A lawyer has slammed the RSPCA siting “witness rehearsal” amongst a number of other accusations about the conduct of the anti animal cruelty organisation.
Solicitor Nigel Weller at Harwich Magistrates Court on Tuesday 11 December 2007 was defending in an RSPCA case. As a result of the District Judge’s concerns about what Mr Weller uncovered, the cruelty trial collapsed.
This was a private prosecution brought by the RSPCA against a lady experiencing her first taste of the legal system as a result of the RSPCA’s activities – was charged with offences of “cruelty” to her cats on the basis that she “failed to provide them with adequate nutrition” and “adequate veterinary care”.
In this case, the RSPCA’s vet had made two similar reports – which is often an indicator that something is not quite right. The first report made no reference to the animals either suffering unnecessarily or that there had been any failure to obtain veterinary treatment or adequate food. Following this report, the veterinary surgeon was given the pro-forma by the RSPCA and a second report followed.
In this second report, the same words in the pro forma appeared and it was asserted by the expert that the defendant had caused unnecessary suffering by failing to provide the animal with appropriate veterinary treatment and with adequate food.
The defence had tried to seek out, and claimed throughout the pre-trial procedure that they were entitled to see, documents provided to the RSPCA’s vet. Documents were finally disclosed as a result of court orders made during the trial. One such document appeared to the court to be a ‘pro-forma’ witness statement handed out by the RSPCA to its expert witnesses. This document purported to give the expert witness guidance as to the format and possible content of her report – indeed parts of the witness’s second report were direct quotes from this RSPCA generic “pro forma”.
The District Judge was very concerned by this matter, and also by the fact that the defence had been forced to cross-examine to uncover it during the hearing in front of him. Wording suggested by the RSPCA to its witness was couched in an extremely negative way. This amounted, the court found, to the rehearsal of a witness and, arguably, to “witness coaching”. Rehearsal and coaching of witnesses is well known to be unlawful in this country – a fact recently emphasised by the Court of Appeal R v Momodou & Limani.
The RSPCA’s document, for example, stated as follows:
“when you are of the opinion that the animals referred by you has suffered, you should qualify your opinion by explaining in layman’s terms who the animal has suffered, e.g. ‘it is my opinion, having taken into account the facts presented to me, the animal referred to as exhibit AB/1 has been caused unnecessary suffering by the person responsible for its care by them failing to provide the animal with veterinary treatment/adequate food’, etc”
It was argued by the defence, and accepted by the court, that even the most honest witness could be subliminally affected by reading such a document. The District Judge expressed his “grave concerns” about what had happened. There was no suggestion made by the defence in this case that the RSPCA’s expert witness had been dishonest, but the court decided that, in the light of the “pro forma” it would no longer be safe to give any weight to the whole of the RSPCA’s veterinary evidence. As a result the RSPCA was forced to offer no evidence – which it did reluctantly and with its usual lack of grace. The lady left Court, with the right result and her good character intact. However, this was only after months of worry about the case.
After the case, Defence Solicitor Nigel Weller said:
“This has been yet another difficult case, in which I have had to persuade the court to allow cross-examination about the way in which the RSPCA has prepared matters for trial. I am used to the RSPCA’s steadfast refusal to disclose obviously relevant documents, which the defence are entitled to have disclosed immediately. Putting to one side the question of ‘rehearsing’ witnesses, it is clear that any document, which a professional witness refers to, or relies upon, must be disclosed to the defence.
“In this case, I made numerous requests to the RSPCA’s Solicitors, but not even the expert witness ‘pro forma’ was disclosed. Indeed, this is a document, which I have never seen before in all of the cases I have done. It appears to be a generic document, which uses language that I recognise from experts in other cases. As recently as 7 December 2007, the RSPCA’s lawyers sent me a letter stating that ‘we have informed the District Judge that the prosecution are not serving any documentation prior to the commencement of the trial as you have requested’.
“Only cross-examination of the RSPCA’s vet uncovered the documents which had been given to her for the purposes of her second report. When it was uncovered, the District Judge rightly made very critical remarks about the ‘pro forma’ and indicated that he would not be prepared to give any weight to the RSPCA’s veterinary evidence.
“I am a specialist lawyer with a good knowledge of the RSPCA and its conduct of private prosecutions in particular. The RSPCA is a charity with no special powers, but it also has no complaints procedure or transparency. The handful of specialist animal welfare lawyers all know of the RSPCA’s conflicts with authorities and the courts. There is the infamous reported case of Attorney-General v RSPCA, where senior RSPCA employees were found by the Court of Appeal to have perverted the course of justice when disciplining an employee for allowing evidence to fall into the hands of defence lawyers, which assisted their clients’ case.
“My client and I cannot do anything to ensure that this awful experience does not happen to anyone else. There is a real danger that when other lawyers, not specialising in animal welfare law, take on cases against the RSPCA and take the RSPCA, and the evidence it presents, at face value. In my view, they should not do so.”