House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs First Report

6 Enforcement, prosecution and penalties

186. Clause 3 of the draft Bill would introduce a welfare offence which would be committed when there is a failure to take reasonable steps to ensure an animal's welfare; this offence is discussed in part 4. The intention behind clause 3 is to prevent suffering from occurring, rather than waiting for it to occur before action can be taken. This intention is reflected in a number of the enforcement provisions in the draft Bill, which appear intended to allow intervention before suffering occurs.[140]

187. Existing animal welfare law has been criticised for the ease with which offenders have been able to circumvent disqualification orders imposed by the courts. Under section 1 of the Protection of Animals (Amendment) Act 1954, where a person has been convicted of the offence of cruelty to an animal, the court has the power to order that the person be disqualified from "having custody of any animal or any animal of a kind specified in the order." Offenders have evaded this provision by nominally transferring 'custody' to a third party while, in reality, maintaining control of the animal.[141] Defra has acknowledged this issue:

It has proved difficult in practice to determine in many cases when a disqualified person 'has custody of' animals such as to place him in breach of a disqualification order and this has limited the effectiveness of such orders.[142]

188. Furthermore, current welfare animal law lacks provisions to empower a court to make orders consequential to disqualification. Such orders might include making provision for the welfare of animals kept or owned by a disqualified person or the removal of animals on conviction. This gap in the existing legislation was highlighted in the recent case of Worcestershire County Council v Tongue.[143] The defendants in that case had been convicted of cruelty to some of their cattle and were subsequently disqualified from having custody of cattle. The local authority claimants sought an order to enter the defendants' land to remove the livestock present. The court held that an enforcing authority is not currently permitted to enter a person's land to take possession of the owner's animals, despite the owner having been disqualified from owning animals.

Drafting of enforcement, prosecution and penalties provisions

189. The provisions on enforcement, prosecution and penalties are central to the operation of the draft Bill. However, as currently drafted, they are confusing and difficult to follow. There appears to be a lack of logic as to how the clauses are set out in the draft Bill—provisions on entry, search and arrest which would come into operation before proceedings have been commenced appear after the clauses on proceedings; the provisions on entry and arrest are scattered throughout the draft Bill.

190. We recommend that the clauses on enforcement should be set out in the draft Bill as they would occur chronologically. The current arrangement of the enforcement provisions in the draft Bill does not follow a logical sequence, is unduly complicated and is difficult to follow.

Enforcement powers

Powers to deal with animals in distress

191. Clauses 11 to 19 of the draft Bill set out the powers applicable to animals in distress. New preventive powers are proposed, which would enable the enforcement authorities to intervene before suffering has actually occurred caused to an animal.

Period for which an animal taken into possession can be detained

192. Clause 11 would extend the existing law by permitting a protected animal to be taken into possession and detained by an inspector or constable where it appears that the animal "is likely to suffer or not be properly cared for."[144] Certification from a veterinary surgeon is normally required before an animal can be taken into possession but in emergency situations this requirement can be dispensed with if it appears "that it is not reasonably practicable to wait for a veterinary surgeon."[145] Defra states that:

This is intended to cover an urgent situation such as, for example, a dog left in a hot car. Here there is a risk that the animal might die whilst waiting for the veterinary surgeon to arrive. It is anticipated that such a situation will be rare and that generally it will be appropriate to wait for a veterinary surgeon to attend.[146]

193. Once an animal has been taken into possession under the terms of the draft Bill, it can be retained for no more than eight days unless relevant proceedings are commenced before the end of that period or an extension of time is granted by a magistrates' court. The RSPCA submitted that the eight-day retention period was unworkable. It recommended that:

… clause 11 be amended to reflect the present [legal] position. There should not be a time limit on the retention of an animal in distress but its owner should have the immediate right to apply to court for its return.[147]

The National Equine Welfare Council agreed with the RSPCA and submitted that an eight-day retention period was "insufficient" and should be extended to 21 days so that owners or other persons responsible for an animal could be identified.[148]

194. At the outset of our scrutiny process, Defra conceded that further work was required on clauses 11 to 19:

The question of how long animals can be retained before an application needs to go back to the court needs to be reviewed, and … we are looking at the whole question of how that dovetails into applications that can be made to a court once proceedings have been commenced.[149]

195. Defra has acknowledged that the period for which an animal taken into possession can be retained needs to be reviewed. We recommend the retention of the existing legal position, whereby there would not be a time limit on the retention of an animal in distress but its owner would have the immediate right to apply to court for its return.

Cost of caring for animals taken into possession

196. Clause 12 sets out powers to remove and care for an animal in distress that has been taken into possession under clause 11. It permits an inspector or constable to remove the animal to a place of safety and to care for it either on the premises where it was being kept when it was taken into possession or at such other place as the inspector or constable thinks fit. Clause 12(4) authorises the recovery of costs from the owner of the animal incurred in the exercise of the powers under this clause. A number of submissions criticised clause 12(4) for appearing to allow the recovery of unlimited costs from the owner of an animal. The Countryside Alliance submitted:

Only where a court has found that such action was justified should reasonable costs be passed on to the owner. This would also act as an important restraint against the abuse of these powers. Unless the power to recover costs is limited, those who own, keep, or are responsible for animals can suffer repeated financial penalties without ever having committed, or have been about to commit, an offence under the provisions of this Bill.[150]

197. The Society of Conservative Lawyers (SCL) shared this view:

There is no check on the amount that is recoverable. There ought to be a court sanctioned proportionality check ... the Protection of Animals (Amendment) Act 2000 … does have a costs system which is compliant with human rights, because it does enable the court rather than the constable or the inspector to order the recovery of reasonable costs, and that meets all the requirements we point out.[151]

198. Where a court has made an order for the care, disposal or slaughter of animals, the Protection of Animals (Amendment) Act 2000 provides that the prosecutor is entitled to be reimbursed for any reasonable expenses incurred by him in the exercise of his powers.[152] Later provisions in the draft Bill applicable to prosecutions do provide that the prosecutor is entitled to be reimbursed by the defendant only for reasonable expenses incurred.[153]

199. We recommend that the current provisions on reimbursement of reasonable costs in the Protection of Animals (Amendment) Act 2000 should be reflected throughout the draft Bill, so that inspectors and prosecutors are able to be reimbursed only for reasonable costs incurred by them in the performance of their functions under the Bill.

Power to kill an animal

200. Clauses 13 and 14 set out a number of powers in relation to animals in distress. Clause 13 authorises an inspector or constable to take "such steps as appear to him to be immediately necessary to alleviate" a protected animal's suffering. The power extends to killing the animal where a veterinary surgeon certifies that there is no reasonable alternative. The requirement to obtain certification from a veterinary surgeon can be dispensed with where the inspector or constable believes that "the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon."

201. A number of organisations expressed concern that inspectors and constables would be permitted destroy an animal. The Dogs Trust submitted:

While we accept that there may be some situations where animals are in extremis and rapid euthanasia is necessary, we do have some concerns that constables and inspectors are authorised to kill an animal without veterinary advice and without any attempt at definition of such circumstances.[154]

202. The Pet Advisory Committee shared this concern:

… we feel that only a veterinary surgeon is properly qualified to make a diagnosis prior to euthanasia. We would like veterinary surgeons to be more explicitly involved in this decision as, whilst an inspector or constable may be acting with the best of intentions when presented with an injured animal, animals can often display or mimic symptoms that make injuries appear worse than they really are.[155]

203. We are satisfied it is appropriate that constables and inspectors should be empowered to authorise the killing of a protected animal where there is no reasonable alternative. However, we consider that constables and inspectors would be greatly assisted in their functions if the term "reasonable alternative" was defined in the Bill. Furthermore, we seek assurances from the Government that those persons tasked with animal inspection work will be properly trained in animal behaviour so as to recognise when it will be necessary to kill an animal; constables and inspectors should also be trained to kill an animal in as humane a way as possible.

POWERS OF ENTRY

204. Proposed powers of entry are contained in a number of clauses scattered throughout the draft Bill. The provisions would permit:

entry to premises to search for and deal with animals in distress (clause 14)

entry to search for and take possession of animals kept for fighting (clause 23)

entry and inspection in connection with licensed activities and farm premises (clauses 37-38)

entry and search of premises without a warrant (clause 39)

entry and search by force without a warrant; and entry to and search of any premises with a warrant (clause 41).

Entry without a warrant into premises other than private dwellings

205. Clauses 39 and 40 would allow a constable or an inspector powers of entry without a warrant into premises other than those used as a private dwelling, on the basis of a reasonable suspicion or belief that an offence is being or has been committed or that evidence of a relevant offence is on the premises. The Government has indicated that it is considering deleting clauses 39 and 40. The Government acknowledged that similar powers are not available for offences of equivalent seriousness.

206. We consider that the powers contained in clauses 39 and 40 are appropriate. We believe that the serious nature of offences against animals justifies empowering constables and inspectors to enter premises, other than premises used solely as private dwellings, without a warrant on the basis of reasonable suspicion or belief that an offence is being or has been committed or that evidence of a relevant offence is on the premises.

Entry without a warrant into private dwellings

207. Other than entry and inspection in connection with licensed activities, the draft Bill does not permit entry "into any part of premises which is used as a private dwelling" without a warrant. This phrase seems ambiguous: it could mean:

either that entry without a warrant is not permitted into a premises where any part of that premises is used as a private dwelling

or that entry without a warrant is not permitted into any part within a premises where that part is used as a dwelling—but parts of the premises which are not used as dwelling could be entered.

208. We assume that the former meaning is intended. To avoid confusion, we recommend that the Government amend the Bill to clarify what is meant by "any part of premises which is used as a private dwelling."

209. The Local Authorities Co-ordinators of Regulatory Services (LACORS) made the important point that under the current law, inspectors can enter private dwellings without a warrant only where they are not used solely as a private dwelling. It stressed that:

Officers need power[s] of entry without a warrant to parts of a dwellinghouse that is used in connection with a business, such as a farm, thereby meaning that in practice it forms a part of the business premises. LACORS has concerns that particularly on farms many buildings are used as both business offices and houses. Officers agree that a warrant should be required to gain access to parts of a premises 'used only as a dwellinghouse'. This is a common power in all consumer protection legislation. All references to powers of entry should be amended to say 'premises used only as a dwellinghouse.[156]

210. The provisions on entry and inspection of farm premises are set out in clause 38 of the draft Bill. They empower an inspector to enter and inspect premises which he or she reasonably believes to be used for the purposes of animal breeding or farming in order to check compliance with the (future) Act. Inspectors would not be authorised to enter into "any part of premises which is used as a private dwelling".

211. Defra has stated that clause 38 would allow:

… inspectors to enter and inspect farm premises in order to check compliance with regulations made under the Bill and in order to ascertain whether an offence has been committed. In practice this will allow inspectors of the Secretary of State (generally officers of the State Veterinary Service) and local authority inspectors to enter farms in order to ensure the welfare of animals there, whether or not they have evidence of a problem. State inspectors already have such a power under the Agriculture (Miscellaneous Provisions) Act 1968. This clause will extend the powers of local authority inspectors.'[157]

212. Section 6(1) of the Agriculture (Miscellaneous Provisions) Act 1968 currently provides that:

A person duly authorised in writing by the Minister may at any reasonable time enter upon any land, other than premises used wholly or mainly as a dwelling, for the purpose of ascertaining whether an offence under this Part of this Act has been committed on the land.

If enacted, the draft Bill would repeal section 6(1) of the 1968 Act.

213. Depending on the interpretation of the phrase "any part of premises which is used as a private dwelling" in the draft Bill, the 1968 Act potentially provides greater powers of entry to persons authorised under that Act than inspectors under the draft Bill. LACORS' proposal to restrict entry to premises used only as a dwelling would provide greater powers of entry than those currently provided for in the 1968 Act.

214. We endorse the underlying intention of the powers of entry in the draft Bill, namely that inspectors and constables should not be permitted to enter a private dwelling unless they have first obtained a warrant. We agree with the position proposed by LACORS. We recommend that the Bill should provide greater powers of entry so that entry would not be permitted, without a warrant, to premises used only as a private dwelling. This would allow inspectors to enter premises used as both business premises and private dwellings, such as farm premises, without a warrant.

215. We note the suggestion of the Association of Chief Police Officers (ACPO), that:

It is in the public interest to have one set of justifications setting out when a private dwelling may be entered, instead of different powers in different acts. This would be relatively easy to achieve.[158]

We recommend that the Government give consideration to implementing the suggestion made by the Association of Chief Police Officers that one set of justifications should be adopted, instead of different powers in different statutes, setting out the circumstances in which a private dwelling may be entered without a warrant.

Powers of entry of inspectors

216. The draft Bill would give inspectors appointed under it equivalent powers of inspection and entry to those given to the police. Some submitters believed that this was inappropriate. The Countryside Alliance submitted:

The powers of inspection and entry in this Bill give equal powers to inspectors as to the police. In effect this creates an animal police. Yet it is not clear that the provisions of the Police and Criminal Evidence Act (PACE) will apply to inspectors as [they do] to the police. The only direct reference to PACE relates to the application for warrants.[159]

217. The Police and Criminal Evidence Act 1984 makes provision in relation to the powers and duties of the police, including the powers of entry, search and seizure. The Secretary of State must issue codes of practice in connection with the exercise of those powers. Although the police are accountable to the Secretary of State, it is unclear to whom inspectors would be answerable.

218. Given that both inspectors and constables will be exercising the powers of entry and search under the draft Bill, we recommend that the draft Bill should be amended to include a requirement that the codes of practice issued under the Police and Criminal Evidence Act 1984 in connection with the exercise of those powers should be complied with when exercising search and entry powers under the Bill.

Appointment of inspectors

219. Clause 44 provides that inspectors will be appointed by local authorities after taking into account guidance issued by the Secretary of State, in the form of a list of suitable persons for appointment. The draft Bill provides no more detail about what categories of person may fill the role.

220. There was widespread concern amongst submitters about what categories of person would fill the role of inspectors under the draft Bill. The National Farmers' Union (NFU) was concerned that the lack of detail on the face of the draft Bill about the appointment of inspectors could lead to confusion. The NFU stressed that it was "absolutely vital for professional animal keepers to know who the enforcement authorities were and what powers they had".[160] The British Wildlife Rehabilitation Council believed that "the most obvious source of informed inspectors would be the RSPCA inspectorate."[161] The BioVeterinary Group acknowledged that the "RSPCA is in a very good position to be an investigative authority" but believed that the RSCPA did "not know what they are looking for"[162] when inspecting unusual or exotic pets. Lack of specialist knowledge was a concern shared by the National Sheep Association:

It is very important that people who are inspectors should be properly qualified and properly examined so that they are [sure to be] of a certain standard and have a standard of knowledge.[163]

221. Bryan Reed, who submitted evidence to the Committee on behalf of a number of parties, stated:

The term "Inspector" needs clarification. While we have the greatest respect for the work of the RSPCA and other NGOs—under no circumstances should entry to any premises be allowed by NGOs without a warrant or without one or more of the following accompanying them: a Constable, Customs and Excise official, Veterinary Surgeon or a Defra Inspector. We appreciate that under rare circumstances it may be necessary to enter premises or vehicles without a warrant but anyone doing this should be able to substantiate their actions.[164]

222. The Minister conceded that there was confusion surrounding the issue of appointment of inspectors. He acknowledged that Defra needed "… to do some more work on the whole area of enforcement and the roles of inspectors and their powers of entry".[165] In respect of the role of the RSPCA, the Minister told us:

… as currently drafted, the Bill does not give [the RSPCA] extra powers. All it enables them and others who are appointed as inspectors by the Secretary of State or by local authorities … to do is give them powers to intervene before suffering happens … Let me make it clear that the RSPCA are not being given powers of entry to seize animals. Powers of entry and inspection will be carried out by local authorities (and anyone they appoint under their direction), the State Veterinary Service and the Police. If the RSCPA need to enter premises to seize an animal it will be necessary for them to be accompanied by a police constable and the police constable will need to obtain a warrant from the court in order to obtain entry to domestic premises. The term "inspector" in the Bill means an officer of a local authority (or persons appointed by a local authority) who is accountable to the local authority, or a member of the SVS; it does not mean an RSPCA inspector.[166]

223. Further confusion is caused by the fact the RSPCA refers to its own officers who investigate animal welfare cases as "inspectors".[167] The RSPCA suggested that the vague terminology in the draft Bill had caused the confusion about its role and echoed the Minister in saying that the term "inspector" was defined in the draft Bill as "a person appointed to be an inspector by the national authority or the local authority; it is not an RSPCA inspector … Those two are completely separate."[168]

224. The evidence we have received has revealed widespread confusion surrounding the appointment of inspectors and the role of the RSPCA. As currently drafted, there is nothing in the draft Bill to prevent an RSPCA inspector, or an employee of any other charitable organisation, from being appointed as an inspector under the legislation, because the Secretary of State is not prevented from including them on a list of suitable persons. We have only Defra's stated intention that the list will extend to only the State Veterinary Service and local authorities. If this is indeed Defra's intention, then we recommend that it should be specified on the face of the Bill. Currently, the draft Bill effectively delegates an unlimited power to the Secretary of State to decide who may act as an inspector. At the very least, the Bill should specify the appropriate categories of person or 'characteristics' of persons who may be appointed to the role. We further recommend that the draft Bill be amended to specify how inspectors will be appointed in Wales: currently, clause 44 makes reference only to the Secretary of State; no mention is made of the National Assembly for Wales.

225. The evidence we received revealed deep reservations at the possibility of RSPCA inspectors being appointed as inspectors under the draft Bill. When asked whether an alternative name could be given to inspectors under the draft Bill to distinguish them from RSPCA inspectors, the Minister stated:

… there may be a legalistic reason why we have to use that definition, but I am perfectly happy to look at different bits of terminology to avoid the confusion that arises because the RSPCA calls a lot of its own officers "inspectors" but they are not going to be inspectors for the purposes of this Bill.[169]

226. We believe that the RSPCA has performed a valuable role in ensuring animal welfare, and that it should be encouraged to continue to do so. Nevertheless, it is a ultimately a charitable body and therefore should have a separate and distinct role from "inspectors" appointed to enforce the draft Bill. To avoid confusion with the RSPCA's own inspectors, we recommend that the Government consider changing the term "inspector" in the draft Bill to "approved person", "approved officer", or some other term that sits appropriately with relevant legislation.

Liability of inspectors

227. Clause 45 provides that inspectors will not be liable for anything done in the purported performance of their functions under the draft Bill if it is done in good faith and on reasonable grounds. Clause 45 does not refer to constables. The provisions of clause 45 led the SCL to comment that there is nothing in the draft Bill which would hold inspectors to account.[170] The SCL asked Defra to:

… justify why inspectors should be afforded much higher protection from civil action than police officers exercising the same powers or, more generally, other state officers exercising a variety of statutory powers.[171]

228. We recommend that the draft Bill should be amended to ensure that the standard with which an inspector must comply in order not to be held criminally or civilly liable is the same as the standard applied to constables exercising equivalent powers.

Regional enforcement

229. Local authorities will play a significant role in the appointment of inspectors, investigation and prosecution of offences under the draft Bill. A number of submitters have emphasised the importance of achieving consistency in enforcement between local authority areas. The Pet Advisory Committee considered that, historically, there had been very little consistency between the various approaches taken by local authorities to carrying out their enforcement responsibilities. It proposed a system of regionalism:

… if we can get a good level of expertise that is shared out around the country, that is going to help with better enforcement and it will give a good sound database which will aid in the training. We feel that training is required both on the enforcement side and for the people selling and dealing in animals, so regionalism would have a structure which would benefit from that.[172]

230. The Companion Animal Welfare Council also stressed the need for enforcement to be "consistent, effective and … undertaken by people with expertise" and believed there was a strong argument for some degree of regionalisation:

At the moment in local authorities [enforcement] may be undertaken by licensing departments who … do not necessarily know a lot about animal welfare, or it may be undertaken by an animal welfare person who knows something about animal welfare, but nothing about licensing, or it may be undertaken by … an environmental health officer who has a vast range of responsibilities. There needs to be a degree of expertise in this area.[173]

231. One proposal from Defra that may assist in achieving greater consistency in regional enforcement is the setting up of a national database for recording animal welfare licences, offences and best practice. Annex K to the RIA, which sets out the proposal, indicates that the RSPCA would be given responsibility for the database: "… it would only require the RSPCA to enter [into the database] on average the details of four people per working day. The RSPCA have confirmed that this would not be a drain on their resources."

232. Although Jim Clubb, Director of the Heythrop Zoological Gardens, supported the proposals for a database in principle, he opposed the involvement of the RSPCA:

A database of all licensed premises should be held by the government and not by the RSPCA. I don't believe in handing such power to a pressure group, it would be inconsistent with the laws of fairness, especially when the said group campaigns against certain animal industries as a whole.[174]

233. We consider that it is imperative that there is consistency in animal welfare enforcement between local authorities. It is most unsatisfactory and inequitable to have different standards of enforcement in different regions. We therefore recommend that the Government should adopt a system, such as a database, to ensure that enforcement across licensing departments in England and Wales is consistent. The information should be entered and held by local authorities. Although the RSPCA should be permitted to have access to the information, we consider it wholly inappropriate that the RSPCA should be given responsibility for compiling and maintaining the database. Defra should use its own resources to audit the consistency of enforcement between local authorities.

Compensation and other protections

234. Clauses 16 and 17 permit orders for disposal to be made where proceedings are pending against a defendant. Accordingly, it would be possible for an order to be made to dispose of an animal and a defendant to subsequently be cleared of all charges against him or her. Since animals are a form of property, the SCL submitted that this would engage article 1 of the First Protocol to the European Convention on Human Rights, which provides that "Every natural or legal person is entitled to the peaceful enjoyment of his possessions."

235. The provisions led groups such as the Reptile and Exotic Pets Trade Association to comment:

We see virtually nothing in the [draft Bill] as regards protection or compensation for people who are wrongly accused. This draft bill leaves much to be desired in this respect and appears to invite exploitation by the strong presence of animal rights extremists …[175]

236. We recommend that provision should be made to provide that compensation may be made available to persons whose animals have been dealt with under clauses 16 or 17 but who have subsequently been acquitted of any animal welfare charges. The draft Bill should be amended to specify and limit the circumstances in which a court can order the slaughter of an animal. It should specify that the court can make such an order only where no reasonable or humane alternative exists.

Prosecution powers

Improvement notices

237. Improvement notices are a mechanism by which an owner or keeper of an animal who is failing to provide an acceptable level of care for an animal can be directed to improve their standard of care without the need to prosecute. Effectively, they would provide an 'intermediate' step in the enforcement process, and would not necessarily lead to prosecutions—indeed, they are intended to circumvent prosecutions in appropriate cases. Legislation on farmed animals' welfare currently provides for improvement notices to be issued.[176]

238. Some groups who submitted evidence supported the issuing of improvement notice as a prerequisite or a possible alternative to court proceedings. The International League for the Protection of Horses suggested that:

It may be worth considering a form of legal improvement notice to be given to an owner or to a sanctuary, saying that if within two weeks or a month you have not improved your grazing, your fencing, your drainage, your saddle-fitting or whatever, you will be prosecuted, but you have got a month or two weeks or whatever to get it right.[177]

239. It was an approach also supported by the British Veterinary Association and Advocates for Animals.[178] The latter submitted:

This means … that the authorities, without having to go to the big expense and cumbersome procedures of going to court, can merely serve a notice on somebody saying, "You need to take the following steps about"—shall we say—"the way you are keeping your dog", which may be in a makeshift shelter in the garden, so that if the dog never has any proper shelter from bad weather, is not having any proper veterinary treatment though it is ill, is not getting proper food, a notice could be served. I think that would be a helpful addition to the armoury but Defra have said in their notes that they feel it is not appropriate to do so at this stage.[179]

240. When we suggested to the Minister that improvement notices should be provided for under the draft Bill, his response was that enforcement agencies could continue to issue verbal or written warnings as part of the enforcement process and that there was nothing in the draft Bill to prevent them from doing so. He opposed making provision on the face of the Bill for improvement notices to be issued:

… to lay down some hard and fast rule that this should always happen before a prosecution is taken out, I think, would make it more difficult for [the enforcement agencies] or would deprive them of the flexibility to take action immediately if they think a case is serious enough and they do not want to go through that kind of warning process.[180]

241. It is interesting to note that, at least on the evidence of the RIA, Defra appears at some stage to have intended to provide for improvement notices in the draft Bill. Defra comments that:

… improvement notices in farm welfare are still a relatively recent concept (introduced in 2000) and it was therefore considered that it would be better to allow more time for them to bed in before extending their use to all captive and domestic animals. It was therefore considered that the Bill should contain a clause allowing for the introduction of improvement notices once it is decided to issue them. Such a decision would only be made following a round of consultation on the issue of improvement notices.[181]

There does not appear to be a clause in the draft Bill which makes provision for the introduction of improvement notices, unless the Government considers that relevant provisions could be made by way of regulations made under clause 6(1).

242. The Minister is clearly resistant to the idea of making provision for improvement notices in the draft Bill. However, if the Bill remains silent on the issue we consider that there is a risk that enforcement agencies will believe that they have no option but to prosecute in order to ensure an animal's welfare. We consider that improvement notices would assist in ensuring that proceedings are commenced only in appropriate cases. They would not only save court time but could also encourage owners to improve standards of animal welfare. We recommend that, although enforcement agencies should have a discretion to issue improvement notices for protected animals, that discretion and the relevant procedural requirements should be specified on the face of the Bill. This should include a right of appeal on the part of the person to whom an improvement notice is issued.

PERSONS AUTHORISED TO ACT AS PROSECUTORS UNDER THE DRAFT BILL

243. Clause 15(2) sets out the categories of person authorised to act as prosecutors under the draft Bill. The functions of a prosecutor would be able to performed only by:

a) a public authority, or

b) a person acting on behalf of such an authority or in his capacity as an official appointed by such an authority, or

c) a person authorised by the appropriate national authority to perform the functions of a prosecutor.

244. In addition, there is an existing common law right for any private citizen to bring a prosecution under animal welfare legislation. The RSPCA currently exercise this right in prosecuting animal welfare offences. Defra has indicated that the draft Bill would not affect this right.

245. The prosecution powers contained in the draft Bill are set out in clauses 16 to 19; they include applying to the court for orders in relation to animals in distress. A number of submitters were concerned about the prosecution powers in the draft Bill. The Pet Care Trust strongly opposed the proposals to devolve enforcement powers to other bodies, particularly if the RSPCA were permitted to prosecute on behalf of the Secretary of State. It submitted:

… the pet care industry is not happy with this new approved prosecutor status that the RSPCA has and is fearful it might be extended under the Animal Welfare Bill in due course.[182]

246. Equity, a trade union speaking on behalf of those of its members who perform in circuses, submitted that it "would like to see a neutral statutory body in charge of prosecuting cases under any new regulations, rather than a politically motivated organisation such as the RSPCA."[183] It believed that only "a body with no pre-disposed opinions" could be a fair judge of complaints.[184] The Federation of British Herpetologists was equally opposed to the devolution of prosecution functions to the RSPCA:

… prosecution should be dealt with by the Crown Prosecution Service … It would be entirely inappropriate for the RSPCA to continue this position they have. They are a campaigning organisation who are opposed to certain sectors so for them to be in a position to prosecute something they are campaigning against seems extraordinary.[185]

247. The SCL thought that it was wholly inappropriate for a charity such as the RSPCA to be appointed as a prosecuting body as this "would amount to a conflict of interest" with its campaign agenda. The SCL also argued that, as a charitable organisation, the RSPCA's actions would not be amenable to judicial review.[186] The Self-Help Group for Farmers, Pet Owners and Others Experiencing Difficulties with the RSPCA also strongly opposed the appointment of the RSPCA as prosecutors and criticised it for "tak[ing] the law into [its] own hands".[187]

248. The RSCPA responded to these criticisms as follows :

We do not claim and we do not have any authority from local or central government to act as a prosecutor. We act now as a private prosecutor; if the Bill becomes law we will continue to act as a private prosecutor.'[188]

The RSPCA told us that prosecution was a very small part of its inspectorate's work. It estimated that, in 2003, RSPCA inspectors investigated about 105,000 complaints, of which about 1,400 were submitted to its prosecutions department. Of that 1,400, it estimated that about 50% were prosecuted. The RSPCA also claimed to have secured convictions from about 96% of prosecutions undertaken in 2003.[189]

249. There also seemed to be some confusion amongst submitters about the RSPCA's current status as what is generally referred to as an "authorised prosecutor" under the Protection of Animals (Amendment) Act 2000. The RSCPA explained the limited nature of this status:

We were invited to become an approved prosecutor because of the significant prosecution work we carry out, but the only real significance of it is that it does not give us an approval to prosecute because the prosecutions are private prosecutions. All it does is give us the opportunity to make an application to the court once we have commenced proceedings to have an order made regarding the disposal of the animals. Those orders are only made with the support of a veterinary surgeon, and made for the benefit of the welfare of the animals in the case.[190]

Under the 2000 Act, the Secretary of State or the National Assembly for Wales must first enter into a written agreement with any person (other than the Director of Public Prosecutions, the Crown prosecutor, government departments and local authorities) who is appointed as an "authorised prosecutor" before that person can exercise functions under the Act.[191]

250. We recommend that clause 15(2)(c) be deleted from the Bill if the Government is unable to demonstrate a convincing reason for its inclusion. The Government should explain to whom it intends the powers of a prosecutor would be delegated under clause 15(2)(c) if it is not to the RSPCA. We consider it wholly inappropriate that prosecution powers under the draft Bill should be able to be exercised by any organisation other than the Police, the State Veterinary Service and local authorities.

ABILITY OF THE RSPCA TO BRING PRIVATE PROSECUTIONS

251. The Federation of British Herpetologists suggested that lessons could be learnt from Scotland and the role played there by the Scottish Society for the Prevention of Cruelty to Animals (SSPCA). It submitted:

… the SSPCA do not bring private prosecutions although they have the power to do so; they gather the evidence for any prosecution and pass that evidence over to the Procurator Fiscal for them to decide whether there is an offence and if there is to prosecute it, and we believe that is what should happen here; that the RSPCA should be able to gather the evidence and present that to the Crown Prosecution Service, and the Crown Prosecution Service should bring the prosecution.[192]

252. Mike Radford explained that the differences in the role of the SSPCA could be attributed to the fact that Scotland does not have the same tradition of private prosecutions as England and Wales.[193]

253. We received a substantial amount of evidence opposing the appointment of the RSPCA as prosecutors. However, ACPO stressed that, although the police investigated cruelty offences, they do not play a significant role in investigating and prosecuting animal welfare offences. ACPO's representative explained that:

At the moment almost all of the welfare work is done by the RSPCA with police support where required … Were the RSPCA, as a charity, to decide next week not to do this work any more none of the rest of us in the public service could pick it up. Animal welfare would not be furthered; it would be significantly disadvantaged.[194]

254. This was a view shared by LACORS, which stressed that most local authorities did not have the resources or the expertise to deal with the welfare of small companion animals in private homes. It submitted:

… we work exceptionally closely with the RSPCA and we have a memorandum of understanding with them which has recently been drawn up. There are communication channels and everything else, but we do traditionally pass all the small animal welfare complaints to the RSPCA.[195]

255. Both ACPO and the Chartered Institute of Environmental Health suggested that they could oversee an accreditation scheme whereby organisations such as the RSCPA would effectively have the power to enforce animal welfare legislation delegated to them. The RSPCA, however, appeared reluctant to change the status quo:

… our position is entirely clear under the Bill. It is exactly what it is now. There has been no change. We would not be seeking powers or to be named in this Bill, not least because that would put us on a different footing with members of the public and we are quite content with the current situation where people invite us into their homes … as long as the police have the power to go in and seize or the powers of entry where we are not given access.[196]

256. However, even the current role of the RSPCA as a private prosecutor came under attack by the National Sheep Association. It described prosecutions initiated by the RSCPA as "harassment" and complained that the charity had "put an enormous number of people into a great deal of distress".[197]

257. The Director of Public Prosecutions (DPP) may at any stage intervene and take over or discontinue any private prosecution. However, in practice, there are a number of prosecutions that the DPP does not make offers to take over and which are not brought to the attention of the Crown Prosecution Service, such as those undertaken by trade bodies or charities. A report by the Law Commission found that "responsible organisations" such as the RSPCA adopted "suitable evidential and public interest tests" and should therefore be exempt from a requirement to notify the CPS of prosecutions brought.[198]

258. We have considered the many submissions opposing the power of the RSPCA and other charities to institute private animal welfare prosecutions. The difficulty with removing this power is that there appears to be no body other than the RSPCA with the requisite experience to undertake animal welfare prosecutions, particularly under the proposed clause 3 welfare offence. Although we consider that a lack of accountability makes it inappropriate that the RSPCA should be appointed as an authorised prosecutor under the draft Bill, we consider that the RSPCA should be able to continue to institute private prosecutions on its own behalf.

Powers following conviction

Offences are only summary offences

259. Clause 24 of the draft Bill sets out the powers of the court to imprison or fine a person found guilty of an offence under the Bill. All offences under the draft Bill will be summary only, that is, they will be triable only in the Magistrates' Court. The maximum sentence that can be imposed under the draft Bill has been increased from six months to 51 weeks to reflect changes implemented under the Criminal Justice Act 2003. The maximum fine for cruelty and fighting offences has been increased from £5,000 to £20,000. Defra initially justified this increase on the basis that it reflected the seriousness of offences such as fighting and cruelty to animals for financial gain.[199] Subsequently, however, Defra told us that the changes were a necessary result of the Criminal Justice Act 2003.[200]

260. Although welcoming the increased penalties under the draft Bill, Paula Williamson, a solicitor with Worcestershire County Council, pointed out that making animal welfare offences summary only meant that they attracted the lesser penalties because of the limitations on magistrates' sentencing powers. Ms Williamson suggested that the offences should be made "either way"—that is, summary or indictable—which would mean that they could be dealt with either by the Magistrates' or the Crown Court. This would permit the more serious offences to be transferred to the Crown Court so higher penalties could be imposed.[201]

261. Commenting on Ms Williamson's statement, ACPO stated:

This is as an issue of perception on the bench in a Magistrates' Court and it would change the perception of the serious nature of the most serious offences quite significantly. [Ms Williamson] is quite right, it would raise a higher likelihood of a custodial sentence being implied even in the Magistrates' Court.[202]

Government's position

262. Defra officials told us that it had discussed the appropriateness of the penalties in the draft Bill with the Home Office:

the Home Office considered animal welfare offences in comparison with other types of offences; and the view of the Home Office, which we accepted, was that what we have is proportionate with other types of offences.[203]

263. We questioned the Minister as to why, for example, "kicking the living daylights out of an animal" should be a summary offence, whereas the theft of an animal would be an offence that was triable either way.[204] The Minister undertook to "have another look" at the issue but added that the Government's priority is "… to get these offences prosecuted and get the penalties for them increased."[205]

264. We consider that the gravity of the offences under the draft Bill should be reflected in increased sentencing powers. We recommend that certain offences should be triable 'either way'—that is, either summary or indictable—in order to give the courts the ability to impose longer sentences in appropriate cases, and we urge Defra to take this matter up with the Home Office. The offences which should be triable 'either way' should be the clause 2 fighting offence and the most serious cruelty offences under clause 1. We note that such offences would necessarily involve premeditation, whereas a welfare offence might not necessarily be intentional.

Disqualification orders

265. Under clause 25 of the draft Bill, an owner of an animal who is convicted of cruelty, specific fighting offences, an animal welfare offence or breach of disqualification order, would be able to be deprived of ownership of the animal. Clause 26 would permit a court to disqualify a person from engaging in a number of activities following conviction for cruelty, fighting and welfare offences. Those activities are:

a) owning animals

b) keeping, or arranging for or participating in the keeping of, animals

c) dealing in animals, and

d) transporting, or arranging for the transport of, animals.

Disqualification can be imposed in relation to animals in general or to animals of a specific kind.

266. Clause 26 is the Government's attempt to close the loophole in the Protection of Animals (Amendment) Act 1954 which disqualifies a person only from having "custody" of animals. Offenders have circumvented disqualification by transferring ownership and therefore "custody" to a third party, although in reality the owner retains control of the animal. Paula Williamson, a solicitor with Worcestershire County Council, spent three years repeatedly prosecuting individuals who continually circumvented disqualifications orders imposed by the courts.[206] Ms Williamson recommended that clause 26 should be expanded to include:

… having custody of an animal where custody includes control of that animal; or, and this is the crucial point, "the power to control that animal". This would catch defendants who try to argue that they have divested themselves of the custody of an animal … [clause] 26 is fine in so far as it goes, but it does not go far enough. The custody and the control and the power to control an animal is not adequately covered by [clause] 26 in its current form.[207]

267. We welcome the Government's intention to close the loophole in the current provisions on disqualification by ensuring that an offender cannot circumvent disqualification by transferring ownership and, therefore, custody of an animal. However, we consider that clause 26 does not achieve this intention and we therefore recommend that the activities prohibited by clause 26 of the draft Bill should be extended to include "having custody, control or the power to control animals".

268. Mike Radford recommended that a person who indulged in animal fighting or baiting should automatically have all their animals (of a relevant kind) confiscated and face a mandatory disqualification, on the basis that "fighting and baiting is cruelty of a different order to negligence or ignorance".[208] In relation to offences other than fighting and baiting, Mr Radford recommended that the discretion of a court to impose a deprivation or disqualification order should be severely limited to emphasise that the orders were animal protection measures rather than part of the punishment.[209]

269. We recommend that fighting should automatically attract a disqualification order. We further recommend that certain animal cruelty offences carried out for a profit, such as making 'snuff' videos, should also attract automatic disqualification to reflect the seriousness of the offence.

140 For example, clauses 11, 14 and 16 Back

141 For example, Worcestershire County Council v Tongue [2004] EWCA Civ 140 Back

142 Explanatory notes, para 110 Back

143 [2004] EWCA Civ 140 Back

144 Clause (11)(1)(c) Back

145 Clause 11(2) Back

146 Explanatory notes, para 53 Back

147 Q 53 [RSPCA] Back

148 Ev 202 [National Equine Welfare Council] Back

149 Q 17 [Defra] Back

150 Ev 322 [Countryside Alliance] Back

151 Qq 608 and 611 [Society of Conservative Lawyers] Back