Clause 14: Making of codes of practice: Wales

57.     In relation to animals kept in Wales, the power to make codes of practice lies with the National Assembly for Wales in accordance with its own procedures. Similar consultation procedures must be followed in Wales as in England before the code is adopted. Any codes will be brought into force by a commencement order.

Animals in distress

Clause 16: Powers in relation to animals in distress

58.     This clause authorises an inspector or police constable who finds a protected animal that is suffering to take those steps that need to be taken immediately to alleviate the animal's suffering (see clause 2 for the definition of "protected animal" and clause 45 for the definition of "inspector"). Powers of entry are conferred by clause 17. Clause 16 is wider than the power in the Protection of Animals Act 2000 (which this Bill repeals) in three ways. First, the power is available even if no proceedings have been commenced. Secondly, it is not restricted to animals kept for commercial purposes. Thirdly, it allows inspectors to take into possession not only animals which are suffering but also those which are likely to suffer if action is not taken.

59.     Under subsection (3), where an animal is suffering to such an extent that there is no alternative but to kill it and a veterinary surgeon issues a certificate to that effect, the enforcement authority (an inspector or police constable) may kill the animal or arrange for it to be killed either where it is or elsewhere, or arrange for those steps to be taken by someone else.

60.     Subsection (4) allows an inspector or constable to kill an animal without waiting for a vet. This only applies where the animal is suffering to such an extent that there is no alternative but to kill it immediately.

61.     Subsection (5) authorises an inspector or constable to take a protected animal into possession where a veterinary surgeon certifies that it is suffering or is likely to suffer.

62.     Subsection (6) authorises the inspector or constable to do the same without the certificate of a veterinary surgeon in an emergency.

63.     Subsection (7) gives an inspector or constable a right to remove the animal to a place of safety. They also have the power to care for the animal either on the premises where it was being kept or take it elsewhere. This subsection also allows an animal to be marked so it can be identified, for example if it is being kept with similar animals.

64.     Subsection (9) gives a vet the power to examine and take samples (such as blood or urine) from an animal so that he can decide if it should be killed or taken into possession.

65.     Subsection (11) allows someone to apply to the court for an order to reimburse him for expenses he incurs when acting under this section. The court can make an order against the person it considers most appropriate.

Clause 17: Powers of entry for section 16 purposes

66.     This clause confers powers of entry for the purposes of clause 16. It authorises an inspector or police constable to enter onto premises in order to deal with a protected animal that is believed to be suffering or likely to suffer if remedial action is not taken. Obstruction of a person exercising such a power is an offence (paragraph 12 of Schedule 2).

67.     Subsection (1) confers a power to enter to search for a suffering animal which the constable or inspector reasonably believes to be there.

68.     Subsection (2) provides that the power of entry does not extend to any part of premises which is used as a private dwelling. For example, an inspector could enter the parts of a building used as an office but not those parts which are used for residential purposes. If the constable or inspector wishes to enter premises which are used as a private dwelling, he must obtain a warrant from a justice of the peace under subsection (4).

69.     Subsection (3) authorises the use of reasonable force to effect entry without a warrant, where entry is needed urgently before a warrant can be obtained, for example if an animal is suffering so much that it would be inappropriate to delay. Where there is no such urgency, if force is required to gain entry, a warrant must be obtained from a justice of the peace, as provided for by subsection (4).

70.     Subsection (5) sets out the criteria that an application must meet before a justice of the peace may grant a warrant. There must be reasonable grounds for believing that there is a protected animal on the premises, that is either suffering or likely to do so, and one of the four conditions in clause 46 must be met.

Clause 18: Orders in relation to animals taken under section 16(5)

71.     Where an animal has been taken into possession under clause 16(5) and the animal is being retained, this clause enables a magistrates' court to make an order for the treatment, giving up, disposal or destruction of the animal.

72.      Subsection (1) provides that the court can make an order relating to the treatment, giving up, sale, disposal or destruction of the animal. In this section 'treatment' is intended to cover significant interventions such as castration. Routine day-to-day treatment such as worming or routine veterinary attention is considered to be caring for the animal as set out in clause 16(7)(b).

73.      Subsection (2) provides that applications under this clause must be made as a complaint, which determines the procedure in the magistrates' court and allows the court to award costs as appropriate. This subsection enables such an application to be made either by the owner of the seized animal or by a person with a sufficient interest in the animal.

74.     Subsection (3) provides that an order cannot be made unless either the owner has been given an opportunity to be heard, or the court is satisfied that it is not reasonably practical to communicate with him.

75.     Subsection (4) enables the court to make directions for carrying out an order under subsection (1).

76.     Subsection (5) provides that the court, when deciding how to exercise its powers under the clause, must consider the financial effect the decision will have on the owner of the animal and on others.

77.      Subsection (7) provides that, where a court orders that the animal seized under clause 16(5) be sold, the proceeds of the sale to which the owner is entitled are to be reduced so as to take account of the expenses incurred by the person who seized or cared for the animal under clause 16(5), and the expenses incurred by any person carrying out the order for sale.

Enforcement Powers

Clause 19: Seizure of animals involved in offences under section 7

78.     This clause confers on a police constable power to take possession of an animal used in connection with a fighting offence under clause 7. The use of this power would ensure that a seized animal could no longer be used for further fighting offences. The provision will also improve the chances of enforcing a deprivation or destruction order upon conviction. The Police Property Act 1897, which provides that a court may order the return of property seized by the police on application by the owner, will apply to animals seized under this power. This will achieve the same outcome as an order under clause 18(1)b would for an animal seized under clause 16(5).

79.     The effect of subsections (3) and (5) is that the power contained in subsection (1) may be exercised in relation to parts of premises used as a private dwelling only if a justice of the peace has issued a warrant authorising entry to them.

80.     Subsection (4) provides that, before a justice of the peace issues a warrant, he must be satisfied that there are reasonable grounds for believing that an animal used in connection with a fighting offence is to be found on the premises. One of the four conditions set out in clause 46 must also be met.

Clause 20: Entry and search under warrant in connection with offences

81.     This clause provides that a justice of the peace may issue a warrant authorising an inspector or a constable to enter premises to search for evidence of offences relating to cruelty, mutilations, fighting, welfare, carrying out relevant activities without a licence or registration, or breaching a disqualification imposed under clause 30 (these offences are listed in subsection (4)).

82.     Paragraph 8 of Schedule 2 confers a number of additional powers on a person exercising a power of entry under a warrant under this clause. The effect of paragraph 12 of the Schedule is that a warrant authorises a person to use reasonable force in the exercise of those additional powers. Note that paragraph 1 of the Schedule imposes a number of "safeguards" in relation to warrants under the Bill.

Clause 21: Inspection of records required to be kept by holder of licence

83.     Subsection (1) enables an inspector to require that the holder of a licence, that has been granted under regulations made under clause 11, produce any records that he is required to keep by licence.

84.     Subsection (2) deals with records stored electronically, for example on a computer. In this case, the inspector may require records to be printed or to be saved onto a disc or similar device. This is to enable them to be taken away and considered without removing the computer on which they are stored.

Clause 22: Inspection in connection with licences

85.     This clause concerns powers of inspection in relation to activities for which it is necessary to obtain a licence under clause 11(1). It provides that inspections may be carried out to check that licence conditions are being complied with. Currently, in relation to some activities that require a licence, inspections can only be made when inspectors suspect an offence has been committed.

86.     Subsection (1) sets out the purposes for which the power of inspection may be exercised. Inspectors can check that any licence conditions are being complied with. They are also able to check that the general requirements of the Bill and any secondary legislation made under it are also being complied with.

87.     Subsection (2) confers powers of entry and inspection to licensed premises, and to premises where the inspector reasonably believes a licensed activity is going on. In both cases, the inspector may enter a private dwelling only if he gives 24 hours' notice.

88.     There is no power for an inspector to apply for a warrant under this clause. The licensing regimes will be created in secondary legislation under the Bill. These will give an inspector the power to revoke a licence, or amend its conditions, should a request to enter premises in order to carry out an inspection be unreasonably refused.

Clause 23: Inspection in connection with registration

89.     This clause concerns powers of inspection in relation to activities for which it is necessary to register with a local authority under clause 11(3).

90.     Subsection (1) provides that inspections may be carried out to check compliance with any provision in the Bill or in secondary legislation relating to an activity for which registration is required.

91.      Subsection (2) confers powers on an inspector to enter premises if he reasonably believes that someone who is registered to carry on an activity is carrying on the registered activity there.

92.     A private dwelling may only be entered if 24 hours' notice is given.

Clause 24: Inspection of farm premises

93.     This clause allows 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 under the Bill has been committed. The provision replaces the powers inspectors currently have under the Agriculture (Miscellaneous Provisions) Act 1968.

94.     Subsection (2) enables an inspector to enter premises to carry out an inspection if he reasonably believes that animals are bred or kept there for farming purposes.

95.     The effect of subsections (3) and (4) is to prohibit entry into any parts of premises used as private dwellings, other than on the authority of a warrant issued by a justice of the peace. They also authorise the use of reasonable force to secure entry to premises if a warrant authorises this.

96.      Paragraph 8 of Schedule 2 confers a number of additional powers on a person exercising a power of entry under a warrant under this clause. The effect of paragraph 12 of the Schedule is that a warrant authorises a person to use reasonable force in the exercise of those additional powers. Note that paragraph 1 of the Schedule imposes a number of "safeguards" in relation to warrants under the Bill.

Clause 25: Inspection relating to Community obligations

97.     This clause provides a power for inspectors to enter and check compliance with regulations under clause 10 made in order to comply with European Community obligations. This power mirrors a power contained in the Animal Health Act 1981. It does not extend to any parts of premises used as private dwellings.

Prosecutions

Clause 26: Power of local authority to prosecute offences

98.     The right to launch private prosecutions derives from the common law. This Bill does not contain any limitation on that right in respect of offences committed under this Bill. However, this clause puts beyond doubt the right of local authorities to prosecute offences under the Bill.

Clause 27: Time limits for prosecutions

99.      Under the existing law, which requires that a prosecution be commenced within 6 months of the date of the offence being committed, it has sometimes proved difficult to prosecute for cruelty to animals when evidence of the offence has not been discovered until some considerable time after the offence was committed.

100.     Subsection (1) authorises prosecutions to be commenced within three years of the date the offence was allegedly committed, provided the proceedings are brought within six months of the date when sufficient evidence to mount a prosecution comes to the prosecutor's knowledge.

101.     Subsection (2) provides that if a prosecutor certifies the date on which he learnt of the relevant evidence, that date shall be the starting point for calculating the period within which proceedings must be commenced.

Post-Conviction Powers

Clause 28: Imprisonment or fine

102.     This clause prescribes the penalties for offences under the Bill. It distinguishes (at subsection (5)) between the penalties available for offences committed before and after the commencement of section 281(5) of the Criminal Justice Act 2003. The new provision for punishment by custodial sentence under the Criminal Justice Act is commonly known as 'custody plus'. It provides for a short term of imprisonment combined with a licence period, the combined periods totalling not more than 51 weeks. Until this provision comes into force, the maximum term of imprisonment for offences under the Bill is six months.

103.     The clause also ensures that all offences under the Bill, or which may be created by regulations under it, are to be dealt with in a magistrates' court.

104.     Subsection (1) sets the maximum penalty for an offence under clauses 4 to 7 of the Bill (cruelty and fighting offences) as imprisonment for a term not exceeding 51 weeks or a fine of up to £20,000, or both. The option of a very high fine is intended for use in extreme cases.

105.     Subsection (2) sets the maximum penalty for an offence under clause 8 (failure to ensure welfare of animals), clause 11(6) (carrying on an activity as specified by regulations without a licence or without being registered) or clause 30(9) (breaches of disqualifications) as imprisonment for a term not exceeding 51 weeks or a fine up to level 5 on the standard scale (currently £5,000), or both.

106.     Subsection (3) refers to the power to create offences in regulations made under clauses 10 (for the promotion of welfare) and 11 (licensing and registration) of the Bill. It allows those regulations to prescribe penalties by way of imprisonment or fine. Clause 10(4) provides that a maximum term of imprisonment of 51 weeks and a fine up to level 5 on the standard scale (currently £5,000) or both may be set for offences under regulations made under that section i.e. for the promotion of welfare. The reason for this is that some breaches of those regulations may be the equivalent of a welfare offence under clause 8 and would therefore warrant the same penalty. Paragraph 9 of Schedule 1, which applies to regulations made under clause 11, provides the same maxima in relation to breach of licence conditions.

107.     Subsection (4) provides that all other offences under the Bill attract a maximum penalty of 51 weeks' imprisonment or a fine up to level 4 on the standard scale (currently £2,500), or both. These offences include obstruction of inspectors.

Clause 29: Deprivation

108.     The aim of this clause is to enable the courts to strip an owner of an animal, who has been convicted of an offence in relation to that animal, of ownership of it without compensation. A deprivation order is limited to cases where there is a clearly identifiable animal in respect of which the offence was committed.

109.     In cases where a court has convicted a person of (a) an offence of cruelty, (b) fighting offences, (c) breach of the duty of care in relation to animal welfare, or (d) breach of a disqualification order (i.e. offences under sections 4-8 and section 30(9)), subsections (1), (2) and (3) give the court power to make an order that deprives him of ownership of the animals in respect of which the offence was committed, and any dependent offspring of those animals, and to make an order for the disposal of those animals. Disposal in this clause includes slaughter of the animal. Deprivation of ownership of animals may be ordered in addition to or instead of other penalties.

110.     Subsection (4) confers ancillary powers to appoint someone to carry out the deprivation order, to require delivery up of relevant animals and to confer additional powers on the person appointed to carry out the order, including powers of entry.

111.     Subsection (6) requires a court to give its reasons if it decides not to make a deprivation order against a convicted person. By way of exception to this, subsection (7) provides that reasons for not imposing a deprivation order do not have to be given if a disqualification order is made under clause 30(1).

112.     Subsection (8) makes it clear that, where a person is convicted of an animal fighting offence, the power to make a deprivation order is exercisable in relation to any animal of his which took part in the fight concerned.

Clause 30: Disqualification

113.     Under the Protection of Animals Act 1954 a person who has been convicted of an offence under the Protection of Animals Act 1911 may be disqualified from 'having custody of' specified animals for a specified period. However, it has proved difficult in practice to determine in many cases when a disqualified person 'has custody of' animals, so as to place him in breach of a disqualification order; and this has limited the effectiveness of such orders. Furthermore, the 1954 Act does not give any power to make consequential orders to provide for the welfare of animals kept or owned by a disqualified person. Nor does it provide for removal of such animals on conviction for breach of the disqualification. The lack of such a power was commented upon recently by the Court of Appeal in Worcestershire County Council v Tongue (CA 17th February 2004). This clause and clause 31 are designed to make good this omission.

114.     Subsection (1) confers a power on the court to make a disqualification order. A disqualification order may disqualify a person from doing the things mentioned in subsection (2), subsection (3) or subsection (4) or any combination of those subsections.

115.     Subsection (5) provides that disqualification may be imposed in relation to animals generally or to one or more kinds of animal. Thus a court may, for example, use its discretion under this subsection to disqualify a person who has been convicted of organising dog fights from owning or keeping dogs, but not any other animal.

116.     Subsection (6) allows the court to decide the length of a period which must expire before the person who is the subject of a disqualification order may apply to have it lifted. Under the current law, applications can be made after one year, and every subsequent year thereafter (see further clause 39).

117.     Subsection (7) provides for suspension of a disqualification order pending appeal. It also gives the court power to suspend a disqualification order to give the disqualified owner or keeper time to make arrangements for the animal.

118.     Subsection (10) provides that disqualification orders can be imposed for offences under clauses relating to cruelty, fighting, welfare, operating without a required licence or without registering where this is required and for a breach of a previous disqualification order.

Clause 31: Seizure of animals in connection with disqualification

119.     Subsection (1) enables a court which makes a disqualification order prohibiting the owning or keeping of animals to combine the disqualification order with an order for the seizure of any animals which the person disqualified owns or keeps, where his continued ownership or possession would put him in breach of the disqualification. Such an order could be made by the court when a person is convicted of any of the offences under the clauses relating to cruelty, fighting, welfare, operating without a required licence or without registering where this is required and for a breach of a previous disqualification order

120.     Subsection (2) deals with the case where a person is disqualified under clause 30 from owning or keeping animals and is then convicted of the offence under clause 30(9) of breaching the disqualification. It provides for the seizure of all animals that are owned or kept by that person in breach of the disqualification.

121.     A seizure order made under clause 31(1) or 31(2) differs from a deprivation order made under clause 29(2) in that a deprivation order may only be made against the convicted owner. A seizure order under these subsections may also be made against the person who keeps an animal in breach of a disqualification order.

122.     A further distinction between a seizure order made under clause 31(1) or 31(2), and a deprivation order made under clause 29(2) , is that while a seizure order may lead to a person ceasing to have legal title to an animal, it does not involve depriving the owner of his economic interest in it. Unlike an owner who is the subject of a deprivation order, an owner whose animal is seized under clause 31 continues to be entitled to any disposal proceeds (less any relevant expenses).

123.     The effect of subsections (3)- (4) is that, if an animal seized under subsection (1) or (2) is owned by the disqualified person, it automatically falls to be disposed of. But, if it is not, a further court order is required before it can be disposed of. Subsection (5) ensures in this case that the owner has a chance to intervene. Subsection (6) enables the owner to appeal against any order for disposal that may be made.

Clause 32: Section 31:supplementary

124.     Subsection (1) sets out powers of the court when it makes an order under clause 31. These include appointing a person to carry out the order and a power to give directions concerning the carrying out of the order. It can also provide that the owner of the animal must reimburse costs incurred, and can confer additional powers, including powers of entry, on the person appointed to carry out the order.

125.     Subsection (2) clarifies the extent of the court's powers to give directions under subsection (1). It includes delegating the decision on the method of disposal to the person appointed by the court under subsection (1).

126.     Subsections (4) and (5) require the court and the person carrying out the order to have regard to the value of the animal and to the costs someone may be required to pay when making their decision as to disposal.

Clause 33: Destruction in the interests of the animal

127.     This clause replaces the power previously in section 2 of the 1911 Act.

128.     Subsection (1) gives the court power, where it is persuaded by a vet that it is appropriate in the interests of the animal, to order the destruction of the animal in respect of which a cruelty, fighting or welfare offence under clauses 4 to 8 has been committed.

129.     Subsection (2) requires the court to give the owner the opportunity to be heard before making a destruction order, unless it is not practicable to communicate with him.

130.     Under subsection (3), the court can make orders relating to practical arrangements for carrying out the destruction order and require the offender or any other person the court thinks fit to meet the costs of its implementation and of keeping the animal until it is destroyed.

131.     Under subsection (4) costs payable by the offender under subsection (3)(e) may be recovered in the same manner as a fine. This enables the magistrates' court to enforce payment in accordance with the Magistrates' Courts Act 1980 by, for example, carrying out means inquiries and fixing imprisonment in default of payment.

132.     Subsection (5) confers a right of appeal on the offender or the owner (if the owner is not the offender). However, subsection (6) enables the court to remove the right of appeal if it thinks the welfare of the animal requires it to be destroyed without delay.