Select Committee on Environment, Food and Rural Affairs Minutes of Evidence


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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