House of Commons - Explanatory Note
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Clause 34: Destruction of animals involved in fighting offences

133.     Subsection (1) allows the court to order the destruction of fighting animals, otherwise than in the interests of the animal, where there has been a conviction for a fighting offence under clause 7. This power is wider than that accorded in clause 33, on the basis that there may be circumstances in which it is appropriate to order the destruction of an animal otherwise than in its interests; for example, if the animal is considered to be a danger to public safety.

134.     Subsection (3) provides that 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.

135.     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.

136.     Subsection (5) allows the owner (if different from the person convicted) to appeal the order made under subsection (1).

137.     Subsection (6) provides that destruction orders may be made against any animal which took part in an animal fight, in relation to which any of the offences under clause 7 has been committed.

Clause 35: Reimbursement of costs relating to animals involved in fighting offences

138.     This clause provides that a court which has convicted someone of an offence under clause 7 can make an order against them or another person it deems appropriate, requiring them to reimburse the police for expenses they have incurred in looking after an animal involved in that offence. This includes animals that took part in the fight in relation to which the offence was committed.

Clause 36: Forfeiture of equipment used in offences

139.     This clause gives the court power, where a person is convicted of an offence under clauses 4 to 7, to forfeit and destroy (or otherwise deal with) equipment that it considers to have been used in the offences for which the offender has been convicted.

140.     Subsection (3) provides that a court shall not order the forfeiture of any equipment if the owner, or someone claiming an interest in it, has applied to the court to be heard, and has not already had the opportunity to show cause why the forfeiture order should not be made.

Clause 37: Orders under section 29, 31, 33, 34, or 36: pending appeals

141.     Subsection (1) suspends the operation of various orders under the Bill until the possibility of a successful appeal has expired. Subsection (3) provides that if an order is suspended under subsection (1), the court may, nevertheless, give directions as to how the animal(s) should be dealt with during the suspension. Subsection (4) gives examples of the kinds of directions the court may give under subsection (3)(b) to provide for the animal's welfare pending the determination of the appeal.

142.     Subsection (5) provides that costs will 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.

Clause 38: Orders with respect to licences

143.     Subsection (1) provides that where a person is convicted of a cruelty, fighting, welfare offence, an offence in connection with transferring an animal by way of sale or prize to a person under sixteen, or an offence under a regulation made under clause 11, the court may cancel his licence and make an order disqualifying from holding such a licence.

144.     Subsection (3) enables a court to decide the length of time that must expire before the person who is the subject of an order disqualifying him from holding a licence may apply to have it lifted (see further clause 39).

Clause 39: Termination of disqualification under section 30 or 38

145.     Subsection (1) enables a person subject to a disqualification under clause 30 or 38 to apply to the court for termination of the disqualification, but subsection (2) imposes restriction on the right to apply. An application cannot be made until one year has elapsed since the disqualification order was made. Where a previous application for termination of a disqualification order has been made under this clause, the application cannot be made until one year after the determination of that application. In addition to this, applications cannot be made until a period specified by the court under clauses 30(3), 38(3) or subsection (5) of this clause has elapsed.

146.     Subsection (3) sets out the court's powers in relation to an application to terminate a disqualification order. The court may terminate the disqualification, make it less onerous, or refuse the application. Subsection (5) provides that, if a court dismisses the application, it may specify a longer period than the period given at subsection (2)(b) in which the offender may not make an application for termination of the disqualification order. The court may also order the applicant to pay all or part of the costs of the application.

147.     Subsection (4) specifies the court to which application must be made.

Scotland

Clause 40: Effect in Scotland of disqualification under section 30

148.     The provision about disqualification in clause 30 replaces, for England and Wales, the provision about disqualification under the Protection of Animals (Amendment) Act 1954 (c.40). Because that Act extends to Scotland, as well as to England and Wales, the position at present is that a disqualification order made by a court in England and Wales has effect in Scotland. Since clause 30 only extends to England and Wales, it is necessary to make further provision in this clause to secure the result that disqualification orders made by a court in England and Wales also have effect in Scotland.

149.     Subsection (1) ensures that disqualification orders imposed by the English and Welsh courts have effect in Scotland. Subsections (2) and (3) provide that breach of a disqualification order constitutes an offence, and set down the penalties that apply. As the 'custody plus' scheme (see clause 28) does not extend to Scotland, the maximum prison term there will be six months.

Clause 41: Deprivation orders in connection with offence under section 40(2)

150.     This clause gives a Scottish court power to deprive a person of ownership or possession (or both) and order disposal of an animal to which a conviction under clause 40(2) for breach of a disqualification order relates.

151.     Subsection (2) gives the court power not only to deprive a person of ownership or possession of the animal but also to order that the animal be disposed of. Disposal includes destruction or sale.

152.     Subsection (6) gives the court ancillary powers when making a deprivation order, such as the power to appoint a person to carry it out, and a power to require the person in possession of the animal to give it up. Subsection (7) provides that these powers may include a provision ordering the convicted person to reimburse the expenses of the person carrying it out, and a provision depriving the convicted person of the proceeds of the animal's disposal.

153.     Subsection (8) stipulates that destruction of the animal may only be ordered where it is in the animal's interests.

Clause 42: Seizure orders where disqualification breached: Scotland

154.     This clause provides that an inspector may make an application to a court in Scotland for seizure of animals that are being kept in Scotland in breach of a disqualification order made in England and Wales. Unlike under clause 41, subsection (2) provides that criminal proceedings for breach of the disqualification need not have been initiated against the person, nor need there be any intention of doing so. However, the court will have to be satisfied that a person owns or is keeping animals in breach of the disqualification order concerned.

Clause 43: Appeals against deprivation orders and seizure orders

155.     This clause provides for the mechanism by which orders made under clause 41 or 42 can be appealed and also ensures that no orders made under clause 41 or 42, can be given effect until the period for giving notice of appeal against the order or conviction has expired, or if notice of appeal is given, until the appeal has been withdrawn or decided.

156.     Subsection (6) provides for the court to make interim orders in relation to the animal's keeping while the order under clause 41 or 42 is suspended.

Clause 44: Deprivation orders, seizure orders and interim orders: offences

157.     Subsection (1) makes it an offence to sell or dispose of an animal that is subject to a suspended deprivation order.

158.     Subsection (2) makes it an offence to obstruct a person carrying out a deprivation, seizure or interim order.

General

Clause 45: Inspectors

159.     Subsection (1) defines the term "inspector" for the purposes of the Bill. An inspector is either an officer of a local authority or an officer of the appropriate national authority (either the Secretary of State or the National Assembly for Wales). In practical terms, an inspector of the appropriate national authority is currently likely to be a State Veterinary Service inspector.

160.     Subsection (2) requires local authorities, when appointing inspectors for the purposes of the Bill, to have regard to any guidance that may be issued by the Secretary of State or National Assembly for Wales. It is expected that such guidance will set out relevant criteria (qualifications, experience etc.) for the appointment of inspectors.

161.     Under subsection (3) the Secretary of State or National Assembly for Wales may also issue a list of approved persons who are considered suitable for appointment as inspectors by local authorities.

162.     Subsection (4) provides that a person may be included on the list kept under subsection (3) either for all the purposes of the Bill or for limited specified purposes.

163.     Subsection (5) provides immunity for inspectors for actions taken outside their powers, so long as in purporting to act under their powers, they acted reasonably and in good faith.

Clause 46: Conditions for grant of warrant

164.     The Bill makes provision for warrants in order to obtain entry to premises in a variety of circumstances. A justice of the peace can issue warrants under clauses 18(4) (animals in distress), 19(5) (seizure of animals involved in fighting), 20(2) (entry and search for evidence of offences) and 24(5) (inspection of farm premises)

165.     In all of the cases cited above, one of four conditions set out in this clause must be met before a magistrate can grant a warrant to allow a constable or inspector to enter.

Clause 47: Powers of entry, inspection and search: supplementary

166.     This clause gives effect to Schedule 2, which sets out supplementary powers and duties relating to powers of entry, inspection or search conferred by the Bill, or conferred by warrants under the Bill.

Clause 48: Power to stop and detain vehicles

167.     Where there is a right of entry for constables and inspectors under the Bill, the definition of premises includes vehicles and various moveable structures (see clause 56(1)). In order to facilitate searches of this kind, clause 48 creates powers to stop and detain vehicles (as defined in subsection (5)).

168.     Subsections (1) allows a constable, or an inspector if he is accompanied by a constable, to stop and search vehicles to search for animals in distress and gather evidence where there is reasonable suspicion that a relevant offence has been committed. Subsection (3) allows an inspector, if accompanied by a constable in uniform, to stop and detain a vehicle in order to search it in connection with the exercise of his powers of inspection in relation to licensed activities, registration, inspection of farm premises and compliance with EC obligations. These subsections also apply where the constable or inspector is acting under a relevant warrant.

169.     Subsection (2) allows a constable to stop and detain a vehicle for the purposes of seizing an animal used in connection with a fighting offence if he reasonably believes that it contains such an animal or he is acting under a warrant for these purposes.

170.     Subsection (4) provides that the vehicle can be detained for as long as is reasonably required to search and exercise any other related power (e.g. to take tests or samples).

Clause 49: Power to detain vessels, aircraft and hovercraft

171.     Subsection (1) provides that a vessel can be detained in port if an inspector believes that an offence is being or has been committed on board. He must put his reasons in writing. He must present this as soon as practicable to the person in charge of the vessel (subsection (4)).

172.     Subsection (3) allows the detention of the ship to be enforced. Section 284 of the Merchant Shipping Act 1995 provides various penalties should the ship leave port before it has been granted permission to do so.

173.     Subsection (6) allows the Secretary of State or National Assembly for Wales to make regulations extending this clause to aircraft or hovercraft, or to make other provision for detaining aircraft or hovercraft that they consider appropriate.

Clause 50: Obtaining of documents in connection with carrying out orders etc.

174.     This clause requires the owner of an animal in relation to which any of various orders under the Bill has been made to deliver relevant documents relating to that animal to the person who is authorised to carry out the order. The documents must be delivered as soon as practicable and, in any event, within 10 days of being informed of the requirement.

175.     Subsection (2) imposes a similar duty on the owner to deliver documents to a person who is authorised to carry out a direction made during a period when the effect of an order is suspended pending appeal (see further clause 37).

Clause 51: Offences by bodies corporate

176.     Subsection (1) gives flexibility in the exercise of enforcement powers. It authorises simultaneous proceedings to be brought against a corporate body and individuals who are associated with the corporate body. This may either be as employees (but only if they are, or purport to be, holders of a relevant office) or directors or officers who were responsible for the conduct in relation to which the offence was committed.

177.     By deeming members of a corporate body who have responsibility for the affairs of the organisation to be in an equivalent position to a director in relation to the management activities they undertake, subsection (2) makes it possible for a criminal prosecution to be brought against a member or members of a corporate body where they are responsible for the action or omission that constitutes an offence under the Bill.

Clause 52: Scientific research

178.     Scientific procedures on animals are governed by the Animals (Scientific Procedures) Act 1986 ("ASPA"), which makes provision for the licensing of people, projects and places where research is carried out on animals. Nothing in this Bill applies to anything lawfully done under that Act.

179.     Subsection (2) provides that powers of entry conferred by the Bill do not apply in relation to places designated under sections 6 and 7 of ASPA. The only exception to this is the power of entry to inspect farming premises. Some ASPA premises are 'dual purpose'; they operate both as designated premises, and also as farms. Under the Agriculture (Miscellaneous Provisions) Act 1968, the State Veterinary Service has a power to enter farming premises to inspect animals kept for agricultural purposes, and this is not affected by the premises being designated under ASPA. Clause 52(2) ensures that this power is preserved. Under clause 24(2), it will only be exercisable in relation to animals which are reasonably believed to be bred or kept for farming purposes i.e. the power will not extend to those animals on the premises which are being bred, kept or used for experimental or scientific purposes.

180.     Subsection (3) provides that clause 8 of the Bill (duty to ensure welfare) does not apply to animals at a designated place which are kept for use in regulated procedures, or which are being bred for such a use, or which are kept for breeding offspring to be used in regulated procedures.

181.     Clause 8 of this Bill does apply to any animals that are at a designated place but which are not covered by ASPA, whether because they are of a type that is not listed in the schedules to ASPA or because they are not being used in connection with the scientific research covered by the ASPA licence.

Clause 53: Fishing

182.     This clause provides that anything which occurs in the normal course of fishing is not covered by this Bill. A fish may be a protected animal if under the control of man. The effect of this exception is that, where a fish is under the control of man in the course of fishing, the Bill has no application to anything that happens to the fish in the normal course of fishing. So, for example, the use of livebait and the practice of catch and release will not be subject to the Bill.

183.     The term 'fishing' should be understood as applying to ordinary activities of fishermen and anglers, and also the ordinary activities of those who own and run stocked ponds in allowing fishing activities to take place on their ponds.

Clause 54: Crown application

184.     Under subsection (1) the Bill and regulations made under it, once enacted, apply to the Crown. This means that it will bind all Government departments and other public bodies that are part of the Crown. It will not be possible for the Queen herself to be personally sued or prosecuted under the Bill, as the courts are the Queen's Courts and consequently have no jurisdiction over her personally.

185.     In accordance with normal practice, subsection (2) provides that the Crown is not subject to criminal liability if it contravenes the requirements of the Bill. Instead, the court has power to make a declaration that the conduct is unlawful.

186.     Under subsection (3) the fact that the Crown cannot itself be found criminally liable under the Bill does not prevent criminal convictions being made against individuals, such as civil servants who are in the service of the Crown as public servants. They can be prosecuted under the Bill in the same way as private individuals, private organisations and their staff.

187.     Subsections (4) and (5) provide that powers of entry conferred under the Bill may not be exercised at specified premises held or used by or on behalf of the Crown if the Secretary of State certifies that this would be contrary to the interests of national security.

188.     Subsection (6) disapplies the powers of entry granted to constables and inspectors under the Bill in respect of land belonging to Her Majesty as Her private estates. Subsection (7) defines Her Majesty's private estates.

Clause 55: Orders and regulations

189.     Subsection (1) requires all orders and regulation-making powers of the Secretary of State, the National Assembly for Wales or the Scottish Ministers under the Bill to be exercised by statutory instrument.

190.     Subsection (2) provides for regulations made by the Secretary of State under clauses 1(3) (extension of definition of "animal"), 5(4) (specified exemptions to the prohibition on mutilations), 10 (regulations to promote welfare) or 11 (licensing or registration activities involving animals) to be subject to the affirmative resolution procedure.

191.     Subsection (3) stipulates that regulations made by the Secretary of State under clause 49(6) (extension of the power to detain aircraft) are to be subject to negative resolution procedure.

192.     Orders for commencement and transition, made by the Secretary of State under clause 60(2) and clause 62, are not subject to any Parliamentary control.

Clause 56: General interpretation

Clause 57: Financial Provisions

Clause 58: Minor and consequential amendments

Clause 59: Repeals

Clause 60: Transition

Clause 61: Extent

Clause 62: Commencement

Clause 63: Short title

Schedule 1- Regulations under section 11

193.     Schedule 1 is divided into three parts: Part 1 deals with licensing, Part 2 with registration and Part 3 contains general provisions.

194.     The Schedule has effect in relation to regulations that can be made under clause 11. At paragraphs 2 and 3, the "licensing authority" (the particular authority which has responsibility for enforcing the regulations) will either be the relevant local authority or the appropriate national authority (in England, the Secretary of State or in Wales, the National Assembly for Wales). Paragraphs 4 and 5 stipulate that licences cannot run for more than 3 years.

195.     Paragraph 7 requires that regulations provide that a local authority must inspect premises before granting a licence.

196.     Paragraph 8 provides that regulations may allow a local authority to attach conditions to a licence, or require it to do so.

197.     Paragraph 9 provides that breach of a licence condition may be made an offence under the regulations, and that regulations may apply a relevant post-conviction power in relation to conviction for an offence. The expression "relevant post-conviction power" is defined in clause 56 (general interpretation), and is explained further in the explanatory note for clause 11.

198.     Provisions in Part 2 (registration) mirror those in paragraphs 1, 2, 3, 6, 10 and 11 of Part 1 (licensing)

199.     Part 3 (supplementary) contains provisions which expand the regulation-making powers under clause 11. One particular thread, consisting of paragraphs 18(a) and 19(2) and (3), is designed to enable effects, produced in the context of existing regimes for the licensing of activities involving animals, to be reproduced by regulations under clause 11, even though the effects are not ones which can be said to be required for the purpose of promoting animal welfare (for example, the requirement under section 1(4A)(d) of the Riding Establishments Act 1964, which makes it a licence condition that the keeper of a riding establishment should have appropriate insurance). Paragraph 18(a) enables regulations under clause 11(7) to include an equivalent licence condition in any new licensing regime substituted by the regulations for an existing regime. Alternatively, if the existing licensing regime is simply repealed by regulations under clause 11(8), paragraph 19(2) and (3) enable regulations to make consequential provision for the purpose of continuing the effect of the old licence condition, i.e. that the keeper of a riding establishment is required to have appropriate insurance.

Schedule 2 - Powers of entry, inspection and search: supplementary

200.     This Schedule specifies the powers and duties of those exercising powers of entry, inspection or search under the Bill.

201.     Paragraph 1(1) provides that the safeguards contained in the Police and Criminal Evidence Act 1984 (c.69) that apply to constables, apply to inspectors for the purposes of warrants issued under section 17(4) or 20(1).

202.     Paragraph 1(2) provides that warrants issued to inspectors to inspect farmed premises under section 24(4) also have these safeguards, subject to modifications. These modifications reflect the fact that warrants under section 24(4) are for entry only, and not, as under sub-paragraph (1), entry and search.

203.     Paragraph 2(2) requires the person entering to show evidence of his identity and authority to enter, and to give information about his reasons for entering. There needs to be a request for these things before there is a requirement to provide them.

204.     Paragraph 3 contains a power to take other persons and equipment onto the premises. This is at the discretion of the inspector or constable who is entering. For example, it may be necessary to take a veterinary surgeon onto the premises. In such a case, an accompanying veterinary surgeon will have powers to examine the animals under paragraph 8(2)(a) and to take samples, tests etc under paragraph 8(2)(d). The powers set out in paragraph 8, which also include the power to seize documents, apply to entry for the purpose of inspecting licensed and registered activities, inspection of farmed animals and checking compliance with European legislation. They also apply to entry and search where there is reasonable suspicion that an offence is being, or has been committed.

205.     Paragraph 4 imposes a duty to ensure that search or inspection is at a reasonable time, unless it appears to the constable or inspector that the purpose of the search or inspection would be frustrated if the power was exercised at a reasonable time.

206.     Paragraph 5 imposes an obligation to give assistance. This is imposed on the occupier, anyone appearing to be the owner or keeper of animals there, or anyone appearing to be under the direction or control of the owner or keeper. In the case of entry to inspect licensed activities under clause 22, the obligation to give assistance extends to the licence holder.

207.     Paragraph 6 will allow an inspector or constable entering premises under the powers specified in paragraph 5(1) to take equipment onto the premises with him.

208.     Paragraph 12 provides for the use reasonable force in the exercise of powers under paragraph 8.

209.     Paragraph 13 makes it an offence to obstruct a person lawfully exercising a power of entry or a power under the Schedule, or to fail to give assistance as required under paragraph 5.

 
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Prepared: 14 October 2005