Nigel Weller & Co

Defence solicitor specialising

in animal welfare law

01273 487123

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Authorised and Regulated by the Solicitors Regulation. Authority Number 00075951

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Welcome to my blog and news update

 

Having worked exclusively in animal welfare defence for many years, I am recognised as an expert in the field.

 

Judges regularly thank me for highlighting legal issues to them..

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.



By Nigel Weller, Aug 15 2016 10:19AM

Steve Parkin, was a client of mine who I got to know over the past 12 months as a kind, informed, generous individual.


He, as well as other members of his family, were being prosecuted by the RSPCA for various offences contrary to the Animal Welfare Act.


The case was set down for a 2 week trial and all the family members we had seen on a regular basis throughout the year and considered them as friends. You will realise that I cannot comment upon this trial, as it is still continuing and it would be improper for me to do so. But I cannot let the passing of Stephen Parkin go without mention, because he was a man who was liked and loved by all those who came into contact with him, which is reflected in the hundreds of messages of condolence that the family have received since his death on the morning of the 26th July 2016.


We were halfway through the trial and the defence case was due to commence that day, it never did, it has been adjourned to a future date.


For certain legal reasons, I announced in open Court that we would be seeking that the CPS takes over this prosecution. I can say nothing more as far as the case is concerned. You may be wondering why the title to this blog is that little do the public know that an RSPCA Inspector in the South West of England whilst in the course of his work bravely went onto rocks being pounded by heavy seas to rescue a stranded sea bird, he was washed away and has never been found, leaving a young family without a husband and father. An extremely brave man who was willing to pay the ultimate price to save an animal that is in fact not protected by the Animal Welfare Act and that most of us wouldn’t even consider trying to rescue it. Again, I never knew that Inspector, I don’t think I have ever cross-examined him, but even so there is a feeling of remorse at the tragedy that has occurred for the goal of animal welfare.


After some 40 years in the criminal law, having represented some of the most serious criminals on the planet, it still amazes me that when one thinks we have seen it all, the bravery of the human spirit never ceases to amaze.


It puts all of our so-called stresses and pressures of the lives we lead into perspective. But notwithstanding that, I am sure that Steve Parkin would want me and other lawyers like me to continue, defending these prosecutions and likewise that very brave Inspector and other Inspectors like him if confronted by the same situation, would behave in exactly the same way.


It has been a very humbling fortnight of my life.



By Nigel Weller, Jul 11 2016 10:08AM



In certain cases that I am called upon to defend, it becomes clear, after reading all the evidence and considering our own expert’s report that there are certain offences which the prosecution will be able to prove. I am obliged by the Regulations to advise clients the weaknesses of their case and explain to them why I think they will be convicted. As an incentive to encourage settlement, the Government have regulated that early guilty pleas will be met with a dispensation of over a third of the likely sentence.


You would think that the Judiciary would take note of those Regulations in an effort to save costs and lengthy trials to impose sentences that reflect the dispensation. I am saddened to have to report that in all the cases that I have dealt with, where clients have pleaded guilty, normally to one offence that the subsequent sentence they receive, is as severe as if they had pleaded not guilty and fought the trial, sometimes such trials last several weeks and incur large costs for the RSPCA, the Court Service and the Legal Aid Agency. It is very rare that I advise clients to plead guilty because of many weaknesses in the RSPCA’s cases.


My mind is now made up that from now on I shall think very carefully about the advice I give because of a sentence at the R Crown Court on an appeal against sentence.


Our client faced 38 charges in the Magistrates Court, varying from many s.4 cruelty and s.9 failing to meet their needs. It was appallingly prosecuted by the CPS, who for up to 14 months failed in their duties to disclose evidence and to comply with Court directions because of their poor understanding of animal welfare matters.


As a result we were able to persuade the prosecutor (who was an agent), that if our client pleaded guilty to one s.9 offence in relation to the environment, the prosecution would drop the other 37 charges. A 2-week trial was avoided, a large sum of public money was saved and the interests of justice was served.


This was our client’s offence, she was effectively a woman of good character who had worked in the horse industry, in particular the racing world all her life. She was very experienced as far as horses were concerned and came into contact with horses on a daily basis, as her job involved assisting racehorse trainers. She was totally dependent upon the horse industry for her living and this was evidenced by references both in the lower and in the Crown Court. We advised her that because of her plea to only one offence, a s.9, no cruelty being alleged and because of her age and impeccable credentials and history that the chances of disqualification were remote and if disqualification was imposed, it would be for dogs only.


In the Magistrates Court, reports were obtained, confirming the above and yet the District Judge effectively sentenced her on the basis that had pleaded to 38 offences. She received an order of 200hrs unpaid work and more importantly, was disqualified for 3yrs from having any contact, ownership, etc OF ALL ANIMALS!! There was no evidence before the Court of poor husbandry being exercised in favour of any other animal, dogs were the only animal that were the subject of the summonses. Yet the District Judge purely, as a result of a vindictive motive, who knows why, totally contrary to sentencing practice and the evidence before her, imposed a quite ridiculous sentence.


We were amazed and saddened by the over excessive use of power this particular Judge used. Which really made the advice given to our client seem ridiculous. We immediate lodged an appeal against sentence in the hope that a Crown Court Judge would be more objective. I couldn’t do this case so Sara-Lise Howe of Counsel (one of the country’s defence animal welfare Barristers) argued on behalf of our client, that the sentence was disproportionate and totally unfair and more to the point, not supported by any evidence. His Honour chose to ignore the representations made, he disqualified her from all animals, knocked one year off the disqualification period as a sop to fairness we presume, and when Miss Howe asked for reasons from His Honour (because she was staggered by not only his attitude, but also the sentence), he refused, saying he had already given his reasons when of course he hadn’t.


Where does this now leave me and my client and advice on plea? I have had enough of Courts manipulating and wrongly interpreting the evidence before them to impose the harshest possible sentence, notwithstanding the fact the evidence doesn’t support such a vindictive sentence.


I believe if my client had fought the 2-week trial, we would have won well over 50% of the charges and notwithstanding the dispensation, she couldn’t have received a more serious sentence than what she did. The Court would have had the opportunity of her giving evidence and would have been able to assess her as a kind, caring, animal loving woman who for a very short period of time, had allo0wed a build-up of faeces in her kennel. They would have heard all about her life with horses and I don’t think that a disqualification would have followed, at least not for all animals.



The moral of this story, is you want to avoid the one third rule, because it seems to me defendants:

1. Not given any credit for their plea

2. That the sentencing of animal welfare offenders still is not objective and attracts an unfortunate vindictiveness from those members of the Judiciary who should be objective and who should know better.


Although I will make clients aware, as I am obliged to do so by law, they will get credit for a guilty plea, I will also tell them that in reality that credit is not worth the paper that it is written upon and that they have nothing to lose and in fact, everything to gain from pursuing their trial.



By Nigel Weller, Jun 17 2016 03:18PM



The majority of the cases I deal with are normally multi-animal households and normally the prosecution is in relation to one specific type of animal, but if convicted of any offence under section 4 or 9 of the AWA 2006, and you are subsequently disqualified under section 34(1), the Court can make other ancillary orders, which may catch you out. It is far better that you place your affairs in order, expecting the worst and therefore minimising post-conviction stress and emotional upheaval.


Disqualification orders under section 34(1) can be for life, with a minimum period of 1 year. Even though you have been convicted of say offences in relation to dogs only, the Court can (and the Derby case was an example of this) disqualify you from all animals for whatever period it thinks fit. Even though as the Derby case proves, although you own animals, cats, small furry things and you haven’t been prosecuted in respect of your care of the same, the Court can disqualify you from custody, care and control. It happened in the Derby case, we were prosecuted in respect of one dog, and we had 6 in the house, plus 4 cats and horses nearby. The Court disqualified us for a short period of time (namely 2 yrs) but in respect of all animals. This meant that from the time of the order made in Court, if we were found in possession of any animal, regardless of breed, which of course we had at home, and in the adjoining fields. Fortunately, we were appealing the conviction and at the same time, the sentence, we considered all animals to be totally unreasonable, which empowered the Court to suspend the activation of the disqualification until after the appeal was heard. You must be prepared for this and your Notice of Appeal in triplicate ready to serve upon the Court and the prosecution, which then allows you advocate to make an application to suspend the orders made.


Strangely, community based orders, such as unpaid work cannot be suspended. This is also very important if a period of custody has been imposed, filing a Notice of Appeal there and then on the sentencing Court enables your advocate to apply to the Court to make a bail application and effectively suspends the sentence until your appeal is heard.


Let’s say that you have been disqualified from all animals to take effect immediately, the Court can under section 36 AWA 2006:


1. Appoint a person to carry out the order immediately, this will be the RSPCA

2. Require any person who has possession of an animal, to which the order applies to deliver it up

3. Giving directions for the order to be carried out, confer any additional powers such as powers of entry, this will be the RSPCA which you will not want to see on your property again! And to add insult to injury, the Court can order you pay the costs effectively on removal and placement.


What you should do is to ensure that well before the trial, this should be weeks, not hours ownership and if necessary, responsibility, the animals be assigned to a willing friend, the animals should be removed from the home and then returned at the end of the disqualification period, if that can be agreed. If this is done well in advance, the Court cannot then enforce powers to the above, because effectively the order has been carried out and you are no longer in possession, ownership or control of an animal. Make sure that your advocate tells the Court of this and confirm in open Court that you no longer have any animals at the property. Please be aware that the Court can still make this order, notwithstanding your announcement that there are no animals at home and the RSPCA will turn up at your property to satisfy themselves that there are no animals there. You will have to allow them in, because that power has been conferred on them under section 36 AWA 2006, but once their inspection is complete, they must leave. If they are reluctant to go, be firm and ask them to leave, you can use reasonable force if they don’t, although I would not recommend that as a solution, just call the Police. If the RSPCA try to say that they are entitled to know the identities of the new owners, they are not entitled to the same, because the transfer of ownership and responsibility was made hopefully a considerable time before the section 36 order was made.


As you will have realised, this is an extremely complex area of the law, not only as far as the actual law involved with proving section 4 & 9 of the AWA 2006, but also the number of other orders that can be made, and if you do not plan ahead, you could end up losing all of your animals.


A last word about RSPCA – v – Patterson, I consider that the case of Patterson is an important case not used enough by lawyers in this area of the law. The RSPCA will try and say Patterson is a disqualification case and to some extent they are right. But there are important overture dicta in the judgement, which goes to the very heart of whether a person can be said to be responsible for an animal, in particular, does a person’s presence in a house where there are animals, automatically render him responsible for the animals under section 3 AWA 2006. This is the question the Divisional Court dealt with in the Patterson case. Mr Patterson was disqualified under section 34(1) & (2) (a, b, c d) of the 2006 Act from possession, care and control of animals. He lived with his partner in a house to whom he assigned ownership of his animals prior to his trial. He was convicted and disqualified and then prosecuted for possession of animals whilst disqualified. The RSPCA argued that because Mr Patterson resided in the house, he inevitably would come into contact with the dogs on a daily basis, which would involve touching, possibly feeding, walking, grooming. The Court to convict Mr Patterson had to decide whether he was responsible or not, as he clearly was not the owner before they could deal with the disqualification issue.


The Divisional Court found that mere proximity was not enough, that it would be inevitable that Mr Patterson would have contact with the dog, but there had to be in place between Mr Patterson and his wife an “arrangement under which he is entitled to control or influence the way in which the animals are kept, pursuant to 34(2)(d). Without this decision, it would mean that anyone disqualified under the AWA 2006 would be prevented from having a partner and/or children who owned animals residing in the same property, effectively punishing them for the misdemeanours of their husband/father.


So we submit therefore the prosecution must prove that the disqualified person by an arrangement is entitled to control the animals concerned.


I am sure that Patterson will come before the divisional Court again and in fact I argued it in the Derby case that in the absence of an arrangement between my clients and the father-in-law, responsibility could not be proved. Patterson can be found at R (Patterson) v RSPCA [2013] EWHC 4531 (Admin) – S 34(2)(d) AWA


If you require any further help, information or explanation, don’t hesitate to contact Nigel and/or Alex Weller at the office.



By Nigel Weller, Jun 17 2016 03:16PM




The perils of the interview is shown by the recent appeal I was involved in at the Derby Crown Court. After this appeal, it truly brought it home to me the importance of getting the interview right and not allowing the prosecution to be able to subsequently cross-examine you on the answers to vague and misleading questions.


The interview is the prosecutions one and only chance to try and obtain an admission of responsibility, ownership and knowledge of whatever they are alleging is wrong with your animal. I have come to the conclusion that it is far better to prepare a statement before the interview when hopefully with your lawyer (who must have an in depth knowledge of the Animal Welfare Act) in order not to make unfortunate admissions as to ownership and responsibility, not being aware of the fact that these are issues that must be left alone until all the evidence has been disclosed.


The prepared statement must be limited to an acknowledgement of the RSPCA raid, and the removal of the animals. Under no circumstances should you claim ownership or responsibility for the animal, as this can result in a complete failure of any potential defences that you may have. This became apparent in the appeal that I had just finished, where my client went into interview with a duty Solicitor who knew very little of the Animal Welfare Act and most importantly was not aware that ownership or responsibility triggers culpability under the Act. This put simply means that if you are not the owner nor consider yourself responsible, you cannot be charged under the Act, unless of course the RSPCA don’t believe you.


The RSPCA of course regard the interview as extremely important and see it as their opportunity to extract from you, if not an admissions as to ownership, but factors such as from time to time you are involved with the day to day care of the animal, such as with dogs for instance, occasionally walking it, grooming it, feeding it, etc. The prosecution will endeavour to get you to admit as much involvement as possible, because the more you are involved, points to responsibility. To prevent this happening therefore, it is critical that you do not give the prosecution the opportunity of engaging you in a question and answer session, which will be trying to establish you as the person responsible. If you say no comment, you cannot be cross-examined upon an answer you gave many months before in Police Station, when very stressed, possibly under arrest, possibly without a Solicitor saying things which are not accurate and can be misinterpreted by the Court. Deal with it in a prepared statement, just acknowledging the raid and removal of the animals and nothing else. I have often seen prepared statements, where a duty Solicitor, thinking he was being helpful, confirmed the ownership/responsibility position not realising this is a matter the prosecution have to prove as a vital ingredient of the offence. Why admit it when they have to prove it!


Going back the Derby case, both clients had a duty Solicitor present and both gave completely the wrong answer when dealing with the ownership question due to the stress and not being aware of the significance of what they were saying when it would be used against them at trial and would be very difficult for them to try and argue that they didn’t mean that answer.


The dog in question in this case, was owned by my client’s father, it was a pedigree spaniel and the father had purchased the dog and had clearly owned the dog, which was confirmed on the Kennel Club register. They had a certificate in their possession confirming it, he was responsible for the day to day needs of the dog, such as the walking, grooming, feeding, watering, yet in interview quite remarkably, the wife said that she owned the dog with her husband, made no mention of the father and the husband client denied ownership and said that his wife owned the dog, again not mentioning the father in law. These were 2 honest people, doing their best to help the RSPCA in interview, they were not aware of the importance of meaning of words ownership and responsibility, who trusted their Solicitors, who also were ignorant as to the significance of what they were saying. It wasn’t true, they still can’t explain why they said it and if they had given a limited prepared statement and had had time to think about what the true position was, when it came to trial and the appeal, they had to change their account in interview, which obviously lays them open to criticism, of lying and trying to mislead the Court, which goes to credibility.


When it came to the appeal, unfortunately the damage had not been erased, it is in the interview forever, and even though we were able to produce the Kennel Club certificate with the father in law’s name shown clearly as the owner, the Court just switched their findings that they were responsible.


It seems to me that the majority of the cross-examination of clients by the RSPCA stems from their naivety when dealing with the interview, especially in cases where clients have never been in trouble, they are perhaps being interviewed at home and not at a Police Station, they are therefore not aware of the gravitas of the charges being investigated, they carry 6 months imprisonment. The Inspector is being friendly and your client thinks they just need to explain things and it will all go away because they are not aware that criminal offences are being investigated.


In the Derby case, the clients had a complete defence, that they were not responsible for the dog, nor that they owned it, but their unguarded remarks in interview had the unfortunate effect of losing them their credibility when a prepared statement would have secured them their credibility, they had no previous convictions and a good character direction would have had to be given.


Some Solicitors may say “what about the inference?” because if you don’t answer questions in interview and later rely upon the answers to those questions at a trial, an adverse inference can be drawn by the Court against you, that is basically the Court can conclude the reason you remained silent, was because you had no answer to the questions being asked.


I am now firmly of the view that it is well worth dealing with the risk of an inference being drawn than to deal with the sort of interview that I had to deal with in the Derby case, which did far more damage than an inference being drawn would have done.



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