Further supplementary evidence submitted
by the Royal Society for the Prevention of Cruelty to Animals
THE CRUELTY
OFFENCE (CLAUSE
1)
1. The offence defined in Clause 1 is essentially
the same as is provided for under the 1911 Protection of Animals
Act, except that elements of archaic phraseology have been removed.
In short the Clause sets out that it is an offence to inflict
cruelty or unnecessary suffering to an animal.
2. The offence applies to farm animals only
where suffering has occurred due to lack of care. It applies to
animals used in research only where suffering is due to lack of
care, not as a result of the actual experiments. This is the same
as the 1911 Act.
THE WELFARE
OFFENCE (CLAUSE
3)
3. This is a completely new offence. However,
the RSPCA and others strongly believe that it has the potential
substantially to reduce suffering because it will introduce a
preventive element to animal welfare legislation.
4. The Clause makes clear that the owner
or keeper of an animal has committed an offence if he or she has
not taken reasonable steps to ensure its welfare in an appropriate
manner. The Clause describes five factors to be used to assess
if the needs of an animal have been met, including by providing
it with a suitable environment or allowing it to exhibit normal
behaviour.
5. Once the Animal Welfare Bill has been
enacted, Clause 7 states that specific clarification can be drawn
up and agreed for relevant species, in the form of codes of practice.
These will be produced following consultation with relevant experts.
Codes of practice have already been agreed for certain species
such as horses and are now being drawn up for others. Farm animals
are already subject to specific codes of practice under existing
legislation.
6. The specific codes will give clearer
guidance on what owners should provide for their animals. But
it will remain for the courts to decide if the owner has taken
reasonable steps or acted in an appropriate manner to ensure an
animal's welfare.
7. Prosecution under the welfare offence
would theoretically be able to occur without any warning. However
the RSCPA has made clear that we will prosecute under only two
conditions:
— that the person has first been advised
that they have failed to meet the animal's needs; and
— that a veterinary surgeon or other
appropriate expert has given evidence that the welfare of the
animal is not being met.
8. We believe that these safeguards will
assist the courts in their assessment. We are happy to reiterate
to the EFRA Committee our commitment to these two conditions.
9. The welfare offence does not mandate
a list of species that it will be illegal to keep as pets, but
its provisions should ensure that only those with sufficient knowledge
are able to keep particular animals. The Bill does not affect
the current situation of farm animals, where a defence of following
the codes of practice for the species has always existed. The
fact that specific codes already exist for farm animals and are
well known by farmers and enforcement agencies should make that
situation straightforward.
10. Notwithstanding the fact that the codes
of practice are not completed, the RSPCA believes that it is vital
that the welfare offence under Clause 3 comes into force from
the day on which the Act is implemented. Any delay risks harming
the welfare of animals.
HOW WILL
ENFORCEMENT OPERATE?
11. The issue of enforcement has been confused
by the use in the draft Bill of the term "inspectors",
particularly from clause 11 onwards. Although the RSPCA currently
undertakes the majority of investigations and prosecutions under
the 1911 Act, making use of its 330 inspectors, in the Bill the
term is used to refer to the police, State Veterinary Service
and local authorities. The RSPCA has not looked for or gained
extra powers in the Bill.
12. A summary of the enforcement powers
contained in the draft Bill is given below in the Explanatory
Notes of the Bill. We believe that the most important powers are:
— Entering premises except a private
dwelling (Clause 39): Constables and inspectors may enter premises
except a private dwelling without a warrant if they believe an
offence is being committed under Clauses 1 to 3, or where a disqualification
order has been made under Clause 26 or under regulations made
under Clause 6. This is a change to the 1911 Act but these powers
apply only to the police, State Veterinary Service and local authority
inspectors, not to the RSPCA.
— The requirement that a private dwelling
can be entered only by the police, State Veterinary Service and
local authority inspectors with a warrant will continue (Clause
41). The RSPCA will continue to be able to enter such a dwelling
only when accompanied by the police or a local authority officer.
— Clause 21 confers powers on the police,
State Veterinary Service and local authority inspectors to take
possession under certain circumstances of an animal used for fighting.
The RSPCA will not gain any additional powers under the Clause.
— Clause 26 changes a provision of
the Protection of Animals Act 1954 which allows those convicted
of offences under the 1911 Act to be disqualified from having
custody of animals, by preventing disqualified people from "participating
in" the care of animals. The Clause also allows animals to
be confiscated at the point of disqualification. Decisions under
Clause 26 will be made by the Courts; under Clause 27 the Court
must give a reason why no disqualification order is applied to
someone convicted of a relevant offence. This closes a loophole
whereby ownership of an animal of a disqualified person is merely
handed over to another person in the household.
— The draft Bill also provides any
prosecutor, including the RSPCA, additional time to take a prosecution.
The Bill provides that a prosecution can start within six months
of a prosecutor being aware of evidence or within three years
of the offence being committed.
13. In addition, there is a proposal in
the Bill to establish a database for prosecutions. This will be
held by Defra and be subject to the Data Protection Act, as would
any information held by the RSPCA gathered as part of its prosecutions.
WHO WILL
BE ABLE
TO PROSECUTE?
14. Any private individual and any organisation
would be able to prosecute under the Animal Welfare Bill, as they
could under the Protection of Animals Act 1911. Therefore no change
has occurred.
15. Confusion has arisen because the RSPCA
was granted Approved Prosecutor status in July 2004, around the
same time as the draft Bill was announced. This status does not
affect the status of the RSPCA or affect its ability to prosecute.
Instead it means that under defined circumstances the RSPCA can
now dispose of a commercial animal that is part of a prosecution
rather than incur costs to keep it. Since commercial animals will
be sold anyway and the proceeds of a sale got to the animal owner,
the court's power can help both owner and prosecutor.
16. Currently the RSPCA undertakes the majority
of prosecutions under the 1911 Act. It is envisaged that this
situation will not change under the cruelty and welfare offences
set out in the draft Animal Welfare Bill. ACPO has said that the
police does not intend to investigate or prosecute under the new
welfare offence. Local authority inspectors will continue to investigate
and prosecute for licensing infractions.
11 October 2004
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