Examination of Witnesses (Questions 60
- 79)
TUESDAY 15 NOVEMBER 2005
MR BEN
BRADSHAW MP, MR
JOHN BOURNE
AND MS
CAROLINE CONNELL
Q60 Chairman: I do not want to hog
this. I am scarred by the experience of winning a goldfish at
a fair many years ago, and lovingly looking after this goldfish,
only to find that my dear mother dropped a rock on it in its pond
and killed it. I am informed by this particular piece of background
in that it is not always the child which causes the problem. I
think there are certainly examples of children who might well
be brought up in a rural environment who would be very good keepers
of animals because they fully understood, whereas in certain urban
environments, in exactly the same kind of pressures and background
that you have just enunciated, it might lead to bad choices. Therefore,
it is more a question of the circumstances of the acquisition
of the animal which seems sensible. I wonder how on earth all
of this is going to be policed?
Mr Bradshaw: Nothing in this Bill
will ban the child owning or keeping an animal. It is the transaction
that is the issue here.
Chairman: I hear what you say. I remain
slightly sceptical.
Q61 Mrs Moon: This question is really
around what used to be a commonly held power of entry for RSPCA
inspectors where somebody rang and there was a dog, perhaps, in
the yard or a shed or locked in an outhouse. It would appear that
right of entry, where there is a report of an animal in distress,
has now been removed under this Bill unless there is a warrant
in place. That seems to have been specifically put there by Defra.
In terms of an emergency situation where the good neighbour has
rung in saying "This dog is tied up in the shed, we are very
concerned" then the inspector or the concerned person is
left with an illegal entry unless they go through the whole process
of getting a warrant. Why have you taken that route and why have
you made it so much more complicated for action to be taken where
there is an animal in distress? The other example that is cited
is perhaps a dog on a balcony that is dangling on a lead, choking,
and nobody can get to its rescue without an appropriate order.
Mr Bradshaw: Can I clarify, Mrs
Moon, you are talking about changes to this Bill rather than the
legal status quo because at the moment those powers do not exist.
We were proposing to give them in the draft Bill in an emergency
situation. Having consulted with the Home Office about human rights
and proportionality we have decided that to enter a private dwelling
you will need a warrant and that warrant will need to be got from
the courts. It does not mean to say that the RSPCA will not be
able to continue to do their work because in practice they do
not have the powers at the moment, but they are usually given
access. If they are not given access and they want it, they will
have to get a warrant and that is on the advice of the Home Office
in terms of European Human Rights Convention compliance.
Q62 Mrs Moon: I can understand if
you are talking about entry into someone's home but we are talking
about entry into a backyard, a garage or an outhouse, and they
are being extended as part of the definition of a private dwelling.
Why have those areas been added when it limits the capacity in
an emergency to protect an animal in distress because more often
than not the animal is in the shed, the outhouse, the garage,
the yard, and now there is a warrant needed to get in and rescue
that animal. That seems almost a hindrance to the protection of
animals rather than an improvement.
Ms Connell: Three or four points
on that. First of all, under the current law, as it stands, the
RSPCA do not have rights of entry at all, they do not have any
rights of entry to go on to people's private property. Often they
are invited on but that is the only basis on which they are allowed
to go on. Secondly, as a result of the powers in the Bill, we
are creating powers for police and inspectors to take action in
emergencies, and those powers do not really exist at the moment
except in very restricted terms in the Protection of Animals Act
1911. The powers are new. As far as the rights of entry into people's
sheds, outhouses, garages, gardens, et cetera, I think the Committee
asked last time for us to define dwelling and it is really a question
of trying to draw a balance between the need to protect animals
in an emergency and the need to protect people's private property
from inspectors and police entering in what they perceive to be
an emergency. It is a question of trying to draw a balance and
in trying to draw that balance we have looked at human rights
case law, we have looked at Home Office guidance and it is clear
to us that in this context the correct balance is to require the
production of a warrant before somebody can enter a private house.
It is then a question of argument as to whether you class somebody's
garden or somebody's garage as part and parcel of their private
dwelling from the point of view of their human rights and powers
of entry. It may be a question of degree in some cases, I suppose.
If you have got a very, very large estate, it may be a bit of
a stretch to say that is part of your private dwelling. On the
other hand, in an ordinary terraced house, it may be that most
people would think that their garage, which is full of bicycles
and stuff, is part of their dwelling. It is a question of trying
to draw a balance. If an animal is suffering and it is necessary
to get a warrant, it does not necessarily take that long to get
a warrant. The police do get warrants all the time. It does not
prevent action.
Q63 Mrs Moon: You could have a situation
where an inspector is called, he can see there is an animal suffering
and in distress, chained up in a garden, chained up in a yard,
what we are saying is the inspector would be required to go and
get a warrant before they can go in and alleviate that suffering?
Mr Bradshaw: If they are refused
access in the first place, yes.
Q64 Patrick Hall: What is the case
now?
Mr Bradshaw: They do not have
any rights of access at the moment.
Q65 Chairman: If it were to be the
case, just to be absolutely clear, that somebody had got a very
big house and they had built a cock fighting pit in the cellar,
the only way you can gain access to that, under the terms of this
Bill, would be to have a warrant before you arrived?
Mr Bradshaw: Yes.
Ms Connell: In somebody's house,
yes.
Mr Bradshaw: That is the same
for all criminal investigations or police activities in relation
to somebody's house and that is why we have tried to make it consistent
with the rest of criminal law.
Chairman: At least we are clear on how
that part of the Bill operates.
Q66 David Taylor: I have a brief
question on prosecutions before moving on to abandonment. The
regulatory impact assessment, paragraph 14, anticipates savings
will be made by reducing the number of cases which are brought
to court, although there may be an initial rise until the offence
beds in and prosecutions will eventually fall because intervention
at a much earlier stage will help prevent cases progressing into
the courts. What estimate has Defra made as to the range of likely
numbers of cases which will eventually finish in courts? When
we talk about an early rise, what sort of range do you anticipate
there?
Mr Bradshaw: I do not think we
have made an estimate of how many people will end up in court.
We have given some figures in the box above paragraph 14 as to
why we think savings will be made because of the lack of need
to make so many visits—if you are able to make one visit,
maybe two visits, and get the problem sorted out. If it is not
sorted out, we will be able to prosecute.
Q67 David Taylor: I accept that but
it is the judicial process I am focusing on.
Mr Bradshaw: It may well be that
the RSPCA can give you a better estimate of the number.[7]
What is logical to expect is that there will be an initial rise
in the number of prosecutions for welfare offences which at the
moment cannot be prosecuted. Medium- and long-term there will
be a reduction in the number of serious offences prosecuted because,
hopefully, if you can intervene at an earlier stage and prevent
something happening that will lead to a reduction in prosecutions
for more serious offences, but we have not put a figure on it.
Q68 David Taylor: So you are qualifying
that a little then? You are saying it is serious offences which
are likely to reduce in terms of court appearances?
Mr Bradshaw: We do not know about
welfare offences because that is a new offence, but I would hope
in time as people became aware they were liable for prosecution
on welfare offences and were made aware of what they needed to
do to make sure they were looking after the welfare needs of that
animal, using codes of practice and other advice, that there would
be fewer welfare offences as well.
Q69 Mr Williams: There have been
difficulties in the past where a private householder has been
prohibited from keeping cats, for instance, because of a prosecution,
and it is difficult to enforce that because of the very reason
you have said about difficulty of access to that house. Do you
think such a prosecution and such a sentence now will be easier
to enforce because of this legislation?
Mr Bradshaw: It should be, and
I think having a database will help police forces around the country
enforce it. Closing the loophole allowing ownership to pass between
family members, for example, will also help the law mean what
most people I think would like it to mean, which is you cannot
keep animals.
Q70 David Taylor: In our report on
the draft Bill we said we would not object to the removal of a
specific reference to abandonment, provided the Government were
certain abandonment of an animal would not service to divest a
person of responsibility, and that a charge could still be laid
and prosecuted under duty of care. Animal Defenders International
object to the abandonment provision being removed, they say it
is inappropriate and an unnecessary change of direction. Can you
reassure us yet again that the abandonment of the abandonment
offence will not lead to new problems?
Mr Bradshaw: We are confident
that abandonment is covered under the welfare offence. I also
think the Committee should be aware of some of the potential difficulties
of including the abandonment reference specifically, such as stocking
fish ponds or releasing pheasants. The definition of abandonment
would be one which would be quite difficult to reach an agreement
on. I think it is much better to cover it in the welfare offence
if courts think the welfare needs of this animal have not been
met, ie if it has been abandoned in the real sense of the word
then that is an offence under the welfare offence.
Q71 David Taylor: The Scottish Parliament
has retained abandonment in their legislation, has it not?
Mr Bradshaw: Yes, I think that
is going to give them trouble.
Q72 David Taylor: You think so?
Mr Bradshaw: I think that will
give them problems, yes, for the reasons I have outlined about
stocking fish ponds, carp ponds, letting pheasants go. In theory,
someone could take out a prosecution in Scotland to prevent people
releasing pheasants is my understanding of it, if they stick to
their guns on that.
Q73 David Taylor: Something which
occurs a great deal in our area, because of the nature of the
area—close to the motorway system, fair numbers of people
from travelling communities—is long-term tethering of horses
that appear not to be given any sustenance or treatment or moved
around in any way; is this not abandonment? Are you telling me
those sorts of problems where they occur will be prosecutable
under other sections outlined in this Bill or other legislation?
Mr Bourne: Yes. It would not fall
under abandonment under the current law, by definition.
Q74 David Taylor: It is abandonment
to a normal person.
Mr Bourne: Certainly it would
fall foul of the welfare offence if you are failing to provide
their needs and in terms of long-term tethering, you would be
very pushed to. We do intend, and we have made that clear, to
produce a code of practice on tethering which will address exactly
that issue and provide clear guidance on what is good practice
for tethering, ie when it is acceptable and when it is not.
Q75 David Taylor: That code of practice
will be linked to this Bill?
Mr Bourne: It will be linked to
the Bill, we have made a clear commitment to producing one, yes.
Q76 James Duddridge: What further
consultations will take place in relation to tail docking before
the introduction of regulations? Can I ask, specifically, whether
the Government will give the House an opportunity to express an
opinion on tail docking during the progress of the Bill rather
than simply after the Bill?
Mr Bradshaw: Yes, is the answer
to the second part of the question. Yes, there would be consultation
on any of the regulations that would be introduced under this
Bill as part of secondary legislation before consultation.
Q77 Chairman: We had a view put to
us by Mr Mike Radford, who gave us some very helpful evidence
when we did our original inquiry, and it was really an observation
of his about the nature of the Bill as a whole. It was this: he
felt that the Bill did not define terms as well as they should
be but you had left this to the notes on clauses to do that. I
was interested as to whether there was a conscious effort to write
the notes on clauses to define what was in the Bill, when in actual
fact some of the definition should have been on the face of the
Bill in the first place.
Mr Bradshaw: You are looking at
Caroline, Chairman, and I am going to ask her to answer the question.
Q78 Chairman: Of course I am because
Caroline will be able to answer this question I am sure.
Mr Bradshaw: Mike Radford is a
lawyer so I think it is for a lawyer to answer it.
Ms Connell: I am not quite sure
which terms in the Bill he is suggesting should have been better
defined. I think one of them was "control".
Q79 Chairman: "Temporary"
was one that he drew to our attention in clause 2 referring to
an animal under the control of man on a temporary basis but temporary
is not defined. I think that he was concerned that things like
that should be defined in the Bill as such. You are right about
"control" also, that was one of the other ones that
he drew to our attention.
Ms Connell: Yes.
Mr Bradshaw: On control, we think
this Bill is more precautionary than the existing legislation
which talks of captive animals. To be honest, we do not agree
with him on this.
Ms Connell: The general point
that you make, Chairman, about definitions of terms in the Bill,
obviously one tries if there is obvious ambiguity to define a
term in so far as you can but the more you try and define—and
I know that we have had discussions with parliamentary counsel
on this precise point—the more you run the risk of excluding
things that you might want to include. Obviously it is impossible
to foresee every single instance that might arise. Mr Radford
has specifically commented on a failure to define the word "control"
and I think that is something the Committee mentioned last time.
It is very difficult to come up with a comprehensive definition
of the term "under the control of man". There may be
cases where it is absolutely obvious that I control my cat or
I control my dog or a farmer controls his stock, and there may
be cases where it is absolutely obvious that I do not control
the birds in my garden. There will be borderline cases where it
is not entirely clear. Mr Radford has cited about five cases which
have been decided since the 1911 Act where there were border line
cases. A hedgehog that rolled up into a ball apparently was one—
Mr Bradshaw: Stranded whales,
a stallion injured in a road accident, a rabbit restrained by
throwing a coat over it. These, I suggest, are more likely to
come under the definition of "in the control of man"
than they would have been under captive animals, but that is a
lawyer's argument.
Ms Connell: I think the point
Mr Radford makes is that those were decided on the term "captive",
and the court decided that captive implied a certain element of
permanence, not just an animal which happened to have been run
into a corner and was standing there, like the deer in the course
of a hunt which fell into a ditch. The court imported an element
of a more permanent relationship with the animal than that. I
think his point is that that case law will not be any use any
more when defining the question of control, and that is correct,
it will not be strictly in point. There may be cases coming up
in the future when someone tries to litigate the question of what
is and what is not under the control of man, for example to what
extent is an animal trapped in a trap or a snare under your control.
It is conceivable something like that would come up. I think really
it is impossible to iron out and the fact it only came up five
times since 1911 indicates to me that perhaps it was not such
an area of great difficulty afterwards, and one would hope the
same would be the case with control. Most magistrates are quite
capable of deciding when they think a word like that applies and
when it does not.
Mr Bourne: On the use of the word
"temporary", the reason we put that in was because if
we had not put it in, someone might have argued that control only
applied to permanent control, so it is there to say you cannot
have the defence, "Ah but I only had control of it for a
few minutes". What it is saying is, if you have control of
it, you have a duty not to be cruel to it.
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