Examination of Witnesses (Questions 760-769)
MR MIKE
RADFORD
12 OCTOBER 2004
Q760 Chairman: Should they ever be allowed
to keep animals again?
Mr Radford: Not unless they can
show the court that their attitude to animals has changed, and
I think there should be a very high threshold on that. Fighting
and baiting is cruelty of a different order to negligence or ignorance.
Q761 David Taylor: You referred there
to animals in a general sense but in your written evidence you
talked about animals of the relevant kind, so someone who kept
dogs for fighting could be allowed in your view to retain the
right to own or keep other species, could they?
Mr Radford: My personal view is
that they are not fit to keep any animals but, of course, all
this legislation will take place against the background of the
Human Rights Act. Now, Westminster has retained the power to legislate
incompatibly with the Human Rights Act but clearly it is in everybody's
interests, not least on questions of certainty, if legislation
can perform the object that one wants it to perform compatibly
with the Human Rights Act. If it was an automatic disqualification
of all animals it might run into problems of being disproportionate,
because depending on the circumstances it might mean that somebody
lost their livelihood, for example.
Q762 Chairman: Can I raise with you a
question about enforcement, because there has been some concern
expressed by a lot of witnesses, for example, about the role of
the RSPCA as a potential prosecutor and they would appear to have
indicated to us that it is not a role that they want to adopt
or have as a responsibility. Could you say a word about how the
current animal welfare legislation is enforced and how that, in
your judgment, is affected by the proposals in the Bill?
Mr Radford: In your question,
Chairman, you use the word "prosecutor", and I think
we have to be careful here. At the moment the RSPCA is a prosecutor
in the sense that, like any one of us, it exercises its right
to bring a private prosecution. The reason is historical: Richard
Martin and his friends got legislation enacted in 1822; it was
aimed primarily at cruelty in Smithfield market. In 1822 there
was no state body to enforce the legislation, so Richard Martin
went down to Smithfield and started bringing prosecutions himself.
He had got things to do in the House of Commons so he could not
be down at Smithfield all the time so he employed a man, and he
bought the man a uniform, and then he and his friends got together
in a coffee house in Old Slaughters Coffee House in the City,
and formed what was then the Society for the Prevention of Cruelty
to Animals, which had the dual role of prosecuting and educating.
Now, at that time criminal prosecutions were brought by the person
who had been wronged, so if you stole my table I would prosecute
you privately because you had violated my property. Clearly the
animals could not bring prosecutions so Richard Martin, then Richard
Martin's employee, then the employees of the SPCA, as it was then,
brought prosecutions privately and, like so much in constitutional
arrangements, if you were starting now with a blank piece of paper
no one would come up with that idea but as you have a system that
works and, it has to be said, is saving the state considerable
amounts of money, and is also founded on a body of trained expertise,
nobody is seriously going to do away with it. If I could compare
the situation with Scotland where there is not the same tradition
of private prosecutions, what happens there is the Scottish SPCA,
which is a completely different organisation, investigates complaints
in exactly the same way as the RSPCA inspectorate do, but if they
feel there are grounds for prosecution, they then have to pass
the file to the Procurator Fiscal because there is not the tradition
of private prosecution. The number of prosecutions under the Protection
of Animals (Scotland) Act 1912, which is the equivalent, are very
few indeed and the reason is quite simply that the Procurators
Fiscal have limited resources, a huge amount of criminal work,
and animals are low down the pecking order. So the RSPCA are doing
this. My understanding is that the legislation will make absolutely
no difference to the RSPCA's position in terms of their power
to prosecute. That will go on as, indeed, it has been since 1824.
Where I think the confusion is is not in their role as prosecutor
but whether in investigating complaints and gathering evidence
they should get more powers, and again my understanding is that
they do not seek those powers and, indeed, those powers are not
going to be given to them under the Act, so essentially the RSPCA's
position is one of status quo.
Chairman: That is helpful.
Q763 Joan Ruddock: As you mentioned the
position in Scotland, we heard another witness suggest that there
could be new Scottish law which would be inconsistent with England
and Wales and that that could cause some problems. Are you yourself
familiar with how these two legislative proposals are developing
and where inconsistencies lie?
Mr Radford: Yes. The Scottish
Bill is significantly behind this Bill. It started later; the
Executive issued a consultation document, it must have been earlier
this year; it was a much more substantial document than the consultation
document that Defra issued but I think that was because they have
watched and, indeed, participated to a certain amount in the consultations
which have gone on. In that consultation document there are clearly
some differences. For example, certainly in the consultation document
they proposed extending the definition of "animals"
to at least some invertebrates. Now, whether that will appear
in the Bill remains to be seen. I suspect that the measures will
be very, very similar with just a touch of difference to show
that devolution is worthwhile, but I would be surprised if the
differences went to the substance of the legislation.
Q764 Joan Ruddock: That is helpful because
we know that animals are now being moved all over the United Kingdom,
so it could be significant if there was some aspect of the new
laws that differed.
Mr Radford: I would be very surprised
if the substantive principles differed.
Q765 Joan Ruddock: And do you know the
definition of "animal"? Are the Scottish proposals simpler,
closer to Northern Ireland, than the ones we have?
Mr Radford: No. They are talking
about, for example, including the octopus and some invertebrates.
There has been public consultation and they have gone away to
think about it and then I suspect they will come back to interested
parties with further ideas. What I would suspect, and this is
totally informed, is that if Westminster decides to restrict the
definition of "animal" on the face of the Act to vertebrates
they will do similar but, as is envisaged in this Bill, with the
provision to add to it which again is a principle which already
exists. It is exactly what is contained in the Animal Scientific
Procedures Act. The Act itself applies to all vertebrates apart
from humans with an enabling clause to add, and the octopus has
been added by way of regulations.
Q766 Patrick Hall: Could I ask you if
you can cast any light or give any advice on the issue of pet
fairs? The Committee has had some different evidence submitted
to it regarding the question of legality and some groups have
suggested that pet fairs by definition are illegal and cannot
be licensed. Others have pointed out that this is not necessarily
so and in some instances some local authorities do license them.
Any views?
Mr Radford: My view is that they
are not unlawful, that pet fairs are lawful, but that is a view
which is not, as you are aware, universally accepted. I think
the important thing about what we will describe as pet fairs is
not what they are called; the crux of the issue is can the animals'
welfare be secured. If animal welfare can be secured, I do not
see a problem, that is the test, and to go back to the definition
of "welfare", what is so important about the concept
of welfare is that it is about outcomes. We have to be very careful
here that we do not end up with a tick box mentality which says
that if you have enough boxes ticked then everything is hunky
dory. Things may not be hunky dory or, indeed, they may be perfectly
acceptable with only some of the boxes ticked. I think, Chairman,
on the question of companion animals and welfare and the duty
of care it is important to say this: first of all, that I do not
think it would be desirable to be overly prescriptive. The idea
is not that everybody keeps their dog in the same way or their
cat in the same way: there will be people in this room who have
a variety of animals and we keep them in different ways and hopefully
the welfare of those animals is fine. So there has to be autonomy.
Secondly, companion animals raise very different issues from the
other classes of animals to which welfare legislation applies.
If you think of farm animals, for example, there are relatively
few species of farm animals. They are all being kept for the same
purpose or similar purposes; they tend not to have terribly long
lives, they do not get old and by and large the equipment, the
housing, is similar because there is a relatively few number of
manufacturers, so there is a commonality which simply does not
exist with companion animals. You have a huge number of species
being kept in very varied circumstances. Even if you take the
dog, to secure high welfare for a chihuahua requires very different
conditions from securing high welfare for a labrador. Even with
the chihuahua, are we talking about a six month old chihuahua,
a five year old chihuahua, or the geriatric chihuahua on its last
legs, but has a perfectly acceptable quality of life but a very
different type of life to that which it had when it was a puppy.
So it is very difficult to be prescriptive about input because
of the variety. The test should be on outcomes—what is the
quality of life for this animal and the welfare to individual
animals.
Q767 Chairman: Thank you very much indeed.
I think on the basis of what we have heard your lectures must
be very interesting!
Mr Radford: Having been forewarned
and prepared for the answer, may I answer Mr Taylor about disqualification
orders?
Q768 Chairman: Yes. That would be helpful.
Mr Radford: The situation at the
moment is that, under the 1911 Act, where the owner is convicted
the court has a discretionary power to confiscate the animals
which were the subject of the prosecution. It also has, regardless
of who is convicted, a power to disqualify the offender from having
custody of either a particular type of animal, particular types,
or all animals for whatever length of time the court sees fit,
so you are absolutely right, the discretion lies entirely with
the court. Now, if you will indulge me for just a couple of minutes,
essentially the Bill seeks to re-enact existing provisions. The
difference is that at the moment the court, if it decides not
to make one or other or both of these orders, does not have to
give any reason. What the Bill seeks to do is to place a duty
on the court if it decides not to make an order to give the reasons
why, and clearly that has the advantage of, first of all, concentrating
the mind of the court and secondly, if its reasons are either
bad law or unreasonable, it clearly will open the way to an appeal.
I draw attention to this in the paper but I have a problem with
the wording of both orders, because the wording simply repeats
the existing legislation and the problem is that the implication
of these orders is that they are part of the punishment, so they
can be given as well as or as an alternative to a fine or imprisonment.
Now, these were introduced after 1911 by primary legislation,
my view is that these orders should be seen not as part of the
punishment but as animal protection measures. In other words,
somebody has been found to be unfit to look after an animal. They
get their fine or their imprisonment or whatever but these orders—disqualification,
confiscation—are not part of the punishment, they are an
animal protection measure.
David Taylor: I hope, Chairman, that
those very recent comments there will form part of the observations
and recommendations as it is very, very important and central.
Q769 Chairman: I am looking to you to
make certain that point does not get ignored in the plethora of
detail which will come to us. Mr Radford, can I thank you most
sincerely on behalf of the Committee for a very clear and helpful
tour through a number of very important points in the Bill. I
am sure we could have spent the rest of today going through this
line by line, clause by clause, but I think we have touched on
some of the main and very important issues and for that we are
very grateful. We look forward to your subsequent little piece
of paper which I think you are going to produce for us. Thank
you very much again for coming.
Mr Radford: Thank you very much
for inviting me.
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