Conclusion and recommendation on offences
Recommendations 12 and 13
12.
We consider that the clarity and utility of clause 1 would be
greatly improved if it were divided into separate clauses, each
setting out one offence.
We recommend that each of the following sub-clauses
or groups of sub-clauses should be separated out:
- sub-clauses (4), (5) and (6) (mutilation)
- sub-clauses (7) and (8) (administering injurious
drugs)
- sub-clause (9) (performing an operation without
due care).
The Government should consider how the clause
1(10) definition of "keeper", which is relevant to each
of these offences, can best be incorporated into each offence.
(Paragraph 67)
13.
Although the offences of mutilation, administering injurious drugs
and performing an operation without due care are specific cases
of the 'parent' offence of "causing unnecessary suffering",
rather than new and unrelated offences, the clause 2 offence of
fighting is equally a specific case of causing unnecessary suffering,
and it has been—helpfully—made into a separate clause.
We consider that separating out the cruelty offences will assist
clarity and will not affect the ability to bring prosecutions
under the various offences. (Paragraph 68)
We agree that there is a logical distinction between
on the one hand the offence of unnecessary suffering and the specific
cases of unnecessary suffering referred to in the draft Bill.
We will create separate offences as suggested by the Committee.
Recommendations 14 to 17
14.
We welcome the Government's undertaking that it will seek to simplify
the drafting of clause 1(1). (Paragraph 70)
15.
We are extremely concerned that the Government apparently intends
that the clause 1(1) cruelty offence should apply only to deliberate
infliction of unnecessary suffering and that it should not extend
to unnecessary suffering which arises as a result of negligence
or neglect. As currently drafted, unnecessary suffering which
arises as a result of negligence or neglect would appear to engage
the cruelty offence only where the suffering is caused by another
person who is not the keeper, as a result of the keeper's negligence
or neglect. The Government's apparent position would represent
a backward step in terms of animal protection: it would lessen
the current protections in existing animal welfare law and would
significantly restrict the scope of the cruelty offence. (Paragraph
80)
16.
We assume it is the Government's intention that unnecessary suffering
which arises as a result of negligence or neglect should be dealt
with under the clause 3 welfare offence. We consider such an approach
is inappropriate for two reasons. First, the penalties available
under the welfare offence are less serious than those available
under the clause 1(1) cruelty offence. Second, and more importantly,
we understand the purpose of the welfare offence to be to deal
with those cases where the standard of care given to an animal
is clearly inadequate, but where it is not possible to demonstrate
that the animal has suffered unnecessarily. The distinction between
the cruelty offence and the welfare offence should be whether
the animal has suffered unnecessarily, not the mental state of
the person who caused that suffering. The extent of an offender's
mental culpability can best be reflected at the sentencing stage,
where we would expect those whose negligence or neglect has caused
unnecessary suffering generally to receive a lesser sentence than
those who intentionally or recklessly caused such suffering. (Paragraph
81)
17.
We therefore recommend that the Government amend the draft Bill
to make it clear that the mens rea element of the clause 1(1)
cruelty offence should be assessed by means of an objective test,
so that the defendant's conduct will be assessed on the basis
of what a reasonable person in the position of the defendant would
have known about the consequences of his or her conduct. (Paragraph
82)
The cruelty offence was always intended to capture
acts of neglect where these amounted to unnecessary suffering.
We agree with the Committee that it would be entirely inappropriate
for acts of neglect leading to unnecessary suffering to be dealt
with under the welfare offence.
We agree with the comments regarding the mens rea
element and an objective mental test will apply, i.e. "knew
or ought reasonably to have known".
Recommendation 18
We recommend that the Government amend clause
1 so as to make clear that it is an offence to cause unnecessary
mental suffering to an animal, whether or not that mental suffering
is accompanied by physical suffering. (Paragraph 84)
Having discussed the matter with Parliamentary Counsel,
we do not accept that it is necessary to amend the draft Bill
to meet this recommendation. Suffering includes mental suffering,
so to mention it specifically would both be unnecessary and would
give it an inappropriate prominence and weight. In addition, we
have concluded that it is not appropriate to restrict the application
of the clause to specific forms of mental suffering as under the
1911 Act, i.e. infuriate and terrify. This would rule out other
forms of mental suffering that might be relevant. In our view
the most appropriate course is to allow the courts, taking into
account the relevant evidence, a margin of discretion in applying
this provision.
Recommendation 19
We consider that clause 1(3) is unclear in its
intent and application. We are concerned that, as presently drafted,
the complexity of clause 1(3) will create uncertainty for prosecutors
and the courts, which could make it difficult for a prosecutor
to secure a conviction under clause 1(1) or (2). We recommend
that the Government consider how clause 1(3) can best be clarified.
(Paragraphs 88 and 89)
We have not accepted this recommendation. We do not
believe that subsection (3) is open to misinterpretation. This
provision provides guidance on the meaning of unnecessary suffering
and it is expected that it will be helpful both to the courts
and those seeking to regulate their conduct in accordance with
the provision.
Recommendations 20, 21 and 22
20.
In order to make the scope of the proposed mutilation offence
clear, we consider that it is crucial that a definition of "mutilation"
is included on the face of the legislation. Without such a definition,
what constitutes "mutilation" would effectively be defined
by the appropriate national authority, on the basis of what mutilations
the authority chose not to exempt from clause 1(4) by means of
clause 1(5). The definition should also assist in rendering "mutilation"
a less emotive word in the context of animal welfare legislation,
because it will have a clear meaning in both a legal and a veterinary
context. (Paragraph 96)
21.
On the basis of the evidence we have received, it is evident that
the list of exemptions to the clause 1(4) mutilation offence is
likely to be lengthy. We have therefore considered whether it
is in fact appropriate or meaningful to have an absolute ban on
mutilation on the face of the legislation, given that the ban
is likely to be considerably less than 'absolute' in practice.
This is particularly true given that farmed and companion animals
can have quite distinct welfare needs and practices in this respect,
and any exemptions made under clause 1(5) will need to distinguish
between these. (Paragraph 101)
22.
On balance, we support the inclusion of clause 1(4) on the face
of the Bill because it will send a strong message about animal
welfare to the courts and the public. The inclusion of mutilation
as a separate class of welfare offence is also important for evidential
reasons: if acts of mutilation were left to be dealt with by clause
1(1) and (2), evidence of suffering as a consequence of the mutilation
would be required. (Paragraph 102)
We welcome the constructive comment from the Committee.
We agree with the Committee's conclusion that a definition of
mutilation would be helpful in both a legal and a veterinary context.
Recommendation 23
We consider that each of the acts specified in
clauses 2(1)(a) to (e) of the fighting offence should be deemed
to be offences at the time at which each act takes place. Provided
that sufficient evidence exists in the absence of the fight, prosecutions
should be able to be pursued in respect of such acts without the
need for the animal fight to take place. The enforcing authorities
should not have to wait for a fight to take place before being
able to take enforcement action. We recommend that the Government
amend clauses 2(1)(a) to (e) accordingly. (Paragraph 106)
We agree with the Committee's comments. The Bill
enables a court to convict for this offence if a fight does not
take place, provided that there is evidence of arrangements for
a fight. The fighting offence will no longer contain the detail
of either the published draft or the equivalent provision in the
1911 Act, but we believe that it will capture all of the situations
previously covered.
Recommendations 24 and 25
24.
We commend the Government for the introduction of the welfare
offence under clause 3. This clause will allow preventive action
to be taken at a point at which harm has yet to occur to the animal
in question, something which is not possible under current animal
welfare law. It should make a significant and important contribution
towards enhancing animal welfare. (Paragraph 111)
25.
However, we consider that the Government is being disingenuous
in presenting the proposed clause 3 welfare offence as a simple
extension, from farmed animals to all kept and companion animals,
of an existing duty to ensure welfare. The existing offence on
which the Government relies, section 1(1) of the Agriculture (Miscellaneous
Provisions) Act 1968, is not analogous to the proposed welfare
offence. We consider that clause 3 would in fact extend the protection
currently offered by section 1(1) of the 1968 Act. We entirely
support this extension, but we consider it is important that the
Government should accurately represent to Parliament the nature
of the proposals to which it is seeking Parliament's agreement.
(Paragraph 112)
We do not consider that we have misled Parliament,
and we are concerned by the Committee's suggestion that we did
so. However, we accept there may have been some confusion as to
our meaning in the explanatory notes to the draft Bill.
Offences under the Agriculture (Miscellaneous Provisions)
Act 1968 relating to farmed animals are:
(a) causing unnecessary pain or unnecessary distress
contrary to section 1(1); and
(b) a failure to fulfil the duty to ensure the animal's
welfare, under the Welfare of Farmed Animals Regulations (2000)
(WOFAR). A breach of WOFAR is an offence under section 2. Therefore
the welfare offence is analogous to the offence in WOFAR but not
to the offence under section 1.
Recommendations 26 to 29
26.
We recommend that the Government re-consider the wording of the
clause 3(1) offence, in order to clarify the nature of the offence.
In particular:
- A keeper should be required to ensure an animal's
good or beneficial welfare. As currently drafted, an offence would
be committed if a keeper fails to take reasonable steps "to
ensure the animal's welfare". "Welfare" in itself
is a neutral term; clarification of what kind of welfare a keeper
needs to ensure is required.
- The Government should consider whether clause
3(1) would not be better and more helpfully expressed as a positive
duty of care, rather than as an offence of omission. (Paragraph
116)
27.
We consider it is appropriate that the welfare offence should
have only an actus reus (or action) element and no mens rea (or
mental) element. This would mean that a keeper who unknowingly
or negligently failed to take reasonable steps to ensure an animal's
welfare would be as culpable as a keeper who intentionally or
recklessly failed to take such reasonable steps. However, our
endorsement of the elements of the clause 3 welfare offence should
be read in the context of our comments on the mens rea element
of the clause 1 cruelty offence. (Paragraph 117)
28.
We support the Government's approach of setting out a modified
version of the five freedoms on the face of the draft Bill. The
five needs in clause 3(4) provide a strong statement of the ideal
animal welfare circumstances towards which those responsible for
animals should be working. We consider it imperative, however,
that the five needs should continue to be framed as aspirational,
and therefore not achievable in all circumstances. (Paragraph
128)
29.
In respect of clause 3(5), we support the RSPCA's suggestion of
amending the existing clause 3(5) so that it mirrors the factors
set out in regulation 3(3) of the Welfare of Farmed Animals (England)
Regulations 2000. The factors listed in regulation 3(3) should
be more helpful to the courts in distinguishing the circumstances
in which the clause 3(4) needs are not attainable. It also seems
sensible to us to aim, wherever possible, for consistency in definitions
in animal welfare legislation. (Paragraph 129)
We understand the concerns about the way that the
welfare clause was set out and the potential for confusion as
to what constitutes good welfare. We accept that there is a sliding
scale of welfare which runs from the minimum that is necessary
to ensure good welfare to that which would be necessary to ensure
an exceptionally high standard of welfare. We have amended the
draft Bill to reflect this more clearly, and the current draft
refers to an obligation to do all that is reasonable to meet the
needs of an animal for which a person is responsible in accordance
with good practice. The purpose for which the animal is kept and
any lawful activity being undertaken in relation to it should
be taken into account when considering whether its needs have
been appropriately met. Exactly what constitutes good practice
will vary according to the circumstances. In some cases regulations
and codes of practice will provide greater clarity as to what
is required for particular types of animal or activity. Where
appropriate, prosecutors, courts and those responsible for animals
will need to take into account evidence of good practice from
other sources such as the opinion of experts, and reference books
and guides.
Recommendations 30 to 32
30.
We do not object to the removal of clause 3(3) provided that the
Government is certain that abandonment of an animal would not
serve to divest a person of legal ownership or the responsibilities
that follow on from it, and that a charge could therefore be laid
and successfully prosecuted under clause 3(1). (Paragraph 136)
31.
However, we are concerned that the draft Bill would represent
a significant weakening of the current law on the abandonment
of animals. Under the Abandonment of Animals Act 1960, an offence
is committed at the time at which abandonment occurs; no evidence
of the animal having suffered is required, and a person who is
found guilty of abandonment is deemed to be guilty of a cruelty
offence within the meaning of the Protection of Animals Act 1911.
Under the draft Bill, although an act of abandonment could form
the basis of a charge laid under the main cruelty offence, clause
1(1), evidence of the animal having suffered would be required.
Evidence of abandonment without evidence of the animal having
suffered could form the basis only of a charge laid under the
welfare offence, clause 3(1), which carries lesser penalties than
the clause 1 cruelty offences. (Paragraph 137)
32.
We recommend that the Government amend the draft Bill so that
the act of abandoning an animal continues to be treated as a cruelty
offence without the need for evidence of the animal having suffered
as a consequence of the abandonment. The present law presumably
does not require such evidence for the very good reason that an
abandoned animal may not be able to be traced, in order for its
suffering to be able to be demonstrated. No doubt the 1960 Act
was enacted in the first place to deal with the requirement in
the 1911 Act that unnecessary suffering be demonstrated. The fact
that the act of abandonment, in and of itself, constitutes an
offence is a key animal welfare protection in current law and
it is crucial that it be maintained. (Paragraph 138)
We do not agree that the Bill represents a weakening
of the law on abandonment. The Abandonment of Animals Act 1960
provided for an offence to be committed under the Protection of
Animals Act 1911 where a person abandoned an animal and the abandonment
was likely to cause the animal unnecessary suffering. Under
the welfare offence in the Bill, an offence will be committed
if an animal is abandoned, and the abandonment amounts to a failure
to take all reasonable steps to meet the needs of the animal concerned.
If someone who is responsible for an animal abandons it and suffering
actually occurs, this would engage the Bill's provisions on cruelty.
There will be no weakening in the penalties and sanctions available
to the court in comparison with those already available under
the 1911 Act.
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