Examination of Witnesses (Questions 740-759)
MR MIKE
RADFORD
12 OCTOBER 2004
Q740 Chairman: You said in here—
Mr Radford: Yes. I think the first
thing to make clear is to emphasise how much of this legislation
builds on existing principles and existing legislation. An awful
lot of it reflects what already exists in legislation but extends
its ambit. Now, in relation to the offence of cruelty, to answer
the mental suffering point, mental suffering is already included
in the offence of cruelty, already included in connection with
unnecessary suffering, and the reason is that in the legislation
as it currently stands there are a number of specific actions
which, if carried out, leading to unnecessary suffering, amount
to an offence of cruelty, and amongst that list is the word "terrify"
and, quite clearly, "terrify" has a mental element to
it. Now, the present offence of suffering, as defined, has been
built up since 1822. There is an accretion of words there that
needs to be reduced and simplified but reduced and simplified
without taking anything away. If this list of specific conducts
is removed, and in principle it is a good thing that it should
be, once you take away "terrify", there is no specific
indication that mental suffering is still relevant. Mental suffering
is horrendously difficult to establish beyond reasonable doubt,
but certainly it is useful in cases where there is both physical
suffering and, if there is bad physical suffering, it can be easier
to prove associated mental suffering.
Q741 Chairman: I was just looking when
I went through your paper to see if there were any other points
under the section on cruelty --
Mr Radford: Could I volunteer
a point?
Q742 Chairman: By all means.
Mr Radford: I am concerned that
it is unduly complicated. The offence of cruelty, even with the
duty of care, will remain the bedrock of animal protection legislation,
and it is important that it is clear to enforcers, to the courts,
but most particularly to those responsible for animals, what is
involved. Now, at the moment it is something of a combination
of a new definition of cruelty plus a number of courses of conduct
which at the moment amount to an offence of cruelty, and I have
in mind here subclauses 1(7), 1(8) and 1(9). At the moment those
are offences of cruelty and they date back to Victorian times.
It would be much simpler to take those out of Clause 1 and make
them offences in their own right. That would simplify the offence
of cruelty. The second issue is Clause 1(3). Now there are two
tests floating around there. One is in 1(3)(c), the idea of a
legitimate purpose, and in (d) there is the idea of proportionality,
and in (e) there is the test of whether the conduct concerned
was in all the circumstances that of a reasonably competent and
humane person. Now, what is going on there is that (c) and (d)
are taken from one line of case law which dates back to 1889,
a case called Ford v Wiley, where the court talked about
a legitimate purpose and proportionality, and (e) refers to case
law dating from the early 1990s where the High Court laid that
down as a test. At the moment, there are a number of different
courses of action which can amount to an offence of cruelty but
the one which is most often relied on is that which makes it an
offence unwantonly or unreasonably to do or omit to do any act
which causes any animal unnecessary suffering. Before we start
messing about with it, I think that we need to be absolutely sure
that what is substituted for that is at least as good, and I have
to say that I am not convinced that this is because I think there
are so many words there that it leads to uncertainty. At the moment
we have an established offence; if you change the word "wantonly"
which is old-fashioned to "deliberately" or "intentionally",
so that it became "intentionally" or "unreasonably"
to do or not to do, the existing case law would still apply and
I think you would find that enforcers find that that works. The
major problem with the offence of cruelty has always been that
the enforcer has to wait until suffering can be established in
court beyond reasonable doubt, and particularly in cases of neglect
that can be a long time. Is this a starving dog or is it just
a thin dog? With a duty of care that problem goes away because,
even if you cannot prove suffering, if the care is inadequate
the person can be addressed under the duty of care. So I would
advise caution before changing a tried and tested definition of
cruelty.
Q743 Chairman: Why do you think that
they have gone for the formulation? Looking at it, they have applied
effectively three different bits of case law and welded it together
into one part of Clause 1—
Mr Radford: I think it is a noble
effort to dot the "i"s and cross the "t"s
and make sure that nothing has been forgotten but the easiest
way of not forgetting anything is to leave it alone, frankly.
Q744 Joan Ruddock: Might it not make
it more difficult to prove a case in law if you have to add up
all the bits?
Mr Radford: Yes. I am not sure
what the offence of cruelty as defined here means. At best it
seems to me it reproduces the status quo, but I am not sure that
it does and I am not sure that Magistrates' Courts up and down
the country will be sure what it means.
Q745 David Taylor: The central principle
of the duty of care is one that you applauded right at the start
of your evidence today and, indeed, in your written submission
but turning to Clause 1(10)(b) where you say that the intention
is admirable but the wording could be improved, and that is the
"failure to supervise" or "exercise reasonable
care" I think is the wording in the clause. What is adrift
with that? What is the problem? What is the vagueness? Is there
a problem with enforceability?
Mr Radford: We are talking about
the duty of care?
Q746 David Taylor: Not the duty of care
but Clause 1(10(b), the failure to supervise or exercise reasonable
care?
Mr Radford: Right. This simply
reproduces the existing legislation; there is nothing new here.
Essentially what it does is it prevents an owner either claiming
ignorance or offsetting a responsibility on to somebody else.
Q747 David Taylor: But you say it needs
improvement?
Mr Radford: Yes—well, do
I say that it needs improvement?
Q748 David Taylor: Yes. I think page
4, paragraph 12, says, "The intention of Clause 1(10(b) is
admirable, but the wording needs improvement".
Mr Radford: Yes. The point here
is that if the offence itself was simplified I think it would
be easier to interpret what that means because again, essentially,
it would be maintaining the status quo.
David Taylor: If, on reflection after
today, there was something very specific that came to mind that
you wanted to write to us about please do, because some of the
comments you have made about how the wording could be improved
to improve enforceability have been extraordinarily helpful, and
I would certainly appreciate having your observations in some
detail.
Q749 Chairman: I want to move on, following
that paragraph 12 point, to paragraph 14 in your evidence, where
you say, "It is relevant in this context to consider the
meaning of a `protected animal' Clause 54(2). What principle dictates
that wild animals should not be protected against the infliction
by man of unnecessary suffering?", and the key point I want
to ask you about is the next sentence, "The corresponding
legislation in Northern Ireland makes no distinction between different
classes of animals." Have you formed a view in the context
of this Bill as to why the differentiation in English and Welsh
law has been made and, in the reverse, what can you tell us about
the way that the Northern Ireland animal welfare legislation operates
which does not make the distinction between wild and not wild
animals?
Mr Radford: So far as the Northern
Ireland legislation is concerned, this is a piece of legislation
which was enacted by the Stormont Parliament; it was indeed one
of the last pieces of legislation it passed. I am not aware that
it is a major issue in Northern Ireland; I am not aware that there
are a huge number of prosecutions for cruelty towards wild animals,
but at the same time it does not appear to have been a problem.
In England and Wales wild animals were formally offered no protection
against abuse. This was addressed to some extent by the Wild Mammals
Protection Act and that works in a rather different way to the
offence of cruelty. The test is still unnecessary suffering but
it is unnecessary suffering which must be caused by one of a specific
list of actions. Also, it is rather different in that the prosecution
does not actually have to show that unnecessary suffering was
caused, but it has to show that unnecessary suffering was intended.
Now, I am not suggesting that we go down that route with the offence
of cruelty, because at the moment the prosecution does not have
to show intention and that is important because it means that
neglect is covered by cruelty. I just think as a matter of principle
why should wild animals not be protected from cruelty? That is
not to say that is given the definition of cruelty of unnecessary
suffering. Why should Parliament not protect them?
Q750 Chairman: It is a perfectly fair
question to ask of Parliamentarians "Why not?" It does,
however, raise some of the issues that other witnesses have put
to us about, if you like, what we would in common parlance talk
about as country pursuits, country sport, as to whether in fact
those activities would by definition be brought into the scope
of the Bill, so just let us go back to Northern Ireland. The impression
I gain from what you have said is that in Northern Ireland, where
people go hunting and shooting and fishing and do the country
pursuits they do over here, your conjecture would be that it has
not led to a series of actions to try and stop those activities,
for example, using welfare legislation.
Mr Radford: But one can have exceptions.
One can have the general principle to make it an offence to cause
unnecessary suffering but then to have exceptions if Parliament
sees fit, and indeed that is the situation with the 1911 Act where
it does not apply to a number of things—
Q751 Chairman: To come back to the Northern
Ireland legislation, is that the way they have dealt with that
problem, by a series of exceptions?
Mr Radford: Yes.
Q752 Chairman: I think that is worthy
of further study by the Committee.
Mr Radford: Would you care for
me to write to you?
Q753 Chairman: Indeed. If it would not
put you to too much trouble that would be genuinely very helpful
in understanding the way in which you conjecture that the scope
of the Bill could be more universal, if you like, in the animal
kingdom but taking things out by exception is an interesting point.
Under your comments on Clause 3, you raise in paragraph 20 of
your evidence, "Two further points. First, it is insufficient
to use the word 'welfare' without qualification. An animal's welfare
can be good, bad, or indifferent; although the clause is clearly
intended to be about good welfare, this needs to be specified."
The definition of good anything is quite difficult to define and
some might argue you can only recognise good when you have seen
bad. Just tease out of it what you meant by this quite interesting
definition point?
Mr Radford: Well, it comes from
the scientific literature and I am not a scientist, but quite
clearly all of us, from the time we are born until the time we
die, have a welfare. At any given time our welfare can be described
and it is somewhere along the spectrum from so bad it is fatal
to so good we are on top of the world. Clearly the provisions
which may accompany this legislation, either through secondary
legislation or as a schedule to the Act itself, will give a clear
impression as to the notion of positive welfare. It will show
that this is about positive welfare, but I think symbolically
it is important that the point is made in the legislation. To
simply talk about welfare in scientific terms does not tell you
whether it is good, bad or indifferent. A clear assumption is
that it is promoting a high standard of welfare but, if that is
what the Bill intends to do, why not spell it out?
Q754 Chairman: Well, I will leave that
there because one could have a very interesting discussion on
a number of these aspects and we will note that particular point.
Let us move on to Clause 6 of the Bill. This is the great catch-all
clause which gives endless opportunities for ministers to legislation
in a whole raft of ways and, as you rightly pointed out in your
introduction, also brings into this measure existing animal welfare
legislation certainly from the farmed animal point of view, and
you mention in paragraph 24 of your evidence "This clause
is crucially important". But you then go on to raise a point
which has been raised by many witnesses where in paragraph 25
you say, "The scope of the enabling powers is potentially
very extensive. It is, however, necessary if the legislation is
effectively to provide adequate protection now and in the future".
It does not cause you any problems that ministers are being given
effectively open-ended powers to legislate in the way that is
described in the future?
Mr Radford: The principle of these
broad enabling powers does not give me a problem; indeed, I think
it is essential. Potentially we need not have any more primary
legislation on animal protection during any of our lifetimes and
maybe our successors, because if this is got right then everything
else can be done by way of regulations and secondary legislation,
and that will address a major problem with the regime as it stands.
As I pointed out, the vast majority of changes that have been
made have been introduced by way of Private Member's Bills and,
by their very nature, their success is luck rather than judgment
and certainly luck rather than need, and their ambit tends to
be very restrictive, and so we have built up an ad hoc system
of bits of legislation. This addresses that problem. Now, I take
your point about the apparent unlimited powers and I think that
the problem there is not so much in Clause 6 as in Clause 3. What
I think is required is a closer definition of "welfare"
because Clause 6(1), the basis on which these regulations can
be introduced, is for the purpose of promoting the welfare of
animals kept by man. Now, part of the problem, it seems to me,
is that it comes back to the definition of welfare, which needs
to be still wide but not as wide as it is. For example, if there
was some reference to scientific knowledge and understanding,
that would mean that the minister could not go off on a frolic
of his or her own; it would have to be related to some sort of
scientific evidence, and those sorts of phrases already exist
in legislation. So it is not Clause 6 which I think is the problem:
it is Clause 3 in defining what is meant by "welfare".
If the meaning of "welfare" was better defined, that
would have the effect of limiting the autonomy of the minister.
Q755 Chairman: One of the points on definition
which has been raised by a number of our witnesses is what they
conjecture is inconsistency in terms of the use of the word "animal",
or "protected animal", and some have asked for a common
definition throughout the Bill. Would you care to comment on that
area?
Mr Radford: I think the concept
of protected animal is unfortunate, not least because the same
phrase arises in another important piece of animal legislation,
namely, the Animal Scientific Procedures Act which governs the
use of animals in scientific procedures obviously, and that is
built around the concept of a protected animal which has a rather
different meaning than this. The reason that the concept of protected
animal has been introduced I think is twofold: first of all, under
the 1911 Act the animals to which the Act applies are domestic
and captive wild animals, and the problem has arisen with the
case law of the way in which the courts have interpreted the definition
of "captive". Now, to the man or woman in the street
I would suggest that a captive animal is one which cannot get
away. The courts have not adopted that, and this goes back to
case law prior to the First World War. They have adopted the notion
of in order to be regarded as captive a human being has to have
what is termed "dominion" over it. Essentially that
means in practice that the animal has to be reliant, for example,
for shelter or food on a human being. Now the problem originally
arose in relation to, for example, a beached whale. Some youths
started hacking it about when it was still alive with knives and
were prosecuted. Clearly the whale could not escape until the
tide came back in but the court said, "This is not a captive
whale because there is no dominion over it". There are a
number of other examples where situations which common sense would
dictate that the 1911 Act was intended to address have not been
judged to be within the meaning of "captive animals"—youths
throwing a coat over a wild rabbit so it clearly could not get
away and then beating it to death with sticks. A stag which was
not being hunted but was run over on the road broke its leg so
it could not run away where, again, people got out of a Land Rover
and started hacking it about with knives was considered not to
be a captive animal. Common sense would suggest keeping the notion
of "captive wild animal" but simply changing the definition,
overriding this ridiculous case law, making it an animal which
cannot get away. The other provision—and it is literally
a bit of a case of the tail wagging the dog—where a protected
animal does not apply, where any animal, including wild animal,
comes relevant, is in Clause 2 on fighting and the reason for
this—and one is entirely supportive of the intention here—is
that fighting and baiting with domestic animals is already illegal
under the 1911 Act. Now, the courts have held that, in order for
an offence to be committed, both animals or all the animals involved
have to be domestic animals. This is a case which pre-dates the
protection of badgers legislation and essentially what happened
was a terrier was sent down to bait a badger, the people responsible
were prosecuted, and it was held not to be an offence because
the badger was not a captive wild animal.
Q756 David Taylor: Is that by breed,
though? We are not talking about specific examples of the breed
so—
Mr Radford: No. It is just a dog.
The dog was a domestic animal.
Q757 David Taylor: In general terms,
then.
Mr Radford: Yes. As presently
drafted the fighting offence would now apply where only one animal
was a protected animal. Again, I think it all makes it more complicated
than it needs to be. A domestic animal we understand, and if it
is not domestic it is a wild animal, and if it is a captive wild
animal with a sensible definition of "captive" that
we all understand and the man and the woman in the street understands,
is that not progress?
Q758 Joan Ruddock: But from what you
have given us to understand about the Northern Ireland situation,
you do not even need to have the definitions of that captivity
or not being able to get away, you simply have "animal",
and cruelty to all animals and lack of welfare to all animals
is then proscribed in the law with the exceptions which are clearly
listed. So for our purposes, from what you have said to us today,
we might feel that following the Northern Ireland example was
a simpler and surer way of producing good legislation.
Mr Radford: And it does have protection
against what might be regarded as legitimate activities which
have a detrimental effect on animals because you have the test
of unnecessary suffering and if one went back to the existing
definition in the 1911 Act of "unreasonably" and "unnecessary"
and those are two objective man-or-woman-on-the-Clapham-Omnibus
types of tests.
Q759 Chairman: I was intrigued by a point
you made in your commentary on Clauses 21 and 23, and this is
in connection with animals kept for fighting, where you quite
rightly say, "The sanctions it attracts should be correspondingly
harsh", and then you go on to draw our attention that, "Under
Clause 21(1) the power to take possession should extend to any
animal of which the person arrested is the keeper". Are you
suggesting that the scope of the Bill be expanded to give that
power so that anybody who is involved in fighting with animals,
if they have the responsibility for any other animals at all,
all of those animals should be taken away from them?
Mr Radford: It is my personal
view that anyone who indulges in fighting or baiting, which as
I have put in my paper involves generally organised, premeditated,
intentional suffering for the purpose of pleasure or profit, is
not a fit person to be responsible for an animal. All their animals
should be confiscated; it should be automatic; and there should
be an automatic disqualification order.
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