Memorandum submitted by the Country Land
and Business Association (CLA)
INTRODUCTION
The CLA has in the region of 40,000 members
who between them are active in all aspects of the rural economy.
As may be supposed, between them our members
own, keep and manage a variety of animals for a variety of purposes.
Some of our members farm, others keep animals for sporting purposes
and many keep animals as pets and companions. We also believe
that we have a good knowledge of both the law and practice of
animal welfare. As such we consider that we are in a strong position
to make a useful contribution to the development of the legislation.
GENERAL COMMENTS
We support much of the thinking behind the draft
Bill. The bulk of it represents a welcome consolidation and codification
of the existing law.
Accordingly, whilst we suggest some amendments
and make a number of other comments, these should not be taken
as indicating a serious dispute over the underlying principles.
SPECIFIC COMMENTS
Long title
The long title states that the Bill is intended
to "make provision about animal welfare". It is not
limited to domestic and captive animals. As such it is capable
of being amended to make provision for wild animals; there is
a real concern that backbenchers obsessed with banning country
sports may attempt to hijack it.
Any attempt to introduce controversial amendments
will inevitably delay the Bill's progress. The long title should
be tightened up so as to refer to only those animals referred
to in the Bill itself.
SPECIFIC OFFENCES
1. Cruelty
The new offence largely codifies the existing
law on cruelty. We agree this reform is desirable.
We are concerned, though, at the proposal of
extending the offence to acts and omissions which have not actually
caused unnecessary suffering but which are only "likely to"
do so.
At present the only "likely to" offence
is that concerning abandonment. We see no need for this to change.
It is wrong to convict a person on the basis of what is likely
to happen at some unspecified point in the future rather than
on what has actually happened. It is too uncertain a test and
as such the practical difficulties are enormous. At what point
can it be determined that unnecessary suffering is likely rather
than just being a mere possibility, for example?
The "keeper" offence in clause 1(2)
is much the same as the "owner" offences under the 1911
Act, ie permitting someone else to cause unnecessary suffering.
The definition of keeper is similar to that
used in the 1960 Abandonment of Animals Act. Both refer to animals
which are "owned". However we suggest that this is not
an appropriate word to use in the context of the present Bill.
The 1911 Act is only concerned with domestic
and captive animals. However, the keeper offences under the Bill
apply to any animal which is "owned". We are concerned
that this could result in individuals who have inadvertently acquired
a qualified or temporary right of ownership of an animal being
held liable if that animal is neglected. Under the common law
a person acquires a qualified property right in any wild animal
which is born on his land until such time as the animal is old
enough to leave of its own accord; Sutton v Moody (1697).
Accordingly, there is the possibility that a person who is unaware
that there are young animals on his land could be held liable
if they are found to have suffered. We therefore suggest that
it would be preferable if the Bill was explicit in referring to
only absolute ownership.
Mutilation is not defined in the Bill, It comes
up in the 1968 Act, but is not defined there either and nor are
we aware of the courts ever considering its meaning. The OED defines
"mutilate" as meaning:
1. To deprive a person or animal of a
limb or organ of the body; to cut off or otherwise destroy the
use of a limb or organ
2. To render a thing imperfect by cutting
off or destroying a part.
A number of actions could be covered under this;
not just prophylactic tail docking but castration and various
forms of reactive medical surgery.
Accordingly, it may be prudent to amend the
Bill so as to provide that no offence is committed if the mutilation
is carried out for reasons of animal welfare. This would protect
prophylactic docking, but prohibit, for example, cosmetic docking.
It would have the added advantage of reducing the number of exempting
regulations needed.
The operation offence is acceptable too. The
intention is to update s 1(e) of the 1911 Act, which has largely
been overtaken by the 1954 and 1964 Acts. Under the Bill the relevant
parts of the two Acts remain, but they will need to be amended
to refer to the Bill, not the 1911 Act.
2. Fighting
Under the 1911 Act the offence could not be
committed if one of the animals was not a kept or captive animal,
Banderia v RSPCA (2000), whereas under the Bill
the offence is committed so long as one of the animals is a protected
animal.
We think it unlikely this will cause any problems
as regards using working dogs or falconry.
If anything the Bill is an improvement, in that
it only covers fights where the animal is placed "for the
purpose of fighting", rather than a fight just being a possible
consequence of a particular action. With conventional terrier
work, therefore, when the dog is sent to flush out an animal rather
than fight it, no offence will committed even if a fight results.
3. Welfare
Cruelty is a legal concept. The law prohibits
certain activities and whether or not those activities have occurred
is a matter which the courts can decide upon. Welfare, on the
other hand, is a scientific concept and as such scientists, not
lawyers, are best placed to make the relevant decisions and comment
on the adequacy of the law. We would suggest that, in practice,
disputes concerning welfare are going to be disputes between scientists
over which particular practices are to be preferred. The issues
are likely to be far more nebulous than conventional disputes
over scientific evidence because welfare is a far more uncertain
concept than, say, the cause of a particular injury. We suspect
that in many cases the courts will have considerable difficulty
in determining whose opinion is to be preferred. As such, we do
have some concerns over the use of the criminal law to protect
welfare.
However, this is not a direct extension of the
duty which currently exists under the 1968 Act in respect of farmed
animals to all kept animals. There is no general duty to promote
welfare under the 1968 Act. Rather, there is a prohibition on
causing unnecessary suffering by act or omission and a duty to
comply with various regulations.
The Bill states that a keeper must take reasonable
steps to "ensure the animals welfare." The concern over
the definition of keeper referring to owning the animal applies
here too. If ownership includes qualified ownership, a landowner
could find himself in the bizarre position of being obliged to
protect the welfare of young rabbits residing on his land and
then be obliged to destroy them when they get older under the
terms of the Rabbit Control Order
The abandonment point is new. Contrary to the
Explanatory Notes, it is not a reenactment of the 1960 Act. Under
that Act it is an offence for a person to abandon any animal over
which he has charge or control in circumstances likely to cause
unnecessary suffering.
There is no need for the abandonment to be permanent;
RSPCA v Sullivan (1986)
The requirements were refined in Hunt v
Duckering (1993) in which it was held that the defendant
must have "totally disregarded his duty to care for the animal
in question" or had "wholly disregarded or given up
his duty of care". Accordingly, so long as some arrangement
has been made to protect the animal, however insufficient, no
offence has been committed.
The Bill simply makes it an offence to abandon
an animal without taking reasonable steps to ensure the animals
welfare.
We do not object to the changes. We are aware
of certain organisations expressing concern that they could require
long term provision to be made for animals which are abandoned
in the sense of being released into the wild. We consider these
concerns to be unjustified. The obligation is to take "reasonable
steps to ensure the animal's welfare". Sub-clause 3(4) states
that this means meeting its needs in an "appropriate manner".
What is appropriate means what is appropriate having regard to
all the circumstances, including the fact that the animal is being
released in to the wild.
4. Sale to under 16s
We do not see the need for the prohibition to
cover all children. Children can be criminally liable from the
age of 10. As such, any children aged 10 or more can be prosecuted
in the same way as an adult if they commit a cruelty or welfare
offence. This should be a sufficient deterrent.
ANIMAL WELFARE
REGULATIONS AND
GUIDANCE
6. Regulation to promote welfare
This is much the same mechanism as exists under
the 1968 Act, including that the regulations may create offences,
though the maximum penalties are greater.
We are not aware that the Regulations made under
the 1968 Act have proved to be oppressive in anyway.
7. Codes of Practice
As now codes of practice will be introduced.
The status of the codes is significant, although
it remains as it was under the 1968 Act.
It is not an offence to fail to comply with
a code and nor will compliance with a code provide a complete
defence. However, the failure to comply with a code will "tend"
to establish criminal liability, and non compliance will "tend"
to establish no liability. We believe this is the correct approach.
As noted above there will always be problems with the use of codes
concerning animal welfare in court proceedings.
8. Making and approving Codes of Practice
We are concerned with the consultation process
involved in the making of the code. Under the Bill the minister
is obliged to consult with such persons as he thinks fit. Under
the 1968 Act, however, he is obliged to consult with "such
persons appearing to represent any interests concerned as the
Ministers consider appropriate".
We suggest that the more specific requirements
in the 1968 Act are more likely to result in the codes being both
better informed and more widely supported than what is proposed.
We therefore request that the present wording be retained.
ANIMALS IN
DISTRESS
11. Powers to take possession of, and retain,
animals in distress
We are concerned that the criterion for taking
the animal ie "suffering" is not qualified in any way;
there is no requirement that the suffering be unnecessary, prolonged
or substantial. Temporary stress, as with a dog working in thick
cover, could therefore give rise to circumstances in which the
power could be exercised.
This is inappropriate. We suggest an amendment
to the effect that the suffering must be more than trivial. The
power should not be exercisable in respect of minor incidents
of suffering.
We suggest it is inappropriate for there to
be a power to detain an animal in respect of which it is not considered
necessary to bring a prosecution.
There is no right to compensation if the power
is exercised inappropriately so as to causes consequential losses.
This should be amended.
12. Powers to remove and care for animals
in distress
There should be an amendment stating that only
reasonable costs can be recovered.
13. Other powers in relation to an animal
in distress
If an Inspector or Policeman finds an animal
in distress he can take such steps as "appear to him"
are immediately necessary.
The subjective nature of the power is a cause
for concern. So long as the Inspector or Policeman thinks he is
doing the right thing there is no sanction if he gets it wrong.
This is not appropriate. The power to take an animal should only
arise on the basis of an opinion which is objectively reasonable.
14. Entry to search for and deal with animals
in distress
PACE Code B, the statutory code of practice
governing searches of premises must apply to this. This may mean
that the Code needs to be amended.
ANIMALS IN
DISTRESS: PROCEEDINGS
PENDING
15. Application of ss 16-19
The powers in ss. 16-19 are only available to
"prosecutors" ie public authorities and authorised persons.
Prosecutors include persons authorised by the
Secretary of State. We have serious concerns as to whether it
is appropriate to give such powers to the RSPCA, which is after
all a pressure group and regarded with a considerable and increasing
degree of suspicion by many of those who own and work with animals.
The Director General of the RSPCA has publicly
stated her opposition to both hunting and shooting and her organisation
campaigns to ban them. It would not be considered proper for the
Director of Public Prosecutions or the CPS to adopt such a campaigning
role along with discharging their public functions and accordingly
the RSPCA should be permitted to do so.
16. Orders in relation to animals owned or
kept by the defendant
The owner has the right to be heard unless it
is not "reasonably practical" to communicate with him.
We suggest "reasonably practical" is too weak a test.
"Reasonable endeavors" would be more appropriate.
17. Orders for the disposal of animals under
s 11(1) or 16(1)
We repeat our concerns about the right to be
heard being subject to a "not reasonably practicable"
exemption.
POWERS FOLLOWING
CONVICTION
24. Imprisonment or fine
The level of fines is increased. We accept that
in those cases where a person has obtained a direct financial
benefit as a result of committing a cruelty or welfare offence,
the court should be able to recover a sum equivalent to that benefit.
However we are unhappy with increasing maximum fines generally.
Accordingly, we suggest that there should be an express requirement
that when setting a fine the court should have regard to the amount
of any profit made. The implication of this would be that if no
profit were made, the fine would be lower.
25. Deprivation
We do not agree with deprivation being a form
of punishment; fines and prison are punishment. Being prohibited
from keeping your dog, in the absence of any welfare considerations,
is merely oppressive.
26. Disqualification
We assume that the proposed changes result from
concern over the use of the word "custody" in the present
legislation, but would query whether such concern is justified.
The decision in RSPCA v Miller (1994) is often cited
as the case which gives rise to the concern. The case involved
a person who had been disqualified from having custody of a dog
walking a dog at the owner's request and in her company.
The court held that custody amounted to having
control or the power to control. However the court went on to
acknowledge that in practice custody could be shared between a
number of people, in particular one person could have actual physical
control over the animal but be so closely under the direction
or supervision of another person that he could not really be said
to have custody in the sense intended by the legislation. On this
basis the defendant was acquitted.
The reasoning in Miller was subsequently
followed in Taylor v RSPCA (2001)
In our view both decisions were right both legally
and as a matter of public policy. As such we suggest that there
is no need to change the existing law in this regard.
As with the 1954 Act, there is no requirement
that the act which is prohibited should relate to the facts of
the case for which the person was convicted. Thus a person who
kicked a pet dog could be disqualified from running a livestock
business even though the person has done nothing to harm the livestock.
In the absence of any threat to the livestock this strikes as
being inappropriate in principle. We suggest an amendment to the
effect that a disqualification order can only be imposed having
regard to the circumstances of the case.
27. Duty to explain non exercise of powers
under ss25 and 26
We oppose the introduction of this duty.
There is a danger that this will lead to the
making of inappropriate deprivation or disqualification orders.
It will be much easier for a magistrate to make an order, without
having to give reasons, than for him not to do so and have to
give reasons.
Accordingly it would be preferable to substitute
"shall" with "may".
30. Destruction in the interests of the animal
The introduction of a right of appeal is an
improvement on the existing legislation.
33. Orders with respect to licences
It is not appropriate for the court to make
orders cancelling the licence or disqualifying the licencee. It
must be for the licensing authority to determine who should hold
a licence. It is far better placed to weigh the various competing
considerations involved than is the court.
34. Nation of disqualification under ss.
26 or 33
There requirement that a year must pass is oppressive.
There may well be circumstances where it is appropriate for the
disqualification to be lifted earlier and the court should be
free to decide this.
ENFORCEMENT POWERS
36. Inspection of records required to be
kept by licence
There should be some limitation on the time
when the records have to be produced, such as "upon reasonable
notice".
39. Entry and search without warrant
A right of entry without warrant is justified
when there is a reasonable suspicion an offence is being committed.
We dispute that it is necessary after the event,
save when there is a real possibility that evidence will be removed
or destroyed. However this situation is adequately catered for
by clause 40.
PROSECUTIONS
42. Power of local authorities to prosecute
offences
We are concerned about giving local authorities
a general power to prosecute. They already have the power to bring
prosecutions under s 22 of the Local Government Act 1972 this
is sufficient.
We question whether local authorities, at present,
have the necessary skills and resources to exercise such a broad
role. The ability of local authorities to manage animal welfare
functions has been criticised on a number of occasions, we note,
for example, the comments made by the RSPCA in its report live
animal transport in the UK (1998).
If local authorities are to be given this broader
power they should be required to demonstrate that they possess
officers with the necessary degree of expertise and have allocated
sufficient resources for it to be exercised properly.
43. Time Limits for Prosecutions
We are very concerned with this proposal. The
reason we have limitation periods in various statutes is both
obvious and sensible. With the passage of time, recollections
fade and evidence becomes stale. In a case concerning animal welfare,
animals may recover from mistreatment and their wounds heal. Alternatively,
the animal may need to be destroyed. In any of these situations
the quality of the available evidence is reduced. All of this
goes against the probability of any trial being fair.
In our view the interests of justice require
that the present position should be maintained.
INSPECTORS
44. Appointment of inspectors by local authorities
If this provision does become law, the Guidance
should be subject to full consultation.
Moreover, it would be wholly inappropriate for
individuals employed by pressure groups, including the RSPCA,
to be appointed inspectors. The employees of an organisation which
publicly campaigns against hunting and shooting must not be given
any powers to police those activities. They can not be relied
upon to do so with the necessary degree of objectivity.
Similarly, as it was thought necessary with
the creation of the CPS to separate the investigation and prosecution
functions, so it is inappropriate for any organisation authorised
as a prosecutor under clause 15 to be appointed an inspector under
clause 44.
August 2004
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