ABUSE OF PROCESS HEARING 19TH APRIL 2017 LIVERPOOL CROWN COURT
JUDGE NICHOLLS ( AND 2 MAGISTRATES)
IN THE CASE OF AN APPEAL IN THE CASE OF
RSPCA V WALLWORK (HEARD AT BIRKENHEAD MAGISTRATES COURT ON 30TH AUGUST 2016.)
WALLWORK APPEALING A CONVICTION ON AN ANIMAL WELFARE ACT 2006 SECTION 4 (1) OFFENCE, ON GROUNDS OF ABUSE OF PROCESS AND ON THE FACTS.
(2) Appeal against sentence.
COMPLETED DOCUMENTS LISTED BY PAGE NUMBER TO FOLLOW
3 TO 7
ABUSE - MISFEASANCE IN PUBLIC OFFICE AKA ABUSE OF PROCESS IN A CRIMINAL TRIAL CONTEXT. The elements to be taken into consideration.
Short summary of the roles of
1. CHRISTOPHER MURPHY RSPCA prosecution solicitor who failed to withdraw evidence exculpatory to the accused and withdraw the charge, despite multiple notices.
2. ANDY HARRIS RSPCA employee who was the original trespasser requesting destruction of the sheep and manipulated the entire situation.
3. ANTHONY JOYNES RSPCA employee who did the follow up investigation and submission of 'evidence' to the RSPCA main prosecution department. Knowingly deprived the owner of independent examination prior to its destruction.
4. EMMA FISHBOURNE, veterinary surgeon employed by Liverpool University, and called by RSPCA HARRIS to attend. Breached many of the codes of practice of her governing body the RCVS.
5. The POLICE, notably CONSTABLE JURGIS who agreed to destruction at the instance of Fishbourne and agreed seizure of carcass at request of Harris, such seizure being unlawful in the circumstances, and it is never lawful to hand 'evidence' seized to a 'private person'
6. REQUEST TO THE COURT to consider the legality of the RSPCA as a prosecutor, detailed reasoning follows.
ABUSE - MISFEASANCE IN PUBLIC OFFICE AKA ABUSE OF PROCESS IN A CRIMINAL TRIAL CONTEXT.
DEFINITION / ELEMENTS OF MISFEASANCE
http://www.lawcom.gov.uk/wp-content/uploads/2016/01/apb_tort.pdf
Briefly, misfeasance in public office is a tort remedy for harm caused by acts or omissions that amounted to:
1. an abuse of public power or authority;
2. by a public officer;
3. who either
a. knew that he or she was abusing their public power or authority, or
b. was recklessly indifferent as to the limits to or restraints upon their public power or authority;
4. and who acted or omitted to act
a. with either the intention of harming the claimant (so-called “targeted malice”), or
b. with the knowledge of the probability of harming the claimant, or
c. with a conscious and reckless indifference to the probability of harming the claimant
. (In short, misfeasance is an intentional tort, where the relevant intention is bad faith. Pleading bad faith is difficult, because the pleading rules require details, and professional conduct rules forbid practitioners supporting obviously baseless allegations.)
(Proving bad faith is even more difficult. Where they have a choice, the courts are strongly disposed to believing that bureaucratic error was caused by genuine mistake, even incompetence, rather than by bad faith.)
SUMMARY OF SUPPORTING FACTS
(DETAIL for each individual follows,the, along with a bundle of supporting detail if it is considered necessary to clarify the points further, the documents from page XXX are SUPPORTING INFORMATION from Wallwork's notes.)
1. INDIVIDUAL SUMMARY for RSPCA prosecutor Christopher Murphy who breached solicitors codes of practice as evidenced by replies to the Solicitors Regulatory Authority (SRA). Murphy as an Officer of the Court is acting in a public capacity within the definitive elements of misfeasance. Knowingly continued to prosecute charge with no basis in fact, and consequent failure to review the other evidence. Falsified summary of case to Judge Ableson.
Bad faith – intentionally continued a prosecution after repeatedly having the fact that 'his' evidence only supported the accused brought to his attention. He compounded this by deliberately falsifying a compendium of the witness evidence statements to alter their meaning to Judge Ableson on 14th June 2016.
2. INDIVIDUAL SUMMARY for RSPCA employee Andy Harris, who entered by trespass, made false claims regarding whether or not contact could or was made with the owner, misled the Police constables into parting with a carcass to prevent the owner from independent examination to disprove any allegations, knowing from his experience and training that he had no entitlement to enter land , search for a protected animals, or to have property seized by the police at his request, knowing that entry by the police was UNLAWFUL as there was no warrant and the permission of the only person capable of granting permission to enter was deliberately made impossible by his untruthfulness regarding telephone calls. Harris is “another” investigator as defined in the CPIA code of 2015 point 1.1, and is subject to the provisions of the CPIA and codes made under it.
Bad faith, from intentionally trespassing while having it within his ability to have the correct phone number for the animal owner and misrepresenting this fact to the police later that evening. Intentionally prevented the owner from being present. Instrumental in ensuring carcass removed to prevent owner from independent examination.
3. INDIVIDUAL SUMMARY for RSPCA employee Anthony Joynes, who submitted the evidence statements that he was responsible for obtaining, knowing from his experience and training, that from those statements it showed that there was illegality in the entry, search, seizure and destruction of a sheep in the absence of the owner. Joynes knew the whereabouts of the carcass and refused at all times to disclose to the owner, thereby breaching the CPIA 1996 CODES relating to owners rights to inspect their own property that has been (unlawfully) seized. Joynes' own statements proved he searched records held by the RSPCA for additional information in relation to the animals owner. Joynes omitted to include that his search would have revealed severe criticism (on the RSPCA's own web site) by the sheep's owner in relation to the RSPCA handling of the Peel case when 11 healthy horses were shot on their instructions, within around a month after securing a 'sign over' to their ownership, without any attempt at re-homing. That search would have given the required element of targeted malice, as Joynes is a graduate who 'should' have understood that it was inappropriate to submit the 'evidence' he had collected with a view to prosecution due to several factors. Joynes is “another” investigator as defined in the CPIA code of 2015 point 1.1, and is subject to the provisions of the CPIA and codes made under it.
Bad faith – Joynes has a degree level education and experience as an investigator for the RSPCA and knowingly submitted 'evidence' - that was seriously flawed - for rubber stamping by a non legally qualified Senior Prosecutions Case Manager, and that evidence demonstrated the breaches of the Human Rights Act in several areas.
4. INDIVIDUAL SUMMARY for RSPCA veterinary surgeon Emma Fishbourne, who acted both in conflict of interest to an existing client, the owner, but breached several of her RCVS codes of practice that govern veterinary decisions, notably failure to have an independent second veterinary opinion in the absence of the owner for euthanasia, and for 'welfare' cases, and failing to provide a valid certificate under section 18, relying on her reasons in her statement, of the results of the post mortem pathology a few months later. Those results were interpreted by Fishbourne to retrospectively justify her decision, that she led the police to enact the AWA sec 18 to destroy the sheep. Since her statement, an independent expert has disagreed with a decision based upon her clinical diagnosis which was the only relevant basis on the actual day. The independent expert has also queried the lack of actual tests conducted, so in fact the findings in her statement are “misleading”. Fishbourne works for Liverpool University that is also a public authority within the definition.
Bad faith – Fishbourne as a lecturer for the University should be very familiar with the RCVS CODES OF PRACTICE, and knowingly failed to either discover the sheep's owner from a very small client list; 'leading' the police to enact the power in the Animal Welfare Act section 18 on euthanasia, encouraging them not to wait for the owner to be contacted.
NB LIVERPOOL UNIVERSITY ( Fishbourne's employer) ACCEPTS RSPCA FUNDING FOR RESEARCH PROJECTS IN COLLABORATION WITH THEM, SO THERE IS NO INDEPENDECE IN HER ALLEGANCE TO THE RSPCA, even though the sheep's owner was a registered client that created a conflict of interests.
5. INDIVIDUAL SUMMARY for Police conduct. The police officers were acting with reference to their supervisor, but also being led by RSPCA Harris. They 'should' have known from their experience and training that they cannot seize 'evidence' without a warrant and when entry itself was unlawful. They should be aware of the provisions of PACE 1984, and CPIA 1996, along with PACE Code B and the Code under the CPIA. The police should be aware that in all their LAWFUL searches and seizures they are responsible for a well documented paper trail (as requested from them and NO response as it does not exist – wrongdoing being IGNORED despite a complaint to Merseyside Chief Constable Andy Cooke , that was delegated downwards and no investigation or action taken. The “paper trail” has guidance written into it as regards the HUMAN RIGHTS ACT Articles, several of which were breached by, or enabled others to breach them by their compliance with the RSPCA. The police should also be aware that they cannot 'give away' evidence to a non statutory third party without the true owners consent or a subpoena, there is ample case law to this effect. They should also be aware that they remain RESPONSIBLE for evidence seized, and that third parties cannot use it for their own purposes as they are merely bailees for the police. The police are a public authority within the misfeasance definition.
Bad faith by the police is by the act of parting with the carcass to a third party who had no legal rights to it, in the normal course of police work they would be trained to secure evidence correctly and failed to do so.
6. In addition to the INDIVIDUAL deliberate transgressions, the appellant in this particular case is asking the Court to consider the lawfulness of ANY prosecution by the RSPCA, EXCEPT FOR DELIBERATLY INFLICTED CRUELTY, due to the operation of the Human Rights Act 1998 section 6 (3) (b) read in conjunction with sec 3 Interpretation. See the document - ABUSE OF PROCESS – VALIDITY OF RSPCA PROSECUTIONS. ANY PROSECUTION taken by the RSPCA as an organisation where there is NO deliberate cruelty must be an abuse of process and have the required element of BAD FAITH, due to the LIMITATIONS placed on their activity by the RSPCA Act 1932 sec 4.
BAD FAITH
As outlined in each of the individual's concerned, all of whom act is some way as a member of a public body for the purposes of misfeasance / ABUSE OF PROCESS.
As a direct result of ALL the above, the appellant suffered breaches of her HUMAN RIGHTS, every element of Article 6, Article 8, Article 17 and First Protocol Article 1.
ALL the above were individually, or in concert, liable for the breach of Article 17, prohibition of ABUSE of RIGHTS, by a PUBLIC AUTHORITY, as set out in the Human Rights Act 1998 section 6 (1), that has precedence over all domestic UK legislation whenever enacted.
END OF THE OUTLINE OF THE MAJOR POINTS THAT EACH HAVE THEIR OWN SUMMARY (AND EXPANDED NOTES IF REQUIRED).
Pat Wallwork
9th March 2017
ABUSE OF PROCESS HEARING – ROLE OF RSPCA PROSECUTOR CHRISTOPHER MURPHY.
The RSPCA prosecutor has a major role to play in the prosecution reaching the Magistrates Court, as he is the final and maybe ONLY legally qualified person that has had sight of the 'evidence' supplied by the RSPCA's internal prosecution department. In 2013 Stephen Wooler discovered that of 5 “senior” prosecution case managers, none were legally qualified. Any failures of his go to the heart of an ABUSE OF PROCESS, as outlined in the SUMMARY point 12 and the supporting point NB point 12 SRA codes not followed. Summary points 15, 16, 17, 18 and 19 are basic legal knowledge that every solicitor practising Criminal law should know in detail. Some of the most damaging points are expanded in the supporting points to the summary.
SUMMARY
7. CM failed to disclose the pathology report in the first bundle sent to the accused prior to the first hearing. The pathology report negated the charge under AWA sec 9 (1) failing to provide food or water.
8. CM failed to post the summons in a timely manner that did not give the required number of days prior to the first hearing with incomplete disclosure.
9. CM failed to release to the accused unused documents including photographic material that showed that RSPCA Harris, while alone and as a trespasser, had opened up a tarp containing the maggot ridden fleece that was wrapped to prevent maggot escape – that could lead to successful pupation and emergence as new flies capable of laying eggs within a week, ( thereby endangering ANY livestock, wild animals and pets within a 3 mile radius.)
10. CM failed until asked by Judge Ableson to release further photographic evidence to provide photos taken by Harris that showed the TREATMENT given to the ram.
11. CM failed consult with the RSPCA regarding his duty to the court not to bring charges for which all the evidence was contrary to the charge brought. (AWA Sec 9 (1) not providing food or water – photos by Harris – vet Fishbourne report – Blundell pathology report. CM was aware of this in May 2016.
In May 2016 a complaint was made to the RSPCA that was never addressed, CM was sent a copy of that complaint, with the details of no case to answer on AWA sec 9 (1).
12. The SRA 'on line' as a matter of principle gave the codes that CM did not follow upon request as in the detail. The question asked did not refer to any specific person to allow the answer to be of general application.
“If a solicitor is acting in the capacity of prosecutor for a private concern, does he have a duty to both the client, defendant and the court NOT to continue with a charge if it comes to his attention that there is not only no evidence to support that charge but all the evidence supports the defendants not guilty assertion in a criminal matter in the magistrates court”.
( copied in supporting information as NB.)
13. CM, “should” have queried ALL the evidence when such a grave failing was brought to his attention, but he continued to act for the RSPCA, despite that he “should” at that time have had actual knowledge that entry search and seizure were illegal.
14. CM compounded his wrong doing in relation to continuing with a prosecution that was clearly ill founded by presenting to Judge Ableson at a pre trial hearing on 14th June 2016 a written 'summary' of the case – comments following are longer than the actual 'summary' - as it was MISLEADING to the point of being a deliberate FALSIFICATION of the evidence, and to which he had been alerted in May, only a few weeks before. The RSPCA have the original of this that was handed to the judge and a copy given to the accused by post after the hearing. This goes beyond being unprofessional.
15. CM “should” have known as a professional solicitor very experienced in RSPCA prosecutions, that the police are not empowered to hand the product of any seizure under PACE 1984 sec 19 to any third party. See the supporting NB below for authority.
16. CM “should” have known as a professional solicitor that there was no 'lawful' seizure of the carcass under PACE 1984 sec 19 (1) as section 19 (3) (a) did not apply. The police were not involved in conducting any investigation, therefore “that it is evidence in relation to an offence which HE is investigating or any other offence” does not apply in relation to seizure. Section 19 is usually interpreted as search and seizure WITH WARRANT that specifies the articles that are the subject of the search. (Judicial Authority in an Attorney General's reference ( in an RSPCA case) that the police cannot search under a warrant for one piece of legislation and CANNOT effect seizure under a different act not named on the warrant – ie seizure only if warrant).
17. CM “should” have known as a professional solicitor, that there was no lawful entry under PACE 1984 sec 17 entry without warrant. It was known to the police that there was no person to be arrested on the premises, and sec 17 (1) (e) “of saving life or limb or preventing serious damage to property,” could NOT apply as the purpose of entry was to authorise killing an animal at the request of the RSPCA, who are private citizens with no rights over property belonging to another. The definition of premises in PACE sec 23 and AWA sec 62 includes “ANY PLACE”.
18. CM would have been aware that RSPCA employee ANTHONY JOYNES from his statements had not disclosed to the owner the whereabouts of the (unlawfully seized) carcass for an independent veterinary examination until after the carcass had been disposed of by Liverpool University pathology laboratory. (Breaching the provisions of the Criminal Procedures and Investigations Act 1996 )
Criminal Procedures and Investigations Act 1996, Code under that act 2015, section 1.1.
This code of practice applies in respect of criminal investigations conducted by police officers which begin on or after the day on which this code comes into effect. Persons other than police officers who are charged with the duty of conducting an investigation as defined in the Act are to have regard to the relevant provisions of the code, and should take these into account in applying their own operating procedures.
19. CM would know that this breached PACE Code B right to inspect 'evidence' seized by the police.
20. CM may not be an expert in Human Rights law, but even an “average bystander” would have seen the flaws; faced with the overwhelming evidence of malicious prosecution the prosecutor CM should have withdrawn, and not submitted a misleading statement to the case Judge at a pre -trial hearing as in point 14. .
21. CPS GUIDANCE on material seized by the police. http://www.cps.gov.uk/legal/d_to_g/disclosure_of_third_parties/#a17
see additional notes in the SUPPLEMENTARY INFORMATION
22. CM is fully aware from the witness statements that “material” ie the carcass was handed to the RSPCA following an unlawful search and seizure.
23. Flagrant disregard of the law makes CM not fitting of the office he holds.
NB THE POSTSCRIPT IN THE SUPPLEMENTARY INFORMATION FOLLOWING MURPHY'S WRITTEN STATEMENT TO JUDGE ABLESON ON 14TH JUNE 2016
POSTSCRIPT TO EFFECT OF MURPHY'S “STATEMENT” ON JUDGE ABLESON.
Part way through the pre trial hearing, Judge Ableson directed a question at Murphy as to whether he thought it was appropriate to have a “section 36” in this case. Murphy readily agreed. The section 36 order was made that prohibited the accused from representing herself in person and a direct violation of the accused's rights under the Human Rights Act 1998 Article 6, right to fair trial.
HRA Article 6 (3) (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
End of summary. 17th February 2017.
ABUSE OF PROCESS RSPCA INVOLVEMENT SUMMARY
OVERVIEW - CONCLUSION
The appellant can only conclude that as both HARRIS and JOYNES are long serving RSPCA employees that they knowingly brought a prosecution that was flawed from the evidence, AND IN PARTICULAR FROM THE WAY THE EVIDENCE HAD BEEN OBTAINED, but had ALSO deliberately ensured that the animals owner was denied the right to an independent veterinary opinion both prior to destruction and by deliberately concealing the whereabouts of the carcass.
These actions ensured that they could adduce “evidence” that the the other party could not correctly challenge and in the paraphrased words of Lord Bingham, “if he cannot be tried fairly, he should not be tried at all”.
RSPCA PARTICIPANTS RESPONSIBLE
1. ENTRY onto the accused's premises was made by trespass by ANDY HARRIS. He was the RSPCA employee actively involved on the evening of 23rd July 2015 at “7.35 pm.” The owner left at around “7.30 pm.”
2. He was joined by RSPCA John Littlewood at or around the time that vet Emma Fishbourne arrived (9.15 – 9.30 pm). He played no part other that assist to remove the carcass later.
3. ANTHONY JOYNES then took over all subsequent action that led to submission of material to the prosecution branch of the RSPCA signed off apparently by a person more senior , C/I Witchalls.
4. JASON FLETCHER is named on the summons as a senior prosecution case manger for the RSPCA.
NB (a) at the time of the Wooler report published in September 2014 NONE of the senior prosecution case managers were legally qualified.
5. TERRY STROUD is listed as the disclosure officer who signed off incorrectly that there was “no material” that
“undermine the prosecutions case” or
“assist the defence” or
“be required to be supplied under 7.3 of the code” (Criminal Procedure and Investigations Act 1996)
NB (b) only the last of these 3 is valid, there was material under both the other heads.
NB (c ) BOTH FLETCHER AND STROUD were involved when Stephen Wooler was engaged to make his 'INDEPENDANT REVIEW' of RSPCA practice that was reported in September 2014, making 33 RECOMMENDATIONS FOR IMPROVEMENT.
6. RSPCA'S prosecutor is named as CHRISTOPHER MURPHY.
7. The accused alleges that of these, HARRIS, JOYNES, FLETCHER AND MURPHY (RSPCA prosecution solicitor) did compromise the right to a fair trial under Article 6 Human Rights Act 1998, and in connection with that also violated her rights under Article 8, Article 17 and the First Protocol Article 1.
STROUD FALSELY stated that there was no material that could ““undermine the prosecutions case” or “assist the defence” when photographs that were retained in the 'unused' evidence was prima facie proof against the Sec 9 (1) offence, the third piece of evidence to show there was no case to answer for this charge.
THE INDIVIDUAL ACTIONS OF EACH
HARRIS
· Access by trespass, locked security gates.
· The maggots were disturbed . Replaced onto sheep?
· Causing stress to a sick animal, causing interference with recovery,
· Misleading police over lawful access,
· Misleading statement to police regarding phone calls,
· Fraudulently misleading police into handing over “evidence”
· The above point is usual RSPCA practice, to remove live animals or carcasses to prevent any contemporaneous independent examination to minimise valid evidence to contradict their own assertions.
· As a matter of usual RSPCA practice the owner is thwarted in attempts to access the animals/ carcass for ANY independent examination in contravention of their duty as investigators under CPIA codes 2015 point 1.1, non adherence to PACE Code B.
· Thereby attempting to pervert the course of justice.
JOYNES
· Failed to arrange an interview at a police station under PACE protections and with a free duty solicitor as requested by the accused:
· Failed to respond to the accused's request for information regarding 'what had happened' to her sheep, thereby denying her the opportunity for an independent veterinary report.
· Knowingly waited until the University pathology department had destroyed the remains before informing the accused that such a report was being undertaken. Ensuring that there could be no independent evidence that could discredit the findings in relation to the decision of vet Emma Fishbourne to kill the sheep .
· Contacting the accused after there was no opportunity for an independent examination and intimating that no findings would be released unless the accused consented to an interview. NO PACE 1984 interview was offered.
· Badgered the accused by phone calls and visits to the house,
· Contacted the accused's neighbours regarding who occupied the house when that information was readily available without deliberately causing distress to the accused.
· Appeared to have had conversation with HARRIS regarding the vehicle owned by the accused, as he identified it from visiting the accused's home. The description that matched could only have been given by HARRIS, as the informant SMITH, whose statement is dated 14th October 2015 and whose statement contains many inaccuracies does not describe the correct vehicle owned by the accused.
· This raised a QUESTION as to whether HARRIS waited until he saw the accused leave the small-holding in order to deliberately prevent her being present. That is the only way JOYNES could have recognised the accused's car by its description, that HARRIS is the person that described it to JOYNES.
· JOYNES is a graduate recruit to the RSPCA, and should have been aware due to his length of service, with the WOOLER report, and the correct rules that need to be applied for evidence. JOYNES did NOT follow any of the codes that apply to investigators. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447967/code-of-practice-approved.pdf
· 1.1 This code of practice applies in respect of criminal investigations conducted by police officers which begin on or after the day on which this code comes into effect. Persons other than police officers who are charged with the duty of conducting an investigation as defined in the Act are to have regard to the relevant provisions of the code, and should take these into account in applying their own operating procedures.
· ( NB Human Rights Act 1998 sec 3 (1) Interpretation. “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”)
· 5.2 Where material has been seized in the exercise of the powers of seizure conferred by the Police and Criminal Evidence Act 1984, the duty to retain it under this code is subject to the provisions on the retention of seized material in section 22 of that Act.
· The DUTY TO RETAIN EVIDENCE is with the POLICE, there is no lawful authority for any third party to have access to the evidence following seizure. Joynes in an investigating role for the RSPCA should be familiar with his legal duties under the codes.
· JOYNES submitted witness statements to the prosecution department of the RSPCA knowing from the content that entry search and seizure were unlawful, and that PACE code B was totally ignored.
· Joynes statement admits researching the name of the accused on its own internal systems, and brings up a malicious complaint from 2011 – 4 years before without saying that it was discovered to be unfounded.
· Joynes does not say that searches he made could have brought up comments made openly by the accused in September 2014 on the RSPCA's own 'blog' pages, where the accused, along with dozens of other, were asking for the RSPCA to explain the reason it shot 11 healthy horses “signed over” as a result of a raid, within around a month. No efforts were made to try and re-home these 11 well bred pedigree horses, and former owners and breeders willing to offer them homes, had been told that they could not be informed until “after the trial” of Rachelle Peel. The accused has printouts of 'some' of the 67 pages that clearly have her comments that are highly critical of the RSPCA action in this case. The RSPCA failed to contest the appeal from conviction by Rachelle Peel, as that would have entailed re-visting the fraudulent costs for boarding the horses that the RSPCA were claiming for several months after they were dead.
THE ACCUSED CAN ONLY CONCLUDE THAT AS BOTH HARRIS AND JOYNES ARE LONG SERVING RSPCA EMPLOYEES THAT THEY KNOWINGLY BROUGHT A PROSECUTION THAT WAS FLAWED FROM THE EVIDENCE, BUT HAD ALSO DELIBERATELY ENSURED THAT THE ANIMALS OWNER WAS DENIED THE RIGHT TO AN INDEPENDENT VETERINARY OPINION BOTH PRIOR TO DESTRUCTION AND BY DELIBERATELY CONCEALING THE WHEREABOUTS OF THE CARCASS.
DETAILS OF THE ABOVE POINTS FOLLOW TO SUPPORT THE SUMMARIES (the notes made in the final pages)
The POLICE AND VETERINARY SURGEON SUMMARIES FOLLOW
THE RCVS CODES BROKEN ARE LISTED LATER IN FULL FOR INFORMATION PURPOSES

ABUSE OF PROCESS HEARING – THE ROLE OF THE POLICE
OVERVIEW
ENTRY without warrant.
ENTRY without permission of a person competent to give it, ie trespass.
IGNORANCE of veterinary codes of practise permitted killing an animal in contravention of the codes.
IGNORANCE of the lack of any legal powers of RSPCA employees led to unlawful seizure of carcass. This action directly contributed to the accused not having access to the 'evidence', the carcass, for an independent examination as in the PACE codes.
DESTRUCTION of the carcass that followed, while in the custody and control of the RSPCA, that had unlawfully been handed to the RSPCA compromised the accused's right to a fair trial under ARTICLE 6 HUMAN RIGHTS ACT 1998.
FAILURE by the police to follow up and gather evidence that could have shown that RSPCA employee HARRIS deliberately misled the police, and should in fact be facing a full criminal investigation for his actions on 23rd July 2015.
CONCLUSION
Actions that were taken by the police on the evening of 23rd July 2015 due to inexperience and ignorance of the lack of power of the RSPCA employees escalated into deliberate misconduct by the police at the level of chief constable, down to those he delegated to take responsibility for the COMPLAINT AND REQUEST FOR AN INVESTIGATION, by their failure to take all reasonable steps that could have provided valid evidence at the trial that RSPCA HARRIS knowingly misled the inexperienced police officers who are the ones that are ultimately responsible for the actions on the evening of 23rd July 2015.
(NB The attending police officers as persons inexperienced with sheep keeping are unlikely to have recognised that correct steps in treatment for flystrike had been taken, ie shear, remove maggots manually and chemically, treat the lesions with antibacterial spray that showed as purple on the skin, and treat other exposed skin with veterinary Aloe Vera gel that both soothes and promotes healing. If they had that knowledge, they should not have permitted the vet to kill the sheep. It may be that the court is able to recommend that police forces in future when called out to a case by the RSPCA THAT THEY ENSURE THAT THE ANIMAL OWNERS OWN VET or one called by the police themselves is the one to advise. )
SUPPORTING FACTS
24. The police were called to a smallholding used exclusively by the accused and her family on 23rd July 2015 by RSPCA employee Andy HARRIS following his entry by trespass. (locked security gates)
25. There was a call made by HARRIS to the police logged around 8.41pm that the police refused to attend for the purpose of killing a fly struck sheep. HARRIS had already been on the premises for over an hour when he made that first phone call. The written evidence by Harris, claims that he was informed that a vet needed to attend before he called back.
26. A second phone call to the police was logged at 10.22pm, the vet (FISHBOURNE) having arrived an hour previously. The vet also entered by trespass although at this time HARRIS had obtained a phone number of a key holder who had personal permissive access to the angling club pond, but no rights to enter upon land occupied by the accused and her family.
27. The way to the sheep was through one (locked) security gate, (fishing club have permissive access to this area) (1) ---
through a second gate, that delineates land to which the key holders for the fishing club have NO right of access, (2) ---
along the river bank to a wooden bridge, that has pallet made gates on both sides as there is an unfenced 12 foot drop into the river, (3) ---
cross the river, pass through a field with grazing ponies owned by various people, (4) ---
through another pallet made gateway into a small paddock where there were 4 ewe sheep, (5) ----
open a further metal gate into the paddock that had (6) ---
a shed behind an enclosed pen that was gated shut, (7) ---
and into the shed that was also gated shut. (8) ----
28. The police constables JURGIS and REAY arrived around 11 pm.
29. The police constables in an interview with the accused at her request both said they had no knowledge of the RSPCA or the ANIMAL WELFARE ACT prior to that night, as did their Sergeant Cotterill who has been a serving officer for 13 years in 2015.
30. HARRIS the RSPCA employee had requested attendance to kill the sheep. The vet FISHBOURNE by the codes of practice is not allowed to kill an animal of her own motion without the informed consent of the owner, except for an animal “suffering” where it is considered that there is no alternative .(factually disagreed action) . Where an owner is not present a SECOND veterinary opinion is necessary, this was not done, and the police would not have been aware of this, but Fishbourne should know the codes that regulate her own profession. This has to be done under the auspices of the police constable . FISHBOURNE, by the statement of constable JURGIS, had been instrumental in saying not to make further efforts to contact the owner as it could 'prolong suffering'.
NOTE that as the correct treatment had been given, shear, remove maggots, proprietary chemical spray, and antibacterial spray to the wounds, the 'suffering' had been relieved, supported finding in the expert veterinary witness report.
31. The police would have been acting in ignorance of the codes of practice that govern the actions of veterinary surgeons, which are included on the summary role of the vet, and would not have known of breaches of the vet's codes.
32. Constable JURGIS's statement is that he asked HARRIS to try and phone the owner first, as HARRIS appears to have told them he had been unsuccessful. The constables had both said that the phone calls to the police had said he (Harris) had been “unable” to contact the owner. (interviews with sheep's owner)
33. Constable JURGIS statement said that HARRIS tried “ a number” that failed to connect.
34. It is the responsibility of the police during an investigation to be the ones to attempt to contact the owner, by allowing HARRIS to do this, there was no police record of the phone number that HARRIS is purported to phone that “failed to connect”.
35. The POLICE have consistently REFUSED to investigate the call records for the phone number of the accused despite being repeatedly requested to do so, and given written permission to do so, to prove that HARRIS had not made ANY phone calls to her on that evening. That would have included checking the mobile phone that HARRIS would have been using that evening, specifically for the accused's phone number. The accused did not expect disclosure of anything other than the LACK of the accused's number in HARRIS's call log, as proof that there were no attempts made by HARRIS to contact the sheep's owner and the only person capable of giving VALID ACCESS to the smallholding.
36. PC Jurgis then acceded to FISHBOURNE'S request not to delay further by attempting to contact the owner, and he enacted the power in the Animal Welfare Act 2006 section 18 (3), in reliance of the vet's opinion, to allow the vet to kill the sheep.
37. HARRIS who is a long serving RSPCA employee with absolutely NO LEGAL POWERS WHATSOEVER, appears to have misled the constables as JURGIS statement said that HARRIS requested the carcass as he was 'conducting an investigation' into “neglect.”
NOTE as in point 30 -NOTE that as the correct treatment had been given, shear, remove maggots, proprietary chemical spray, and antibacterial spray to the wounds, the 'suffering' had been relieved, supported finding in the expert veterinary witness report. TREATMENT CANNOT BE EVIDENCE OF NEGLECT. RSPCA photographs show the 'purple' treatment on the wounds.
38. Put into context, in layman's terms, the police cannot seize ANY item that a random person lays a claim to and give it away. It is no different to your neighbour being there and telling the police that is my gold watch! The leading case is MARCEL V COMMISSIONER OF POLICE OF THE METROPOLIS: CA 1992, and the CPS web site has this to say -
39. Material Seized by the Police - Material seized by the police in connection with the investigation of crime (usually under the provisions of the Police and Criminal Evidence Act 1984) must not be disclosed to a third party unless the owner has consented to the disclosure or a subpoena has been served on the relevant police officer.
40. Material seized by the police has to be for an offence HE IS INVESTIGATING (or any other offence). The police remain 'responsible' for any property seized, and are accountable to the owner for it. (PACE sec 19 (3) (a) )
41. Constable JURGIS (statement) then enacted section 19 of the POLICE AND CRIMINAL EVIDENCE ACT 1984 to seize the carcass as 'evidence' of the offence. He then took no further responsibility for the carcass, which action occasioned breaches of PACE Code B, and a complete lack of the required paper trail required of the police following entry search and seizure.
42. These have been requested by the accused and not forthcoming as they do not exist.
43. It is argued that the police could not have been lawfully on the premises without a warrant, or express permission of the only person competent to give that permission ie the animals owner and sole occupier (with family) of the land. Any seizure would therefore be unlawful. (PACE 1984 sec 23 and AWA 2006 sec 62 “premises” is “any place”.)
44. If the police had not arranged for the carcass to be removed, it is likely that an independent pathology examination would have discovered those points, now available, in the independent expert veterinary witness statement, would have shown that destruction was not 'the only' course of action that needed to be taken as treatment had started and was ongoing. ( in compliance with the WELFARE OF FARMED ANIMALS REGULATIONS 2007 SECTION 3).
45. A hospital consultant (friend) read through the RSPCA's pathology report prior to the veterinary expert, and concluded that if the 'patient' was human he was certainly not dying and was treatable. The police failed to make sufficient effort to contact the animals owner to allow for that 'second opinion' from a veterinary surgeon, while it was still alive.
46. A complaint made via the Chief Constable for Merseyside Andrew Cooke, PRIOR to the trial date of 30th August 2016, to investigate the events of the night of 23rd July 2015 was not actioned, even though there has been 'misconduct'. The accused had at this point not alleged it was either wilful or deliberate, but 'probably' due to being 'misled' that HARRIS had authority that he did not have.
47. The refusal to investigate that has now been at the highest level has become deliberate and knowing action that compromised the accused's right to a fair trial under Article 6 of the HUMAN RIGHTS ACT 1998.
48. The police must also be held responsible for violations under Articles 8, (private life) Article 17 (prohibition on abuse of rights ) and the FIRST PROTOCOL Article 1 (property) .
49. The police were alerted many times prior to the trial as this requested investigation would bring fresh evidence to bear on the trial process but refused to co-operate with the accused.(FROM 26TH FEBRUARY 2016 IN GREAT DETAIL)
50. There were serious flaws in the initial action taken by the police, whether knowingly or not. In the accused's interview, they claimed to have taken advice by contacting their superior officer who had been accessing the provisions of the Animal Welfare Act 2006.
51. However, HARRIS would have been issued with the RSPCA'S own manual that has police codes in it in relation to anything the police needed to know.
52. It is plausible that they placed some reliance on HARRIS'S interpretation of the provisions, as they, as serving police officers, should have known that “evidence” seized has to be recorded and logged as a police seizure under PACE section 19, and that it cannot be handed over to members of the public. HARRIS might wear a look alike police uniform that 'could' have led an unwary policeman to assume they had 'police powers' but limited to animal welfare.
53. However, legally, as they “should have known” under the Criminal Justice and Courts Act 2015, section 26.
54. (1) A police constable listed in subsection (3) commits an offence if he or she -
(a) exercises the powers and privileges of a constable improperly, and
(b) knows or ought to know that the exercise is improper.
55. This is a situation where the police were inexperienced in animal welfare matters, , and would bear the brunt of any complaint that 'could' result in a criminal conviction with a maximum prison term of 14 years, due to the actions of a single RSPCA employee aided by a veterinary surgeon that had been on the premises for a couple of hours and disregarded her own codes of practice.
It might be 'possible' that the Human Rights Act Article 3 Interpretation could construe the CPIA Code 2015 point 1.1 "other" persons charged with the duty to investigate as coming within the meaning of section 26 of the CJCA 2015, as it would be manifestly unfair for ONLY the police to be liable for an action that was knowingly CAUSED by 'another' investigator. That 'other' investigator has already committed acts on 23rd July 2015 that are well within the defintions of the FRAUD ACT.
THIS WOULD BE FOR THE CROWN COURT TO REFER FOR AN OPINION FOR THE GENERALITY OF APPLICATION TO OTHER PAST, CURRENT AND FUTURE CASES, as this case is not an isolated incident of seizure with the police abdicating responsibility for the seized animals / goods / documents where factual possesion has been given to the RSPCA FOR ITS OWN PURPOSES.
RELEVANT LAWS CODES AND PRACTICE DIRECTIONS RELEVANT TO THE ABOVE (including references to the police permitting the RSPCA to 'lead' the police.)
56. Animal Welfare Act 2006, sections 18 (3)(b) (animals in distress) sec 18 (11) (bringing destruction to the notice of absent owner) sec 19 (1) (b), (entry for sec 18) (4) (warrant) (5)(b).( sec 52 satisfied? ) sec 23(3), (warrant for secs 4 to 9) sec 30, ((local authority prosecute) sec 51, (offficial inspector status) sec 52,( conditions for warrant NB (5) the DECISION to apply for warrant, ( b), Schedule 2. para (5) subject to para 4.
57. Animal Welfare Act 2006 section 62 General Interpretation "premises" same as PACE 1984 sec 23 ANY PLACE.
58. Police and Criminal Evidence Act 1984 sections, 17 (power of entry without warrant -inapplicable no circumstances present) sec 19 (1) (seizure if lawfully on premises) sec 19 (2) (b) (necessary) sec 19 (3)(a) offence HE is investigating .sec 22(4) (retention) sec 23, (meaning of premises) sec 118, in relation to sec 23 definition. Sec 118 (1) Interpretation “premises” "any place"
59. .Criminal Procedures and Investigations Act 1996 with particular reference to the revised Codes of Practise 2015 with particular reference to the RSPCA under section 1.1.('other investigator') and section 5.1 (a) retention of material.
60. CPIA 1996 sec 26 (3) (In all criminal and civil proceedings a code in operation at any time by virtue of an order under section 25 shall be admissible in evidence) .
61. PACE 1984 CODE B. (Entry , search, seizure, retention, notices, warrants).
ABUSE OF PROCESS ROLE OF VETERINARY SURGEON EMMA FISHBOURNE
SUMMARY
The RSPCA veterinary surgeon Emma FISHBOURNE entered by trespass prior to the second phone call to the police.
She failed to comply with the RCVS Codes of Practice with regard to owners informed consent.
She failed to comply with the RCVS Codes of Practice with regard to second veterinary opinion in the absence of the owner for euthanasia.
She failed to issue a timely CERTIFICATE as required by Animal Welfare Act 2006 section 18 to be given to the owner as soon as practicable by the police under section 18 (11). (ABSENT OWNER)
She failed to supply a VALID CERTIFICATE within the meaning of certification under the RCVS Codes of practice as drawn up in that respect in compliance with an EU Directive.
She had the means of discovering the correct contact phone number for the police to contact the owner but was instrumental in telling them that there should be no further delay, in attempting contact, contrary to RCVS Codes that are clear the decision to euthanase is for the owner not the vet.
(CONFLICT OF INTERESTS AS OWNER WAS A CLIENT OF THE PRACTICE.)
She removed the carcass to take to the pathology laboratory on behalf of the RSPCA, who it will be shown had no legal rights to the carcass, thereby depriving the owner of a second veterinary opinion as required by the RCVS codes, due to concealment of the location by the RSPCA.
FISHBOURNE made a statement three months after her own visit and liberally uses facets of the pathology report that she could not have ascertained from her own clinical examination of 23rd July 2015 to draw misleading conclusions to support her decision to destroy the sheep.
THE PART PLAYED BY FISHBOURNE DIRECTLY ENABLED BREACHES OF THE HUMAN RIGHTS ACT 1998 TO OCCUR, NAMELY ARTICLE 6 RIGHT TO FAIR TRIAL, ARTICLE 8 PRIVATE LIFE, ARTICLE 17 ABUSE OF A RIGHT, AND PROTOCOL 1 ARTICLE 1 RIGHT PEACEFUL ENJOYMENT OF POSSESSIONS.
DETAIL
62. Emma FISHBOURNE was called by the RSPCA employee HARRIS on 23rd July 2015, the time of the call and time of arrival are confusing by the witness statements, but not arriving before 9.15 pm.
63. FISHBOURNE does not appear to have the RIGHT OF ENTRY that is accorded to a limited number of veterinary surgeons appointed to the role of responsibility for farm animals by the relevant government department. The RSPCA have not disclosed by 10th February 2017 as ordered by the Crown Court Judge Nicholls on 13th January 2017 those matters in dispute and sent to the RSPCA as a request for disclosure. This included proof, if there was any, that FISHBOURNE held such a right of entry.
64. As at 9th March 2017, no such proof of right of entry has been produced. FISHBOURNE entered property occupied by the accused prior to the second phone call to the police. That entry is by trespass, as no permission was sought from the owner of the sheep who is the only person capable of giving permission to enter onto the land where the sheep was kept.
65. When the police entered they DID NOT HAVE A WARRANT and therefore were not permitted to authorise other persons to accompany them onto the land. See Animal Welfare Act 2006 Schedule 2 paragraph 4. HARRIS ensured that the owner could not be present, thereby negating the possibility of VALID PERMISSION to enter.
66. NOTE police presence itself was unlawful.
67. FISHBOURNE was accompanied by 2 veterinary students. An owner has a right to refuse any other persons attending to their animal, and the presence of 3 people who were dressed similarly had led the Police officers to assume* that all 3 were qualified veterinary surgeons, leading them to make the assumption* that it was the opinion of all, that there was no alternative than destruction of the sheep
**( interview by the accused with both police officers before the trial on 30th August 2016).
68. FISHBOURNE and the students had been at the small-holding for at least an hour and a half before the police had arrived.
69. Sunset was at 9.22pm on that evening, and rain was forecast. The small-holding has no facilities for people, and video footage supplied eventually by the RSPCA shows the shed in darkness and the sheep only illuminated with a torch. Fishbourne would not have seen the sheep before sunset.
70. 5 people with a torch prior to the police arriving would have caused considerable distress to a flight animal that was recovering from a severe flystrike attack in his 'safe' space. (Harris, Littlewood, Fishbourne, and 2 vet students).
71. The statement of PC Jurgis says “ Fishbourne then stated that the animal was suffering and any extra delay in attempting to trace the owner would prolong the animals suffering needlessly as it was in the animals best interests for it to be destroyed.” This would have been after 11 pm when she had been there for an hour and half or longer.
72. IF FISHBOURNE believed she had the RIGHT to attend to the animal, she COULD have administered both antibiotics for the “ bacterial” “infection” that she concocted from reading the subsequent pathology report prior to making her own statement, and pain killers.
73. FISHBOURNE's statement used the word “toxaemic” that is NOT a finding that could have been made by her AT THE TIME in the face of her own clinical observations that were within normal ranges. Neither can it be confirmed from the pathology report that did not find any abnormalities with the organs, and without blood tests). Toxaemia classically has ABNORMAL raised temperature, heart rate and breathing from a clinical examination.
74. Refer to the report of Brian Hallows for corroboration of the above point.
75. FISHBOURNE was acting FOR the RSPCA as a CONFLICT OF INTERESTS, as the owner was registered with The Farm Animal Practice at the University of Liverpool's site at Leahurst from around May / June 2014.
76. There will be relatively few sheep keepers registered for the Wirral area and to the best of my knowledge of the local area, the ONLY one with small-holding in Meols.
77. A few minutes to check for sheep keepers within the University records would have produced a very small pool of sheep keepers to attempt to find the owner. If she had done this, SHE would have had my telephone number.
78. FISHBOURNE herself was negligent at the least for failing to make her own enquiries that would have been very easy to verify.
79. FISHBOURNE's statement was made on 27th October 2015, a full 3 months following her own visit and AFTER the pathology report was completed, and from which she used THAT report to retrospectively justify her decision to destroy the sheep. Such 'accuracy' describing the individual lesions would not have been possible in the dark in a shed with a torch without considerable man-handling of the sick animal.
80. Other “findings” on the second page do not support her own clinical findings from the previous page, as heart rate, temperature and respiration were actually within normal limits. Condition score 2 is not 'poor' condition, and acceptable for a sheep that is not feeding lambs or ready for slaughter for human consumption, when body score 3 is ideal. The mucosa of black sheep is often not the same colour as the more common white sheep. “De-hydration” can not be measured by clinical examination, and her own statement said water was available, the ram was able to get to his feet to access water if he wished as her statement says he was “easily caught”.
81. NB this was one of only 5 sheep, and came to call in a field, and was led around in a halter, the fact that he needed to be “caught” in a shed only goes to show that the presence of the strangers was causing considerable distress to the sheep.
82. FISHBOURNE'S addition of “there was also evidence of secondary bacterial infection” can not have been seen from clinical observation and is an inaccurate conclusion she made from reading the pathology report several months later.
83. The pathology report itself mentioned “bacterial colonies” around the lesions. THIS has to be seen in the light of colonisation and proliferation that occurs on MEAT on a carcass left in midsummer with no CUSTODY chain that demonstrates incontrovertibly that the carcass was refrigerated at all times to minimise secondary colonisation.
84. The accused holds an Intermediate Certificate awarded by the Chartered Institute of Environmental Health that permits her to supervise commercial kitchen food hygiene. Bacterial contamination formed a major part of that course.
85. The “bacterial colonies” were not examined to see if they were likely to have been pathogenic or harmless to the living sheep, if indeed they were even present while he was alive. (anti bacterial spray was applied – its efficacy would have been reduced by the time the pathology occurred and would have been repeated in the normal course of treatment by the owner.)
(NB the immune system of the animal itself while alive would have started to operate against an infection, if there had been any.)
86. FISHBOURNE adds to her statement on the sheep that “a topical antibiotic” could have been applied. Either the shed was too DARK even with a torch for her to make a thorough examination or she is ignoring the fact that antibacterial spray had been applied to the wounds, as evidenced by the photographs that were eventually disclosed by the RSPCA after many requests.
87. The presence of maggots is disputed as to CAUSE in the summary for HARRIS.
88. Fishbourne alludes to 'a vet being called earlier', but fails to add that she was breaking her OWN RCVS CODES OF PRACTICE IN SEVERAL KEY AREAS AS LISTED BELOW. NB her area of EXPERTISE IS PIGS NOT SHEEP.
89. The vet, FISHBOURNE, appeared as a witness for the prosecution on 30th August 2016, and when questioned by the defence solicitor regarding the use of “Ectofly” admitted that she had not heard of the product.
90. THIS throws considerable doubt on her ACTUAL knowledge and experience with sheep care and practice. Ectofly is chemically identical to the industry leader “Crovect” and Disect used by the sheep shearer.
91. The government also recognised the expertise that the owners of farmed animals build up, by reducing the necessity to call a vet to attend. The WELFARE OF FARMED ANIMALS REGULATIONS 2007 specifically permits “home treatment” with the proviso that a vet must be called where that treatment is not effective. In the present case, the veterinary expert Mr hallows, on behalf of the owner, has stated that the owner took the CORRECT STEPS in home treatment. Destruction of the sheep with clinical signs within 'normal' ranges did not ALLOW treatment to be proved effective.
92. As in point 25, Fishbourne does nothing to mention the correct steps taken, as in the treatment with a topical antibacterial that was evident from the photos.
93. Vet Emma Fishbourne's conclusion that the sheep should be destroyed AFTER suffering had been alleviated is NOT supported by her CLINICAL FINDINGS AT THE TIME OF HER EXAMINATION.
END OF POINTS – LIST OF RCVS CODES BREACHED FOLLOWS, TOGETHER WITH GRAPHIC PHOTOS OF WORSE FLY STRIKE ON DOG TREATED SUCCESSFULLY.
RCVS CODES OF PRACTICE as relevant to FISHBOURNE
8. Euthanasia of animals (8.10)
(owner consent/ second veterinary opinion)
11. Communication and consent (11.1) (11.2) (11.7) (11.8)
Informed consent, owner not the 'client', owners preferences, phone contact details.
12. Use of samples, images, post mortems and disposal. (12.1) (12.2) (12.11) (12.15)
cadavers, informed consent of owner, pathology could be inconclusive, owners consent to disposal of remains.
The 10 Principles of Certification PRINCIPLES 2, 5, 6 AND 8.
2 – conflict of interests
5 – sign original certificates
6 – not to be incomplete and official practice stamps
8 – unique identifier ( unique number under the 12 principles)
Maintaining the integrity of veterinary certification
21.39 Misleading, incomplete, inaccurate, or untrue certification reflects adversely on the veterinarian signing and calls his or her professional integrity into question.
Extracts of the codes copied for the Court's convenience as separate document.
THE FOLLOWING GRAPHIC IMAGES SHOW MUCH WORSE FLYSTIKE IN A “THIRD WORLD “ COUNTRY THROUGH THE TREATMENT STAGES.
THE EYE COULD NOT BE SAVED, BUT ALL OTHER TISSUE GREW BACK WITH TIME.
IN THE UK THIS DOG 'WOULD' HAVE BEEN “EUTHANASED” FOR COST AND CONVENIENCE.
IF THE COURT ALLOWS, THERE IS A SHORT VIDEO LESS THAN TWO MINUTES OF ANOTHER DOG IN SIMILAR CONDITION THAT WAS TREATED AND SURVIVED.
THESE IMAGES WERE CAPTURED AND SAVED FOR THE APPELLANT FROM A LONGER VIDEO THAT WAS AVAILABLE ON LINE.
They are included to demonstrate that recovery if fully possible even from a WORSE attack of flystrike.
Fishbourne is a lecturer and research orientated vet, whose interests lay in pigs not sheep. As such, her own “hands on” experience did not make her a fit person for the role of making a decision on destruction with the evidence she had available to her at the time.
ABUSE OF PROCESS – VALIDITY OF RSPCA PROSECUTIONS
The RSPCA prosecute under the Prosecution of Offences Act 1985 Section 6 (1), that gives a right for a 'person' to bring a private prosecution. THE LEGALITY OF THIS IS CHALLENGED.
SUMMARY
94. The RSPCA prosecute under the Prosecution of Offences Act 1985 Section 6 (1), that gives a right for a 'person' to bring a private prosecution. THE LEGALITY OF THIS IS CHALLENGED.
95. The RSPCA ITSELF claims to be the MAJOR ENFORCER of Animal Welfare legislation, despite that all cases are covered by statutory agencies responsibility and legal empowerment for enforcement and prosecution.
96. ( Sources - RSPCA's own annual reports, and in 2016 the RSPCA submission to the EFRA committee convened to explore whether the Animal Welfare Act 2006 was working satisfactorily.)
97. The WOOLER report published in September 2014 and approved in its final version by the RSPCA names the RSPCA as the “de facto” public authority by the volume of its enforcement activity. WOOLER report was commissioned to examine weaknesses and deficiencies within the RSPCA due to its many complaints both to the Charity Commission, and many newspaper articles on individual cases exposing poor prosecution practice. Cost 50,000 for 6 months paid by RSPCA.
98. WOOLER point 9. “The RSPCA is not a public body but the scale of its enforcement role and its relationship with the police and other bodies mean that it is de facto a prosecuting authority and should therefore meet the same standards”..
99. See the codes under the CRIMINAL PROSECUTION AND INVESTIGATIONS ACT 1996 2O15 POINT 1.1 in relation to those standards .( “Other investigators”).
100. Since the HUMAN RIGHTS ACT 1998 became law, all legislation whenever enacted past present or future has to be compliant with its provisions , or capable of being interpreted so give primacy to its provisions. (HRA sec 3 (2) (a).)
101. The Human Rights Act section 6 (3) (b) defines a PUBLIC AUTHORITY as “any person certain of whose functions are functions of a public nature”.
102. From the HRA definition, PROSECUTION is indubitably a function of the state, and any ORGANISATION that performs the a function on behalf of the state is a public authority. Some have been given limited statutory powers in relation to enforcement functions of legislation, others have not, but that does not prevent an organisation from being a public authority.
103. This is entirely compatible with POOA sec 6 (1) which envisages PRIVATE prosecution being instigated by an individual directly against another person or company over an matter which is personal to them.
104. The RSPCA involves itself of its own volition to insert itself into the role of “animal police”, having no inherent connection to any person that it chooses to investigate on its own behalf.
105. It is argued that due to the provisions of the HRA section 6 (3) (b) that the RSPCA cannot be a private prosecutor under POA section 6 (1).
106. The RSPCA therefore is not operating under any statutory authority, and unlike organisations that have been given limited functions by stature to prosecute, is UNIQUE as an organisation that undertakes multiple prosecutions, has no lawful authority to do so.
107. It would be an interpretation INCONSISTENT with the Human Rights Act to veer from its definition within HRA sec 6 (3) (b) that it could come within the POOA sec 6 (1) definition.
108. As there is no other provision for a 'non statutory' PUBLIC AUTHORITY to prosecute under any legislation the RSPCA CANNOT benefit from bringing prosecutions under the POOA 1985 SEC 6 (1)
109. HRA section 6 (1) PROHIBITS a public authority from violating any of the rights guaranteed by the convention.
110. This is reinforced by HRA ARTICLE 17 which states emphatically that there is an absolute prohibition on a public authority violating a convention right..
111. There is ample cross referencing within various statutes in regard to both criminal offences and civil law as to what constitutes 'public' or 'private' including CPS and guidance on Misfeasance in 'public' office, together with case law that makes a distinction between those that prosecute as 'private' prosecutors and those that represent members of a group or consortium whose interests are being protected by a designated individual acting on their behalf. Frequently such prosecutions involve monetary value SPECIFIC to the organisation, TV licence fees, for example, or fraud by copyright theft.
112. AS IT HAS NEVER BEEN CHALLENGED, the UNIQUE position of the RSPCA been universally accepted that it “CAN” because it always HAS.
113. SIMILAR organisations eg RSPB and NSPCC, both CHARITIES, withdrew from a prosecution role following the POOA 1985. The RSPCA did not.
114. The RSPCA VALUES the PUBLICITY that is generated from prosecutions to keep it 'high profile', and despite its undertaking to parliament in DECEMBER 2015, it laid an information to prosecute a case involving a farm animal in JANUARY 2016.
115. Animal welfare for farmed animals has stringent regulations and codes that are more properly enforced by those whose statutory powers are designed to give a range of options, not 'only' prosecution which is frequently not appropriate and is a genuine LAST RESORT for offenders where other enforcement steps have been tried and failed.
116. The RSPCA was put on a statutory footing as a CHARITY by the RSPCA ACT 1932, THE OBJECTS OF WHICH ARE SET OUT IN SECTION 4.
117. “The objects of the Society shall be to promote kindness and to prevent or suppress cruelty to animals and to do all such lawful acts as the Society may consider conducive or incidental to the attainment of those objects”.
PREVENT – SUPPRESS – CRUELTY – LAWFUL MEANS
118. The RSPCA are acting 'ultra vires' to the statute that created the limits of their actions – PROMOTING KINDNESS which is a genuine charitable objective, and PREVENTING OR SUPPRESSING CRUELTY.
119. PREVENTION by prosecution clearly does not work as a WARNING to FUTURE potential abusers, as the prosecution statistics are similar ona ayear by ear basis.
120. A more sinister interpretation of the numbers could indicate that those numbers are kept at those levels by selectively prosecuting minor infrigements that would not merit prosecution if taken by the Local Authorities, Trading Standards, or the CPS as a result of a police investigation. The second limb to this argument is the profiling of those prosecuted, as anecdotally in newspapers report an emerging pattern of elderly owners, those who have fallen into a lower socio economic group, and vulnerability due to mental health issues is emerging. People that could alternatively be considered as needing help, not punishment, and the suicides among those prosecuted by the RSPCA is distressing to hear.
121. The RSPCA is NOT subject to the FREEDOM OF INFORMATION ACT and is therefore UNACCOUNTABLE – which of itself is a recipe for Human Rights Act violations – as the present case will prove.
122. EVERY DEFINITION and synonym for "cruelty" involves a deliberate and intentional action (previously supplied document header "APPEAL RSPCA V WALLWORK CHALLENGE TO THE VALIDITY OF RSPCA AS A PROSECUTOR." pages 6 and 7 around 40 synomyms) .
123. The RSPCA as a 'public authority' was permitted by its objects enshrined as section 4 of the RSPCA Act 1932, and the law as it stood prior to the birth of the Crown Prosecution Service to separate investigation functions from prosecution, could achieve its objects by "lawful means", that in 1932 included prosecution of offences.
124. The Prosecution of Offences Act 1985 retained the common law right of individuals to bring private prosecutions. Other statutory bodies were given specific rights to prosecute offences by enabling legislation. The RSPCA was not included as a body that was given statutory power in regard to prosecution and conttinued to do so in reliance of the POOA section 6 (1).
125. However the HUMAN RIGHTS ACT 1998 section 6 (3) (b) SUBSEQUENTLY changed the legal position of the RSPCA in relation to its prosecution activity, by DEFINING a public authority as "“any person certain of whose functions are functions of a public nature”.
126. NUMEROUS HUMAN RIGHTS ACT VIOLATIONS OCCUR AS A RESULT OF THE RSPCA NOT HAVING ANY ACCOUNTABILITY, as will be revealed in the present case, despite parliament having enacted numerous statutes to safeguard those rights from unwarranted intrusion by the state that strikes a balance between the wider interests of the community and its individuals.
127. This point has not been argued before a court (to the best of my knowledge), THE LEADING CASES in relation to POOA sec 6 (1) prosecutions have not considered the HRA section 6 (3) (b), and sec 3 Interpretation, primacy of HRA over all other domestic legislation.
128. As a self asserted 'public authority" also one within the definition of the HRA, the RSPCA does not have the 'locus standi' for ANY prosecution where the investigation cannot prove the DELIBERATE INFLICTION of harm to constitute the elements of "cruelty".(RSPCA ACT 1932 SEC 4)
129. The report by Stephen Wooler published in September 2014 had been commissioned by the RSPCA at a cost to them of fifty thousand pounds for a 6 month investigation into their practices, due to the high number of complaints and adverse publicity from dubious prosecution decisions. The RSPCA RETAINED FINAL EDITORIAL DISCRETION.
130. From Wooler, see table 3 for direct copy from the report, in relation to fly strike.
131. THE 33 recommendations made by Wooler, had not been implemented 2 years later, and concerned the EFRA committee that reported back on the working of the Animal Welfare Act 2006 in October 2016, recommending that they no longer had a role in prosecution due to on going concerns that the committe felt were justified.
The Independent Review of the Prosecution Activity of the Royal Society for the Prevention of Cruelty to Animals, dated 24 September 2014 by Independent Reviewer: Stephen Wooler CB.
TABLE 2 RELEVANT STATUTORY PROVISIONS
Prosecution of Offences Act 1985 sec 6 (1)
Police and Criminal Evidence Act 1984 sec 17, 19, 22, 23,
Criminal Investigations and Prosecutions Act 1996 and codes (2015 , 1.1)
Animal Welfare Act 2006, secs 4, 9, 10, 18. 19, 30, 31, 52, 62, Schedule 2
ALL THOSE PROVISIONS LISTED IN “APPEAL RSPCA V WALLWORK 2016/7 STATUTES, REGULATIONS AND CODES RELIED ON BY DEFENDANT”
TABLE 3 DIRECT COPY FROM WOOLER REPORT
A successful business man living in a rural village built up (as a hobby) a herd of specialist cattle that he maintained to a high standard in a field near his house in the village. Following the failure of his business in the wake of the banking crisis he was obliged to move but continued to maintain the herd with arrangements through others in the village to make checks.
One cow calved but a glitch in the arrangements meant that it was unobserved for two days.
It collapsed and was subject to fly strike and infestation.
When the distressed cow was seen, the RSPCA was called and it was destroyed with the agreement of the owner.
The owner was distraught. Yet a full criminal investigation was undertaken including interview under caution, adding to the owner’s distress.
It was submitted to RSPCA Headquarters on the basis that offences under the Animal Welfare Act 2006 were disclosed albeit an adult written caution was recommended.
In the event the PCM correctly recognised that the evidence would not support a prosecution.
This was the situation where a realistic early assessment would have recognised the episode as straightforward misfortune thereby saving the RSPCA considerable effort and the individual distress.
THE RSPCA APPROVED THE FINAL VERSION OF THE WOOLER REPORT BEFORE PUBLICATION.( and had final editorial rights)
They therefore accepted that ALL its findings, especially those that showed what they considered to be “better” parts of their practice, that the above example given by them in Table 3 is the stance they have adopted for incidents of flystrike.
Ie a “straightforward misfortune” that was not amenable for a prosecution.
The fact that they are capricious in their decisions on prosecution of flystrike is just further PROOF that an UNREGULATED organisation, with no external ombudsman for legitimate complaints, and one that is NOT subject to the FREEDOM OF INFORMATION ACT, so that it can operate in total secrecy and total disregard of all legislation that regulates statutory investigation and enforcement agencies, that violates the HUMAN RIGHTS ACT 1998 in several key areas CANNOT BE ALLOWED TO CONTINUE TO OPERATE UNTIL A DETERMINATION BY A COURT COMPETENT TO MAKE THAT DECLARATION under the HRA that the scale of its unregulated operations is unlawful.
It is requested that this court refers the Human Rights issues to a higher court, including the incompatibility of the Animal Welfare Act 2006 section 4 declaration of incompatibility with HRA due to the very poor drafting creating a strict liability offence where the 'owner' is always liable under section 3 regardless of whether or not they are an actual care giver to the animals concerned. Section 4 is so VAGUE and with NO statutory definitions, and not a subjective test, as it does not require mens rea.
The FACT that any act of “cruelty” as in the RSPCA Act 1932 sec 4 requires a deliberate intention is enough of itself for a REASON why the RSPCA ARE BARRED BY THEIR OWN STATUTORY EMPOWERMENT from instituting an AWA section 4 offence where INTENTION (mens rea) is not required.
NB THE SIMILARITY OF CIRCUMSTANCES. (Wooler table 3 and the current appellant)
(a) arrangements through others
(b) unobserved for two days. The short time frame 2 days is proof of the rapidity of the progress of flystrike. Flystrike must not have been observed PRIOR to the 2 days when the cow was not observed, and within those 2 days the progress was so rapid it was considered to require destruction of the cow. It should also be noted that the 'hair' on a cow makes it far EASIER to spot lesions and live maggots than on a sheep whose dense wool CONCEALS the attack from a simple observation UNTIL it has become so well established that it displays other signs – signs that were recognised and treated immediately upon her return by the owner of the sheep.
NB THE DIFFERENCES
(a) TREATMENT HAD STARTED, with this appellants sheep, and in the owners opinion of her intimate knowledge of her own animal, considered that he would recover.
(b) The RSPCA MADE NO GENUINE ATTEMPT TO CONTACT THE OWNER, TRESPASSED, AND 'LED' THE VET AND POLICE INTO DESTRUCTION OF THE SHEEP AND UNLAWFUL REMOVAL OF THE CARCASS AND DELIBERATE CONCEALMENT TO PREVENT INDEPENDENT EXAMINATION.
NB SUBSEQUENT CASES
In the summer of 2016 one year later another older female owner in the North of England was absent on holiday leaving others to care for her sheep. One became flystuck, the young care giver started treatment but the RSPCA became involved and removed the sheep. The sheep was retained by the RSPCA for 3 months, before being returned to the owner following a decision NOT to prosecute. The sheep while with the RSPCA DEVELOPED A FOOT PROBLEM THAT WAS LEFT UNTREATED.
Despite the owner's knowledgeable efforts the problem had become so bad that the owner had to have the sheep euthansed in its own best interests. (March 2017 update from her)
One has to question whether the decision not to prosecute and return the sheep was to avoid the embarrassment for them of prosecution of a case where the sheep made a full recovery from its original problem but then suffered neglect in their care requiring it to be killed by them for an unrelated condition.
( Owner's name withheld due to the public record nature of the current trial, but other verification can be available if the court required it and its contents remained confidential to that owner)
END SUMMARY VALIDITY OF RSPCA AS A PROSECUTOR.
SUPPLEMENTARY INFORMATION DETAILING THE ACTUAL EVENTS AND CIRCUMSTANCES THAT EXPLAIN THE REASONS FOR THE PRECEDING SUBMISSION FOLLOW.
ALL THE MAIN POINTS HAVE BEEN COVERED, BUT THE SUPPLEMENTARY INFORMATION MIGHT GO SOME WAY TO EXPLAINING THE WAYS THAT THE ABUSES ACTUALLY AROSE.
MOST ARE IN ORIGINAL NOTE FORM
MOST WRITTEN UP IMMEDIATELY AFTER SUMMONS ARRIVED JANUARY 2016
THE ONE CONCERNING CHRISTOPHER MURPHY'S FALSIFIED SUBMISSION
TO JUDGE ABLESON ON 14TH JUNE 2016
ALSO WRITTEN UP AS NOTES AS SOON AS COPY BECAME AVAILABLE WITHIN A WEEK
SUPPLEMENTARY INFORMATION
RE CIRCUMSTANCES SPECIFIC TO
THE RSPCA EMPLOYEES HARRIS AND JOYNES
HARRIS
TRESPASS
(PLEASE IGNORE NUMBERING – LONGER DOC SPLIT)
9. HARRIS by his witness statement claims to have arrived at 7.35 pm. He does NOT say that the premises, a small-holding, were vacant at the time and secured by a padlocked 7 foot tall security gate. He does not say how he gained access, as the entire area is fenced with stock proof fencing and /or hawthorn hedges, ditches, river, railway, other privately owned land and other private houses. It is not compliant with the RSPCA'S own booklet “ Lawful Access to Help Animals”, on gaining “lawful” access to premises, and is in any event a common law trespass.
10. The events that followed made this an aggravated trespass under Section 68(1) Criminal Justice and Public Order Act 1994 , as amended by Section 59 of the Anti-social Behaviour Act 2003. ( causing the killing of the ram and other actions)
Offence of aggravated trespass - A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect-
(b) of obstructing that activity , or
( c) of disrupting that activity.
Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land .
DISTURBING THE MAGGOT RIDDEN FLEECE
11. HARRIS's own statement refers to a “pile of fleece” which is untrue. The photographs when finally disclosed include those of the fleece with maggots, BUT they are shown to be on a green tarpaulin type sheet. The tarpaulin had been closed over to wrap up any live maggots, (LESS THAN 20 MINUTES BEFORE THE 'ARRIVAL' OF HARRIS) some of which were mature and ready to pupate. By opening up the sheet he created the likelihood that maggots could pupate and become mature flies within a few days, and affect other livestock including wild animals and domestic pets within a 3 mile radius of the small-holding.
12. This action by HARRIS is one aspect of the previous point .(9) He had disrupted the owners precautions to prevent further flies emerging prior to the burning of the fleece planned for the following day, and enclosing the fleece also ensured it would have remained DRY, (on an evening when rain was forecast) as wool is not easy to burn even dry, to destroy all maggots.
13. HARRIS took photographs that remained in the 'unused' material and were not initially disclosed to the accused that showed maggots on TOP of the fleece on the sheep. These were of mixed age, and the FACT is that all maggots except those ready to pupate that drop off to continue their development on the ground, will be FIRMLY attaching themselves to the skin where they are obtaining their nourishment from the living sheep, until they are ready to migrate to the surface of the fleece when ready to pupate.
14. Clearly immature maggots on TOP of the fleece are not 'ready to pupate'. The only other reason for maggots on the TOP are migration that occurs following treatment with an approved chemical. (the owner had applied chemical the previous day but had been very thorough in manual maggot removal in the 2 hours before leaving)
15. The ONLY explanation is that HARRIS placed a random selection of maggots back onto the living sheep for the purpose of “photographic evidence” while alone by trespass and unsupervised. (see later additional information) (points 35 to 40 inclusive)
ISSUES WITH THE PHONE CALLS.
16. HARRIS's statement claims “there was no address or telephone number on the log”.
17. HARRIS then claims to have phoned the informant (SMITH) for directions across the small-holding to find the shed. SMITH has my phone number. HARRIS had the means of obtaining it from SMITH.
NB. HARRIS PURPORTS TO PHONE THE OWNER AT POLICE REQUEST LATER THAT EVENING.
MISLEADING THE POLICE OVER LAWFUL ACCESS
18. HARRIS finds a phone number for members of the fishing club (on a members notice board INSIDE the locked security gates and not visible from outside) that have permissive access to use the same entrance with their own keys to the padlock. He tells them he needs access to attend to a sick animal. A fisherman arrives and unlocks the gates. The fisherman is not a person capable of giving lawful permission to enter onto ANY of the land comprised in the small-holding. Entry remains by trespass to any part of the small-holding. The police appear to have assumed or been informed by Harris that as this was farm land it was not necessary to obtain a warrant of entry. This is incorrect. Without permission being given by a person legally competent to give that permission a warrant is always required under the Animal Welfare Act section 19. AWA sec 62 premises means “any place”.
19. That 'any place' should INCLUDE farm land is an entirely consistent approach as there are MILLIONS of acres of farm land supporting MILLIONS of animals and to have excluded farm land would have met with massive resistance from the powerful NFU lobby.
20. The Ministry appoints it own qualified veterinary surgeons with a statutory power of entry for inspection , along with very detailed welfare codes for individual farmed animal species to strengthen the position of the ministry appointed vets.
NB had the gates still been locked, the police might at that point have been alerted to the need for a WARRANT, in line with practice they would be familiar with in relation to entering any other property.
Ie HARRIS was skilfully manipulating the situation.
HARRIS is issued with a booklet and is a long serving RSPCA employee who would have known his entry and that of the police was unlawful. PACE sec 23 applies to ALL premises, and AWA sec 62 keeps the law consistent. ( premises - ANY PLACE)
21. HARRIS is alone at the small-holding for a full 2 hours before Littlewood and vet Emma Fishbourne arrive.
22. A phone call to the police by HARRIS logged around 8.41pm to ask for police attendance to kill the sick sheep is refused. (AN HOUR AFTER ENTERING)
23. In an interview with attending police officers who were called for a second time and arrived around 11 pm. (Constables Jurgis and Reay) they said they had listened to the phone calls made by HARRIS, and they reported that HARRIS had claimed to have been “unable” to contact the owner.
NB (d) BOTH the POLICE and VETERINARY SURGEON entered through security gates that had now been UNLOCKED by a fisherman with a key WHO DID NOT HAVE LAWFUL AUTHORITY TO PERMIT ACCESS TO THE SMALL- HOLDING. The handbook they are issued - ( on gaining lawful access) states that RSPCA employees might be able to see animals that are visible and the RSPCA take this to mean they can enter farm land. Farmland is still 'premises' within the meaning of Police and Criminal Evidence Act section 23 and AWA sec 62. Entry by the RSPCA to ANY premises without express permission will always be by trespass. They are also obliged to leave if asked. HARRIS ensured he was unfettered by an owner from his actions.
FURTHER INCONSISTENCIES WITH PHONE CALLS
NOTE HARRIS statement had said he did not have a phone number for the owner – contradicted by the POLICE statement, that HARRIS then 'tried to call a number”.
24. An extract from Constable Jurgis witness statement is highly relevant here to the issue that HARRIS had been untruthful in relation to his ability to contact the owner.
25. JURGIS “ I asked HARRIS if he had spoken to the owner of the sheep. HARRIS stated that he did not have an exact address for the owner but that he had a phone number which he had not been successful in contacting..HARRIS tried to phone the number again but it would not connect.”
NB (e) On 26th February 2016 the accused sent a DETAILED email to the police requesting that they checked phone records of both HARRIS and herself for the evening of 23rd July 2015 giving express permission to check her incoming call log for the alleged phone calls. The police declined to co-operate as it may uncover police “wrongdoing” despite that the accused in this case did say that if the records proved that no such phone calls were made then this would be evidence of an attempt to pervert the course of justice by HARRIS.
FRAUDULENTLY MISLEADING POLICE INTO HANDING OVER “EVIDENCE”
26. JURGIS “ at this point I enacted powers under section 18(3) of the Animal Welfare Act 2006 to arrange for the sheep to be destroyed where it was”.......HARRIS then informed me he was investigating an offence of animal neglect in relation to the sheep. As such I seized the carcass of the sheep under section 19 of the Police and Criminal Evidence Act 1984 as evidence of the offence. I immediately handed this to the RSPCA as they were conducting the investigation.”
NOTE THE WORDING OF SEC. 19 PACE 1984. General power of seizure etc
(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing -
(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 .
27. CPS guidance on disclosing evidence to third parties - “Material Seized by the Police” – (Note CPIA 1996 Code of Practise 2015 sec 1.1 role of “other” investigator to observe codes).
28. Material seized by the police in connection with the investigation of crime (usually under the provisions of the Police and Criminal Evidence Act 1984) must not be disclosed to a third party unless the owner has consented to the disclosure or a subpoena has been served on the relevant police officer. This type of situation received close examination in (Marcel and Others v The Commissioner of Police for the Metropolis (1992) AER 72)
29. Even where a subpoena has been served the police should not disclose seized (documents) in advance of the court attendance unless they:
· have given the true owner notice of the service of the subpoena; and
· have expressed a wish to produce the seized material in advance of the attendance at court; and
· have given the true owner a reasonable opportunity to object.
30. Sir Nicolas Browne-Wilkinson VC …..”Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy – fundamental human rights. …...which requires some impairment of those rights, Parliament legislates to permit such impairment. But, in the absence of clear words, in my judgment Parliament cannot be assumed to have legislated so as to interfere with the basic rights of the individual …....But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes ….”
31. The RSPCA whilst acting as a public body under the Human Rights Act section 6 (3) (b) definition, also CLAIMS to be a 'private' individual under the Prosecution of Offence Act 1985 sec 6 (1).
32. There is and never has been any right for any private individual to use the police as a vehicle for gaining possession of something to which they were not legally entitled by law.
33. The RSPCA while fulfilling the functions of a public authority (HRA sec 6) is not a STATUTORY body to whom the police can legitimately pass over seized goods for that statutory body to continue to investigate and prosecute under statutory powers given to it.
34. This is a technique the RSPCA HABITUALLY USE with police officers inexperienced with Animal Welfare Law, and the WORDING of the Animal Welfare Act 2006 section 51 “Inspector” could be misunderstood by such officers confused by the fact that the RSPCA award themselves a JOB TITLE 'inspector' that is just a title – it has no application whatsoever to an Inspector appointed and empowered under the AWA . HARRIS as a long serving employee of the RSPCA will be fully aware he had NO RIGHT to ask for the carcass.
35. This was deliberate misleading of the police and has all the constituent elements of the offence of FRAUD under the Fraud Act 2006 section 2, sub sec (5) includes an IMPLIED representation.
NB The RSPCA rely on the circumstances where around 90% of persons accused of an offence under the Animal Welfare Act 2006 plead guilty, and the legality or even the factual evidence relied on is not actually contested. It is not the place to discuss the validity of many 'guilty' pleas for the present case. The present case brought a charge under sec 9 (1) AWA (no food/ water) which was a blatant misuse of the prosecution power, so “IF” the present appellant had considered herself to be “guilty” of the sec 4 (1) and wished to plead guilty to it for the reduction in costs and sentence for an early guilty plea, she would have perjured herself by having to plead guilty to sec 9 (1), an unsustainable result of admitted guilt to a bogus charge.
36. HARRIS's statement does not explain that he ASKED for the carcass (PC Jurgis statement does) but as the police were not CONDUCTING the investigation and had no intention of doing so, the carcass should not have been given to a third party, unless that third party had a STATUTORY RIGHT to conduct an investigation and prosecution, eg an INSPECTOR appointed under the AWA for a LOCAL AUTHORITY prosecution. The POLICE remain responsible for documentation on entry, search and seizure, none has been forthcoming as no warrant was obtained, every action was unlawful, especially giving the carcass to an unauthorised third party. Any examination report of that carcass should therefore be excluded as evidence under PACE sec 78. THE ONLY MOTIVE FOR OBTAINING THE CARCASS APPEARS TO HAVE BEEN TO DELIBERATELY DEPRIVE THE OWNER OF THE OPPORTUNITY OF ANY INDEPENDENT EXAMINATION, CONTRARY TO THE LAW.
37. This point will be considered further under JOYNES, who took over from HARRIS after 23rd July 2016
CAUSING STRESS TO A SICK ANIMAL, CAUSING INTERFERENCE WITH RECOVERY,
NOTE Sheep are easily prone to stress, the sheep had been transferred to a shed for recovery as in the welfare codes, and on that evening there were present
2 RSPCA employees
1 veterinary
2 veterinary students
2 police constables.
Even a healthy sheep can die of stress in such circumstances. There is also the possibility that this sheep “could” have been sedated by Pentobarbitone / Pentobarbitol (lethal injection USA) that are carried by RSPCA employees to euthanase wild animals and used in lower doses as a sedative.
The photographs originally with-held showed a sheep that looked “half asleep” which he would not have been with strangers in his safe space. The sheep was alert and eating happily when the owner left a short time before. Evidence of eating immediately prior to destruction is in the PATHOLOGY REPORT. Dying animals show no interest in food.
HARRIS made sure he was alone and unsupervised when he trespassed and DID disturb the fleece. HARRIS would know that no toxicology on the carcass – even if it was performed – would be detected if the vet used an injection method to kill the sheep.
The police at interview said that the vet had used an injection, although no examination of the brain appears in the pathology report – when all other organs were examined and nothing abnormal discovered, leading to question mark over the method. The RSPCA also carry captive bolt guns for destruction and have in the past used them on 10 Alsation dogs, The captive bolt method is generally not considered to be humane, ie not lawful as repeated concussive blows are necessary to destroy brain tissue until death occurs. A gun licence is not required for captive bolt guns.
EVIDENCE TO SUPPORT POINTS 13/14
NOTE from HARRIS evidence it appears that he has totally inadequate knowledge of this parasite that inflicts 75% of British sheep flocks despite the commercial loss to farmers and the routine practice of chemical preventatives.
38. The FACT of a massive flystrike attack (in the absence of the owner) is not disputed.
39. The FACT that the sheep was sheared that day is evidence of the correct treatment pathway being undertaken by the owner upon return.
40. The FACT that HARRIS describes the skin as being “red and purple” is further evidence of a correct treatment pathway. (PURPLE ANTIBACTERIAL SPRAY)
41. The FACT that the fleece was wrapped to enclose potentially pupating maggots rather than leave it open to allow small wild birds to feed on the maggots is evidence of thoughtful actions by the owner preventing the cycle continuing.
42. The FACT that the number of maggots “found” - following points 12 and 13 above – was small and NOT on the skin and around the wounds is evidence that the owner had carefully removed them from within the areas of fleece where damage to the skin had not yet occurred. Maggots migrate at skin level, (unless leaving to pupate) causing lesions in a very short time frame, and were throughout the fleece where it was close to the skin, BEFORE removal by the owner over a period of 2 hours, assisted by a teenage girl that was present.
43. FACT - Weight loss caused by fly strike can take up to 8 WEEKS to regain, and fleece loss can take up to 8 MONTHS and sometimes areas do not regain fleece.
44. THE EXPERT WITNESS report that was not available in time for the trial on 30th August 2016 confirms the defendants assertion that maggots should not have been visible on the fleece -
“A photograph of the ram, prior to post mortem, demonstrated what appears to be a maggot on an area of skin, relatively distant from any lesion. This is in my opinion is an unusual finding because maggots rarely leave a lesion environment and travel across an area with no lesions.”
ALSO - “LOT.1.06.
The post mortem report, did not indicate the presence of maggots in many of the sheep lesions.
Hence on post mortem, there was an absence of maggots in the majority of the sheep lesions.
LOT.1.07.
An absence of maggots in the lesions is evidence that maggots had been cleared from the lesions.
LOT.1.08.
If maggots were no longer in the sheep lesions:
13. The likely cause of the suffering had received satisfactory attention”
14. The Ectofly (Pour-on 1.25% Solution for Sheep. Bimeda) preparation used by Patricia Wallwork, is a licensed pharmaceutical approved and recommended treatment for the elimination of maggots (and other parasites) in sheep. See Appendix 5
15. Patricia Wallwork claims that she removed all maggots that she could detect from all of the lesions, and from any adjacent tissues.
16. The conclusion is that the ram received prompt attention to eliminate the maggots, and hence remove the cause of suffering which in turn would minimise further suffering
SUPPLEMENTARY INFORMATION
RCVS CODES OF PRACTICE AS THEY RELATE TO BREACHES BY FISHBOURNE.
Euthanasia without the owner's consent
1. A person with responsibility for an animal may commit an offence if an act, or failure to act, causes an animal to suffer unnecessarily. An owner is always responsible for their animal but a veterinary surgeon is likely to be responsible for the animal when it is an inpatient at the practice. If, in the opinion of the veterinary surgeon, the animal’s condition is such that it should, in its own interests, be destroyed without delay, the veterinary surgeon may need to act without the owner’s consent and should make a full record of all the circumstances supporting the decision in case of subsequent challenge. Generally, there should be discussions with the owner of the animal before such a decision, which should be endorsed by a veterinary surgeon not directly involved in the case until that time.
11 Informed consent
1. Informed consent, which is an essential part of any contract, can only be given by a client who has had the opportunity to consider a range of reasonable treatment options, with associated fee estimates, and had the significance and main risks explained to them.
Client relationship
1. The client may be the owner of the animal, someone acting with the authority of the owner, or someone with statutory or other appropriate authority. Care should be taken when the owner is not the client. Practice staff should ensure they are satisfied that the person giving consent has the authority to provide consent. The provision of veterinary services creates a contractual relationship under which the veterinary surgeon and/or veterinary nurse should:
Communication
· If the client's consent is in any way limited, or qualified, or specifically withheld, this should be recorded on the clinical records; veterinary surgeons and veterinary nurses must accept that their own preference for a certain course of action cannot override the client's specific wishes, other than on exceptional welfare grounds
· Provision should be made for uncertain or unexpected outcomes. Clients should be asked to provide contact telephone numbers to ensure discussions can take place at short notice. Provision for the veterinary surgeon or veterinary nurse to act without the client’s consent if necessary in the interests of the animal should also be considered.
12. Use and re-use of samples, images, post mortems
and disposal
Informed consent
12.1 There may be occasions when veterinary surgeons have to consider taking samples for
diagnostic or treatment purposes, or post-mortem. These ‘samples’ may include blood, tissue,
body parts or whole cadavers. After samples have been taken, it may be that the re-use of the sample for other proper purposes is considered.
12.2 The starting point for the use of samples is informed consent. A client should consent to a sample for initial diagnostic or treatment purposes, whatever the size or species of the animal, whether it is a farm animal or domestic pet and whether the animal is living or dead. Generally, a client should also consent to any re-use of the sample for other purposes.
Post-mortem examinations
12.11 The veterinary surgeon should ensure that the client has been fully advised of the scope
of the post-mortem examination and/or any limitations to manage client expectations, and
understands not only the financial implications of that request, but also that the findings may
prove inconclusive. The veterinary surgeon should give the client the option of an examination by an independent veterinary surgeon.
Disposal
12.15 Generally, a veterinary surgeon should seek informed consent from the owner to disposal options for the cadaver and should ensure that any third party involved in the disposal is appropriately licensed, for example, if the animal is to be cremated
The 10 Principles of Certification (formerly 12 Principles)
Principle 2
Veterinarians should not issue a certificate that might raise questions of a possible conflict of interest.
notes
Generally speaking, conflicts of interest should be avoided. Veterinarians signing certificates should not allow commercial, financial or other pressures to compromise their impartiality. .
Veterinarians should consider the potential conflict of interest and make their own decision on whether a conflict exists. They may also wish to seek advice from the RCVS or the Competent Authority. Veterinarians should make a record of any potential conflict of interest and the advice received.
Principle 5
A veterinarian should only sign original certificates. Where there is a legal or official requirement for a certified copy or duplicate (marked as such) these can be provided.
Notes
Veterinarians may need to provide certified copies or duplicates where originals have been Code of Professional Conduct for Veterinary Surgeons Downloaded: 24/01/2017 - 12:01 page 112 damaged or lost (e.g. where damage has occurred during transit). Where a copy or replacement is provided or retained it must be clearly marked COPY or DUPLICATE or REPLACEMENT, as appropriate and in accordance with any Notes for Guidance or advice from the Competent Authority. Where practicable the veterinarian should ensure that the certificate being replaced is surrendered, withdrawn or destroyed (if requested) or clearly identified as to its revised status, as appropriate and in accordance with any Notes for Guidance or advice from the Competent Authority .
Where veterinarians become aware that the certificate should not have been issued or is no longer true, they must withdraw or cancel the certificate, identify the copies accordingly, and inform the affected parties of their action as soon as reasonably practicable.
Copies should also be provided to the Competent Authority.
Principle 6
When signing a certificate, a veterinarian should ensure that:
a) the certificate contains no deletions or alterations, other than those which are indicated on the certificate to be permissible, and subject to such changes being initialled and stamped by the certifying veterinarian;
b) no section of the certificate is left incomplete;
c) the certificate includes not only their signature but also, in clear lettering, their name, qualifications and address and (where appropriate) their official or practice stamps;
d) the certificate includes the date on which the certificate was signed and issued and (where appropriate) the time for which the certificate will remain valid.
Notes
Veterinarians should complete certificates with care and accuracy and in a manner and using a means which does not lend itself to alteration, or additions, by a second party after the certificate has been issued. It is recognised that mistakes on certificates can occur and these should be rectified, as permissible, as soon as they are identified.
Veterinarians might also give consideration to using their RCVS membership number on the certificate. This provides an easy means of identifying the certifying veterinarian and their contact details should these be required.
Incomplete sections should be avoided so the certificate cannot be subsequently completed by someone other than the certifying veterinarian.
In the absence of procedures such as embossing, it remains advisable for manuscript insertions to be completed in coloured ink rather than black.
Generally, manuscript insertions and any pre-printed list of options, which can be deleted in a certificate, do not have to be initialled, stamped, and/or dated unless the Notes for Guidance request this. Veterinarians should always refer to the Notes for Guidance or Competent Authority if there is any ambiguity.
Veterinarians must also comply with any Notes for Guidance from the Competent Authority on identification as there may be specific advice on how identification should be carried out and recorded.
Principle 8
Certificates should be:
a) clear and concise;
b) integrated, whole and indivisible;
c) given a unique identifier; and
d) copied and retained with all relevant records.
Notes
Certificates that include more than one page may need to be ‘fan stamped’ with a unique identifier on each page in order to create a tamper proof composite document. Veterinarians should comply with any Notes for Guidance or supporting material issued by the Competent Authority about such requirements.
Veterinarians should retain copies of certificates for their own records and provide copies to the Competent Authority, as required.
How to deal with certificates that do not conform to the 10 Principles
Remembering the four ‘C’s of Certification
21.34 Veterinarians may be presented with certificates that do not conform to all of the 10
Principles. In such cases the RCVS strongly advises that veterinarians should:
CAUTION
a) Scrutinise the document, whatever its title, before adding their signature to this
b) Be clear as to whom they are responsible in exercising their authority when they sign
the document
CLARITY
a) Read and understand any explanatory supporting material
b) Check carefully for any ambiguity which should be clarified with whoever has issued
the certificate
CERTAINTY
a) Be sure that they attest only to what to the best of their knowledge and belief is true
b) Do not attest to future events
c) Take great care when attesting to what others have declared or asserted
(Veterinarians may attest to what another veterinarian has certified. They may also attest to the fact that a declaration or assertion has been made by another person without attesting to its validity).
CHALLENGE
If they have gone further in what they have attested, veterinarians must consider what their
defence would be if challenged, and keep appropriate written records made at the time of the
decision to sign. For example, if challenged under the Animal Health Act 1981 (as amended)
with false certification could they show (in the words of that Act):
a) that he did not know of that falsity and that he could not with reasonable diligence
have obtained knowledge of it;
b) that the commission of the offence was due to a mistake or to reliance on information
supplied to him or to the act or default of another person, an accident or some other
cause beyond his control; and
c) that he took all reasonable precautions and exercised all due diligence to avoid the
commission of such an offence by himself or any person under his control.
21.35 When faced with a certificate that does not conform to the 10 Principles, veterinarians
should take a professional, reasonable and pragmatic approach, bearing in mind the general
advice above.
Additional matters
21.36 On occasion veterinarians may be asked to attest ‘ to the best of their knowledge and
belief’. In these circumstances, veterinarians should exercise caution and attest only to what to
the best of their knowledge and belief is true. They should not attest to future events and they
should take great care when attesting to what others have declared or asserted, bearing in mind the ’Four Cs’ outlined in paragraph 21.34 to 21.35 above
Storage and retention of certificates
21.37 The RCVS does not specify for how long copies of certificates, declarations or clinical
records should be retained. For official certificates, veterinarians should follow any guidance
from the Competent Authority. In the event of future disputes, veterinarians should also comply
with any professional indemnity policy conditions relating to retention of records.
Maintaining the integrity of veterinary certification
21.39 Misleading, incomplete, inaccurate, or untrue certification reflects adversely on the veterinarian signing and calls his or her professional integrity into question. This also impacts adversely on the general reputation of the veterinary profession. Certification of this nature may also expose the veterinarian to complaints and cases may come before the RCVS Disciplinary Committee arising from allegations of false or dishonest certification.
21.40There are four main hazards for veterinary surgeons when ’certifying‘ in the wider
sense:
a) Negligence: a breach of the duty owed to a relevant party with consequent damage.
Negligence may arise from a failure to disclose all of the material facts or supplying
incorrect information. The consequence may be civil court proceedings.
b) Criminal offences: criminal offences may be committed under trade descriptions
legislation, legislation controlling animal exports and by aiding and abetting a third party.
They may include fraud, or knowingly or recklessly supplying false information. Any
conviction brought to the notice of the RCVS may be considered in relation to the fitness
of the veterinarian to practise.
c) Professional misconduct: even if no criminal charges are brought, an aggrieved party or enforcement authority may make a formal complaint to the RCVS. Any action by a veterinarian which brings the integrity of veterinary certification into disrepute is
considered seriously by the RCVS. If the complaint is judged to be justified, penalties may follow
d) Loss of OV status: misleading, incomplete, inaccurate, or untrue certification in the
context of official work can adversely affect animal welfare and public health; result in the
spread of disease; result in financial loss to clients and exporters; and, potentially cause
inter-Governmental difficulties. Veterinarians may therefore put their status as an OV at
risk if they do not follow certification compliance requirements set out by the relevant
Competent Authority.
The EU Legislation EU Directive 96/93/EC VETERINARY CERTIFICATION
Article 1
This Directive lays down the rules to be observed in issuing the certificates required by veterinary legislation.
Article 2
1. For the purposes of this Directive:
‘veterinary legislation’ means the legislation listed in Annex A to Directive 89/662/EEC and Annexes A and B to Directive 90/425/EEC;
‘certifying officer’ means the official veterinarian or — in the cases provided for in veterinary legislation — any other person authorized by the competent authority to sign the certificates required by that legislation.
2. In addition to the definitions in paragraph 1, the definitions contained in Article 2 of Directives 89/662/EEC and 90/425/EEC shall apply mutatis mutandis.
Article 3
1 The authority shall ensure that certifying officers have a satisfactory knowledge of the veterinary legislation as regards the animals or products to be certified and, in general, are informed as to the rules to be followed for drawing up and issuing the certificates and — if necessary — as to the nature and extent of the enquiries, tests or examinations which should be carried out before certification.
2 Certifying officers must not certify data of which they have no personal knowledge or which cannot be ascertained by them.
3 Certifying officers must not sign blank or incomplete certificates, or certificates relating to animals or products which they have not inspected or which have passed out of their control. Where a certificate is signed on the basis of another certificate or attestation, the certifying officer shall be in possession of that document before signing......
Article 4
1. The competent authorities shall take all necessary steps to ensure the integrity of certification. In particular they shall ensure that certifying officers designated by them:
(a) have a status which ensures their impartiality and have no direct commercial interest in the animals or products being certified or in the holdings or establishments in which they originate;
(b) are fully aware of the significance of the contents of each certificate which they sign.
3. Each competent authority shall be in a position to link certificates with the relevant certifying officer and ensure that a copy of all certificates issued is available for a period to be determined by it.
Article 5
1. Member States shall introduce such checks and have such control measures taken as are necessary to prevent the issuing of false or misleading certification and the fraudulent production or use of certificates purported to be issued for the purposes of veterinary legislation.
2. Without prejudice to any legal proceedings or penalties, the competent authorities shall carry out investigations or checks and take appropriate measures to penalize any instances of false or misleading certification which are brought to their attention. Such measures may include the temporary suspension of the certifying officers from their duties until the investigation is over.
In particular, if it is found in the course of the checks that:
(a) a certifying officer has knowingly issued a fraudulent certificate, the competent authority shall take all necessary steps to ensure, as far as is possible, that the person concerned cannot repeat the offence:
(b) an individual or an undertaking has made fraudulent use of or has altered an official certificate, the competent authority shall take all necessary measures to ensure, as far as is possible, that the individual or undertaking cannot repeat the offence. Such measures may include a refusal subsequently to issue an official certificate to the person or undertaking concerned.
Article 9
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1998. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field governed by this Directive
ABUSE OF PROCESS HEARING - FACTORS TO BE TAKEN INTO ACCOUNT AS REGARDS THE ACCUSED.
FACTS THAT ARE PART OF A DEFENCE
132. As this was planned, arrangements were put in place for up to 4 experienced adults over the age of 25 people to care for the animals in my absence, split between them so that twice a day there would be a person around to check for any problems.
133. The person with main responsibility for the sheep had been involved with their care on an ad-hoc basis from the day I got my first Soay ewes.
134. He had been given permission from another more experienced stock man who has farmed cattle sheep and pigs to call him for advice and assistance if he thought there were any problems, or if feed stuffs were required he would deliver some for him. He had the phone number written down for him.
135. Similarly the person with main responsibility for the horses and ponies called my farrier to an issue that arose during my absence for one hoof of one pony.
136. RSPCA Harris would have ample opportunity if he was “concerned” about welfare issues to have unfettered access to ALL livestock on the premises for 2 hours of daylight due to his trespass.
137. The absence of any statement as to their condition says much more than any submitted statement ever could. He would – as the 4 witnesses who were taking actual physical care could verify, have had to note that ALL livestock were in not only “good” physical condition enjoying the 5 'freedoms' but some were a tending to obesity.
138. He would have been able to see quite clearly from half a mile away that 2 of the horses that were prone to a condition called “sweet itch” were wearing the fully protective fly rugs that prevented midge bites, the saliva of which causes a severe allergic reaction, causing 'itching' which when the horse rubs, causing hair to come out and sores develop.
139. This is evidence of good knowledgeable care that was not submitted by Harris as it would weaken his case that hinges on the owners lack of care and concern for her animals.
140. The person mainly responsible for the sheep in my absence is one of the kindest most caring people that I know where animals are concerned. I have not been prepared to divulge that the care was assisted by ANY other people to the RSCPA as they, on an organisational level. frequently go for multiple charges against any person involved with the care, as by the wording of the AWA (Animal Welfare Act 2006) section 3
141. In this Act, (1) references to a person responsible for an animal are to a person responsible for an animal whether on a permanent or temporary basis.
(2) In this Act, references to being responsible for an animal include being in charge of it
(3) For the purposes of this Act, a person who owns an animal shall always be regarded as being a person who is responsible for it.
142. Evidence that can be submitted as regards the issue of FLYSTRIKE that affected the sheep will show that it cannot always be detected during the initial onset.
143. Up to the date I came back and visited the animals on 22nd July 2015 non of the people had noticed anything that looked sufficiently out of the ordinary to seek further advice.
144. All the people helping with the animals had each others contact details, and 3 of them had my email address that I could check messages.
145. NB, people caring for the animals in the absence of the owner were doing so as willing volunteers. Due to the EXTENDED TIME LIMIT of 3 years for prosecution, by asking them to appear for the defence, it lays them open to CHARGES brought by the RSPCA, that would be equally without any foundation as the nature of flystrike would mean that it would have been very difficult to spot in the first day or two of the attack, by which time the owner was back. The RSPCA
(((I can cite one of many examples of inappropriate prosecution by the RSPCA, involving multiple defendants. (It involved a sick pet, parent failed to take it to the vet, teenage daughter had said it should go,RSPCA prosecuted BOTH parent and daughter were prosecuted, putting a young person into a stressful situation at the time when she should have been studying for exams. Their rationale? She, a teenage girl, should have ignored her parent and taken the pet to the vet herself. The RSPCA were severely criticised by the judiciary over taking this prosecution).
It is hardly justice, if the 'case' cannot be proved against myself, to be able to harass other parties who were kind enough to help without reward during my absence.)))
This has been a summary of the most relevant factual points, the legal issues arising are dealt with separately.
POINTS FOR DEFENCE
SMITH, see separate table of his comments as opposed to which parts are either accurate or relevant or not opinion that should be excluded as he is not an expert witness.
JOYNES, not involved on 23rd July and his statements tied into the other issues in general with the evidence. Deliberately concealing whereabouts of sheep for independent examination. Submitting flawed evidence.
HARRIS, see separate document with the inconsistencies following trespass. Untruthful as regards ability to contact owner. Ensured owner could not be present.
LITTLEWOOD , statement not controversial, not required to give evidence.
PC JURGIS, statement short and factual, but interview would be useful to establish the conversation with Harris. Unlawful entry search and seizure, unlawful giving seized property to a third person.
FISHBOURNE, the vet who destroyed the ram, her statement not dated until after she had seen the pathology report and not independent of it. RCVS codes of practice breached second opinions. SECTION 18 AWA requires a veterinary certificate to the effect that destruction necessary in the interests of the animal. This according to the RSPCA prosecution file is 'with the vet', and not as it should have been given to the owner at the earlies opportunity. The certificate as produced not a valid sec 18.
MURPHY, as the RSPCA Prosecutor had ACTUAL KNOWLEDGE that ALL the AWA 2006 section 9(1) offence “evidence” discredited any basis for the charge. He KNEW from 14th June 2016 that evidence was going to be challenged on admissibility under PACE sec 78, he KNEW that the accused's Human Rights Act Article 6 Right to a Fair Trail had been breached and yet continued with a prosecution he should by his codes of professional conduct have withdrawn from.
SUPPLEMENTARY INFORMATION
ABUSE OF PROCESS -
- JOYNES AND HARRIS STATEMENTS AND COMMENTS
COMMENTS ON THE SUBMISSION OF
CHRISTOPHER MURPHY RSPCA PROSECUTOR
TO JUDGE ABLESON ON 14TH JUNE 2016
THAT FALSIFIED THE EVIDENCE FROM WITNESS STATEMENTS
IN AN ATTEMPT TO BIAS THE JUDGE
WALLWORKS NOTES ON RSPCA EMPLOYEE JOYNES STATEMENTS AND CROSS OVER WITH HARRIS WHERE APPLICABLE
FIRST STATEMENT
RSPCA WITNESS ANTHONY JOYNES STATEMENT OF 05/08/ 2015
I am the above named person. I am an inspector for the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and have been employed since 2009. My primary role is to investigate allegations of neglect and cruelty to animals throughout the Wirral and Cheshire areas.
On Monday 27th July while on duty and in uniform and at 12.46 hours I contacted Miss ******** on number 0151 *** ****. Miss ******** answered the call and stated, “ I said after 9 pm, I have toast under the grill, ring me back in 30 minutes.” The phone call was ended after 16 seconds.
(JOYNES does not say that the person he contacted for the FIRST TIME ON THE 27TH JULY 2015, had called the RSPCA main number and had given the information that she had from the PINK SLIP sellotaped onto the door of the shed where the ram had been left. The pink slip was called a 'property receipt' with NO RSPCA CONTACT DETAILS other than the name HARRIS and his RSPCA number. The actual phone number for the RSPCA contact was given on request from the POLICE call centre when the owner was trying to establish what had happened on the evening of 23rd July 2015. The RSPCA call centre had been left with the contact phone number by the owner for the purpose of contact by a local employee who had the information that the police were claiming total ignorance about – despite that only the police are responsible for search and seizure and the paper trail that has to accompany such action. The RSPCA call centre was left with explicit instructions to call in the evening, due to the owners daytime activities caring for the animals in a field).
At 13.20 hours of the same day I recalled the same number and again spoke to Miss ********. I advised her that I wanted to arrange an interview with her in regards the incident involving the sheep.
I was told that she would be willing to be interviewed until I first answer the questions which she asked me to write down the list. I was told that Miss ******** wanted to know
“WHO CALLED THE RSPCA AND WHY THEY WERE PROTECTED WITH ANONYMITY”
She wanted to know how we (the RSPCA)
“GOT AROUND THE FARM ANIMAL MOVEMENT REGULATIONS” and
“WHAT HAD HAPPENED TO MY RAM”
Miss ******** stated she WANTED TO KNOW WHAT EXPERIENCE AND QUALIFICATIONS DID THE ATTENDING OFFICER HAVE AND WANTED TO KNOW THE EXACT NATURE OF THE CALL.
She wanted to know,
“THE TIME YOU ATTENDED” and of the call and “WHO WAS IN ATTENDANCE”
She went on to state that she would not answer any of my questions until she was made aware of the
“METHOD OF ACCESS” to the land and the
“CONDITION OF THE RAM AT THAT TIME” stating “I WAS WITH HIM UNTIL 7.30 AND WITH HIM FOR TWO HOURS BEFORE I LEFT”
Miss ******** wanted to know
“HOW HE WAS REMOVED AS NO TYRE TRACKS WERE SEEN”
and why “NO ATTEMPTS WERE MADE TO CONTACT HER”
as she stated THAT ANYONE WITH ACCESS TO THE L AND HAD HER NUMBER
Miss ******** advised me that she knew she “WAS NOT OBLIGED TO ANSWER YOUR QUESTIONS” and would not be interviewed.
She then stated that if she was to be interviewed, it would only be “IF AN OFFICIAL OR POLICE OFFICER WAS PRESENT”
I advised her that of course she could have the right to legal representation at all stages and that the interview could be held at a police station where an officer would be in attendance. (note 1 below)
Miss ******* stated that she wanted to know what the vet had said about “MY RAM'” AND WANTED TO KNOW “WHAT HAD HAPPENED TO HIM”
She told me NOT TO RECALL UNTIL I HAD ALL THAT INFORMATION.
I advised her that I had not dealt with the incident directly and that this was my first involvement in the matter.
I advised that I would recall as soon as all of the information was available and would do so as quickly as possible, but advised that this could take some time given the request for veterinary detail. ***At 13.38 hours I ended the phone call.. my pocket notebook entries I now exhibit as AJ/1
***? What request for veterinary detail???
was it - “WHAT HAD HAPPENED TO MY RAM” or
“CONDITION OF THE RAM AT THAT TIME”
(NB – JOYNES first statement as above lists information that the OWNER specifically requested. AT NO TIME prior to the summons arriving in JANUARY 2016 from JULY 2015, was ANY INFORMATION AS REQUESTED EVER GIVEN)
Note I (BY DEFENDANT)
The accused did not have the benefit of tape recording the conversation which mostly appears to be a fair representation, although my own recollection is that I led on the interview being in a situation protected by the Police and Criminal Evidence Act and was just assured that could be the case. Only in a police station would a person who could be charged with a criminal offence be able to access a duty solicitor without cost.
NB HUMAN RIGHTS ACT ARTICLE 6 RIGHT TO FAIR TRIAL
A copy of an email to Nigel Weller ( a solicitor specialising in Animal Welfare cases) and his replies have been seen by my current solicitor Quentin Neal, in relation to not accepting an interview unless conducted in a police station with PACE codes in place and a free duty solicitor.
RSPCA prosecution solicitor Christopher Murphy made much of this point in court on 30th August 2016, when stating very vociferously that the accused had not co-operated with the RSPCA investigation, which was factually disputed by the accused as above. Mr Neal (defence solicitor) confirmed he had sight of the previous emails between Nigel Weller and the accused in relation to interviews.
The accused thought that Joynes statements were not crucial to either party and had agreed that it was not necessary for him to be called as a witness. However he attended court and was actually asked questions by the Judge.
PS – IT IS NOW APPARENT THAT THE LACK OF FOLLOWING THE RSPCA'S OWN CODES THAT 'FOLLOW' POLICE AND CPS GUIDELINES HAS CONTRIBUTED TO THE ABUSE OF PROCESS.
END JOYNES FIRST STATEMENT.
RSPCA WITNESS ANTHONY JOYNES STATEMENT OF 11/11 2015
JOYNES STATEMENT 2 WITH COMMENTS
NOTE IN RELATION TO THE PHONE CALL MADE BY JOYNES ON 29TH OCTOBER 2015 RE THE PATHOLOGY REPORT.
(a) The owner had never been informed a pathology report was being performed.
(b) Pathology report dated 1st October 2015 stated -
“PLEASE NOTE THE ANIMAL WILL BE DISPOSED OF IF IT IS NOT COLLECTED WITHIN ONE MONTH OF THE DATE OF THIS REPORT”
IE JOYNES waited until AFTER there were NO remains for any INDEPENDENT EXAMINATION OR REPORT CONTRARY TO PACE CODE B.
(“BAD FAITH”)
JOYNES STATEMENT NO 2
Further to my previous statement of 05/08/2015 I would like to add
SEE NOTE 1 BELOW
that on Wednesday 14th October 2015 at 12.51 hours I contacted Miss ******** on the number provided 0151 *** ****, there was no reply and I left a voice-mail requesting contact in order to arrange an interview.
I again contacted ******** on Sunday 25th October 2015 at 20.33 hours there was no reply and again I left a voice-mail requesting contact in order to arrange an interview.
On Wednesday 28th October 2015 I again telephoned ******** at 16.28 and on this occasion the call was answered.
Miss ******** asked “WHO'S SPEAKING” I advised that it was myself and Miss ******** replied,
“I CAN'T SPEAK TO YOU NOW I AM DRIVING”
and terminated the call.
(I remember a call that was made by Joynes at the time I had just got into my car to leave the field, it would have been around that time, as I used to time it for calling to collect my grand-daughter whose home I passed en route to Birkenhead, where she went to an out of school activity at 5pm in Birkenhead, also only 100 metres from my usual route. Terminating the call was more about the RSPCA BEING GIVEN SPECIFIC TIMES when it would be convenient for contact, and to use my LAND LINE phone number – due to being busy outside those times)
SEE NOTE 2 BELOW
On Thursday 29th October 2015 at 16.30 hours I again contacted ******** on the number provided.
SEE NOTE 2 BELOW
Miss ******** answered and said “YES”
I advised that it was myself and that I was now in possession of all the information that she had requested and required before answering any questions. I advised that I now needed to conduct an interview with her in respect of the incident.
Miss Wallwork replied. “DO NOT CALL ME, ITS NOT GOING TO HAPPEN, WHEN I GET YOUR ANSWERS TO MY QUESTIONS IN WRITING.
I advised That I would need to meet in person in order to facilitate an interview. Miss Wallwork stated
“ITS NOT GOING TO HAPPEN, GOODBYE ANTHONY” and terminated the call at 16.31 hours .
SEE NOTE 3 BELOW
NOTE 1
There may be some confusion on calls and dates.
146. At some point prior to the calls listed, I answered a phone call from A. Joynes who informed me that “he now had the result of the post mortem from Leahurst at 1st October,” He then then went on to say that 'we' now needed to interview me, at which point I re-iterated that not before I had my answers in writing, to which he, A. JOYNES replied, 'that is never going to happen”
147. From the document list that arrived for myself it lists VETERINARY PATHOLOGIST RICHARD BLUNDELL REPORT DATE 31/07/ 2015.
148. THAT REPORT WAS MISSING FROM THE BUNDLE SUPPLIED, ( as prosecution evidence) AS WERE ALL PHOTOGRAPHS. (SEE FINAL POINT RE- POST TRIAL PUBLICATION)
149. (NB Prosecution evidence only arrived on Thursday 28th January 2016 for hearing set for Thursday 4th March 2016).
150. There then followed a series of 4 calls to my home number from an unlisted number, which, even if I had been in, would not have been answered as I never answer unlisted numbers.
151. 2 messages were left regarding interview. 2 were no message left.
152. When I am NOT available to answer the Land line phone, the 0151 number, it is unplugged or the phone bell is switched off. This is either if I am not at home and do not want a constantly ringing phone to alert potential intruders, or that I am sleeping.
NOTE 2
From the FIRST telephone contact that I made to the RSPCA call centre – and after getting the phone number from the police as no contact details were left by the RSPCA - and again speaking to A Joynes on 5th August 2015 I had made it clear that phone contact times would have to be around 8 pm to 9 pm.
The reason being that
(3) DURING DAYLIGHT I spend a lot of time at the smallholding, where it is never appropriate to hold a conversation other than idle chat of no importance IF it is even possible to answer due to demands of livestock.
(4) Important phone calls need access at least to paper and pen for notes.
(5) My mobile number is never given to any person or organisation, due to points above.
(6) THAT, and the signal being poor for conversation, at home, is the reason I give my LAND number with an EVENING time.
(7) Time at the small holding is also subject to assistance given to a family member, suffering a health problem, but NOT as INCORRECTLY stated in the witness statement of Alex Smith a 'mental health' problem and no further details of confidential medical information will be given.
(8) For all my grand-children living locally I collect from school / care for during holidays / take to after school clubs etc. Due to driving them around, preparing meals, supervising homework it is not possible to give time to any other demand.
(9) These were explained to the call centre operator when giving telephone contact details.
NOTE 3
Both the calls made by A Joynes on WEDNESDAY and THURSDAY, were made
7. During a time when I had children as young as 6 with me, requiring my full attention and
8. To my MOBILE PHONE NUMBER.
This begs the question – HOW did A Joynes have my mobile number when my contact with the call centre was asked specifically to use ONLY the land line. The call to the call centre from memory was made from the land number due to the poor reception for some calls to the mobile within my own home.
SEE NOTES ON JOYNES WITNESS STATEMENT 3 FOR FURTHER COMMENTS
NB – PHOTOGRAPHIC EVIDENCE
https://www.cps.gov.uk/publications/agencies/mediaprotocol.html
Media Access to Prosecution Materials.
Prosecution material which has been relied upon by the Crown in court and which should normally be released to the media, includes:
2. Maps/photographs (including custody photos of defendants)/diagrams and other documents produced in court;
4 Where a guilty plea is accepted and the case does not proceed to trial, then all the foregoing principles apply. But to ensure that only material informing the decision of the court is published, material released to the media must reflect the prosecution case and must have been read out, or shown in open court, or placed before the sentencing judge .
NB PHOTOGRAPHS WERE RELEASED TO THE PRESS THAT FORMED PART OF THE EVIDENCE NOT DISCLOSED TO THE ACCUSED UNTIL AFTER THE SECOND COURT HEARING, AND DID NOT FORM PART OF THE EVIDENCE THAT THEY INTENDED TO USE OR RELY ON IN COURT. THEREFORE RELEASE TO THE MEDIA WAS YET ANOTHER VIOLATION OF HUMAN RIGHTS ACT ARTICLE 8
END SECOND STATEMENT.
THIRD WITNESS STATEMENT OF JOYNES
RSPCA WITNESS ANTHONY JOYNES STATEMENT OF 02/12/2015
Further to my previous statement dated I would now like to add that on Monday 2nd November 2015 I requested a search to be made of previous RSPCA incidents involving the name Wallwork. A log number of 1686/ 13/ 09 /11 was attended by Animal Welfare Officer Littlewood 8363 on 15/09/2011.
SEE NOTE 1 BELOW
The incident location was given as ** **** *****, Birkenhead, Wirral.
SEE NOTE 2 BELOW
On Tuesday 24th November 2015 at 16.50 hours I attended ** **** ****, Birkenhead.
There was a car on the drive matching the description given as in attendance at the small holding on July 23rd by a witness.
The side of the property was cluttered with animal carriers and crates. A second vehicle appeared to contain animal feed bags.
?? relevance?? Private life Article 8 HRA
I left a card at the property after there was no reply requesting contact from the occupier. Before departing at 16.53 I made enquiries with a neighbour who advised that the occupant was called Pat. (Art 8)
SEE NOTE 2 BELOW
On Monday 30th November 2015 after receiving no response to the posted card I again attended ** ,**** ***** Birkenhead. There was no reply upon knocking at the door, I returned to my car at 16.29 to fill out an 'inspector called ' form. At this point a light was switched on at the property. I returned to the front door and again knocked.
A woman opened the inside door and stood next to the front door but did not open it. I spoke to her through the glass in clear view and said, “Pat Wallwork”
The woman replied “YES”
I said, “ you haven't responded to me or any of my cards or messages “
Wallwork replied “ YES, AND I AM NOT GOING TO UNTIL I HAVE IT ALL IN WRITING. THIS IS HARASSMENT FOLLOWING ME TO MY HOUSE, GOODBYE”
The woman then disappeared behind the inner door which was closed behind her.
At 16.32 hours I left.
SEE NOTE 3 BELOW
NOTE 1
(10) This is an intrusion into my right to privacy for my private information. Allowing this into evidence is unnecessarily prejudicial, as it DOES NOT document that this was a malicious call by my daughters ex husband. AWO Littlewood called to a dog that was alleged to be “dying and left collapsed outside in the yard.” .
(11) NOTE THE CALL LOG DATE 13TH SEPTEMBER 2011
(12) NOTE THE RESPONSE DATE 15TH SEPTEMBER 2011.
(13) For a dog- maliciously reported - as collapsed and dying a 2 DAY DELAY!
(14) At the time the AWO called, I had just unloaded a new 15kg bag of dog food that was in the vestibule, and I called for the dog who was in the house and came running to greet the AWO who had no complaint about her condition for an old dog of 12/13. THIS SHOULD HAVE BEEN RECORDED AND JOYNES SHOULD HAVE KNOWN THAT THE COMPLAINT WAS FALSE.
(15) Its inclusion in his witness statement without any explanation that it was UNFOUNDED CAN ONLY HAVE BEEN ADDED IN BAD FAITH to influence the magistrates if he was not called as a witness and his statement read out in court.
(16) Joynes has in his statement claimed to have searched for the name Wallwork. He does not say that he searched the other sources within the RSPCA data base where the name would have been revealed. For information there is appended several pages of a long post that originally ran to around 67 pages on the RSPCA'S OWN comments / blogspot. There were literally dozens of horse lovers, myself among them, that wanted the RSPCA to give answers as to WHY it had shot 11 well bred pedigree horses that their own vet had certified as healthy in as little as a month after being signed over to them, having made no efforts at all to try and find them homes. This was particularly atrocious as former owners and breeders were informed that 'nothing can be released while the case is ongoing', people willing to re-home their former horses not given the opportunity.
(17) This along with other evidence, phone numbers, 'descriptions' Smith's statement that inaccurately mentions an identifiable family member who has NEVER been part of any proceedings in regard to this prosecution as having a “mental health” problem that could affect her in the future as this will be a matter of public record. To challenge that inaccurate allegation in court would only lend weight and emphasis that it does not deserve and should never be necessary. This is so called “evidence” that the RSPCA wishes to be introduced that has no relevance to the case and affects both my right under Article 8 Human Rights Act 1998, and that of a person totally unconnected.
ARTICLE 8 Right to respect for private and family life
45. Everyone has the right to respect for his private and family life, his home and his correspondence.
46. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others .
The position of the RSPCA as a prosecutor is taking over a function of the state and is a public authority within the meaning of the Human Rights Act 1998 Section 6 .
NOTE 2
153. There are references to the address which is home of myself that if read out in open court makes the address and any person in it a target of violence and hate crime regardless of the verdict if this goes the distance.
154. Since this response was first written, the address was given “on-line”, together with the name and age of the defendant Miss ******** at the time the charges were read and before any plea could be entered. This was within an hour of the initial hearing ending. A complaint to the newspaper the Wirral Globe followed as the original version stated that Wallwork “failed to provide food or water” to an animal, whereas in fact at this stage a charge is only an UNPROVED ALLEGATION. I do not “know” where the information came from, but if the reporter had been in court and listening he would have heard quite clearly that the defendant asked for the charge under section 9(1) Animal Welfare Act 2006 to be dismissed as the only evidence supplied in the prosecution statements at that time was their veterinary surgeons report that has quite clearly stated food and water available.
155. NB 1 since preparing this answer to Joynes 3rd statement, the pathology report that was requested at the first hearing, when it arrived it stated that there was fibrous green “ingesta” ie food in the rumen (first stomach) and abundant “ingesta” further along the whole digestive system including well formed faeces, proving food was not only available but had been consumed normally over the previous days. This is the second piece of RSPCA “evidence” that disproves the charge under sec 9 (1) 'no food or water”
156. NB 2 following the first hearing the prosecution refused to release further “unused” evidence, despite the requirement to disclose all evidence prior to the court hearing to enable it to be evaluated by the defence, especially if it can help the defence and weaken the case for the prosecution.
157. NB 3 following the second hearing where pleas were submitted, a further request was made for the undisclosed evidence. A set of photographs were sent but not the complete set of 17 photos. However, one of the photographs taken while RSPCA Harris was alone on the premises by trespass shows the ram lying down with is water to one side and hay to the other. This is the 3rd piece of RSPCA witness evidence that disproves the section 9(1) charge.
158. The news report was amended to state “alleged “ but by the time this went live it had already been 'shared' by a few other people, and comments posted such as “I hope she gets what she deserves” and from a person I do know Gemma Wilson an inflammatory and libellous remark relating to a period when she kept her horses near to my smallholding. This comment was 'liked' by Sonia McCabe a woman that I believe holds me wrongly responsible for RSPCA involvement, when a foal she that had weaned too early died within a week of being sold to and taken to a local rescue centre in poor condition. (No action was ever taken against McCabe despite that it had been neglected to the point of death)
159. The upshot of this is that the trial should now not be held in public, as there is no public “need to know “ that over-rides the rights under the Human Rights Act 1998 article 8 as above.
160. Lord Bingham “In the event of conviction will the offence have great impact upon defendant over and above the sentence itself? Will he be met with opprobrium and disapproval from the community or society at large?”
161. In the present case, that has already happened due to the press report on the day. To permit the public and press to be present during any more of the proceedings but there is no need to further damage the reputation both of the defendant and family members who share an unusual surname. This includes junior school children, who may suffer serious bullying by association, as their friends al know about their grandmothers small-holding.
NB SINCE THIS WAS FIRST PREPARED, ONE OF MY GRANDCHILDREN HAS BEEN BLACKMAILED AND BULLIED AT SCHOOL DUE TO ONE CHILD HAVING READ THE PRESS REPORT AND THREATENING TO TELL THE WHOLE SCHOOL ABOUT IT. THIS GRAND-CHILD HAS SUFFERED IMMEASURABLE STRESS AND HAS BEEN REFUSING TO ATTEND SCHOOL, DAMAGING HER GCSE PROSPECTS, although she is 'top' in many subjects in an academic school.
162. All of my daughters friends asked her about it following the first court day, as they too get news update on-line and although not knowing in advance recognised the unusual surname.
163. It is NOT RELEVANT AND IS ANOTHER INTRUSION ON MY RIGHT TO PRIVACY, rights that are protected under the HUMAN RIGHTS ACT 1998, that ALL Prosecutors, not just the CPS, have to consider when submitting evidence.
164. The prosecutor for the RSPCA must be liable for the consequences of not seriously redacting large chunks of this – and other – evidence it intends to submit.
165. NOTE 2 ADDITIONAL POINTS
166. A total of 3 references to an address where it is not necessary for the accuracy of the statement.
167. As simple statement saying that he called at the address GIVEN VOLUNTARILY to the RSPCA on her FIRST contact with them when trying to ascertain the fate of her sheep would suffice and not be as unduly prejudicial.
168. Calling to verify the identity of the occupant with a neighbour is nothing short of harassment, the presence of a marked van, and an employee in a look-alike police uniform is designed to humiliate and is a further human rights violation.
169. The electoral role is publicly available from all libraries, council offices, and on-line for easy and discrete verification of an occupier.
170. What A. Joynes observed while on the private property is irrelevant to the evidence, except that it shows how unreliable both his evidence and that of the witness Alex Smith is. For Joynes to say a car was parked on the drive matching the description of one that was observed at the small holding is open to 2 interpretations, both of which cast doubt on the reliability and credibility of 3 witnesses for the RSPCA.
171. The car described by Smith was a beige or brown Citroen Picasso.
172. Joynes says he recognised the car “from the description.”
173. The car on the drive and at the smallholding on 23rd July 2015 was a SILVER PEUGEOT 806.
174. The “witness” mentioned by Joynes need not have been Smith.
175. Harris “ arrived” around the exact time that I was leaving.
176. Smith gave a description of 'Pat” when a phone number for contact, which he had used twice that day, would have been more appropriate.
177. Harris could have seen “Pat” by description leaving. recognised (not by the “Grey hair” but by the fact she was in the company of a teenage girl) and he , Harris, had imparted the correct vehicle details to Joynes at some point. This is not necessarily information that would be logged between colleagues, or given in the disclosure list.
178. A logical conclusion would follow that Harris was at the site and watched 'Pat' leave, having no intention of informing the owner that he was present as he intended to trespass onto the land, which is what he did.
Next points cross over with that of HARRIS.
17. Despite these codes being quite clear on second opinions, the VET Emma Fishbourne did, according to the statement of Police Constable Jurgis, state “not to try any harder to contact the owner”.
18. RSPCA Harris, again according to the statement of PC Jurgis, said he had been “unable” to contact the owner. He had been asked by the police constable to try again. He appeared to phone a number, that did not answer.
19. The defendants phone records will show that no call was ever made that evening to her. The police have refused her request - with written permission given – to check her phone records for the evening of 23rd July 2015 for an incoming calls that 'could' have been from Harris. The police have declined to do so- or undertake any investigation – that might reveal any “wrongdoing” by the police.
20. There is a huge question mark over RSPCA Harris and whether he did or did not have a contact number for the owner as no calls were shown at any time that day from 5pm to midnight from any number that was not a known friend from the call register, or missed calls.
21. The RSPCA have with-held the transcript of the call made by Smith to the RSPCA, claiming it is 'sensitive' material that could disclose the identity of the informant.
22. This is nonsense as Smith is a witness for the prosecution – although much of his statement is opinion and SHOULD NOT be admissible as he is not being called as an 'expert' witness. Other parts of Smith's statement are inaccurate and damaging to a third party who is not involved in any way with the case.
23. The transcript is very relevant to the potential defence as it should show whether or not from the outset that Smith gave the defendants phone number and if he did whether it was passed on to Harris.
24. Harris's statement said he phoned the caller ie Smith for better directions. Harris had ample opportunity to obtain a phone number for the owner.
RSPCA HARRIS STATEMENT CONTRADICTIONS WITH THAT OF POLICE CONSTABLE JURGIS
Harris originally stated he “did not have contact details”.
“There was no address or telephone number on the log”
From Constable Jurgis statement.
“I asked HARRIS if he had spoken to the owner of the sheep.”
“HARRIS stated that he did not have an exact address for the owner but that he had a phone number which he had not been successful in contacting”
“HARRIS tried to phone the number again in my presence but it would not connect”.
NB THE IMPORTANCE OF DISCLOSURE OF THE PHONE RECORDS OF HARRIS, as the contradictions appear to be an ATTEMPT TO PERVERT THE COURSE OF JUSTICE BY HARRIS DUE TO DELIBERATE ACTIONS TO PREVENT THE OWNER FROM BEING PRESENT.
The informant Smith definitely had my phone number as he called me twice on the day in question, 23rd July 2015, PROVING HE HAD KEPT MY NUMBER, either by it being saved automatically on his mobile phone or other.
ABUSE OF PROCESS – CROSSOVER WITH STATEMENT OF ANDY HARRIS (RSPCA EMPLOYEE WHO TRESPASSED ON 23RD JULY 2015
· From the time line of Harris on site,he had a clear 2 hours with no other person to check if the “evidence” a living breathing animal, was compromised prior to police presence at 11pm
· From the photographs provided by the RSPCA, in one the sheep looks 'sleepy”. By researching the RCVS codes of practice, I discovered under sec 8
8. Euthanasia of animals
8.3 “Generally, only veterinary surgeons and veterinary nurses acting under their direction and in accordance with Schedule 3 of the Veterinary Surgeons Act, have access to the controlled drugs often used to carry out the euthanasia of animals. An exception to this is the use of Pentobarbitone by RSPCA Inspectors in England and Wales for the euthanasia of wild animals “
· “Pentobarbital is used short-term to treat insomnia. Pentobarbital is also used as an emergency treatment for seizures, and to cause you to fall asleep for surgery “
· The fact that both the teenage helper and owner left the sheep far more alert and responsive than he had been during the period that Smith was present to shear the sheep, AND
· the fact that he had started to eat energetically as soon as back in the shed,
· the fact that he was feeling more comfortable following the application of both an antibacterial spray to the lesions and Aloe Vera veterinary gel to his skin – these 3 things were all pointing to a sheep that was going to recover a bad attack of fly strike with continued good care.
· This has caused concern that RSPCA Harris, who had trespassed, possibly saw the owner leave, and had access to a sedative drug had the opportunity to use it on the sheep during the couple of hours he was alone on the defendants small holding. The result of which was that the sheep would have been less responsive when the veterinary surgeon finally arrived.
· Clearly something is amiss, the sheep had been cleared of maggots in a laborious 2 hour long removal by the owner, with the assistance of the teenage girl who was present when Smith arrived.
· A photograph sent by the prosecutor showed several mature maggots on the outside of the fleece.
· This is an unusual finding, the maggots once hatched do not stay in the fleece as such, they eat their way around the skin beneath,
· RSCPA Harris was on site for a couple of hours without any supervision after trespass. From his statement. “near to the shed was a pile of fleece that had maggots in it”
· The fleece with the maggots was not “in a pile” as in the short version provided by Harris, but the whole fleece was wrapped in a blue 'tarpaulin' type of sheet. It had been wrapped to enclose the maggots, with the intention of burning the lot the following day. Wrapping was a two fold purpose, as wool itself does not burn easily and with rain forecast for that evening a wet fleece would not have burned, leaving the possibility that maggots would pupate and hatch causing re-infestation.
· Having combed through every inch of fleece to remove maggots, the position they were in on the photograph, and the fact that Harris disturbed the enclosed tarp with the maggot ridden fleece makes the defendant owner very uncomfortable that maggots were transferred back onto the sheep by the actions of Harris, deliberately . They cannot crawl that distance!
Since this was first drafted,
· NOTE 3
· JOYNES THIRD evidence was dated 30th November 2015, by which time the carcass of the ram had been disposed of by Liverpool University.
· Joynes was still attempting to get the owner to agree and interview WHEN HE HAD KNOWINGLY CONCEALED THE PRESENCE OF THE SHEEPS CARCASS BREACHING PACE CODE B and the CPIA 1996.
· Joynes was still not offering an interview at a police station recorded under the provisions of PACE with a free duty solicitor.
NB THE DATES
JOYNES STATEMENT 30TH NOVEMBER 2015
BY MID DECEMBER 2015 ALL THE NATIONAL DAILY NEWSPAPERS CARRIED THE RSPCA STORY REGARDING THE RSPCA “APPEARING” TO TAKE ON BOARD THE RECOMMENDATIONS OF THE WOOLER REPORT TO WITHDRAW FROM FARM ANIMAL PROSECUTIONS.
BRIEFING NOTE TO PARLIAMENT DECEMBER 2015
(summons to defendant drawn up January 2016.)
The RSPCA is reviewing its process on prosecuting farmers and investigating farm related complaints. The RSPCA will continue to receive complaints on farm related issues. It is looking into the feasibility of passing on any farm related complaint that requires an investigation to the two statutory agencies, the relevant Trading Standards Department and if applicable the Animal Health and Plant Agency (APHA). If the local authority is not able to or refuses to take a case from the RSPCA, it remains open for the RSPCA to complete its own investigation and to consider whether or not a prosecution should be instigated.
NB the POLICE have always had inherent jurisdiction to investigate ANY criminal offence and with specific reference to the Animal Welfare Act, are the ONLY people empowered other than officially appointed INSPECTORS, that does not include the RSPCA who have a JOB TITLE but no officially appointed RSPCA employee to the statutory status in the AWA 2006.
There always has been more than adequate provision for FARMED ANIMALS to be under the jurisdiction of QUALIFIED EXPERIENCED EXPERTS with regard to Welfare and Codes.
179. .From “Horseferry” and quoted by LORD BINGHAM OF CORNHILL in Attorney General's Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division))[2003] UKHL 68 “ that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all”
NEWSPAPER REPORTS ON CEASING FARM ANIMAL PROSECUTIONS
WELFARE OF FARMED ANIMALS REGULATIONS 2007
RSPCA PROSECUTION SOLICITOR CODES BROKEN
NOTES ON MURPHY'S FALSIFIED STATEMENT TO JUDGE ABLESON
from the above newspaper report. “A spokeswoman for the charity said: “We would like to reassure RSPCA supporters that the society has not ruled out taking prosecutions against those who breach the Hunting Act in the future.
“Following an independent review of our prosecutions work RSPCA trustees agreed to pass cases involving traditional hunts to the police and CPS to prosecute, following initial investigation to determine the quality of the evidence.
“Cases involving potential farm prosecutions will be passed to the relevant authority, such as trading standards.
“However in both instances, we reserve the right to proceed with such investigations if either the police, CPS or trading standards decline to take the matter up.”
The Welfare of Farmed Animals (England) Regulations 2007. secs 3 (1) and (2) 8, Schedule 1, Inspection, 2 (1) (6)
Schedule 1, Inspection 2. (5) Any animals which appear to be ill or injured must be cared for appropriately and without delay; where they do not respond to such care, veterinary advice must be obtained as soon as possible. ( self treated and expected to recover)
Schedule 1 2.(6) Where necessary, sick or injured animals must be isolated in suitable accommodation with, where appropriate, dry comfortable bedding. (done)
Sec 8 - (1) A local authority may prosecute proceedings for an offence under these Regulations.
SUMMARY
MURPHY as an “officer of the court”
Deliberately misled the judge at the pre trial motions hearing
Failed to remove the AWA sec 9 (1) charge despite on many occasions having it brought to his attention that it was an abuse of process when there was no evidence to support it.
Had, or should have had, as a competent prosecutor checking his facts, have known that the RSPCA had undertaken in December 2015 to parliament that they would no longer prosecute cases involving farm animals.
Had, or should have had, as a competent prosecutor checking his facts, have known that the witness statements disclosed breaches of PACE in particular code B, that would render evidence obtained inadmissible.
Despite this, the prosecutor, MURPHY, deliberately misconstrued the evidence to the Judge, in an attempt to influence him.
The following are from a “no names or circumstances mentioned” on line enquiry from the solicitors regulatory authority as independent verification that MURPHY acted outside the codes of professional conduct that apply to him.
if a solicitor is acting in the capacity of prosecutor for a private concern, does he have a duty to both the client, defendant and the court NOT to continue with a charge if it comes to his attention that there is not only no evidence to support that charge but all the evidence supports the defendants not guilty assertion in a criminal matter in the magistrates court
John P: A prosecuting solicitor must first and foremost uphold the rule of law and the proper administration of justice (Principle 1).
They have a overriding duty to the court (Code of conduct outcome 5.6).
If a prosecutor believes that there is no case to answer, then he should not agree to prosecute that case
. This is not in fact just about the duty to the court, but also the fact that a solicitor should act with integrity (principle 2)
and in a way that upholds the good name of the profession (principle 6).
This includes not taking unfair advantage of third parties (Code of Conduct, outcome 11.1),
which would include allowing a person to be prosecuted when the solicitor knew there was no evidence to support the charge.
John P:There is also the basic duty to act in client's best interests (principle 4), which would hardly be served by allowing client to expend time and costs on a fruitless endeavour.
You: thank you, looking at abuses with private prosecutions and after solicitors finals many years ago decided practice was not for me but the academic side was!
John P:
That seems fair enough! I am happy to help.
COMMENTS ON MURPHYS MISLEADING WRITTEN SUBMISSION
TO JUDGE ABLESON
ON 14TH JUNE 2016
Supplementary information to back up the DELIBERATE AND SUSTAINED INTENTION BY CHRISTOPHER MURPHY AS PROSECUTOR FOR THE RSCPA TO BRING A CASE WITHOUT FOUNDATION WITH MALICIOUS INTENT.
Notes made for personal use – RSPCA HAS THE ORIGINAL HANDWRITTEN SUBMISSION GIVEN TO THE JUDGE
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
Page 1 para 1.
Point's 1 and 2 should have been the charge in full as on the prosecution charges.
Para 2
MISLEADING, the EXACT OPPOSIT is the case, the RSPCA REFUSED ABSOLUTELY UNDER ANY CIRCUMSTANCES to give information to the OWNER, including whereabouts of the carcass for INDEPENDENT expert examination prior to the carcass being destroyed.
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
COMPROMISED RIGHT TO FAIR TRAIL UNDER ARTICLE 6 HUMAN RIGHTS ACT.
On FIRST contact with JOYNES the owner refused an interview unless held at a police station under PACE conditions with a free duty solicitor.
The owner had consulted a solicitor PRIOR to any contact with RSPCA, email attached, where owner was advised only to have such an interview.
COPY OF THAT ADVICE CAN BE SUPPLIED
AT NO TIME throughout the RSPCA “investigation” was an interview on those terms offered to the owner.
Case circumstances
para 3
SMITH is an unreliable witness. MURPHY has taken selected parts of a statement that is full of holes and here is showing the contradictions.
“ A bit of fly strike” does not fit with “if he is still alive”.
The owner was trying to IMPRESS on SMITH the URGENCY FOR SHEARING IN ORDER TO CHEMICALLY TREAT AND MANUALLY REMOVE THE MAGGOT INFESTATION, impossible through the thickness of fleece. The sheep was treated the previous day, the owner correctly recognising that it could not penetrate to KILL the maggots.
“treated him with some sort of herbal remedy” merely goes to show the unreliability of the witness. The product used the previous day was “ECTOFLY”, that might have sounded “herbal” to Smith, but is chemically identical to the more popular and commonly used “Crovect” which is also the same as the one Smith uses, “Disect”.
OUTSIDE help with shearing was only necessary due to the family member who helped with the physically harder work, and the other person who also assisted BOTH having surgery that effectively left them BOTH one armed.
As there was NEVER an interview OFFERED at a POLICE station under PACE rules, recorded and with a free duty solicitor present, MURPHY has had free rein to be creative.
Para 4.
MURPHY obviously has no understanding of sheep keeping or common sense when reading Smiths statement. It also says a great deal about Smith.
FACT, sheep at pasture do not have “food”, they eat grass and NATURAL VEGETATION.
Sheep drink very little water.
Smith was an aggressive individual, and his statement regarding food and water is ridiculous. The sheep that had been flystruck had been separated into an area of a small fenced part with access to a shed.
It would have been absurd in the extreme to leave a water bucket or hay if he was to be confined overnight, where several kilos of sheared maggot ridden wool were about to be deposited.
What MURPHY has done is to use small bits of evidence statements that are not agreed due to many factual inaccuracies and some of which should rightly be excluded under sec 78 PACE 1984.
MURPHY attempted to deliberately BIAS THE JUDGE, by lurid details while conveniently IGNORING the prosecutions own evidence , all of which go to discredit the prosecution as an abuse of process to bring any charge of not providing food or water under sec 9 (1) of the Animal Welfare Act 2006.
MURPHY HAS BEEN MADE AWARE OF THIS ON SEVERAL OCCASIONS, ALL DOCUMENTED BY EMAIL.
PROSECUTION EVIDENCE THAT GOES AGAINST A SEC 9 (1) NO FOOD OR WATER.
180. VET Emma Fishbourne signed witness statement first page first para, “the animal had been provided with food and water and had been sheared”
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
181. VET Emma Fishbourne gave the sheep a body condition score of 2, on a scale of 1 to 5, body score 3 being IDEAL, 4 IS TOO FAT AND 5 IS OBESE.
ALL reputable academics, government agricultural agencies and grass roots farmers agree that SHEEP LOSE CONDTION WITH FLY STRIKE and can take up to 8 weeks to recover that weight lost.
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
182. PATHOLOGY report of Richard Blundell, the entire body was carved up and these comments PROVE not only that the sheep had JUST EATEN (GRASS) but that the entire length of his digestive tract has food passing through normally.
PATHOLOGY report of Richard Blundell,
183. PATHOLOGY report of Richard Blundell, “ the animal was in poor body condition, although there was mature adipose tissue present throughout the carcase so is NOT CONSIDERED TO BE IN A STATE OF EMACIATION.
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
184. PATHOLOGY report of Richard Blundell, also removed and examined all internal organs and found them to be 'normal' ie IF THERE HAD BEEN ANY LONG TERM “NEGLECT” AS MURPHY IS ATTEMPTING TO SHOW, then the organs would have started to atrophy.
CAREFUL READING OF THE PROSECUTIONS OWN WITNESS STATEMENTS WILL PROVE THIS.
185. When, after SEVERAL REQUESTS, photographs in the “unused” evidence was given to the defence, they showed the sheep lying down in the shed, where he had been secured due to FORECAST RAIN,
http://www.metoffice.gov.uk/climate/uk/summaries/2015/july
The 23rd was mainly dry and bright apart from isolated showers in the west...heavier rain moved into the south-west during the evening .
186. The PHOTOGRAPHS taken by RSPCA HARRIS show the sheep lying down with his hay, some of the grass he had still not eaten, and his water bucket.
CAREFUL VIEWING OF THE PROSECUTIONS OWN PHOTOGRAPHS THAT THE PROSECUTION WAS UNWILLING TO DISCLOSE TO THE DEFENCE WILL PROVE THIS.
PROSECUTION EVIDENCE THAT GOES AGAINST A SEC 9 (1) NO FOOD OR WATER.
was forwarded to the RSPCA “complaints” on May 6th 2016, given a reference number, and not actioned by them. MURPHY was sent a copy, so he is AWARE that the evidence in his own prosecutions folder is an abuse of process within the CPS guidelines .
Your reference number is: 186022
Complaints about our service are dealt with in line with our national complaints procedure. We do ask that you give us time to investigate your concerns fully.
SEE ALSO THE BREACHES OF SOME OF THE TEN MANDATORY PRINCIPLES IN THE SUMMARY AND CODES OF CONDUCT AT THE END OF THIS DOCUMENT.
https://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html
4.1 The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.
4.4 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
MURPHY carries on using the statement of the (unreliable) witness SMITH, and continues in the first paragraph of page 2 to EQUATE BEING A MEMBER of “clubs” for enthusiasts to
“one could class him as somewhat expert in the field”.
He has deliberately altered a meaning from the statement of SMITH's
“I ATTEND Sheep Health and Welfare group meetings” (and has ONLY for the past 5 years in a career of 55 years with sheep?) with expertise on the same level as REAL professional witnesses who are higher University educated, with a wealth of industry knowledge before being accepted onto an EXPERT WITNESS PANEL.
Not to minimise the responsibility of animal ownership, but MURPHY has probably never met the witness SMITH, and cannot deduce from the nature of the statements that he is any sort of “expert”, having 55 years “experience” is not the same. What it does show, is that for 50 years there were gaps in SMITH'S knowledge that he is now starting to catch up on. To suggest to the judge in writing that he is an EXPERT is very mis-leading.
Page 2 para 2.
“he tended to the other sheep and left”
It is common ground that SMITH was called in to assist with SHEARING.
HE REFUSED TO SHEAR THE OTHER 4 SHEEP.
WITHOUT THE OWNERS CONSENT HE POURED A CHEMICAL TREATMENT ON THEM.
IF he was any sort of “EXPERT” he would KNOW THAT WITHOUT SHEARING THE CHEMICAL TREATMENTS ARE MUCH LESS EFFECTIVE, IF AT ALL.
THAT was the reason to call to shear the one that was flystruck.
Page 2 para 3.
Murphy does not mention to the judge that RSPCA Harris entered by trespass over a 7 ft tall locked security gate without making any contact with the owner who was present until minutes before Harris claimed to have arrived.
Page 2 para 4.
Murphy noted that vet arrived. No mention is made that Harris had found a phone number for fishing club and told the member that has a key to the gate, ONLY for their convenience of access to the pond, “that he needed entry to attend to sick sheep”, when in fact he needed the gate open for access for the vet he had called. Murphy notes the carcass was seized under sec 19 PACE, but skips the fact that legal formalities were not complied with, or that the attending police did not realise that the RSPCA have NO AUTHORITY to request the carcass and that ultimate responsibility for it remains with the police.
Page 3 para 1.
Murphy repeats the misleading body score condition .
Page 3 para 2
Murphy repeats passages from the pathology report in regard to the damage CAUSED by flystrike, but does not include that all organs were normal ie showing no damage due to any long term condition or lack of care.
Page 3 para 3
Murphy repeats that the vet considered the sheep to be toxaemic, but her report was made only after she had viewed the pathology report 2 months later, and toxaemia can only be diagnosed by a blood test, this was not done as part of the pathology so again is very misleading.
Page3 para 4
Euthanasia in the absence of the owner under RCVS codes of practice requires second veterinary opinion, Murphy failed to mention this was not done. He also failed to mention that the section 18 certificate as required under sec 18 (11) of the Animal Welfare Act 2006 requires this to be given to the owner as soon as possible. This had been requested both from the police in February 2016 immediately following the summons, and Murphy had knowledge that they had retained this in the evidence bundle “sec 18 certificate with vet”.
NB following the pre trial motions hearing on 14th June 2016 a purported photocopy sec 18 certificate was posted to myself, the defendant. This is NOT A VALID SEC 18 CERTIFICATE. RCVS codes of practice PRINCIPLES OF CERTIFICATION require each to have a UNIQUE number, and where destruction on welfare grounds is made, there should be supporting observations as to the reason that this was considered to be the only option.
The so called sec 18 certificate could have been produced on a kids computer it is so amateurish, with a tick box. THIS IS DEFINATELY NOT A VALID SEC18 CERTIFICATE.
Page 3 para 5
Murphy again quotes “secondary bacterial infection”. This diagnosis is IMPOSSIBLE from observation AFTER DARK with only a torch (their video) and without biological laboratory tests being run to confirm.
An infection and especially “toxaemia” will have clinical signs where temperature is elevated, and breathing/ heart beat abnormal. The vets observations were within the normal ranges for sheep, so do not support a finding she made in hindsight. Murphy will know the significance of reports not being made contemporaneously, and having used another statement before writing one's own report.
Page 3 para 6 to over page 4 para 1
Murphy quotes the vet on flystrike prevention and treatment, but he fails to mention that the defendant was actively seeking to correctly treat, the first step of which FOR ANY FARMER is to shear the affected areas to apply a chemical /manually remove maggots.
The facts of ongoing treatment speak for themselves, to cause the damage that occurred within a couple of days of the owner's return the infestation must have been massive. The sheep was sheared completely at the owners request and contrary to Murphy's assertion to the judge that maggots 1 cm in size were on the sheep (page 3 para 2) these were large white maggots ready to pupate. The owner did not ''miss'' removing these when very carefully removing probably a couple of hundred smaller grey looking maggots in an earlier stage of development.
The ONLY explanation is that these were “posed” on the fleece by RSPCA Harris during the 2 hours he was alone by trespass on the premises in the absence of the owner. Harris's statement expressly states he opened up a tarp where the maggot ridden fleece had been put, a approximately 12 metres away from where the ram was, if maggots can escape the tarp, negotiate that journey to return by going 4 metres in one direction, finding a gap under the door and travelling a further 4 metres by changing direction in 20 minutes between the owner leaving and Harris finding the sheep that is indeed a “miracle of science.”
Easy read article on flystrike here – http://www.fwi.co.uk/news/fly-control-in-sheep.htm (reproduced later)
Page 4 para 2
Murphy has on several occasions been informed by the defendant that the post mortem report conclusion is specific that the sheep WAS NOT EMACIATED, but Murphy states that it was. As he knew the sheep WAS NOT emaciated, there can be no reason other than for prejudicial impact to change the FACTS from their OWN witnesses of NOT EMACIATED.
Vet 'body score 2 is NOT EMACIATED, 3 is “ideal” 4 is fat and 5 is obese.
Murphy's last sentence is nonsense, the report it is taken from is the likely duration of the INFESTATION being 3 to 5 days. “Emaciation” cannot happen in so short a time frame, and all AUTHORITIES on flystrike do say that weight LOSS from it can take up to 8 WEEKS to recover.
Page 4 para 3 and 4
Murphy again was very misleading, as the defendant on FIRST contact with JOYNES asserted that any “ interview” would only take place at a police station with PACE protections of recordings and a FREE duty solicitor, as she was advised to do by a solicitor (written evidence available that pre dates first contact).
Any interview was subject to the RSPCA giving the defendant information on what had happened to her sheep. NO paperwork was ever given by the police, and an invalid 'property notice' was left by RSPCA Harris stuck to the shed door with NO CONTACT DETAILS.
Page 4 para 5
As no interview was OFFERED at a police station the RSPCA and its agent CHRISTOPHER MURPHY who is prosecuting on their behalf do not know any of the arrangements in place for the care of animals in her absence for ONE WEEK caring for a relative ( who at that time was a wheelchair user) and her children.
No fault should attach to the temporary carers of the animals – it is widely accepted that flystrike is often not recognised until a couple of days into an attack. The principle (and other ) care givers had the contact number for a local farmer who had agreed to be 'on call' for emergencies they could not handle. The pathology states duration of 3 to 5 days, defendant was therefore back on day 2 or 3, saw it immediately and took appropriate steps.
(18) The evidence of the RSPCA witnesses PROVES that steps were taken,
(19) flystrike cannot be effectively treated without shearing, that was done.
(20) Maggots were removed, treatment given and the affected areas treated with a topical antibacterial spray – the “purple” areas noted by Harris in his statement,
(21) and Aloe Vera veterinary grade gel that promotes healing and supports the immune system.
(22) The sheep was eating, as evidence by pathology on his entire digestive system, which is not the 'sign' of an animal that was 'dying' – time to recover – yes, but no appearance that it was a dying animal when the owner left following treatment.
Page 4 para 6
Murphy concludes his submission to the judge with what amounts to a prosecution closing speech, without any defence evidence being heard. It is not appropriate for a prosecutor to ask for disqualification at a pre-trial motions hearing, and IF the OTHER animals on the defendants premises in any DANGER from lack of care the RSPCA 'would' at the time of entry for the ONE sheep that was flystruck during the owner's absence, have asked the POLICE to effect a seizure of those other animals.
The FACT that they did NOT is PROOF that the RSPCA did not consider any other animals welfare to be in danger from remaining with the defendant.
Murphy has selectively used “evidence” in the form of witness statements in a way that has manipulated the entire meaning of the actual content, in a way that can only have been intended to create bias in the judge.
That this has had an effect is shown by the fact that the judge then REFUSED both to CONSIDER any of the defendants reasonable applications and fully intends that evidence is to be heard in open court, even if at that stage he does make a ruling under sec 78 PACE as outlined in the CPS guidelines.
http://www.cps.gov.uk/legal/a_to_c/confession_and_breaches_of_police_and_criminal_evidence_act/
“Lord Lane C.J. in the case of R v Quinn Crim L.R. 581:
"...The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if... all relevant evidence [is heard] which either side wishes to place before [ the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet."
Murphy has full knowledge that not only is there NO evidence to support the charge under AWA sec 9 (1) as the prosecutions OWN evidence is against this and in the defendant's favour, BUT ALSO that the defendant cannot effectively challenge the evidence for the AWA sec 4 (1) offence as the RSPCA not only unlawfully obtained the carcass, following a dubious killing of the animal, but ensured it was NOT AVAILABLE for independent examination in line with PACE Code B.
Murphy must know that even if he has influenced the judge at this time, then the defendant can appeal on both facts and law, especially the exclusion of unlawfully obtained evidence.
Murphy's only motive appears to be to discredit the defendant in the public eye, the unusual amount of hatred shown to “animal abusers” is disproportionate to the offence.
All Rights Reserved Forum for Animal welfare Information and Reform