Examination of Witnesses (Questions 51-59)
MS JACKIE
BALLARD, DR
ARTHUR LINDLEY
AND MR
MICHAEL FLOWER
7 SEPTEMBER 2004
Q51 Chairman: May I welcome the RSPCA
as our next group of witnesses: Jackie Ballard, a former colleague
of ours in the House and now the Director General of the RSPCA,
Mr Michael Flower, and somebody who has not got a name. Who is
this person?
Ms Ballard: Dr Arthur Lindley.
Q52 Chairman: What does Dr Arthur Lindley
do?
Ms Ballard: He is the Director
of Science. He is here to help us out if the Committee has any
detailed scientific questions to ask about definitions of animals
or other such things.
Q53 Chairman: Dr Lindley, you are very
welcome. I am glad we now know who you are and what you do. I
gather you would like to make a presentation of no more than 10
minutes to us. Your 10 minutes starts now.
Ms Ballard: Thank you, Chairman.
Thank you for your invitation to appear before the Committee and
make a brief presentation in support of our submission. I will
echo much of what the Minister has said and I will not apologise
for that because we do very much welcome this Bill. Someone asked
earlier how many marks out of 10 it got from the general public.
I would say it gets about seven marks out of 10 from the RSPCA,
but it could get 10 out of 10 if everything in our submission
is accepted. We very much want it to be an effective, enforceable
and fair piece of legislation which will stand the test of time
and deliver real benefits to animals. The RSPCA, as some of you
may know, was founded in 1824, five years before the Metropolitan
Police and at a time when most legislation was enforced by private
prosecution. This goes some way to explaining why, even in recent
years, the police rarely prosecute for cruelty to animals and
the majority of prosecutions in this area are brought by the RSPCA.
Our experience of being the primary prosecutor of animal-related
offences means that we have an in-depth knowledge of the existing
law—and the reason why Michael Flower, the Chief Superintendent
of Prosecutions, is here is because he has that in-depth knowledge,
not me and he also has in-depth knowledge of the current Bill—and
how it operates in practice and we hope this will be apparent
to you from our written submission. However, because our submission
is so detailed, we recognise the risk that the most important
points to us may not have received sufficient emphasis and for
that reason I want to take this opportunity to highlight our main
priorities. These are, firstly, that the welfare offence in clause
3 of the Bill should, with some amendment and the addition of
two safeguards which I will come to in a moment, remain substantially
in its current form. Secondly, the enforcement powers contained
in the Bill should actually work in practice. As currently drafted
we believe they do not. Thirdly, we believe the definition of
animal should be expanded to include cephalopods. This is dealt
with fully at page F1 in our submission, but, as I said, Arthur
Lindley can expand on it later if the Committee wishes. Let us
take first the welfare offence. As the law stands we can prosecute
for cruelty under the Protection of Animals Act 1911 only if we
can demonstrate the animal in question is already suffering. Our
inspectors often find animals living in unsuitable or dangerous
conditions but where they are not yet suffering. In these situations
our inspectors give advice about how to improve the conditions,
which many times owners accept, but if the owner ignores that
advice there is nothing our inspectors can do but go back time
and time again. The new welfare offence in clause 3 specifically
addresses this problem and we very much welcome its inclusion.
I would like to draw the Committee's attention to the drafting
of clause 3 which contains a non-exhaustive list of needs earlier
referred to by the Minister as the five freedoms and which should
be met if an animal's welfare is to be ensured. Defra may wish
to delete clause 3(4). We believe the principal aim of the welfare
offence should be to educate animal keepers, not to prosecute
them. We also believe they should know what is expected of them,
particularly in advance of codes of practice coming out, as has
been referred to earlier by the Committee. We believe that the
retention of clause 3(4) on the face of the Bill is crucial to
achieving this aim. We have also emphasised in our submission
the need to introduce two safeguards and I hope this will go some
way to convincing the Committee that the RSPCA is specifically
not looking for new powers and we actually do want to safeguard
the public more than already is on the face of the Bill. We want
to put two new safeguards into the welfare offence so that it
is seen to be fair and the public know what is expected of them.
The first is that no prosecution should be brought unless the
animal keeper has first been told what of the five principles
in clause 3(4) he/she has breached, in what way the breach can
be remedied and how quickly. We believe this information should
be given in writing. Secondly, we believe that no prosecution
should be brought under the welfare offence without veterinary
evidence that the animal's welfare needs have not been met. I
want to turn to enforcement powers which have already been discussed
in some detail, and of course any legislation is worthless if
it is not properly enforceable. RSPCA investigations are usually
prompted by a telephone call from a concerned member of the public,
sometimes by other authorities such as social services or the
police who have seen something in their visits. An RSPCA inspector
will respond to the call by making a visit in person and in the
vast majority of cases animal owners are cooperative. They are
usually happy to discuss the issue and either demonstrate that
there is not a problem or, if there is a problem, they take our
advice or, in severe cases, they recognise they have not been
coping and they allow the animal to be taken away for veterinary
treatment or for re-homing. Where owners are uncooperative and
our inspectors have good reason to believe the animal is suffering
they will contact the police for assistance. The police have powers
to seize and retain animals currently under the Police and Criminal
Evidence Act 1986 or the Protection of Animals Act 1911. We describe
these powers and the problems associated with their exercise at
page C1 of our submission. In these cases the animals will be
handed over by the police to us to care for and we will bring
a prosecution where appropriate. Animal owners have the right
to apply to the court for the return of their animals. The Bill
contains new powers exercisable by the police and local authorities,
not by the RSPCA, and I can well understand how the reference
in the Bill to inspectors and the fact that our uniformed people
are called inspectors can lead to some confusion about which inspectors
have powers. So I will reiterate that the new powers are not exercisable
by the RSPCA and, indeed, we do not seek them. They will allow
animals in distress to be taken into possession and retained on
the advice of a veterinary surgeon. We believe this power is crucial
to the protection of animals where suffering has been inflicted
on them by their owners or keepers. Unfortunately, the power is
unworkable in its current form. An animal can be retained under
clause 11 for only eight days unless within that time criminal
proceedings are commenced or the police apply to the court for
an order allowing the animal to be retained for longer. The police
will not be bringing prosecutions in these cases and do not have
the resources or the will to apply for a court order in every
(or indeed any) case in which they seize an animal at our request.
I understand that ACPO have also made this point in their submission.
The RSPCA would have no power to make the court application ourselves
and we cannot realistically be expected to commence criminal proceedings
within eight days of finding an animal in distress. This would
not be conducive to the proper collection of evidence and assessment
of a case, nor would we consider it to be a good use of our own
or court resources if we had to apply to the court in every case
in which an animal is taken from its owner. We have suggested
a solution to this problem in paragraphs 10 and 11 on page C3
of our written submission. Briefly, we recommend that clause 11
be amended to reflect more closely the present position. There
should not be a time limit on the retention of an animal in distress
but its owner should have the immediate right to apply to court
for its return. Where the seizure was made at the request of the
RSPCA, we should be notified of the application and then have
a right to make representation at the court hearing. The same
problem arises in relation to clause 21 which gives the police
and local authorities a right to seize and retain animals kept
for fighting and in our view this should be addressed in the same
way. Finally, Chairman, at the beginning of the Minister's evidence
you were asking for examples of cases where action had not been
able to be taken under the current state of the law and how things
would be different if this Bill goes through and I would like
to show you two images which we believe support the case for the
welfare offence better than words can. The first is of a bull
terrier whose owner tied a dumbbell around its neck as a form
of discipline and ignored RSPCA advice that this would lead to
injury. The owner said that the dog was proud to wear the dumbbell
like a medallion and that if he removed it it would only be to
replace it with a heavier weight. During a later visit from an
RSPCA inspector the dog was found to be limping and its owner
admitted to having hit it with a metal pole. Only then, with evidence
of injury to the dog, were we able to prosecute the individual.
He was ultimately given a two-year conditional discharge. The
second image shows the puppy, Willow, which was kept outside in
a filthy yard in all weather and permanently tied a drainpipe
with her back legs tied together with a nylon rope. She was at
risk of disease from the wet, cold and dirt, of injury from the
rope and unable to move freely because of the way in which she
had been restrained. In fact we were able to prosecute her owner
for cruelty because by the time we found her she was suffering
from urine burns on her paws, but the welfare offence would have
allowed action to be taken at an earlier stage. You might be interested
to know that Willow was successfully restored to health and re-homed.
There are, of course, many other examples where an animal's welfare
has been compromised by an ignorant or uncaring owner and we have
not been able to act in time to prevent suffering because of the
current state of the law. I hope I have not used the whole of
my 10 minutes. Thank you for allowing me to make this introduction
to the questions which will no doubt follow.
Q54 Chairman: You have stuck exactly
to your 10 minutes for which I am most grateful. Given the closeness
with which you and Defra have undoubtedly worked in the development
of this Bill, I was a little bit surprised by the quantity of
what I call the mechanical bits, where you have said that if the
Bill is not drafted in a particular way—and you have an
enormous amount of practical experience in dealing with the law
in this area—then effectively the powers in the Bill would
not work. Would you like to explain how you believe it came about
that even at this stage so much of the workability of the Bill
still seems to be in question in your judgment and yet the Government
have still decided to publish it in the way that it has done?
Ms Ballard: I will allow Mick
Flower to answer the detail of your question, Chairman, but I
would say that we have been consulted by Defra, along with many
other animal welfare and other interested organisations, about
the principle of the Bill and the key issues that were to be covered
by the Bill, but Mick might be able to give you a better answer
than I can on the detailed drafting issue because he has been
very closely involved.
Mr Flower: I do not want to use
this as a knocking session against Defra because we have worked
with them. They have taken on board the majority of representations
we have made and overall the RSPCA is very happy with the content
of the Bill. The one area that Jackie has highlighted in the presentation
that causes us particular concern is about the retention of animals
after seizure. That was a clause that was not subject to significant
debate before drafting as I recall it. I think the implications
of that section just were not appreciated by the draftsmen. We
are in a rather unique situation because we are the principal
enforcers of animal welfare legislation, particularly in relation
to domestic animals and yet we do not have and do not seek statutory
powers. So it does create some difficulties for the draftsmen
because they have to legislate for powers being exercised by a
third party whereas the RSPCA will be the investigator and prosecutor
of the offence. The clauses generally are workable if we can tidy
up the detail.
Chairman: This whole exercise is about
teasing out where things need to be improved. Mr Breed wants to
start our questioning.
Q55 Mr Breed: I would like to refer to
the ACPO evidence that we have received and which you referred
to at the beginning because I also picked that one out as something
I wanted to discuss with you. The police make some very important
points here in that their position is that they accept responsibility
for dealing with cruelty and fighting but they do not see welfare
as their problem. They are saying that the current draft Bill
does not achieve this clarity of separation. They also then say
that the position of the RSPCA is unclear in the Bill. I would
be interested to know if you agree with that. They also go on
to say that their suggestion of creating an accreditation regime
to enable you to operate has not been taken up. Could I ask whether
you would wish that accreditation regime suggested by the police
to be part of the Bill? Do you believe that your position in the
Bill is unclear in this matter?
Ms Ballard: We are a charity which
arguably is carrying out work that the state should have been
carrying out for the last 180 years. We were born in order to
fill a gap in enforcement powers, but because we have filled that
gap successfully the police and local authorities have not seen
it as being a primary priority of theirs. However, one of the
things that I am very clear on is that we exist and get funding
purely from the public, not from Government and we get that because
we have the support of the public who give us donations. We would
not be seeking powers or to be named in this Bill, not least because
that would put us on a different footing with members of the public
and we are quite content with the current situation where people
invite us into their homes. More often than not they take our
advice, often they recognise that they are not coping and they
hand over their animals to be cared for. We are content as long
as the police have the power to go in and seize or the powers
of entry where we are not given access.
Mr Flower: In relation to the
RSPCA's position, I think our position is entirely clear under
the Bill. It is exactly what it is now. There has been no change.
Accreditation is something that one senior police officer has
floated as an idea. We do have some concerns about changing our
status as a charity and an independent body.
Q56 Mr Breed: One of the reasons they
give for suggesting this accreditation is that the situation currently
leaves the RSPCA powerless to act without police assistance, which
they then go on to say is unlikely to be forthcoming given their
view that welfare is not generally a police matter. What do you
think of that?
Mr Flower: I think the police
submission may be confusing what the position is now with what
it may be if the Bill becomes law.
Q57 Mr Breed: That is why we are here.
Mr Flower: Clearly if the Bill
becomes law then welfare will become a potentially criminal offence
and so it will fall within the police remit. From the RSPCA's
point of view, I do not think we would expect to call in the police
on each and every occasion that there is a welfare issue. The
present position is that our inspectors deal with something like
105,000 investigations per year, but it is in a very small percentage
of those that we are required to call in police assistance at
the moment and it is not likely that that situation will change
dramatically if the Bill becomes law. In its early days there
may well be occasions where it is necessary to invoke powers under
the Bill. We firmly believe that most members of the public will
be more inclined to follow advice and instructions dispensed to
them to improve an animal's welfare if it is known that there
is the sanction of criminal proceedings in the background. What
we hope is that the welfare offence will create a regime of prevention
rather than prosecution. We do not believe that the police are
going to be called in on a frequent basis to exercise powers under
the Bill.
Ms Ballard: I think it is arguable
that the reason we get the response we do from the public most
of the time is because they recognise that we are there as an
animal welfare charity primarily to protect animals, not to prosecute
people. If we had the police powers I suspect they would see us
quite differently.
Q58 Mr Wiggin: In section 1(D) it says
that a person commits an offence if the suffering is unnecessary.
The RSPCA has been running campaigns about fox hunting for some
time. Will the RSPCA be using this particular wording to try and
prosecute people hunting perhaps through the back door in this
way?
Ms Ballard: I am genuinely glad
you have asked that question because I am sure it was in the minds
of some other Committee members. The RSPCA has campaigned for
a long time and continues to campaign for a ban on hunting wild
animals with dogs, but we are more than content to leave that
to a hunting Bill to deal with. For us the benefits of duty of
care and an animal welfare offence to the vast majority of animals
which we deal with, which are companion animals, far outweighs
any benefits there might be in it being used as a subterfuge to
deal with hunting, but, as the Minister said earlier, this Bill
applies to kept animals, not wild animals that are not under man's
control.
Q59 Chairman: I want to raise mutilation
with you because you make reference to it in your evidence. There
does seem to be a slight paradox in that you are absolutely against
it but there are a list of exemptions for certain circumstances
as to where some forms of activity that would be described as
mutilation, castration for example, you would go along with. Is
that not a potential recipe for confusion in that having an absolute
stance against it but a list of exemptions may be confusing to
the public?
Ms Ballard: This is where Dr Lindley
is going to be very helpful.
Dr Lindley: Chairman, I do not
think it is confusing to have a prohibition in principle and a
list of exceptions. Some of those exceptions would be there for
the benefit of the welfare of the animal and you need clarity
in that sense. Some of them are necessary for the benefit either
of the public or a group of animals and in all those cases we
can see the necessity, and we think the simplest way of dealing
with that problem is to have a statement that it is wrong to surgically
interfere with an animal but acknowledge that there are certain
specified cases where it can be beneficial or necessary.
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