Examination of Witnesses (Questions 780-799)
MR DAVID
FURSDON, MR
CHRISTOPHER PRICE,
MR JOHN
JACKSON AND
MR GRAHAM
DOWNING
13 OCTOBER 2004
Q780 Paddy Tipping: I think you have
got it wrong actually.
Mr Price: No, the Director General
of the RSPCA has said that she is opposed to game shooting.
Q781 Paddy Tipping: I will accept that.
Just sketch out for me—and perhaps Mr Jackson will help
us with it—the kind of people that you would want to be
inspectors. What is the ideal of inspector from your point of
view?
Mr Jackson: I think I would say
two things. Firstly, they should plainly be people who are and
can be seen to be knowledgeable. Secondly, and this is something
we attach importance to, they should be publicly accountable.
Public accountability is a very useful concept.
Mr Fursdon: Can I say, coming
back to the point I made, equally the drafting of the Bill is
important, because the tighter that that is drafted the less opportunity
there is going to be for everyone to fall out about it.
Mr Downing: In order to clarify
it, Christopher has raised the issue of game shooting and the
RSPCA's attitude towards game shooting. We are entirely supportive
of a proper inspection regime in relation to the Bill, but it
must be a publicly accountable one and we would not, for example,
have any difficulty if the State Veterinary Service were to inspect
game farms. However, if an organisation which openly campaigned
against game shooting were to be responsible for inspecting game
farms, this could cause considerable difficulties for game farmers.
Q782 Paddy Tipping: I am a bit rusty
because we have not talked about this Bill for three weeks. Are
you telling me that you would not want the RSPCA designated as
inspectors? Is that a no, no, for both?
Mr Price: I do not suppose that
inspectors would be appointed on the basis of organisations; they
would be appointed on the basis of individuals. We would have
hoped the guidance would specify that someone who was active within
a campaigning organisation would not be appointed. The point applies
to both sides.
Mr Jackson: Yes, in their interests
as much as in everybody else's interest.
Q783 Chairman: I would like to pursue
with the Country Land and Business Association a point which occurs
in paragraph one of your evidence under "cruelty", because
you have welcomed the Bill in unequivocal terms and yet the second
paragraph of paragraph one says, "We are concerned, though,
at the proposal of extending the offence to acts and omissions
which have not actually caused unnecessary suffering which are
likely to do so." One of the merits of this measure as proposed
is to use information in an anticipatory sense, that if you went
on to a holding where, if you like, to my layman's eyes I could
see things were not absolutely as they ought to be, and you might
think there could be a problem, and then if a professional went
in and said, "If they carry on like this these animal are
going to die. I think we have to do something", what you
are saying is that the animals have got to die before anything
happens?
Mr Price: No, I am sorry, I am
not saying that. There are two points.
Q784 Chairman: It says you are concerned
about it here. That is why I asked the question.
Mr Price: Yes, but the point I
was making is not about not being able to do anything until the
animal dies, the point I was making was about not being able to
do anything until the animal suffers. The basic test of cruelty,
which you have had in English law since 1849 I think I am right
in saying, is that of unnecessary suffering. It appears in every
substantive piece of legislation that is concerned with cruelty.
It now appears in Council of Europe legislation and in EU legislation.
It is fine. Everyone knows what it means. One of the good things
about this Bill is that some of the tests or references to proportionality
and things elaborate on the case law that has been used to explain
what "unnecessary suffering" means. That is all good;
we welcome that. The only—
Q785 Chairman: Can I stop you there.
You do not think that the way the Bill is currently constructed
rules out the continuing use of that body of case law?
Mr Price: It will have to be interpreted.
At the moment the way it works is that the courts will look at
whether the animal has suffered, which is a clear enough thing
to establish, you then look at whether what was being done was
necessary, and necessary as a particular meaning in a sense, and
you balance the two together. It is quite difficult, or can be
quite difficult, to carry out that balancing exercise. There are
problems with some of the case law because it is Victorian and
relates to circumstances that do not apply now, but most people
know what it means, and I imagine that the concept of "suffering"
and the concept of "unnecessary" and the case law that
explains "unnecessary suffering" will still apply under
the present law. We now have the clearer use of proportionality,
or explicit use of proportionality, so that people understand
what we are talking about. But going back to your point about
"likely to", the only point, the only animal welfare
offence in which you get a "likely to" element is the
element of the Abandonment of Animals Act 1960. To some extent
I think it is reasonable for the courts to be able to ascertain
whether, if an animal has been abandoned, it is likely to suffer—that
is a fairly clear-cut thing—but if you are going to apply
"likely to" to absolutely every aspect of cruelty, I
think from a practical point, and it must be in the interests
of justice to ensure that things are practical to enforce, it
is going to be difficult working out at which point you are going
beyond what might happen to what is likely to happen. The example
I think I gave in the response was that of if you are riding a
horse for the day. If you start off riding a horse, if you carry
on for ever, you are likely to cause unnecessary suffering; if
you just sat on it, you may cause unnecessary suffering. I find
it very difficult to see at what point anyone can say you are
going beyond "may" and become "likely". It
seems too uncertain.
Q786 Chairman: Sorry, Mr Fursdon, I wanted
to ask Mr Price, how would you give certainty then?
Mr Price: Just trying to finish
off the point. If it is only likely to suffer or to be caused
unnecessary suffering that means it is not yet suffering, so the
animal is not in any harm as a result of not having a "likely
to" test.
Mr Fursdon: I just really wanted
to clarify the fact that if suffering was taking place, and it
is a question of degree, if it was already taking place, then
we would not object to what is going on here; it is just the fact
that you could presumably take somebody who everybody knew in
the locality was a bit of a rogue and so you then say, "Right,
well, because he is a bit of a rogue, I am going to take the animals
away because he does not know how to look after them." In
fact, that person could be looking after them perfectly okay.
It is a question of where that "likely to" definition
comes, and I think we are concerned that some people will be judged
before they have even done anything, particularly if you lead
it back to who is doing the judging and is there an agenda there.
I think that is the point we are trying to make.
Q787 Alan Simpson: Can I move on to the
fines and punishment aspects of that in your submission. I think
one of the points that particularly troubled me was your approach
to the notion of fines and punishments. I almost find myself thinking:
did you want the Committee to take seriously your suggestion that
fines should be in line with the amount of profits that were likely
to be made by the acts of cruelty? It seems a bizarre notion.
We never say that about cruelty to kids: how much money would
their parents make out of them? For you to suggest somehow the
level of fines should be constrained by whether you were likely
to be making a large profit or a small profit just seems ludicrous?
Mr Price: I was saying take the
thing the other way round. It seems to me if you are causing unnecessary
suffering for a profit the penalty should be higher than if you
are causing unnecessary suffering inadvertently. If you are a
farmer who is a bad farmer who has not acted with any sort of
malice or with any idea of benefiting themselves through their
harm, it seems to me not unreasonable that the penalty you suffer
should be less than someone who is running some animal torture
show or something.
Q788 Alan Simpson: I think that is what
I am suggesting is ludicrous. It seems to me that you move from
the notion of suffering. The idea that—
Mr Price: No. You are still convicted
of suffering. What I am saying is that you should be punished
more if you are imposing suffering for profit.
Q789 Alan Simpson: Why should the fine
not just relate to the suffering? You would not do that in relation
to children. Is not the issue quite simply whether people should
be punished and whether there should be a fines regime for acts
of cruelty?
Mr Price: I do not know anything
about child law, but I do know about environmental law, and for
most environmental crimes the penalty is higher if you are acting
for profit than if you are doing something inadvertently; and
that was the parallel I was picking up on.
Q790 Chairman: Just to follow Mr Simpson's
line of questioning, that means that if somebody keeps an animal
not for commercial purposes and, according to your line of logic,
is cruel to that animal, they should not be hit as hard as if
somebody is cruel but it so happens, coincidentally, that they
are in business and they make a profit?
Mr Price: No, not inadvertently.
If what you are doing is, I suppose, celebrating cruelty for its
own sake or providing cruelty as entertainment—I accept
there is no right or wrong, it is a value judgment, but it just
seems to me that if you are exploiting animals in this way for
profit then you ought to penalised more for it than if you have
just made a mistake. After all, you if you have just made a mistake
you are still convicted, you are still fined.
Q791 Joan Ruddock: I was trying to follow
through what you were actually saying, and it did seem to me that
the distinction is between doing something advertently and doing
something deliberately. You are equating making profits with deliberate
actions and I think there is a distinction between inadvertent
action and deliberate action, which is separate from the amount
of profit that you might make?
Mr Price: I take your point. When
I was talking about making a profit it was in the sense that you
would . . . I am sorry, when I was talking about this making a
profit it was on the basis you were doing . . . I think we are
saying the same thing but you are saying it better than I did,
but you are right.
Q792 Joan Ruddock: I could be on your
side by my own definition, but not on the one that you originally
offered?
Mr Price: Sorry, I should have
been clearer. I was not thinking that anybody would do something
deliberately cruel other than for profit, and that seems a reasonable
basis on which to impose a heavier penalty, but I think the basic
point is good.
Q793 Joan Ruddock: You must accept and
you must have known of cases where there would be no profit involved
but there was deliberate cruelty. That is the important distinction
that we would accept?
Mr Price: I take your point.
Chairman: Alan, do you want to follow
this up?
Q794 Alan Simpson: Yes, in a sense I
would echo the point that Joan Ruddock has just made, but I would
also go on and ask you whether, as a consequence of that, you
follow it with the point you make about the deprivation of the
animal, the ownership of the animal. I want to know: do you object
to that as a penalty in principle? Because it seems to me that
you describe it, your sentence is: "Being prohibited from
keeping a dog in the absence of any welfare considerations is
merely oppressive", but you are saying that fines and prison
are an acceptable form of punishment?
Mr Price: Yes.
Q795 Alan Simpson: But that it should
not be within the remit of the law to extend that and to remove
your right to own or to be responsible for the animal?
Mr Price: The purpose of this
legislation is to promote animal welfare. If there are no welfare
implications for the animal staying with its owner, then I cannot
see any reason to deprive the owner of that animal, but you can
penalise them under the fines/imprisonment point.
Q796 Alan Simpson: There would be animal
welfare implications if there were fines and imprisonment—I
think that is the starting point—but what you seem to be
saying is that that should be the finite limit?
Mr Price: Yes.
Q797 Alan Simpson: And we have had people
giving us evidence that say, "What if you have patterns of
neglect, what if you have patterns in which the solicitors who
gave evidence to us from the local authority yesterday were saying,
under the existing law, people simply transferred the ownership
of animals to their girlfriends, to other family members, so you
have a succession of abuses that take place? Really what you have
to do is have the right to remove the animals from that person's
stewardship?
Mr Price: Yes, that is what .
. . You can do that. You can remove the animal if there are welfare
implications, but if the animal is not going to suffer any harm
as a result of staying with the owner and the owner is also punished
through fines or imprisonment, then I do not see what is unacceptable
about the situation.
Q798 Mr Wiggin: Can I just clarify this.
So if somebody is running a puppy farm in an appalling manner
and also keeps a horse, you take away the dogs but leave them
with the horse. Is that what you are saying?
Mr Price: No. What is being proposed
in the Bill, as I understood it, was that, in addition to a fine
and/or imprisonment, you can deprive the owner of the animal as
a form of punishment, and I think the explanatory notes use the
word "punishment". I am saying it is wrong, as a matter
of principle, to deprive the owner of the animal when there are
no welfare implications.
Q799 Alan Simpson: I must be being obtuse.
Could you perhaps give me a practical example of the circumstances
in which you believe that someone would be fined and sent to prison
but there were not animal welfare implications for the offence
that they committed?
Mr Price: I cannot, but that is
a matter for the courts and not for us. If the court finds that
there are no welfare implications involved in leaving the animal
with its owner then I cannot see any reason why the court should
deprive him of the owner. I agree, it is not a situation that
is going to arise at all often, which is why we did not mention
it as a prime concern at the outset.
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