Memorandum submitted by Paula Williamson
1. INTRODUCTION
Paula Williamson is a solicitor at Worcestershire
County Council and is responsible for enforcing animal welfare
legislation in the courts. As such, although she shares many of
the views presented by LACORS she notes that the LACORS formal
Memorandum of Evidence is drawn from Local Authority Animal Welfare
Officers and not Local Authority solicitors. Because of this,
together with the fact that she had conduct of the recent widely
reported legal proceedings in both the High Court and the Court
of Appeal (Tonguech related to the relevant issues of remedy
for breach of a disqualification order, definition of when a person
is in breach of a disqualification order etc, she feels that it
may be helpful to the Committee to have sight of her own personal
comments.
1.2 The Bill is a welcome improvement to
the mostly out-ated legislation in the field of animal welfare.
I am grateful to Defra for the opportunities of discussing the
experiences of and assisting Worcestershire County Council in
its efforts of trying to enforce disqualification orders through
the civil courts. However, there remain some issues which would
benefit from further clarification or amendment:
2. SECTION 15(2)
PROSECUTORS
It would be appear that private individuals
are not empowered to bring proceedings under the new legislation
which was not the case under the Protection of Animals Act 1911
(the 1911 Act). Clarification is sought from the Committee on
the reason for this omission.
2.2 Section 26—Disqualification
The addition of disqualification for "owners"
is a significant improvement to the current disqualification arrangements.
However,it is essential that the court has the power to also disqualify
an individual from generally having custody of an animal—where
custody is defined as "having control or power to control
an animal" (R v Miller).
Whilst I can see how it would be beneficial
for a court not to have to rely upon case law in making judicial
decisions, in act it is the very non-rescriptive nature of the
definition of custody as set out in R v Miller,
that has proved to be an invaluable source in the prosecutors'
armoury. Incorporating this case law definition into the law as
an express statutory provision, would be invaluable. Conversely,
its absolute omission would be disastrous to some of the less
straightforward cases.
By omitting the arguably non-prescriptive activity
of "control or power to control animals", this would,
in my opinion, increase the opportunity for certain individuals
to escape the intended operation of the law.
Worcestershire County Council has extensive
and recent experience of trying to enforce a disqualification
order in a complex situation involving joint defendants, multiple
herds of cattle and multiple farms (R v Tongue).
Briefly, these farmers, having been repeatedly prosecuted for
causing unnecessary suffering to cattle were twice disqualified
from having custody of animals for life. They were subsequently
convicted of breaching these disqualification orders and received
custodial sentences. Upon release from custody, they continued
to farm on six of their farms, although on a more covert basis.
In the absence of a statutory power allowing the Local Authority
to enter their land and remove the cattle, a positive injunction
was sought from the High Court, in terms, which would allow officers
to enter land and remove animals. In defending that application,
the individuals argued, amongst other things, that some (although
not all) of the herds had been "gifted" to third parties
including a girlfriend of one of the defendants. They were also
able to produce valid legal tenancy documents to substantiate
their claim. On the face of it the individuals no longer owned
or kept the cattle. Fortunately, with the help of substantial
covert evidence, the Judge was able to see past the fiction and
was able to hold that the gifting of the cattle was incomplete
and as such the farmers retained the power to control the animals
and therefore still retained custody of them. The point is therefore
that without being able to rely upon the "power to control
animals" activity, the court would almost certainly have
held that these farmers were not in breach of their disqualification
order, at least in relation to certain herds.
The reality is that certain individuals do purport
to have transferred custody/keeping of/ownership of animals to
others (commonly, but not exclusively, a spouse). In reality those
individuals actually retain a degree of control over the animals
either directly or indirectly ie through their power to control
their spouse. In these situations the investigating process is
more difficult, expensive and time consuming.
Suggestion: That s 26 (1) (a)-(d) be expanded
to included: "having custody of animals where custody includes
having control of or the power to control, animals".
3. POWERS OF
THE COURT
IN RELATION
TO BREACH
OF A
DISQUALIFICATION ORDER
Where a person is convicted of breach of a disqualification
order (s 26(4)), the Bill provides that animals can be taken into
possession in circumstances where a person has been convicted
by virtue of either owning or keeping an animal. (s 28(2)).
Whilst the power to take possession of animals
is welcome, again it is seriously fettered in that it cannot apply
in anything other than the most simple of scenarios.eg. If on
paper, an animal is owned and kept by a third party but in reality
the disqualified individual retains a degree of control over that
animal, either directly or indirectly, then under the draft section,
that animal cannot be taken into possession. I accept that a prosecutor
could obtain evidence to demonstrate that the disqualified person
is the true owner/keeper, but this is the most time consuming
and difficult sort of evidence gathering which Local Authorities
are ill equipped to financially carry out. In the meantime, the
animals continue to suffer unnecessarily.
Suggestion 3: That section 28 be expanded to
include animals, which the convicted individual controls or has
power to control.
4. POWERS UPON
CONVICTION
4.1 Whilst these offences remain summary
only as opposed to either way, they do not provide an adequate
deterrent to certain offenders. On a more subtle level, Magistrates,
seeing these offences as summary only, are usually loathe to impose
custodial sentences. Similarly, Probation Officers, in Pre Sentence
Reports, rarely recommend custody, even in the more serious cases.
This nourishes the culture that animal welfare regulation is toothless.
In some cases, cruelty to animals is so substantial, involving
either acts of positive cruelty to individual animals or alternatively,
neglect on a large scale involving several herds of animals. However
they will always be summary only offences regardless of the severity
or scale of the offending. In contrast with other regulatory offences,
a simple misdescription of a packet of biscuits under section
1 of the Trade descriptions act 1968 or a basic offence under
the Packaging (Essential Requirements) Regulations 1998 are all
either way—And yet, the consequences of such offences may
have far less import and cost the Local Authority far less to
bring before the courts than the animal welfare matters.
Suggestion 4.1—The cost, both in terms
of budget and time resources upon a Local Authority in investigating
large scale or serious cruelty cases involving complex evidential
issues, should be reflected in the mode of trial available and
as such the offences should be made "either way".
4.2 In another recently contested case brought
by Worcestershire County Council, for breach of a disqualification
order, a farmer argued that he had insufficient funds to pay a
financial penalty. Despite having recent convictions for driving
whilst disqualified (x3), the court chose not to impose a custodial
sentence for a flagrant and perpetual breach of a two year order
banning him from having custody of sheep. Crucially, the Order
was about to expire in any event. In these circumstances, the
most meaningful and appropriate sentence would have been custody/community
penalty and a fresh Disqualification Order—The point being
of course, that in circumstances where an individual flagrantly
ignores an order of the court then that order should be re-imposed
until it has been complied with. This principle is adopted by
both Magistrates' Courts and Crown Courts where individuals have
breached community orders eg Community Punishment Orders. (Powers
of Criminal Courts Sentencing Act 2000)
Suggestion 4.2—Upon conviction for breach
of a disqualification order, the court should have the power to
sentence by way of a further disqualification order either instead
of or in addition to dealing with him in any other way.
5. RECORDING
OF CONVICTIONS
ON THE
POLICE NATIONAL
COMPUTER
Whilst this issue may not be within the scope
of this consultation exercise, the committee may nonetheless,
find the following information of interest: Whilst CPS convictions
are recorded on the Police National Computer, Local Authority
and other convictions are not. The PNC is an essential source
of information used in vetting procedures eg when assessing the
suitability of an individual for working with children. This was
recognised following the Soham murders in the Bichard report.
It therefore remains a source of concern for local authorities
that a person can be convicted of animal welfare matters and yet
still be vetted and cleared for working with children—simply
because regulatory offences are either not considered to be serious
enough to be recorded on the PNC or the there is no system in
place or will for this to happen.
25 August 2004
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