By Nigel Weller, May 2 2017 09:00PM
The dangers of Section 19 PACE
We wish to tell you of our recent successful defence of two clients at Hastings Magistrates Court. Our clients Mr R and Miss H faced a total of 16 charges under the Animal Welfare Act sections 4 and 9 and also a charge under the Wildlife and Countryside Act section 8.
The case was heard at Hastings Magistrates Court over 5 days. The defence had also instructed Dr. Stephen Cooke as our veterinary expert who has a vast experience in birds of prey.
Both clients were successfully defended and were acquitted of all the charges that they faced. The reasons for this are as follows.
The main bulk of the charges emanated from a visit by the RSPCA to our clients property. This was in response to a complaint made by a member of the public in respect of the premises where our clients kept their birds.
Our clients had been out on the day of the raid, displaying their birds of prey. Mr R rented a yard and building from a local farmer to house his equipment and to keep his birds. Our clients returned to find that the birds had been removed and assumed that they had been stolen. Our clients were faced with a very difficult decision because they did not have the facilities at their home address for the birds, but did not want to leave them at their yard for fear of them being stolen.
Our clients decided to bring the birds home with them and set about trying to find out where their birds had gone. They made calls to the Police and the RSPCA with little information being received. They even asked the RSPCA for help with the housing of their birds because they knew that the accommodation that they had would not be sufficient into the future.
They also set about finding alternative accommodation for the birds. They removed the aviaries from the old yard and cleared land and erected new aviaries, which the RSPCA inspectors saw when they came to interview them, along with a full explanation as to why they were doing this.
Unbeknown to our clients the RSPCA had been contacted by the same member of the public who had removed the birds and they were beginning to build a case. The RSPCA had been to take statements, they had gone to visit our clients’ new yard and been refused entry by the landowner (who is perfectly entitled to do this, the RSPCA are just members of the public and should always be refused entry because they have no right to come onto your property).
The RSPCA don’t like being refused entry and so the Inspector had set about attempting to secure a warrant to enter the new yard to hunt for the birds. The Police rightly had told the RSPCA Inspector that they would not support this application for a lack of evidence. This highlights the desperate attempts the RSPCA will go to, to try and enter properties, all this before they had even spoken to our clients to objectively assess the evidence. The RSPCA Inspector had recorded it in her pocket notebook, however it did not feature in her statement (you would have thought something as important as that would). We asked for the RSPCA Inspector’s notebooks because they often contain a large amount of information that doesn’t make its way into the RSPCA Inspectors statements. The Prosecution often refuses to disclose these, but persisting under the Criminal Procedure Rules you are entitled to see all documents a witness of fact refers to or relies upon to make their statement.
Later that same day the RSPCA arrived at our client’s property with the intention not of assisting them and helping them look for their stolen birds or to assist them with the birds that they had, but with the intention of removing the birds that our clients had. However, the RSPCA on the doorstep didn’t tell our clients this, they gave the impression that they just wanted to come in and talk about the birds. They somehow forgot to mention to our clients that they had applied for a warrant earlier in the day and that our clients were their main targets.
Now, we have written in previous blogs about the ways in which animals can be seized by the Police, not the RSPCA because they have no powers under the Animal Welfare Act 2006. The main power lies under Section 18 of the Animal Welfare Act and more importantly under subsections 5 and 6. Firstly, that either a veterinary surgeon signs a section 18(5) certificate to assert that the animal is suffering or likely to suffer. The Police then seize the animal and place it into the care of the RSPCA. This should always be after the vet has examined the animal (do not be fooled into letting the RSPCA remove your animal to be taken to a vet of their choosing to be examined, the examination should always be at your premises, the RSPCA will dress this up as a routine inspection knowing full well that they are investigating you).
The second but rarely used power under section 18(6) is where a Police Officer or Inspector (often local authority) can act without the certificate where the animal is suffering or likely to suffer and it is not reasonably practicable to wait for a veterinary surgeon. This is to cover situations where you might find an animal in the middle of the night in a remote location.
However, we have noticed an increase in the use of Section 19 of PACE (Police and Criminal Evidence Act 1984). It is our opinion that this is being used to side step the requirements set out by Parliament under Section 18 of the Animal Welfare Act 2006. Section 19 of PACE allows the Police (key importance) a general power of seizure. In this case the Police officers had used Section 19(3) of PACE which states as follows:
The constable may seize anything which is on the premises if he has reasonable grounds for believing that
a. That it is evidence in relation to an offence which he is investigating or any other offence and
b. That it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
Before exercising this power the Police have to be lawfully on the premises, and would need to run through the requirements of PACE to inform the home owner that they can withdraw any consent for the entry at any time, that the Police should provide the home owner with a list of the items seized and removed.
During cross examination the RSPCA inspectors tried to deflect the decision for seizure onto the Police Officer, who had conceded in cross examination that she had never used the Animal Welfare Act in her line of duty and had looked to the RSPCA Inspectors for advice about what to do. The RSPCA Inspectors trying to deflect the decision for seizure onto the police was of course nonsense because it was the RSPCA who had called the RSPCA to seize the birds. It also emerged during cross examination that neither of the RSPCA Inspectors had even thought about the requirements under Section 18(5) of the animal welfare act and neither of them had attempted to call a local vet to attend the scene, despite their being numerous vets within the local area. They had their own vet lined up in Dover ready to receive the birds, this being a drive of nearly 70 miles away.
The Police had not provided any of the safeguards required under PACE to our clients, they had not even asked our clients why the birds were at their property, what plans they had for the birds, they didn’t inform our clients what had happened to the other missing birds. These were all appalling breaches of PACE, which is designed to protect all the rights of citizens to the type of behaviour seen in this case from the Police and more importantly the RSPCA who were at all times the driving force behind this raid, they simply used the Police to attempt to add the legality to what they were doing after they were turned down for a warrant. It came across to the Court that to all intents and purposes the birds at our client’s property were going to be removed no matter what. This is wholly incorrect and is worrying that the Police and the RSPCA, both of whom receive training in this area of law, could ride roughshod over the rights of the home owner and the general public.
We made a successful application under Section 78 of PACE, which is the gateway to apply to the Court, to have evidence excluded from a trial due to the way in which it had been obtained. The Magistrates agreed with our submission that the actions of the Police and the RSPCA had been unlawful and they excluded all the evidence obtained from the raid at our client’s property. This had the impact of removing 7 of the 8 charges faced by both our clients.
We then proceeded with the evidence for the remaining charge, with both our clients giving their evidence to the Court clearly and concisely for which they should both be proud. We then heard the evidence of Dr. Cooke and then moved onto the closing submissions, where the case against Mr R was that he was the owner of the birds and primarily responsible and the defence for Miss H that she was not the owner of the birds and what involvement she had with the birds was at the direction of Mr R and so she could not have fallen into the category of people that parliament had intended should be responsible to a criminal level for animals under the Animal Welfare Act. This is a classic RSPCA case of trying to charge everyone without really objectively viewing the evidence. Miss H had confirmed what her role was within the organisation during her interview.
Unfortunately during the case two of the birds that the RSPCA had seized died whilst in their care. Our clients were heartbroken and especially given the result where they were found not guilty.
Everyone at Nigel Weller and Co are delighted with the result for our clients, whose birds meant a huge amount to them. It is refreshing to see that the Court will clip the wings of both the RSPCA and the Police where they step out of line to detriment of the right of the members of the public to enjoy their homes in peace and quiet.