Select Committee on Environment, Food and Rural Affairs Fourth Special Report

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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