Memorandum submitted by the Royal Society
for the Prevention of Cruelty to Animals (RSPCA)
INTRODUCTION
1. The RSPCA welcomes this opportunity to
comment on the draft Animal Welfare Bill (the AWB). We believe
that by updating and improving the law relating to criminal offences
committed against animals, related enforcement powers and the
regulation of animal establishments, the welfare of animals generally
in England and Wales can be improved significantly and this is
of the utmost importance to the RSPCA.
2. Although this submission necessarily
focuses on the criminal law, as does the AWB, we feel it is important
to emphasise that the vast majority of the RSPCA's work has a
different focus, namely the prevention of cruelty to animals
and the securing of their welfare by various different means.
Our response to Defra's original consultation letter on the AWB
contained a summary of our work and it is attached as an appendix
to this submission and marked Appendix A1 [not printed]. In the
interests of brevity the following paragraph simply provides more
recent figures demonstrating some of the range of our work.
3. In 2003, we received 1,279,953 telephone
calls from members of the public. We rescued 11,806 trapped animals
and collected 182,570 unwanted or abandoned animals. We investigated
105,932 complaints of alleged cruelty to animals. In 51,143 of
those cases we dispensed advice on how to improve the welfare
of animals and in 4,070 cases we issued verbal warnings to the
effect that we believed an offence would be committed if the animals'
care was not improved. We brought 708 prosecutions resulting in
the conviction of 928 defendants for 1,829 offences.
4. In 2003, the Solicitor General confirmed,
in answer to a parliamentary question, that "the RSPCA undertakes
most prosecutions for animal cruelty". In so doing, we act
as a private prosecutor. We are not a public authority and we
have no statutory power to prosecute. Nevertheless, we do endeavour
to meet the same standards as the police and Crown Prosecution
Service and we apply the Code for Crown Prosecutors in deciding
whether to bring a prosecution. A table comparing the success
rate of our prosecutions for animal-related offences compared
to the success rate of all bodies enforcing the law in relation
to animal-related offences is attached as Appendix A2 [not printed].
We believe that our experience in securing animal welfare and,
where necessary, enforcing the criminal law since the early 19th
century makes the RSPCA uniquely qualified to comment on the AWB.
EXECUTIVE SUMMARY
5. The RSPCA believes that the AWB has the
potential to make significant improvements in animal welfare and
we strongly support the aims which it endeavours to achieve. In
particular, we welcome the following significant improvements
made by the AWB:
— its consolidation and updating of
many diverse and archaically-worded pieces of existing legislation;
— the introduction of a welfare offence;
— the creation of wide-ranging enforcement
powers for use specifically in relation to animals; and
— a wider and more modern definition
of animals to which the AWB applies.
6. The principal problems with the drafting
of the AWB which we believe must be addressed are:
— the absence of certain safeguards
from the welfare offence;
— the loss of offences under s10 POAA
1911 (inspection of traps) and the Abandonment of Animals Act
1960;
— the absence of offences relating
to images of cruel or obscene treatment of animals;
— the mechanism adopted in relation
to enforcement powers for use before proceedings commence which
renders them unworkable in the vast majority of cases;
— the enforcement powers for use whilst
proceedings are pending which are incapable of use in relation
to animals voluntarily given up and in care;
— the absence of a power for the court
to order the destruction of equipment used in fighting and cruelty
offences; and
— the definition of "animal"
which should be widened to include cephalopods and some larval
forms of vertebrates.
PRACTICAL MATTERS
7. Unlike many organisations which will
make submissions on single issues arising from the AWB, the RSPCA
has experience relevant to most parts of the AWB. Without wishing
to ignore the EFRA Committee's request that a submission be limited
to a maximum of 3,000 words, we have found it impossible to restrict
ourselves to that amount in total. We have sought to resolve the
problem by making several submissions, each of which is restricted
to fewer than 3,000 words. This document is the first of six.
They are referred to in their headings as submissions A, B, C,
D, E and F and they are paginated by reference to letter as well
as page numbers. For ease of reference, we list below the subject
matter of each submission.
A. Introduction, executive summary
and practical matters plus appendices A1 and A2.
B. Specific offences (s1-5) and animal
welfare regulations and guidance (s6-10) plus appendix B1 [not
printed].
C. Animals in distress: general (s11-14).
D. Animals in distress: proceedings
pending (s15-20) and animals kept for fighting, etc (s21-23).
E. Powers following conviction (s24-34)
and enforcement powers (s35-41).
F. General (s46-57) and Schedules 2
and 3.
8. In our submission, where we refer to
UK legislation, we have done so by its full title on the first
occasion where it is used. Thereafter we have adopted the following
abbreviations:
AHA |
Animal Health Act 1981 |
| A(MP)A | Agriculture (Miscellaneous Provisions) Act 1968
|
| A(SP)A | Animals (Scientific Procedures) Act 1986
|
| CF(A)A | Cinematograph Films (Animals) Act 1937
|
| CP(I)A | Criminal Procedure (Insanity) Act 1964
|
| MCA | Magistrates' Courts Act 1980
|
| PACE | Police and Criminal Evidence Act 1984
|
| P(P)A | Police (Property) Act 1987
|
| POAA 1911 | Protection of Animals Act 1911
|
| POA(A)A | Protection of Animals (Amendment) Act 2000
|
| WOFA(E)R | Welfare of Farmed Animals (England) Regulations 2000
|
| |
9. We have referred to the draft Animal Welfare Bill
throughout as the AWB, even where our reference is to the AWB
after it has come into force. We also refer throughout our submissions
to sections of the AWB, for example, s1, even though strictly
they are clauses until the AWB comes into force. In all instances
where we refer to a section number without reference to the Act
to which it belongs, the reference is to a section in the AWB.
For example, a reference to s54 is a reference to s54 AWB.
SPECIFIC OFFENCES
RELATING TO
ANIMALS
Section 1 Cruelty
1. The offence of cruelty to animals contained in s1(1)
Protection of Animals Act 1911 required updating in a number of
ways and this has been achieved by s1 of the AWB. The archaic
terminology and long list of different activities that can amount
to cruelty have been removed and the factors to be taken into
account in relation to whether or not suffering is necessary have
been spelt out on the face of s1, whilst maintaining the relevance
of existing caselaw. There is, however, room for improvement.
2. We believe that there should be an express provision
to the effect that "suffering" includes suffering caused
by physical or psychological factors. This is implicit under s1(1)(a)
POAA 1911 which makes it an offence to do various things including
"infuriate, or terrify an animal", but in our view it
should be made explicit in the AWB.
3. The reference in s1(3)(b) to "licence or code
of practice" should apply only to licences and codes of practice
made under the AWB or other legislation which extends to England
and Wales. Without this qualification, s1(3)(b) would allow any
licence or code of practice, however inappropriate, to be taken
into consideration in relation to whether suffering is unnecessary.
4. We welcome the provision in s1(4) which introduces
an outright ban on the mutilation of animals, whilst accepting
that there must be some exemptions from the ban. These should
come into force at the same time as the ban. Before turning to
those exemptions, we believe that a definition of mutilation is
required to ensure that necessary minor procedures such as the
trimming of claws are not included. We recommend the following
definition which is based on the definition adopted by an RCVS
working party which reported in 1987 on the mutilation of animals:
mutilations are all procedures carried out with or without instruments,
which involve interference with the sensitive tissues or the bone
structure of an animal.
5. We believe that the exemptions to be made to the ban
under s1(5) must be given careful consideration and be the subject
of proper consultation. We do not propose to go into detail here
on draft secondary legislation that has not yet been published.
Briefly, however, the exemptions should include:
(i) the neutering of domestic animals by a veterinary
surgeon with appropriate anaesthetic;
(ii) the carrying out by a veterinary surgeon of
therapeutic procedures (other than those proscribed by the RCVS)
with appropriate anaesthesia and/or analgesia where required.
The veterinary surgeon should certify in writing that the operation
is necessary for therapeutic reasons. There is a precedent for
this in s1(2) of the Docking and Nicking of Horses Act 1949;
(iii) marking an animal, for example by microchipping,
according to agreed codes of practice;
(iv) removal of sharp tips of needle teeth of piglets
with teeth grinding equipment within the first week of life by
a suitably trained competency tested individual and where deemed
necessary by a veterinary surgeon to prevent injury to the sow
or other piglets;
(v) disbudding of young livestock (maximum age dependent
on species) using a hot iron with appropriate anaesthesia by a
trained, competency tested individual or, in the case of goats,
a veterinary surgeon;
(vi) docking of lambs' tails where there is a high,
unavoidable risk of fly-strike occurring and where frequent inspection
is not possible, or where a veterinary surgeon believes it necessary
for therapeutic reasons and only once the lamb is at least 24
hours old;
(vii) castration of lambs once the lamb is at least
24 hours old and only if the lamb is not destined to be killed
before the age of sexual maturity or where a veterinary surgeon
deems it necessary for therapeutic reasons;
(viii) tail docking of pigs where a veterinary surgeon
determines this necessary for therapeutic reasons. or to prevent
injury from tail biting, all other efforts to reduce the scale
and/or severity of tail biting having been made;
(ix) the castration of piglets where a veterinary
surgeon determines this necessary for therapeutic reasons; and
(x) the castration of cattle.
Exemptions (vi) to (x) should be carried out only by a suitable
trained, competency tested person using the correct equipment
and appropriate anaesthetic or analgesia. Consequential amendments
will need to be made to other legislation which deals with mutilations.
6. The only area on which we propose to comment further
here is tail docking in dogs. Where this is carried out for therapeutic
reasons, it falls into category (ii) above and we do not object
to it. Currently, tail docking in dogs is often carried out for
cosmetic reasons and we wholeheartedly approve of its prohibition
under s1(4). We understand that it is the government's intention
to exempt from the ban the tail docking of working dogs for prophylactic
reasons. We have serious reservations about this proposal. The
government accepts that there is no scientific evidence which
supports this exemption and relies instead on anecdotal evidence
from owners of working dogs. (We would refer the committee to
the report from Defra's own Animal Welfare Veterinary Division
dated 16 October 2002 and revised on 15 July 2004. A copy of the
later version is attached as Appendix B1 [not printed]. It differs
from the earlier report only by the addition of paragraph 5.6
and some extra text in the first paragraph of the conclusion at
paragraph 8). No specific details of this anecdotal evidence have
been made public and so it has not been the subject of proper
consultation or debate. We believe that the only way proper evidence
can be obtained is by introducing the s1(4) ban and delaying any
exemption for tail docking in working dogs for at least a two
year period. That will allow a true picture to emerge of the extent
to which working dogs suffer from tail injuries compared with
non-working dogs.
7. In relation to s1(7) which deals with administering
poison to an animal, we note that Schedule 3 (Repeals) retains
s8 POAA 1911 which relates to the sale or use of poisoned foodstuffs.
We agree that this provision should be retained but wonder whether
it might be better to incorporate it into the AWB. In addition,
to be consistent with s1(1)(b), we believe that the last line
of s1(7) should be amended to read: "in each case, if he
knew or ought reasonably to have known, that the drug or substance
was poisonous or injurious."
8. We would like to see inserted into s1(10)(a)(ii) after
"the animal" the words "whether permanently or
temporarily" because, whilst this is implicit in the current
draft, we believe it will provide important clarification for
the magistrates' court. It should be borne in mind that cases
in the magistrates' court (which is where offences under the AWB
will be heard) are not reported and so clarification of legislation
is provided only on appeal to a higher court. This amendment would
also be consistent with s54(2)(b)(iii) and the definition of "keeper"
in regulation 2(1) of Welfare of Farmed Animals (England) Regulations
2000. The same point applies to s3(2)(b).
9. There should be offences of making, possessing or
distributing images of animal cruelty and bestiality (as defined
in s69 Sexual Offences Act 2003) without lawful authority or excuse,
similar in terms to the offences created by s2(2), but subject
to our comments on that section below. The Cinematograph Films
(Animals) Act 1937 contains very limited provisions regarding
the public exhibition of films made in a way that inflicted cruelty
on animals. The AWB will retain the CF(A)A with one minor amendment
(see Schedule 2, paragraph 2) but does nothing to amend its deficiencies.
The accessibility of images of this nature, through modern media,
particularly the internet, has increased dramatically in recent
years and demand for them is rising. It is possible to prosecute
the people who inflict the cruelty or bestiality provided it occurs
within the jurisdiction. It is not currently possible to prosecute
the people who create the demand for this material by supplying
or viewing it. These activities all have a serious impact on animal
welfare and the AWB is the appropriate place to address them.
Section 2 Fighting
10. Under s1(1)(c) POAA 1911, animal fighting or baiting
was just one way in which the offence of cruelty could be committed.
We regard it as a particularly serious form of cruelty and are
pleased that it has been made into a separate offence under the
AWB. Whilst s2 extends the offence in a number of respects, it
is important that no elements of the s1(1)(c) POAA 1911 offence
are lost and many of our comments below are directed to this end.
11. In s2(1)(d), the words "or partly for use"
should be inserted after "for use". This is important
because few, if any, places used for animal fighting are kept
solely for that purpose. A garage would be a typical example.
12. S1(1)(c) POAA 1911 made it an offence to "cause
. . . or assist at the fighting or baiting of any animal".
These ways of committing an offence are omitted from s2 and we
believe they should be included. Admittedly s2(2)(a) makes it
an offence for someone to be present at an animal fight but it
is possible to cause an animal fight without being present and
to assist at it, for example, by acting as a lookout. It should
also be an offence to permit an animal to fight.
13. S1(1)(c) POAA 1911 prohibited a person from managing
or acting or assisting in the management of a place for the purpose
of fighting or baiting or permitting a place to be so managed.
These elements are omitted from s2(1) and they should be included.
14. S1(1)(c) POAA 1911 prohibited causing any person
to receive money for admission. This is omitted from s2 and it
should be included. It will catch the person who collects admission
money on behalf of someone else.
15. Under s5A POAA 1911, it is an offence knowingly to
publish or cause to be published an advertisement for a fight.
Under s2(1)(b) it is an offence knowingly to publicise an animal
fight. It ought also to be an offence knowingly to cause an animal
fight to be publicised.
16. S2(1)(i) makes it an offence to possess anything
capable of being used in an animal fight with a view to it being
so used. This contemplates a future fight. The provision should
be amended also to catch anything which has been used in
connection with fighting.
17. Whilst we welcome the new offences in s2(2) which
refer to "a recording of an animal fight", we believe
they are too narrow. Modern technologies where images are displayed
via a conduit (for example, a computer or a mobile telephone)
rather than a recording must be caught by this provision.
Section 3 Welfare
18. As the principal organisation involved in investigating
and prosecuting cruelty towards animals, we have long been frustrated
and concerned by our inability to take action to help animals
until they have begun to suffer. We attach as Appendix B2 [not
printed], a collection of case studies which demonstrate the nature
of the problem. In these cases we did eventually successfully
prosecute the animal owners for cruelty, but not until their animals
had undergone appalling suffering which could have been avoided
if RSPCA advice about how to ensure the animals' welfare had been
followed.
19. From 1 June 2003, we introduced a new system of recording
welfare advice given by RSPCA inspectors. It showed that during
the period from 1 June 2003 to 30 May 2004:
— our inspectors gave advice in relation to 38,514
animals; and
— that advice was ignored in relation to 1,543 animals.
We believe that in these cases where advice was ignored,
most owners would have followed the advice given if it had been
backed up with the potential for legal proceedings. In only a
very small proportion of cases would we expect to be forced to
resort to prosecution. In light of this, the RSPCA has been campaigning
for the introduction of a new welfare offence and we are delighted
to see it included in s3 of the AWB. Nevertheless, we think that
s3 can be improved in a number of ways.
20. The RSPCA is aware of concern in some quarters that
this new welfare offence significantly lowers the current threshold
of criminality. In order to ensure that the offence is relied
on by the RSPCA only where appropriate, we intend to abide by
two important safeguards and we recommend that these be incorporated
into s3. First, we will not prosecute anyone under s3 unless they
have first been advised in writing of how they have failed to
meet their animal's welfare needs and been given a reasonable
period in which to remedy their failure. Only if they ignore the
advice and persist in failing to ensure the animal's welfare would
we prosecute them. A similar, though more formal, regime operates
under regulation 11 of WOFA(E)R. (We wish to emphasise that it
would not be an offence to fail to comply with a written notice.
The offence would still be failing to meet the animal's welfare
needs.) Second, we will not prosecute anyone under s3 unless we
have first obtained the evidence of a veterinarian or other appropriate
expert to the effect that the animal in question's welfare needs
are not being met. We understand that the government intends to
create a national database listing individuals who are experts
in the care of particular species and we anticipate that they,
as well as vets, would be appropriate experts.
21. At the end of s3(2)(b) the words "whether permanently
or temporarily" should be added, see our comments in relation
to s1(10)(a)(ii) above.
22. S3(3) does not, in its application, adequately replace
the Abandonment of Animals Act 1960, which created an offence
of cruelty. The effect of s3(3) is to downgrade abandonment to
a welfare offence. We believe this is inappropriate and that its
more serious status should be restored by maintaining within the
AWB a specific offence of abandonment. It also seems to us that
the welfare offence is committed only when the animal's needs
are not met. The old offence of abandonment was committed as soon
as the abandonment occurred.
23. In s3(4)(a) the reference to "in which to live"
should be deleted. An animal's environment other than its permanent
living environment should be suitable, for example, where dogs
are left in hot cars or animals are inappropriately tethered.
24. In s3(4)(b) the words "appropriate and"
should be inserted before "adequate food and water".
25. Regarding s3(4)(e), some parasites do not cause pain,
injury or disease but can cause distress, loss of body condition
and, in the longer-term, suffering. To address this problem we
suggest that the word "suffering" be added after "injury".
26. We believe that s3(4) should also refer to the need
for adequate exercise, appropriate environmental enrichment, appropriate
freedom to move and the need to provide, whenever reasonably possible,
conditions which avoid mental suffering including protection from
fear and distress.
27. In s3(5)(c), the words "environment and"
should be deleted because they are circular and could allow defendants
to argue that the need to provide a suitable environment for animals
is limited by the environment in which they currently live.
28. It would seem to us sensible to amend s3(5) so that
it mirrors the factors mentioned in regulation 3(3) of WOFA(E)R
ie species, degree of development, adaptation and domestication
and physiological and ethological needs in accordance with established
experience and scientific knowledge.
Section 4 Sale to Persons Under 16
29. It is not unknown for animals to be given away free
with the sale of animal keeping equipment. S4 should catch this
as well as the usual straightforward sale of an animal.
30. We believe that it should be a legal requirement
that anyone selling an animal provides appropriate, detailed care
information at the point of sale.
Giving as prizes
31. We are pleased to see this provision in the AWB because
we believe that the winning of an animal by chance does not allow
the prospective owner sufficient opportunity to find out about
the needs of the animal and assess their own ability and commitment
to care for it. The UK will be following the lead of other countries
in this respect.
ANIMAL WELFARE
REGULATIONS AND
GUIDANCE
Section 6 Regulations to Promote Welfare
32. Although the National Assembly for Wales is entitled
under s6(1) to make such regulations under this section as it
sees fit, from an enforcement point of view it would clearly be
desirable for there to be consistency between England and Wales.
The same point applies to Codes of Practice issued under s7.
33. Whilst s6(2)(j) could be used to introduce regulations
prohibiting the use on animals of equipment designed for their
training and control which work by causing them pain, such as
electric goads, electric shock collars and electric barriers for
dogs, we believe that this prohibition should be included in the
AWB itself. Use of such equipment is cruel, frequently counter-productive
and humane alternatives are available.
34. We believe that the power in s6(3)(f) to amend or
repeal any enactment should not be limited to amendments or repeals
required as a consequence of provisions made under s6(2)(h) or
(i). The power should be unlimited because provisions made under
other parts of s6(2) might result in the need to amend or repeal
other enactments.
35. S6(4)(b) allows a fine to be imposed up to level
5 for offences under s6(1). In contrast, s24(3) limits fines to
level 4 for offences under the Act other than under s1, 2, 3 and
26(4). This inconsistency needs to be resolved.
Animals in distress: general
INTRODUCTION
1. S11 to 14 AWB deal with enforcement powers applicable
before proceedings are commenced. Our comments on them cannot
easily be understood without some understanding of the powers
currently available in this situation and so a brief explanation
of them is set out below.
2. RSPCA investigations are prompted by a telephone call
from a member of the public concerned about the plight of an animal.
An RSPCA inspector will respond to each call by making a visit
in person and in the vast majority of cases the owner of the animal
in question is co-operative and will allow access to the animal
and, where necessary, for it to be taken away for treatment or,
in some cases, rehoming. Where the owner is un-cooperative, RSPCA
inspectors have no enforcement powers of their own and are reliant
on the police to help them. The extent to which the police can
help is limited and derives from the provisions set out below:
2.1 Under s17 Police and Criminal Evidence Act 1984,
the police may enter and search premises for the purpose of "preventing
serious damage to property". The scope of this provision
is not entirely clear and in some geographical areas the police
are reluctant to exercise this power because they do not regard
animals as property, or they take the view that it applies only
when someone other than the animal owner is responsible for its
suffering. In all geographical areas, the police will generally
not exercise the power in respect of occupied premises where the
occupier refuses entry, and some will not exercise it in relation
to offences under the POAA 1911 at all.
2.2 Where a suffering animal is in a public place,
or a private place to which the police have access by consent,
the police may seize and retain the animal either:
— under s19 PACE if they have reasonable grounds
for believing that it is evidence in relation to an offence which
they are investigating and they must seize it to prevent it being
concealed, lost, altered or destroyed. The animal can be retained
under s22 PACE "so long as is necessary in all the circumstances";
or
— after they have arrested a person under s12(1)
POAA 1911 who they have reason to believe is guilty of an offence
under POAA 1911. Once the arrest is made, the police have power
under s12(2) POAA 1911 to take charge of an animal in the arrested
person's care and deposit it in a place of safe custody until
termination of the proceedings or the court orders its return.
2.3 Where an animal is seized under s19 PACE, the
owner may apply to court for the return of the animal under the
Police (Property) Act 1897. Where it is seized under s12(2) POAA
1911, the owner may apply to the court for its return under the
same section or the P(P)A 1987.
3. Under whatever power an animal is seized, if this
is done at the RSPCA's request, the police will ask the RSPCA
to care for the animal until proceedings end or the court makes
an earlier order. If, during that time, the animal is suffering
to the extent that it needs medical treatment or euthanasia, the
RSPCA will try to obtain the owner's consent but it is not always
forthcoming which puts the RSPCA in a very difficult position.
4. The lacunas in, and lack of clarity of, these powers
have led the RSPCA to call for clearer provisions applying expressly
to animal-related offences to be included in the AWB. We are pleased
that this has been done but believe that, without amendment, the
powers in s11 to 14 will do little to improve the current situation.
The necessary amendments are referred to below.
Section 11 Powers to Take Possession of, and Retain, Animals
in Distress
5. We note the reference in s11(1)(b) to an animal "not
being properly cared for", whereas s3 refers to an "animal's
welfare". We believe that there is merit in making these
sections more consistent. The same applies to s16.
6. S11(3) should be amended to read:
"An animal taken into possession under subsection
(1) may be retained—
(a) until the end of the period . . ."
ie the word "until" should be moved. The same
applies at s21(2).
7. S11(3) contains a far more fundamental problem for
us. Under s11(3)(a), an animal which has been seized for welfare
reasons cannot lawfully be held for more than eight days and so
must be returned to its owner or keeper. In many cases where the
owner or keeper is the person responsible for the animal's suffering
we do not regard this as an acceptable course of action. S11 provides
two ways in which the animal can be retained beyond eight days.
8. First, under s11(3)(b) if proceedings are commenced
within eight days the animal may be retained until the end of
the proceedings. Police prosecutions for animal-related offences
are comparatively rare. Where they happen, it may be feasible
for the police to meet the eight day deadline because:
— the type of animal-related prosecutions they bring
usually involve straightforward evidence of animal cruelty;
— they commence proceedings in the prosecutions
they do bring by charging an individual on the same day as they
arrest him; and
— whilst the police themselves commence proceedings,
it is not until some time later that the Crown Prosecution Service
considers the adequacy of the evidence and whether to proceed
with the case.
In contrast, RSPCA inspectors do not make the decision to
commence proceedings. They investigate the case and collect the
evidence which, in the case of some veterinary evidence, can take
in excess of 28 days. They then send their file to the RSPCA prosecutions
department which assesses the evidence and, in accordance with
the Code for Crown Prosecutors, commences proceedings only where
there is sufficient evidence and it is in the public interest
to do so. Following this procedure, it is simply not possible
for the RSPCA to commence proceedings within eight days (or 28)
of seizure of the animal to which they relate. We do not believe
that we should shorten this procedure by rushing into proceedings
before a case has been assessed properly.
9. Second, under s11(5) the police may apply to the magistrates'
court for an extension of the eight day period of retention. There
is no power for the RSPCA to make such an application so we would
be forced to ask the police to do so on our behalf. It is no criticism
of the police that the prosecution of animal-related offences
is not generally a priority for them. We do not believe that the
police have the time, or human and financial resources to ensure
that, having seized an animal and handed custody of it to the
RSPCA at our request, they will be able or willing to apply to
court within eight days to extend the period of retention.
10. As they stand, s11 to 14 are unworkable for the RSPCA.
The same problem arises in relation to s21. We believe the solution
would be to change s11(3) so that an animal may be retained until
(under s11(3)(a)) the court orders that the animal should be returned,
or (under s11(3)(b)) proceedings are discontinued or otherwise
disposed of. S11(3)(a) then ties in with s11(8) which already
gives an animal owner or keeper the right to apply to the court
for the animal's return. A consequential, but nonetheless important,
benefit of this proposal is that the court would have to hear
applications only in those cases where the owner asks for the
return of his or her animal, rather than in every case where an
animal has been seized. We believe that this will reduce by several
hundred the court applications being made in respect of seized
animals.
11. This proposal will work only if the RSPCA is notified
of any s11(8) application and has a right to be heard at it. Accordingly,
s11(8) should require the applicant to give notice of the application
to the police or inspector responsible for taking possession of
the animal and anyone authorised by them under s12 to care for
the animal, and allow them to make representations at the hearing
of the application. We propose that where the police seize an
animal at the RSPCA's request and the RSPCA is given the animal
to care for, a form, signed by the relevant police constable,
be handed to the animal owner or keeper at the time of seizure.
It should tell them that the RSPCA has been authorised by the
police under s12 to remove and care for the animal and provide
contact details so that the RSPCA can be notified in the event
of an application being made under s11(8).
12. Under a s11(8) application, we believe the court
should be obliged expressly to consider the welfare of the animal.
Section 12 Powers to Remove and Care for Animals in Distress
13. S12(4) allows the recovery of costs summarily as
a civil debt. Costs should also be recoverable as costs of the
case. This would mirror the provisions regarding the recovery
of costs found in s12 POAA 1911 and give the person who has incurred
costs a choice of recovering them through separate civil proceedings
with all the remedies that that involves or, if the owner or keeper
is convicted of an offence, in the criminal proceedings. The same
applies to s13, 20, 21, 22 and 25.
Section 13 Other Powers in Relation to Animals in Distress
14. There should be an express provision in s13 to the
effect that the inspector or constable can authorise another person
to alleviate an animal's suffering without being present at the
scene. Our inspectors have been involved in a number of instances
where an animal's suffering was extreme, for example if it has
been hit by a vehicle, but it could not be helped until the police
arrived after some considerable time. It should be possible for
the authorisation to be given by telephone.
15. We believe that references in s13 to "killing"
an animal should be amended to "humanely destroying"
it. The section should go on to provide that destruction must
be by a competent person using a recognised method which ensures
that the animal does not suffer unnecessarily. The methods set
out in Schedule 1 of the Animal (Scientific Procedures) Act 1986
would be acceptable. Our inspectors have seen bricks and shovels
used ineffectively to despatch animals which caused further suffering
and we regard this as unacceptable. The same applies to s30.
16. The provision in s13(4) does not relate only to s13
or even only to s11 to 14 headed "Animals in distress:
general". It relates to any power under the AWB in relation
to which a vet gives evidence to the court. For that reason it
may be more helpful to include it elsewhere.
17. The costs incurred in exercising powers under s13
should be recoverable in the same way as costs incurred under
s12.
Section 14 Entry to Search for and Deal with Animals in Distress
18. S14(2) contains a blanket restriction on the use
of the s14(1) power of entry in relation to dwellings, although
entry to a dwelling is clearly contemplated by s14(6)(a) and (c).
S14(5) refers to the obtaining of a warrant but makes no reference
to entry to dwellings but only to the use of reasonable force.
This omission could be remedied by the addition of a provision
along the lines of s12(3) which expressly states that the right
of entry to a dwelling may only be exercised under the authority
of a warrant. Certainly we regard it as vital that the police
have a right of entry with a warrant to private dwellings where
an animal is suffering or likely to suffer, prior to the commencement
of proceedings. The same applies to s23(2).
19. S14(3) implies that a warrant should generally be
obtained if reasonable force is to be used to enter premises,
but it does not expressly say so. This issue should be clarified.
The same applies to s23(3).
20. In s14(5)(b) the reference to "one or more of
the conditions" should be amended to reflect the fact that,
under s14(6)(b), all three conditions must be met. The same point
applies to s41.
Animals in distress: proceedings pending
INTRODUCTION
1. Sections 15 to 19 are intended to carry forward the
provisions of the Protection of Animals (Amendment) Act 2000 which
allow provision to be made for the care, disposal or slaughter
of commercial animals whilst proceedings for cruelty under s1
POA 1911 are pending. Such provision is made by the court seized
of the proceedings on the application of the prosecutor. The prosecutor,
for the purposes of the POA(A)A 2000, is the DPP, the CPS, local
or central government, or anyone authorised by written agreement
with the Secretary of State to exercise powers by virtue of the
POA(A)A 2000. The RSPCA has recently entered into such an agreement
and it takes effect on 1 September 2004. The agreement was reached
after the Secretary of State had been satisfied of the professionalism
and independence of the RSPCA's inspectorate and prosecution departments.
It also contains various safeguards: it requires the powers granted
to be exercised with proper care and due regard for the interests
of the animal owner, by trained individuals with appropriate expertise;
the State Veterinary Service must be informed of the exercise
of powers at the relevant time and can ask for more information
at any time; an annual report must be given; and the agreement
can be terminated at any time if the Secretary of State so decides.
2. We anticipate that these provisions will be relied
on in relatively few cases, nevertheless it is important for the
RSPCA to be able to apply to the court for an order of this type.
It usually takes many months, and sometimes more than a year for
a case to reach trial. If it has been necessary for the welfare
of the animals which are the subject of proceedings to take them
away from their owner or keeper, the RSPCA cares for them during
that period and the expense of doing so can run into several thousands
of pounds. The owner or keeper will usually also lose the opportunity
of selling or slaughtering the animals at the optimum time. The
result is that their value decreases whilst the cost of keeping
them mounts. The POA(A)A 2000 solves both problems and accordingly
we are pleased to see its provisions carried over into the AWB.
When the AWB repeals the POA(A)A 2000, the agreement the RSPCA
has with the Secretary of State will cease to have any effect
and so we anticipate having to seek authorisation in the form
of a written agreement afresh under s15(2)(c).
3. We understand that some concerns have been expressed
to DEFRA to the effect that the provisions of s15-19 are, unlike
the POA(A)A 2000, not limited to commercial animals and that s15-19
therefore extend the RSPCA's powers. We think these concerns are
exaggerated for the following reasons:
— the powers can only be exercised if a court so
orders (except for the limited right of entry to mark animals
for identification purposes in s19(1)(b));
— no order can be made under s15-19 without evidence
from a veterinary surgeon that the animal's welfare requires it;
and
— the same reasons why it may be appropriate to
exercise the powers given in relation to commercial animals can
apply to non-commercial animals. For example, the RSPCA is presently
caring for nine horses which are the subject of a pending prosecution
at a total cost of over £2,200 each per month. We have had
other cases involving up to 264 domestic animals where the condition
of the animals has made it necessary to seize and care for them
at huge expense and to the detriment of the animals which would
ideally be rehomed.
4. Nevertheless, in view of the concerns expressed to
DEFRA we have indicated to them that if, when the POA(A)A 2000
is repealed by the AWB, we are invited to enter a new agreement
with them, we will not object if they choose at that stage to
limit the scope of the agreement to purely commercial animals.
Section 15 Application of Sections 16 to 19
5. We feel strongly that the concerns referred to above
should not result in the whole of s15-19 being limited in application
to commercial animals. There can be no logic in limiting these
sections in that way when all other enforcement powers under the
AWB apply to all animals as defined in s53. Even if the RSPCA
is not to exercise the s15-19 powers in relation to non-commercial
animals, other prosecutors should be able to do so.
Section 16 Orders in Relation to Animals Owned or Kept by the
Defendant
6. In very many cases the RSPCA has the care of animals
whilst proceedings are pending because the owner or keeper has
agreed to this. They may not, however, have actually signed over
ownership of the animal to the RSPCA. The present wording of s16
would not allow the court to make an order in respect of an animal
which has come into the prosecutor's care in this way, because
s16(1) applies only to animals which are suffering and not properly
cared for or are likely to suffer or not be properly cared for.
The problem could be resolved by adding as s16(1)(d) the following
words: "that it is necessary in the interests of the welfare
of the animal". This would mirror the wording used in s2(1)
of POA(A)A 2000. The same problem arises in relation to s17.
7. In relation to applications under s16(5), 17(6) and
18(2) we would like to see an express obligation on the court
to consider the animal's welfare, as well as the other factors
already mentioned.
Section 17 Orders for Disposal of Animals Taken Under Section
11(1) or 16(1)
8. S17(2) and (3) allow the defendant or the animal owner
to apply to the court for the sale, disposal or slaughter of the
animal. We believe that there should be an express provision requiring
notice of such an application to be given to the prosecutor and,
under s17(4), the prosecutor should also have an opportunity to
be heard in such an application. The same applies under s18.
9. The animal's welfare should be considered under s17(6).
Section 18 Orders for Release of Animals Taken Under Section
11(1) or 16(1)
10. In so far as s18(1)(a) applies to retention of an
animal under s11(3)(b), it would make more sense to refer to the
power to apply to the court for the animal to be returned at s11(8)
instead of in s18.
11. The animal's welfare should be considered under s18(2).
12. As explained in relation to s17, the prosecutor should
be notified of any application made under s18 and have an opportunity
to be heard at the hearing of the application.
Section 20 Orders Under Section 16 or 17: Financial Provisions
13. The provision in s20(1) which entitles a prosecutor
to be reimbursed for reasonable expenses where orders are made
under s16(1) or 17(1) should also apply to orders made under s17(2)
and s19.
14. In relation to s20(4), the costs should also be recoverable
as costs of the case, see our comments in relation to s11 above.
Animals kept for fighting, etc
SECTION 21 POWERS TO TAKE POSSESSION OF, AND RETAIN, ANIMALS
KEPT FOR FIGHTING, ETC
15. The enforcement powers in the AWB are, generally,
arranged according to the chronological order in which they may
be used. It would be more consistent with that arrangement if
s21 to 23 appeared before s16 to 20 since s21 to 23 apply after
arrest.
16. We believe that s21(1) should be broadened so that
if a person is arrested for any offence under s2 (not just s2(1)(g)
or (h)), a constable should have power to take into possession
any animal which appears to have the subject of, or used in connection
with that or any other alleged offence under s2. This would mean,
for example, that if a person is arrested for arranging an animal
fight, any animal he has which appears to have been used for fighting
can be taken from him. We believe this is justified in relation
to animal fighting which involves the deliberate and cruel infliction
of suffering on animals for the purposes of entertainment and
profit. It would also be consistent with the ability to disqualify
under s26(1) which applies to all s2 offences.
17. In s21(2), the word "until" should be moved,
see our comment in relation to s11(3) above.
18. S21(2) suffers from the same defects as regards timing
as s11(3), see our earlier comments. The defect could be resolved
in the same way by allowing indefinite retention of an animal
subject to the owner or keeper's right to apply for its return
under s21(7). The RSPCA should have a right to be notified of
any such application and a right to be heard at it, as explained
in relation to s11.
19. In relation to an application under s21(7), the police
and any person authorised by them under s22(1) should have an
opportunity to be heard in relation to the application. The court
should be obliged to consider the welfare of the animal.
20. In addition, in order to be consistent with the corresponding
provision in s11(8), s21(7) should relate to an animal retained
under s21(2)(a) only and not s21(2)(b) too.
21. See our comments in relation to s11 regarding the
recovery of costs incurred under s21.
SECTION 22 POWERS TO REMOVE AND CARE FOR ANIMALS KEPT
FOR FIGHTING, ETC
22. In s22(2), costs should also be recoverable as costs
of the case, see our comments in relation to s11 above.
SECTION 23 ENTRY TO SEARCH FOR AND TAKE POSSESSION OF
ANIMALS KEPT FOR FIGHTING, ETC
23. S23 would benefit from the addition of an express
right of entry to a dwelling under the authority of a warrant,
see our comments in relation to s14 above.
24. Clarification should also be provided in s23(3) of
the fact that a warrant is generally required where reasonable
force is used, see our comments in relation to s14(3) above.
Powers following conviction
Section 24 Imprisonment or Fine
1. Whilst we welcome the power in s24(1) to fine those
convicted of fighting or cruelty up to £20,000, we are concerned
that the power to imprison for a term up to 51 weeks applies equally
to all offences under the Act. We believe that the maximum term
of imprisonment for fighting offences should be greater than for
other offences and we recommend a period of two years. The fighting
offences would, therefore, have to be triable either way.
Section 25 Deprivation
2. The power to make a deprivation order under s25 is
limited to cases where there has been a conviction for offences
under s2(1)(g) and (h). In contrast, the power to make a disqualification
order under s26 applies to all s2 offences. These sections should
be consistent and both should apply to all s2 offences. The power
to make a deprivation order should also apply to offences under
s6(1). Again, this would be consistent with s26. It is conceivable
that a court may want to make a deprivation order (or a disqualification
order under s26) where a defendant is convicted of an offence
under s4 or 5 and we believe that option should be available.
In short, we believe that the court should have power to make
orders under s25 and 26 following a conviction for any offence
under the AWB.
3. Under the Cockfighting Act 1952, s1(2) (which will
be repealed by the AWB), the court could make an order in relation
to any instrument or appliance in respect of which an offence
was committed, including an order for its destruction. A similar
provision should be added to s25 in relation to anything used
in the commission of any s2 offence and indeed any offence under
the AWB. We can envisage situations where such an order might
be appropriate in relation to offences committed under s1 or 6(1).
4. The prosecution currently has no right of audience
in relation to the making of deprivation or disqualification orders.
This should be amended both in s25 and 26.
5. We would like it to be stated expressly that orders
under both s25 and 26 can be made in respect of corporate offenders.
This would be consistent with s49 which seeks to extend the reach
of the law and so the protection offered to animals owned by companies.
6. S25(1) should relate not just to the animal in relation
to which the offence is committed but also to any other animal
the welfare of which the court is satisfied would require its
deprivation too. We have in mind dependant offspring of the animal
which is the subject of the offence or another animal kept with
it and dependant on it for company. We believe that this type
of situation is contemplated by s11(1) and s11(4)(b).
7. S25(3) can only be used in respect of the owner of
an animal. We cannot see what it adds to s28(2) and (5) which
relate to owners and keepers of animals kept in breach of a disqualification
order.
8. The reference in s25(6) to "an order under subsection
(1)" should also refer to subsection (2), and subsection
(3) if that subsection is retained.
9. S28(2) allows a court to take an animal into possession
where it is kept in breach of a court order. We believe that the
reference in this section to "may" should be amended
to "should".
10. A transitional provision is needed to ensure that
deprivation orders can be made in respect of offences committed
before the AWB comes into force. The same applies to s26.
11. See our comments in relation to s11 regarding the
recovery of costs incurred under s25.
Section 26 Disqualification
12. The power to disqualify under s26(1) should also
apply to offences under s26(4). If a convicted person fails to
comply with a five year disqualification order the court may well
want to impose a further disqualification order. The same applies
to s4 and 5, see our comments in relation to s25 above.
13. S4 Criminal Procedure (Insanity) Act 1964 allows
a court to determine that a defendant is unfit to stand trial
if he has a disability which would render him unable to understand
the course of the proceedings. The court may also determine under
s4A CP(I)A that the defendant did the act or made the omission
charged against him. In such a case, if the defendant refuses
to relinquish ownership of the animal, the only way to secure
the animal's protection at the end of proceedings is by obtaining
a disqualification or deprivation order on conviction. However,
if the defendant is not fit for trial, this stage cannot be reached.
In those circumstances, the court should have the power to make
an order:
— disqualifying that person from having the custody
of any animal;
— depriving that person of any animal presently
within his custody; and
— that the defendant pay to specified persons amounts
that it thinks just in relation to the cost of providing for the
welfare and maintenance of any animal to which the proceedings
relate, whether during the proceedings or thereafter.
We believe that this provision may have been omitted from
the AWB by oversight because, in a document circulated by DEFRA
to members of parliament, DEFRA said they agreed with this proposal.
Section 27 Duty to Explain Non-exercise of Powers Under Sections
25 and 26
14. This section as it stands does not require the court
to give reasons if it makes a disqualification order but not a
deprivation order. We believe that it should do so, even if the
reason for not making a deprivation order is that the defendant
does not own an animal. It is important that the court demonstrates
that it has at least considered this option. The provision should
be amended so that, in s27(1)(a), the "and" is replaced
by an "or" and s27(2) is deleted.
15. If s25(3) remains (see our comments in relation to
that section above), the definition of "deprivation order"
in s27(3) must refer to s25(1), (2) or (3). The definition in
s27(3) of "relevant offence" should be changed to refer
to s1, 2, 3, 4, 5, 6(1) or 26(4).
Section 28 Seizure of Animals in Connection with Disqualification
16. There are minor differences in the layout and content
of s25(4), (5) and s28(5), (6) and (7) which do not seem to us
to be necessary. We suggest that any unnecessary differences be
removed since they make what is already a complicated piece of
legislation more difficult to use.
17. The power under s28(1) should apply not only where
the person in respect of whom the order is made owns or keeps
an animal of a kind to which the order relates, but also where
he or she arranges for or participates in the keeping, deals in,
transports or arranges for the transport of such an animal. This
would make s28(1) consistent with s26(1). That consistency is
crucial to prevent someone who mistreats an animal of which they
are neither the owner nor keeper continuing to have responsibility
for the animal.
Section 29 Seizure Under Section 28: Financial Provisions
18. Reasonable expenses payable under s29(1) should be
recoverable under s29(4) not only summarily as a civil debt but
also as costs of the case, see our comments above in relation
to s11.
Section 30 Destruction in the Interests of the Animal
19. S30(1) should apply to offences under s1, the whole
of 2, 3, 6(1) and 26(4).
20. S30(9) gives an express right of appeal to an offender
and, if different, the animal's owner. Normally the offender would
not need such a right because he is entitled to appeal against
the sentence. This is presumably why no such right of appeal is
given in s25 and 28. At present, there is no such right of appeal
against a destruction order made under s2 POAA 1911 because it
is expressly removed by s108 Magistrates' Courts Act 1980. Schedule
2, paragraph 12 of the AWB proposes to make s108 MCA 1980 apply
to s30 and 31 of the AWB, thereby removing the right of appeal
granted in s30 and 31. If the amendment at paragraph 12 of Schedule
2 was not made, there would be no need for an express right of
appeal in s30 and 31. This contradiction should be resolved.
21. It might be clearer if one section of the AWB dealt
with all rights of appeal. As the Act stands it is very difficult
to follow.
22. The reasonable costs of destroying an animal should
be recoverable from the defendant summarily as a civil debt or
as costs of the case.
Section 31 Destruction of Fighting Animals
23. We believe that this section should extend to all
offences under s2. This would be consistent with our comments
in relation to s21(1).
24. The reasonable costs of destroying an animal should
be recoverable from the defendant summarily as a civil debt or
as costs of the case.
Section 32 Orders Under Section 25, 28, 30 or 31: Pending Appeals
25. S32(1) provides that no action may be taken to implement
orders made under s25, 28, 30 or 31 pending appeal. However, s30(10)
creates an important exception to this where it is in an animal's
interests that a destruction order be carried out without delay.
Accordingly, s32(1) should be made expressly subject to s30(10).
26. We do not believe that s32(5) is necessary (or, if
it is necessary, why it applies only to an order made under s25).
The aim of s25 is to deprive the convicted person of an animal's
ownership. If it is sold or parted with, the same objective is
achieved.
Section 34 Termination of Disqualification Under Section 26
or 33
27. Notice of an application under s34(1) should be given
to the prosecutor in the case in which the order was made and
the prosecutor should be entitled to make representations to the
court hearing the application.
Enforcement powers
INTRODUCTION
28. The AWB would be easier to follow if these enforcement
powers, which are exercisable before proceedings commence, appeared
before s15 to 20 headed "Animals in distress: proceedings
pending". Given that one of the purposes of the AWB is
to consolidate and clarify diverse and complicated provisions,
it is regrettable that its provisions are themselves so complicated.
Any drafting improvements which can be made would be most welcome.
Section 36 Inspection of Records Required to be Kept by Licence
29. These powers should apply to constables as well as
inspectors. In some cases the RSPCA will prosecute a licence holder
for cruelty and also bring a charge in respect of any breach of
a licence provision. In that case we would ask a constable to
assist us. The same applies to s37 and 38.
Section 39 Entry and Search Without a Warrant
30. It is not clear what is meant in s39(1) by "a
reasonable time" and why the phrase is used here. No similar
constraint applies to the powers of entry in s14, 19, 23, 25,
28, 30 or 31.
Section 41 Entry and Search with a Warrant
31. S41(1)(a)(i) and (ii) refer to the commission of
relevant offences which are taking place or have taken place.
We would like express wording to be added to ensure that a warrant
may also be issued where the offence has yet to take place. For
example, if we receive a tip-off about an animal fight taking
place at a later time, the police should be able to obtain a warrant
before the fight begins, allowing them to enter the premises in
question.
32. In relation to the requirement in s41(1)(b) that
only one condition need be met, see our comments in relation to
s14(5)(b) above.
General
Section 47 Power to Stop and Detain Vehicles
1. We do not think the references in s47 to a constable
in uniform are necessary or helpful. A constable exercising these
powers must produce evidence of his identity if requested to do
so under paragraph 2 of Schedule 1. There is no need for him also
to be in uniform and, at times, for example if he is working in
plain clothes, it will be impractical for him to do so.
Section 53 "Animal"
2. The definition of "animal" in s53(1) is
limited to vertebrates which excludes cephalopods. We believe
that it should be extended under s53(3)(a) to include the following
cephalopods: squids, octopuses and cuttlefish. That extension
should take effect as soon as the AWB itself comes into force.
One species of octopus (Octopus vulgaris) is already protected
under A(SP)A which applies to procedures which may have the effect
of causing a protected animal pain, suffering, distress or lasting
harm and the inclusion of this octopus within the scope of A(SP)A
is clearly an acceptance by the Home Office that it is capable
of experiencing pain, suffering and distress. The Animal Procedures
Committee, which advises the Home Secretary on matters connected
with A(SP)A, has recommended that A(SP)A be expanded so that all
octopuses, squids and cuttlefish be regarded as protected animals
under that Act. The APC members concluded that there was no reason
why Octopus vulgaris should be singled out for special treatment
and that there was good scientific evidence that octopuses, squids
and cuttlefish have nervous systems and relatively complex brains
similar to many vertebrates, and sufficient in structure and functioning
for them to experience pain. This evidence has been accepted in
other jurisdictions which, in recent years, have been more progressive
than the UK in terms of animal welfare. For example, the New Zealand
Animal Welfare Act 1999 applies to any octopus, squid, crab, lobster
or crayfish and the Australian Animal Welfare Act 1992 covers
all cephalopods.
3. S53(2) deprives animals in their foetal, larval or
embryonic form of the protection of the AWB. In our view this
provision goes too far. Whilst we cannot envisage a situation
where animals in their foetal form should require protection over
and above the protection afforded to their mother, the same is
not true of larval and embryonic forms. By differing stages of
their development, vertebrates in their larval and embryonic forms
are capable of suffering. We note that A(SP)A resolves this problem
by providing that foetal, larval and embryonic forms of animals
are protected either once they are capable of independent feeding
or once halfway through the gestation period. Some animals do
not progress beyond a larval form and should be protected by the
AWB. A good example is the axolotl which is a paedomorphic, remaining
in the aquatic larval form of the salamander. It is a vertebrate
with a well-developed nervous system which reaches sexual maturity
in its larval form and is kept as a pet. A simple injection with
a thyroid extract can be used to trigger development into the
adult terrestrial form, which illustrates how small the differences
between them are.
4. S53(3) makes no mention of the criteria to be applied
by the appropriate national authority in considering whether to
exercise the power to extend the protection of the AWB to invertebrates
or foetal, larval and embryonic forms. Explanatory note 200 on
page 68 states that the power would be exercised "if scientific
evidence demonstrated in future that such animals can in fact
experience pain, suffering and distress". However, it also
says that the AWB is presently restricted to vertebrates because
"there is insufficient evidence to show conclusively that
invertebrates are capable of experiencing pain, suffering and
distress". We are extremely concerned by the implication
that animals will not be afforded protection without conclusive
evidence that they can suffer. This is an unrealistically high
standard to set in the area of scientific knowledge. We feel that
a more appropriate standard would be to extend protection where
there are reasonable grounds to believe, on the basis of scientific
evidence, that animals have the capacity to suffer, and we suggest
that the test be spelt out on the face of the AWB.
Section 54 General Interpretation
5. The definition of "licence" should include
licences granted before s6(1) comes into force, otherwise provisions
such as s33 (which allows a court to cancel a licence held by
someone convicted of an offence under s1 to 6) will be ineffective
in respect of licences granted before the AWB becomes law.
6. The definition in s54(2)(b) of "protected animal"
is intended to replace the current definition of "captive
animal" contained in s15 POAA 1911. It represents a marked
improvement over the POAA 1911 definition which was considered
in the case of Rowley v Murphy [1964] 2 QB 43. In
that case, a wild stag which was being hunted slipped and fell
under a stationary vehicle. It was dragged by several men from
under the vehicle into an enclosure and killed with a knife. The
court held that "captivity" means more than temporarily
being prevented by a person from escape and that there must be
some period of time during which acts of dominion are exercised
over the animal. The effect of this was that it was legal to inflict
suffering on an animal temporarily in one's control. In another
case a wild hedgehog was beaten repeatedly with a stick in circumstances
where it was unable to escape from its assailant. The court held
that the hedgehog was not captive and the defendant was acquitted.
This unacceptable state of affairs will be remedied by s54(2)(b)
and it is important that it is retained.
Section 57 Short Title, Commencement and Extent
7. Transitional provisions must be in place by the time
the AWB comes into force to ensure that all the enforcement powers
in the AWB can be used after it comes into force, but in respect
of offences committed before that time under the legislation presently
in force.
Schedule 2—Minor and Consequential Amendments
Performing Animals (Regulation) Act 1925
8. In paragraph 1, the text "or an offence under
any of sections 1 to 5 of, or under regulations under section
6(1) of, the Animal Welfare Act 2004" should also include
reference to an offence under s26(4) of the Animal Welfare Act
2004. The same point applies to paragraphs 3, 6(2), 8(2), 10,
11(d) and 13(d) of Schedule 2.
Cinematograph Films (Animals) Act 1937
9. Whilst we have no objection to paragraph 2, we do
believe that the CF(A)A is seriously deficient and should be replaced
by a more comprehensive provision in the AWB which applies to
all modern media. In that regard, see our comments in relation
to s1 above.
Animal Boarding Establishments Act 1963
10. Paragraph 6 removes the reference in s1(2)(e) of
the Animal Boarding Establishments Act 1963 to disqualification
under the Protection of Animals (Amendment) Act 1954. We believe
the reference should remain because, even when the AWB comes into
force, many disqualifications made under the current legislation
will remain in effect. The same point applies to paragraphs 8
and 9 of Schedule 2.
Animal (Scientific Procedures) Act 1986
11. Paragraph 14(1) ensures that the penalty for cruelty
or fighting in respect of research animals where the offence is
tried in the magistrates' court is a maximum prison term of six
months. This should be raised to 51 weeks in line with s24(1)
of the AWB. There can be no justification for a lesser penalty
for cruelty inflicted on research animals which, because of their
situation, are even more dependant on their keepers than other
animals.
SCHEDULE 3—REPEALS
Protection of Animals Act 1911
12. S10 POAA 1911 regarding the inspection of traps must
be retained and, in our view, be incorporated into the AWB. It
would be a retrograde step in terms of animal welfare for this
provision to be replaced by s1 or 3 of the AWB since they are
dependent on an animal being in the trap. S10 POAA 1911 creates
an offence of failing to inspect a trap, regardless of whether
an animal is captive in it or not. Hence, it encourages good practice
in an area where animals are particularly vulnerable, and that
is consistent with what we understand is one of the principal
aims of the AWB which is to prevent animal suffering. However,
in its current form s10 POAA 1911 is too narrow. We recommend
that it be widened in the following respects:
— it should apply to all animals, not just hares
and rabbits;
— it should apply to all traps and not just spring
traps; and
— the obligation should be to inspect at least once
in every 12 hour period.
Protection of Animals (Amendment) Act 1954
13. If this Act is repealed it must nevertheless continue
to be possible to prosecute people who breach disqualification
orders made under it. Transitional provisions are needed.
Abandonment of Animals Act 1960
14. The offence of abandonment, which does not require
proof of suffering, should be retained as an offence under s1
AWB. Whilst the same conduct will be caught by s3 AWB, the penalty
under that provision is less. We have raised this issue above
in relation to s3.
Agriculture (Miscellaneous Provisions) Act 1968
15. If Part 1 of A(MP)A is repealed, that will have the
effect of repealing the following regulations made under s2 A(MP)A:
Welfare of Livestock (Prohibited Operations) Regulations 1982
SI 1982/1884, as amended by SI 1987/114;
Welfare of Farmed Animals (England) Regulations 2000 SI 2000/1870,
as amended by SI 2002/1646;
Welfare of Farmed Animals (Wales) Regulations 2002 SI 2001/2682,
as amended by SI 2002/1898.
It will also result in the repeal of the following codes
of recommendation made under s3 A(MP)A:
Code of recommendation for cattle;
Code of recommendation for deer;
Code of recommendation for ducks;
Code of recommendation for goats;
Code of recommendation for meat and breeding chickens;
Code of recommendation for pigs;
Code of recommendation for rabbits;
Code of recommendation for sheep; and
Code of recommendation for turkeys.
Provision must be made to ensure that these regulations and
codes remain in force. This can be achieved by a provision stating
that they will be regarded as having been made under s6 and s7
of the AWB respectively and, in the case of codes, in compliance
with s8 AWB.
The same applies to the following orders made under s5 A(MP)A:
Docking of Pigs (Use of Anaesthetics) Order 1974, SI 1974/798;
Removal of Antlers in Velvet (Anaesthetics) Order 1980, SI
1980/685,
and to the Welfare of Livestock (Deer) Order 1980, SI 1980/593
made under s8 A(MP)A.
ANIMAL HEALTH
ACT 1981
16. The following orders will lapse in whole or in part
when s37, 38 and 39 AHA are repealed and provision should be made
for them to continue to have effect:
Export of Horses (Protection) Order 1969, SI 1969/1784;
Transit of Animals (Road and Rail) Order 1975, SI 1975/1024
as amended by SI 1995/11 1997/1480, 2000/1618 and 2001/2662;
Importation of Animals Order 1977, SI 1977/944 as amended
by 1990/2371, 1992/1361, 1992/3159, 1995/2922, 1996/1760, 2000/1618,
2000/1673, 2001/2662;
Export of Animals (Protection) Order 1981, SI 1981/1051 as
amended by SI 1997/1480;
Foot-and-Mouth Disease Order 1983 1983/1950 (significantly
amended);
Zoonoses Order 1988 SI 1988/2264 as amended by SI 1997/2964;
Horses (Landing from Northern Ireland and the Republic of
Ireland) (Revocation) Order 1989, SI 1989/23;
Welfare of Horses at Markets (and Other Places of Sale) Order
SI 1990/2627;
Welfare of Animals at Markets Order SI 1990/2628;
Sheep Scab (Revocation) Order SI 1992/1361;
Welfare of Animals (Transport) Order 1997, SI 1997/1480 as
amended by SI 1998/2537, 1999/1622, 2000/1618, 2001/2662;
Welfare of Animals (Staging Points) Order 1998 SI 1998/2537;
Welfare of Animals (Transport) (Electronic Route Plans Pilot
Scheme) (England) Order 2000 SI 2000/646;
Transport of Animals (Cleansing and Disinfection) (England)
(no2) Order 2000, SI 2000/1618;
Transport of Animals (Cleansing and Disinfection) (Wales)
Order 2001, SI 2001/2662.
24 August 2004
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