Clause 3(3): abandonment
130. Abandoned animals are covered in current legislation
by the Abandonment of Animals Act 1960. Section 1 provides:
If any person being the owner or having charge or
control of any animal shall without reasonable cause or excuse
abandon it, whether permanently or not, in circumstances likely
to cause the animal any unnecessary suffering, or cause or procure
or, being the owner, permit it to be so abandoned, he shall be
guilty of an offence of cruelty within the meaning of the [Protection
of Animals Act 1911] …
Clause 3(3) is intended to re-enact the 1960 Act
"in substance".[109]
It provides that, if an animal has been abandoned, any person
who immediately before that time was the keeper of the animal
shall continue to be the keeper for the purposes of the clause
3 welfare offence. "Keeper" is defined in clause 3(3).
Evidence received
131. Submitters were concerned about two aspects
of clause 3(3): that it was inappropriate to include abandonment
within the welfare offence and that it could result in the last
traceable owner being deemed to be the keeper, rather than
the true last owner, and so acquiring all the responsibilities
attributable to ownership.
132.The RSPCA commented that:
[Clause 3(3)] does not, in its application, adequately
replace the Abandonment of Animals Act 1960, which created an
offence of cruelty. The effect of s3(3) is to downgrade abandonment
to a welfare offence. We believe this is inappropriate and that
its more serious status should be restored by maintaining within
the AWB a specific offence of abandonment. It also seems to us
that the welfare offence is committed only when the animal's needs
are not met. The old offence of abandonment was committed as soon
as the abandonment occurred.[110]
133. The NFU was concerned that clause 3(3) was ambiguous:
where person A sold an animal to person B and person B subsequently
abandoned the animal but person B could not be traced,
the NFU considered that clause 3(3) could be read to mean that
legal responsibility for the animal would revert to person A,
who would be deemed to be the keeper of the animal.[111]
The Farmers' Union of Wales (FUW) asked at what point a sheep
might be considered to be abandoned, in the context of Welsh farming
practices. The FUW noted that there have been hefted sheep on
the hills of Wales for generations, with these animals being turned
onto the open mountain in early May, to be gathered only for shearing,
dipping and weaning the lambs, and suggested that a sheep could
be considered to be abandoned only if it was untagged or without
an earmark.[112]
Government's position
134. Defra has indicated to us that it considers
the NFU's concerns about responsibility as a "keeper"
reverting to the last traceable owner to be unfounded; it considers
that only the 'new' owner could be found to be guilty of the welfare
offence. We understand that the Government's current intention
is nevertheless to delete clause 3(3) from the final Bill altogether,
on the basis that the clause 3 welfare offence adequately covers
the present legal position without the need for separate provisions
specifically relating to abandonment.
Our position
135. It appears to us that, in the current scheme
of the draft Bill, abandonment is mentioned under the welfare
offence in order to deal with the difficulty of bringing a person
who has abandoned an animal under the current definition of "keeper";
a keeper must either own, or be responsible for, or in charge
of, the animal. The mention of abandonment in clause 3(3) would
not prevent abandonment forming the basis of a charge laid under
the main cruelty offence, clause 1(1).
136. In respect of the clause 3 welfare offence,
the Government appears to have concluded that a person who has
abandoned an animal will still be able to be brought under the
definition of "keeper" even in the absence of clause
3(3); that is, the courts will accept that such a person still
owns or is responsible for the animal, as a matter of law. We
do not object to the removal of clause 3(3) provided that the
Government is certain that abandonment of an animal would not
serve to divest a person of legal ownership or the responsibilities
that follow on from it, and that a charge could therefore be laid
and successfully prosecuted under clause 3(1). We
have taken no evidence on the law and case law with respect to
ownership and are therefore unable to comment on whether the Government's
legal advice is correct.
137. However,
we are concerned that the draft Bill would represent a significant
weakening of the current law on the abandonment of animals. Under
the Abandonment of Animals Act 1960, an offence is committed at
the time at which abandonment occurs; no evidence of the animal
having suffered is required, and a person who is found guilty
of abandonment is deemed to be guilty of a cruelty offence within
the meaning of the Protection of Animals Act 1911. Under the draft
Bill, although an act of abandonment could form the basis of a
charge laid under the main cruelty offence, clause 1(1), evidence
of the animal having suffered would be required. Evidence of abandonment
without evidence of the animal having suffered
could form the basis only of a charge laid under the welfare offence,
clause 3(1), which carries lesser penalties than the clause 1
cruelty offences.
138. We recommend
that the Government amend the draft Bill so that the act of abandoning
an animal continues to be treated as a cruelty offence without
the need for evidence of the animal having suffered as a consequence
of the abandonment. The present law presumably does not require
such evidence for the very good reason that an abandoned animal
may not be able to be traced, in order for its suffering to be
able to be demonstrated. No doubt the 1960 Act was enacted in
the first place to deal with the requirement in the 1911 Act that
unnecessary suffering be demonstrated. The fact that the act of
abandonment, in and of itself, constitutes an offence is a key
animal welfare protection in current law and it is crucial that
it be maintained.
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