Examination of Witnesses (Questions 640-659)
MR RICHARD
BRUNSTROM, MR
ANDREW GRIFFITHS,
MR PETER
SMITH, MR
GRAHAM CAPPER,
MS ABIGAIL
MAHONY AND
MS PAULA
WILLIAMSON
12 OCTOBER 2004
Q640 Joan Ruddock: Have all of you had
discussions with the RSPCA on this Bill, on the very issues we
are discussing? Have you tried to obtain any clarity and consensus
about the way forward?
Mr Brunstrom: I personally have.
I have no problem at all with the current position of the RSPCA
and, as far as I can predict, how they intend to operate in the
future. I am very certain, like the local authorities, we could
strike a satisfactory MOU. What I cannot be certain of is what
the RSPCA is going to do tomorrow because they are not under Government
control. You can be fairly certain what I can do because Parliament
can tell me.
Q641 Alan Simpson: Who do you see as
being responsible for the administration either of an accreditation
scheme or a statutory code? Would it be the police who had a statutory
responsibility for the oversight of that or the local authorities?
You are saying it needs to be someone other than the voluntary
sector. Where would that legal responsibility lie?
Mr Brunstrom: If you are going
to have an oversight code of some sort it must rest in the public
sector. It can only rest with local authorities or the police,
or it could be joint. We have such processes for crime and anti-social
behaviour nowadays through partnerships which are extremely effective.
It would be possible to replicate some process like that; but
of course there is a different player in this field because the
policy here is Defra's and not the Home Office or the regions.
If you are going to have an oversight code it has to have some
sort of local implementation and somebody who can be held responsible
locally. I see no reason why that should not be the Chief Constable
but I see no reason why it has to be. We would not object if it
was, provided there was a mechanism which did not leave us the
only one holding the baby.
Mr Griffiths: Local authorities
do have a wide experience of such schemes within the environment
health world and the current housing legislation going through.
There are accreditation schemes for landlords and they are well
run and understood. There is a national scheme to do just that.
I think local authorities would be well placed to run such a scheme.
Q642 Alan Simpson: Are you saying that
would be your preference? It is not so much holding the baby as
feeding the cat. Is the responsibility for that best placed, in
your eyes, with local authorities?
Mr Griffiths: I would think it
probably is, yes. The Chartered Institute is not a local authority
body, but many of our members work in local authorities. I think
many of them would welcome that opportunity because it does actually
provide a framework for co-ordination and for communication, and
would actually provide an opportunity for all parties to sit round
the table and understand where each is coming from—which
does not happen much at the moment. This is why we welcome the
Bill's provisions, to bring a lot of disparate legislation under
one roof. There is still some need for clarity under certain areas
but, at the moment, this is definitely the right way forward and
local authorities could have a part to play in that. I think they
would see that as a benefit, because litigation is expensive and
anything which can be done to reduce those costs would be welcomed
by local authorities.
Mr Brunstrom: I should say, Chairman,
for absolute clarity that the RSCA, as I understand it, do not
seek and do not particularly welcome the concept of accreditation
and it might be better to find a different mechanism. The reason
for that is a very valid one: the esteem with which they have
been held in society would change dramatically if they actually
had powers. It is not necessarily a good idea for them or society
to empower the RSPCA. I would not wish to pursue that as the only
option. Certainly trying to enforce something on an unwilling
private body is not likely to be a recipe for success. I know
it does not find a lot of favour in Defra either, but there are
other means of achieving this. I would not wish us to get locked
into accreditation that was simply an idea.
Mr Capper: Some of the issues
when we are talking about local authorities, an accreditation
scheme, Memorandum of Understanding or whatever route is chosen,
is that we must realise there are so many different types of local
authorities as well. We have district councils; we have got unitary
authorities; we have got county councils. They would all have
to be brought together to discuss these schemes, probably through
LACORS, the LGA or one of the national bodies.
Q643 Mr Wiggin: There is an Assembly
angle on this?
Mr Capper: Yes.
Q644 Mr Wiggin: Can I come back to the
"Not me, guv" we were on earlier because there is another
side to this which is very concerning which is: what protection
does the animal's owner get from this Bill? From the panel today
nobody really wants to touch this at all, but these people also
need to be protected from excessive prosecution by a charity or
body and nobody seems to want to protect them either.
Mr Capper: All local authorities
operate under the enforcement concordat which is agreed with the
Home Office, and a lot of reliance is placed on that within local
authorities. That lays down the road on which we would approach
an investigation and prosecution. It gives us guidelines to give
advice, enforcement, help and aid. Prosecution through local authorities
is the last resort. There is a lot of protection built into the
enforcement concordat to look after the owner of the animals
Q645 David Taylor: The Pet Care Trust
has put to us (and I would like to put this to Mr Capper or Ms
Williamson) that the draft Bill appears strong on recovering the
enforcement and legal costs but short on ensuring adequate compensation
if inappropriate action is taken. This can have a serious effect
if the subject of the inappropriate or excessive action is a business.
Could I ask Ms Williamson her views on what the Pet Care Trust
say?
Ms Williamson: In terms of protection
for the individual we have hitherto relied upon the court's own
judgment. When we have investigated an individual we have applied
our own enforcement concordat and that is heavily regulated in
itself. Although we are not the police our investigations are
subject to PACE and, therefore, they are afforded a certain level
of protection there. When we prosecute them the situation up until
now has been that the public purse has had to foot the bill for
a lot of the investigations, and there has been no statutory regime
whereby local authorities can recover their costs, not only of
bringing the matter before the courts but also, as things currently
stand, actually caring for animals in the interim. I think the
Bill does assist local authorities in recovering costs. In terms
of protection afforded to the individual, I have not seen that
to be the case that the individual was not going to be protected
and would not be compensated if an action was brought wrongfully.
Mr Capper: I can repeat what I
have said before. There is a system in place within all local
authorities that we are not overzealous on prosecutions, we are
not out to harm the industry and the protection for the owner
of the animals is looked after by the court.
Q646 Chairman: One of the things I am
intrigued about from both the police and local authority standpoint
is channels of information that come to you which determine whether
you actually will, if this becomes law, (a) look into welfare
issues and (b) into cruelty issues. My impression up until now
is that the flow of information has come as a result of members
of the public communicating—say, to the RSPCA or possibly
to the police—certain concerns; but the Bill invites local
authorities to effectively make up for any deficiencies in its
own experience by the appointment of inspectors, however those
may be defined—they could be the RSPCA or other persons.
You have just made an interesting point that, "We want a
light touch. We do not want to go after people"; but the
implications of the Bill is a bit more proactive. Could you help
us to get the balance between the new opportunities to deal with
welfare issues, the powers it confers upon authorities to appoint
inspectors, and how you envisage in the real world local authorities
actually using those powers? Are you going to send inspectors
out or simply wait for information to come in?
Mr Capper: I repeat what I said
earlier, as far as local authorities go in my experience, which
is mainly large farm animals, we have inspectors—and in
Wales there are 110 of them—who are out there every day,
some seven days a week. Some authorities cover the area seven
days a week on a rotating basis. Our inspectors are out there
already visiting farms, visiting cattle markets and livestock
auctions. They are actually looking for problems because we enforce
a whole host of other legislation to do with farm animals. Therefore,
we do not rely on the public as much as maybe the RSPCA do. Our
own inspection force has routine programmed inspections.
Q647 Chairman: Could I just raise with
you a point out of your evidence that picks up on that point.
In paragraph 4.1.2 you pose this question: "Is it the intention
to widen enforcement of animal welfare during transport and at
markets to District and Borough Councils?" Could you just
expand on that point? It is almost saying the current situation
is okay but if we dilute resources and bring more authorities
in there could be problems. Could you just develop that point?
Mr Capper: Basically the Animal
Health Act is a function that is operated by county councils,
by unitary authorities, by London boroughs and metropolitan authorities.
Those authorities all enforce animal health legislation. What
we are actually asking there is not whether we will dilute those
authorities and include the districts; what we are asking is,
is it the intention with the Welfare of Animals (Transport) Order
and the Welfare of Animals at Market Order (which are a statutory
responsibility on those authorities I have asked) if they come
under this Bill (a) will they be statutory, and we lose statutory
power because they have got EU Community obligations which gives
our inspectorate force greater powers which we need to enforce
that legislation; and (b), more importantly, the last thing we
want is to have duplication of workings. If the Bill is not defining
which local authority does what, we could be in the position that
we have three or four different types of local authorities in
one area running round doing the same work.
Mr Smith: We get many complaints,
either from the general public or from other organisations, and
one of the problems we have is if other organisations receive
complaints they are reluctant to pass the information of the complainant
and the details to us. They prefer to deal with the complaint
themselves, even if it relates to a premises licensed by our local
authorities. That is one of the comments we have made in the Chartered
Institute of Environmental Health's response that all bodies that
receive information regarding animal welfare should forward those
on to the licensing authority, or the inspectors, or the constables
or wherever the role ends up. We often get complaints, for argument's
sake, with regard to two kittens in a pet shot which have got
no water. When we have to prioritise that against visiting a health
and safety incident or a food safety premises where a suspected
food poisoning may have occurred you can see the position we are
in as a local authority. We have got to try and prioritise these
things and it is a difficult situation for us in local authority
to deal with.
Q648 Mr Drew: I am interested in what
you were saying a moment or two ago and I pose this as a dilemma.
As we become apparently more mobile as a society and, in the case
of large animals, there are less markets because the idea is that
farmers will, for one reason or another, send their animals to
the most appropriate place, how do you balance these two issues
of the transport of animals (which for some animals is essentially
going to be a quite difficult experience) as against more local
facilities that may not be as good? Is this something you are
discussing amongst your profession association?
Mr Capper: There is a great deal
of discussion not only amongst ourselves and through our associations
regarding transportation but it is area which has had major discussion
within Europe as well on reducing the length of time that animals
can travel. We are discussing it. The problem is that for some
reason the animal movements within the UK are vast and enormous
even within the UK without actually exporting livestock and it
is controlled by the open market, the free market, and that is
our major problem. Certainly as far as slaughter animals go the
position is that the large retailers now control the market and
they have their own slaughterhouses or contracts. In Wales we
have the silly situation where we have the largest density of
sheep and we actually send sheep to Scotland to be slaughtered,
and on a wagon coming down there will be sheep coming from Scotland
to be slaughtered in Welsh slaughterhouses. That is the free market
and those issues we cannot get over. Particular attention is paid
to transportation and whether, in the end, transport will be reduced
but that will be on the legislation that takes care of that.
Q649 Mr Drew: I would be interested to
know on what grounds you could take action against someone who
is transporting animals—and there are obvious ones such
as lack of water—but overcrowding, for example, is a very
subjective view. Some people say animals can cope with that; others
would say it is horrific. How can you make judgments? Is this
legislation in any way going to affect that, or this is outside
of it? You shake your head. Should we be looking at these areas,
because we are picking up what I call some of the "specialist
interest areas" but we are not looking at the huge area of
transportation?
Mr Capper: Transport is a whole
area on its own. When we talk about "stocking densities"
it is in each inspector's mind and eye what he sees, because there
is no laid down law on stocking densities. There are guidelines
both in the EU Directive, which our national legislation puts
in place, and in the guidance that is issued by Defra for the
welfare of animals during transport. There are guidelines. It
is very difficult to work out stocking densities. Certainly I
was involved in investigating live export and I did a lot of work
on stocking densities and I just could not come up with the answer.
It is a visual thing that has to be taken on the condition of
the animals on the vehicle and the way they are travelling. I
do not think you can actually lay down that "You can have
three animals in that compartment and four in that". I think
that is unworkable. It is the experience of the inspector who
has gone to see the problem.
Q650 Alan Simpson: In the submission
from both the Local Government Association and the Chartered Institute
there is a reference you each make welcoming the improved powers
of inspection. Specifically in the document from the Chartered
Institute you make a reference to the difficulties experienced
currently by members who have sought to gain entry to premises
that are part used by a private dwelling. You just trail off interestingly
saying, "We would welcome the opportunity to contribute to
further discussions on these matters", presumably on the
specifics of how those powers of entry should be strengthened.
Would you like to elaborate on those points now?
Mr Smith: On the particular case
I dealt with where we had a successful prosecution on a lady with
22 counts of cruelty, this inspection and the following prosecution
was following a warrant under the Breeding of Dogs Act which prevented
me going into the lady's house. The police officer accompanying
me (because she had threatened to shoot me before) went into her
house under his powers of PACE and said that the conditions in
her house were worse than the kennels on which we successfully
got 22 prosecutions. In this particular instance the animals in
her house (and she was breeding a particular breed in her domestic
accommodation) I could not touch and they had to stay there. We
certainly believe the powers should include domestic accommodation.
It would rest again with the professionalism with the inspectors
or the police constable and the use of PACE and the enforcement
concordat to ensure that the domestic accommodation, and the rights
of that person regarding his or her domestic accommodation, were
not violated.
Mr Griffiths: One of the problems
I know a lot of our members have experienced very specifically—and
I have to confess I am not absolutely clear, from the way the
Bill is drafted, whether this is covered or not and I am happy
to be reassured if it is—is where a pet shop is operating
and selling animals but does not have a licence, as is required
by law, and there is no power of entry so if the owner of the
pet shop refused access physically to an inspector that that would
not be an offence. That is a very specific issue which we would
like clarity on. It is not clear to me whether in fact the Bill
does provide that.
Mr Capper: I think the major criteria
here is that it has to be used sensitively. I think my colleague
mentioned it. We in large animals are used to having this power
to enter a dwelling; it is used as part of the business and is
contained in a lot of our legislation, such as Cattle Identification
Regulations, the By-products Order and various other regulations
because most farms, and certain unlicensed premises, use their
dwelling as part of their business. To enforce the legislation
we enforce we need to look at records. When we are talking about
welfare we need to look at medicines records and other issues.
Apart from the licensing there is also the recordkeeping that
we need to be able to deal with. If we do not have powers to enter
those dwellings, or that part of the dwelling that is used in
the course of the business, we will struggle.
Q651 Alan Simpson: In other parts of
criminal legislation and in childcare legislation the powers of
entry are based on "reasonable grounds to believe that an
offence is being committed". Is that the sort of catch-all
phrase you would wish to see in animal welfare legislation?
Mr Capper: The vast majority of
our legislation gives us the power to enter a dwelling which is
used not solely as a dwelling. There is no caveat with it; it
is an open-ended one because most of the records or the offices
in farms are certainly kept within farmhouses normally, or in
90% of the cases. We need access to those records and to medicines
records as well. That is why, in most of our legislation, it is
an inbuilt open-ended issue.
Q652 Alan Simpson: I need to bring that
back to the local authority experience in terms of your example
of not being entitled to enter someone's house?
Mr Smith: The particular premises
did not have a licence. As Mr Griffiths has said, without a licence
I had no rights of entry, so we had to apply for a warrant to
go into that premises. We had received information from private
individuals who had worked at that premises they were so disgusted
with what they had found they reported it to us; but without a
licence we had no rights so we applied to the court for a warrant.
We still could not get into her domestic premises but it did allow
us to go onto the rest of her premises, which was a farm, and
was used for breeding dogs.
Mr Brunstrom: Unsurprisingly the
question of access to dwelling houses is under almost constant
review in other aspects of the criminal law. The Home Office has
a great deal of experience in this and we would very much welcome
more consistency in powers. I think it would be very much in the
public interest if there was one set of justifications for entering
a dwelling house, and not dozens and dozens depending on where
the power appears. I think that would be reasonably easy to achieve.
Of course, we would fully recognise that there is a need for the
police to be present when things get awkward.
Q653 Chairman: I want to turn to Ms Williamson
because we have asked you to comment on various issues which have
come out of our discussion, but you were kind enough to send in
a paper of your own as evidence, which I think particularly focuses
on clause 26 of the Bill which refers to disqualification of people
from engaging in activities involving animals. I wonder if you
would care to say a few words by way of introduction to your paper
and the very specific point based on one case you were involved
in which makes you question this particular clause.
Ms Williamson: Worcestershire
County Council prosecuted various individuals in its county repeatedly
spanning approximately three years. We got convictions for cruelty
to their cattle. They owned six farms in the locality; they certainly
were not penniless farmers. They had a lot of property and a lot
of land. We prosecuted them successfully, we got convictions and
we also got two lifetime Disqualification Orders—in other
words, they were banned from keeping animals for life. They appealed
and we went to the local Crown Court.
Q654 Chairman: I noticed you mentioned
that in your evidence. I raise the question in the context of
this Bill as to whether, if somebody had carried out acts of such
cruelty, you might say, "You're not fit to keep an animal
at any time in the future". I was quite surprised that this
power existed. Is that under the Farm Animal Welfare legislation?
Ms Williamson: It is under an
Act, not as old as the 1911 Act, made in 1954 Protection of Animals
Amendment Act. It gives the courts a power to ban somebody from
having custody of an animal if, but only if, they
have been convicted of one offence, which is causing unnecessary
suffering to an animal under the 1911 Act. The circumstances in
which a court, under the existing legislation, can ban somebody
is much more restricted than that anticipated by this Bill, which
is why we welcome section 26 because it enlarges the circumstances
in which somebody can now be banned from keeping an animal.
Q655 Chairman: But not banned for life?
Ms Williamson: I anticipate banned
for such term as the court thinks fit, and that can range from
a year, two years or for life. In our case we were able to successfully
ban three individuals from keeping animals for life. The problem
we then encountered was that we had no statutory power to go onto
their land take away their animals in the event that they would
breach that Disqualification Order. We were absolutely powerless.
We are creatures of statute and we cannot do that which statute
does not empower us to do.
Q656 Chairman: That is under the current
legislation?
Ms Williamson: That is under the
current law, yes. We sought help from the civil courts which is
why we went through the High Court and through the Court of Appeal
to ask for an injunction. The Court of Appeal, although they wanted
to help us, basically said, "We're not here to cure loopholes
in the criminal law. Go away and get it cured in this way".
This is where this Bill helps us. At the moment section 26 of
the Bill provides that a court can disqualify an individual from
carrying out certain activities in connection with animals and
it provides for four scenarios: owning animals, which we say is
a welcome addition; keeping, arranging or participating in the
keeping of animals; dealing in animals; or transporting them,
or being connected with the transporting of animals. My concern
is this: that in cases we brought against the individuals in our
locality we were only able to successfully convict them in relation
to certain offences because we relied upon the existing definition
of "custody of an animal", which is where it is defined
in case law at the moment as "control of an animal"
or "the power to control an animal". Hitherto a court
has looked to a case for a definition of custody because it is
not statutorily defined, unlike now when it is. Although I can
see that courts might like to rely upon statutory definitions,
such as we have got contained in the Bill, rather than having
to rely on case law, we actually found it very helpful to rely
on quite a broad definition. The reason we found it helpful was
because, in our case, the defendants concerned argued that they
no longer owned the animals; they argued they no longer kept the
animals; they argued they no longer arranged or participated in
the keeping of the animals; they argued that they did not deal
in the animals; and we could find no evidence that they had transported
them or arranged for the transport of the animals. They were clever
defendants and it was unusual circumstances. I accept in the majority
of the cases the Bill would be very helpful. My concern is with
the more complex situation where the local authority has to engage
in convert surveillance in order to be able to prove that a defendant
falls within one of these four categories in order to be able
to successfully disqualify them from keeping animals.
Q657 Chairman: Just to clarify, because
it has come up before in evidence we have received that during
the process of prosecution cruelty having been identified people
then take steps to divest themselves of any responsibility for
the animals—in order words they could sell them to third
parties; so that by the time the case comes to court they can
say, "They don't belong to us any more", and they get
round the procedures where the animals may be taken away from
them and their ability to do something with them is removed. Are
you saying you either want a better definition of cruelty in the
context of the Bill, or you want to go back to the wider definitions
which are conferred by reference to precedent of previous cases?
Which would you prefer?
Ms Williamson: I think that is
an interesting question. I have seen LACORS' submission that they
would like to see an enlarged definition. I myself am happy with
the four activities included in the Bill, but in our own experience
at Worcestershire County Council we feel there should be another
category which would be "having custody of an animal where
custody includes control of that animal"; or, and this is
the crucial point, "the power to control that animal".
I think that would then capture those defendants which are clever
enough to argue that they have divested themselves of custody
of an animal.
Q658 Chairman: Is there any merit in
having a situation where at the point at which the cruelty offence
has been identified (in other words, the observations to which
you referred earlier have been concluded) you should be able to
somehow freeze the position of the people who have control, own
or are in some way dealing with those animals? The impression
I get is that as soon as people are discovered to cause welfare
problems they then take steps to move away from the situation;
whereas what you would want to do in a prosecution sense is say,
"I have seen that at a moment in time and that is the situation
we need to look at", and not some evolving situation?
Ms Williamson: I can see merit
in that, although by the time you get to court the court are not
only interested in the relevant period, ie when the offence was
committed, the bit you have captured, but they are also interested
in how an individual defendant has behaved since they have been
discovered up until the point when the case actually arrives at
court. If they have behaved much better and are now toeing the
line and are caring for the animal etc then they will be much
more lenient on them and are much less likely to impose lifetime
Disqualification Orders on those individuals than they would be
if they had totally ignored any advice from Defra vets or local
authority inspectors. The problem we face is I think the majority
of cases would not be bothered by this particular definition of
section 26 disqualification. The problem we have had is that we
have spent an in ordinate amount of public money in enforcing
current animal welfare legislation against certain individuals
because it just would not have fitted neatly within this definition.
I think individuals can be quite smart and on the face of it they
have divested themselves of custody. I think it takes a lot of
effort to get to the truth. A magistrates' court is not always
best equipped and does not have the time to look at the minutiae
of a case. Fortunately the Court of Appeal got to the truth of
the matter in our case—our individuals had got legal tenancies—and
were able to demonstrate they had passed animals to another person
and they had granted that other person legal tenancy in relation
to their farm dwellings. They turned out to be fictions, of course
but we had to rely upon very unusual circumstances. If we were
not able to argue that they had retained power to control that
animal we would not have succeeded in convicting these individuals
in relation to a large number of charges. The common scenario
is that an individual would pass ownership or custody of an animal
to a partner, wife, spouse or a girlfriend. From research I did
in preparation of our Court of Appeal hearing my understanding
is that a large number of local authorities were not enforcing
Disqualification Orders simply because of that fact because of
the resources it would take to actually investigate the matter
further. I think the main concern we have is that although section
26 is good, we would not like the old definition of custody to
go because we would not succeed in getting home a lot of our cases,
because farmers are getting very clever.
Mr Capper: I agree with everything
my colleague has said, but I think the wider issue that bothers
me, and the general public know about it, we all know about it,
is where people are banned but because of the way appeal cases
have gone and the way that legislation is at the present time
under the old fashioned legislation it is almost meaningless.
There are so many ways round the keeping of livestock even though
you have a ban from the court. I know of a farmer that lives in
North Wales being sent to jail three times because he was in breach
of the ban. Everybody laughs at this and says, what is the point
of having a ban if it is not going to work? This is why we ask
in our submission for this custody to be widened so that there
is no way out of it. Maybe our submission is slightly over the
top. Our submission includes ownership and management, care or
control of, or power to control any animal, and, whether accompanied
or not. Then we go on to say about working with animals and we
list all the issues. We need something which says that if a ban
is served by the court then the definition of custody and control
must be so tight that it does not make a fool of us like the present
legislation is doing whereby it is so easy to get round the ban
because of the definitions that we have a major problem.
Q659 Alan Simpson: I am sure you will
understand that as a Committee it may be of some interest for
us to hear the difficulties that you faced in the past and about
the ability of people to bob and weave around the existing legislation.
For me the central point is to check with you the different wording
around the same themes that each of you have submitted. If that
were in the Bill then that would give you the enforcement powers
to partake in legislation that gave you the ability to intervene
and enable you to follow it through in effective terms.
Mr Capper: Yes.
Ms Williamson: I think for the
most part it would, but there are going to be a large number of
cases that we are aware of that would slip through the net because
of this definition.
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