so far no changes have been imple-

mented and, although there is evidence

that the number of private prosecutions

is growing, there is no reliable data

recording the volume of cases.

Sir Bob Neill, the chairman of the

justice committee, says that the APS

cases “reinforce the need for stronger

safeguards to prevent the abuse of

private prosecutions” and that the

government must implement the

recommendations suggested last year.

One magistrates’ court

issued summonses for

nearly 30 cases in a day

GETTY IMAGES

Times Law

Editor Jonathan Ames

020 7782 5405 [email protected]

Advertising and marketing

For print and online: Jeanine Kiala

020 7782 7518 [email protected]

I

t is time for the leaders of the
legal profession to look beyond
their terms of office.
The court system in England
and Wales is creaking and its
vital signs are worrying — there
is a mounting backlog of serious
criminal cases and a civil process
that is inaccessible to most citizens.
Although large law firms are
prospering, in-house lawyers are
struggling because of increasing
workloads and shrinking budgets.
Smaller businesses cannot afford
most legal services and too many
law schools are dispensing graduates
better equipped for the 20th century
than this one.
Not everything is grim. Last
month a report commissioned by
LegalUK, a group that promotes
English law, showed that English law

Our creaking system needs to become a world beater

is a national treasure that underpins

hundreds of trillions of pounds of

trade and provides a platform for the

contracts on which much global

business relies.

The opportunity for our business

community — and the UK economy

generally — is to position English

law as the international standard in

emerging areas and industries,

which include “fintech”, investment

in environmental, social and

governance issues, and artificial

intelligence (AI).

At times of apparent discontinuity,

senior politicians, lawyers and

judges periodically call for

fundamental change. But their

transformation projects usually

morph into efficiency exercises. A

year or so after launch, in response

to critics, leaders dilute their long-

term transformational aspirations

and instead pursue low-hanging

fruit. This decade, we need better.

Our broad challenge is clear. In

the context of growing competition

and increasingly capable systems,

we should want English law to be

the dominant platform for the

conduct of business internationally

and the most adaptable to

technological advancements. We

should embrace technology to

consolidate our position as a leading

global centre for dispute resolution.

And we should want the UK’s legal

systems to be beacons in upholding

the rule of law and ensuring access

to justice for all.

Thomas Edison wisely noted that

“vision without execution is

hallucination”. Quite so. If we want

action, as well as hope, we need

practical long-term plans. In the

past, at times of change, we have

appointed clever judges to

undertake fundamental reviews;

we have left lawyers to their own

devices; experts and leaders have

written and lectured eloquently; and

we have legislated and regulated

patchily. We have muddled through,

with no clear path forward.

In relation to technology, some

recent promising shoots suggest we

have greater alignment and focus.

The Law Commission has emerging

technologies, such as automated

vehicles, as a significant focus. Sir

Geoffrey Vos, the Master of the

Rolls, is championing the use of

technology in the courts, and

leading a taskforce on crypto-assets

and smart contracts. The Civil

Justice Council, which Vos chairs,

has set up a futures group that is to

propose a road map for the justice

system through the 2020s.

LawtechUK, which is funded by the

Ministry of Justice, has found an

online solution to the £23 billion late

payment crisis facing SMEs. Legal

technology start-up businesses in

the UK are burgeoning, and several

law firms are doing pioneering work

in AI and publishing their findings.

We could go further, however, by

co-ordinating and intensifying our

efforts. Establishing a national

institute for legal innovation would

be in the spirit of the government’s

UK innovation strategy that was

published in July and provide the

necessary recognition that the

English legal platform is vital for

the economy.

Such an institute would act as

a catalyst, enabler, ambassador,

researcher and developer, and would

involve the profession’s leaders,

experts, teachers and innovators.

Their aim would be to maintain a

competitive advantage over other

legal systems and accelerate the

digital transformation of law.

Richard Susskind is the chairman of the

futures group of the Civil Justice Council

and a director of LegalUK

Richard Susskind

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