Memorandum submitted by Mike Radford,
Reader in Law, University of Aberdeen
EXECUTIVE SUMMARY
While welcoming the thrust of the policy underlying
the Bill, this paper draws attention to a number of matters which
are thought to require further consideration if the legislation
is to be effective. These include:
— The evidential threshold to include
invertebrates is too high;
— The meaning of "control"
in relation to the definition of a "protected animal"
remains unclear;
— The offence of causing unnecessary
suffering does not replicate the existing offence of cruelty;
— The offence of fighting is too narrow;
— The precise nature of the duty of
care is remains ambiguous;
— The provision relating to offering
animals as prizes is inconsistent with the purpose of the Bill;
— The powers of entry require clarification;
— The duty of care is not an adequate
substitute for further regulation.
INTRODUCTION
1. The Animal Welfare Bill is—potentially—a
very significant innovation. The changes it is intended to introduce
are widely acknowledged to be necessary and overdue, and its provisions
have the possibility of making a very positive impact on the treatment
and protection of animals in England and Wales. It is sincerely
to be hoped that it attracts a fair wind during its passage through
Parliament.
2. Indeed, the Government's proposal to
introduce the Bill has created a remarkable consensus. As DEFRA
observed, the Department has consulted with representatives of
over 200 stakeholder groups, including commercial interests, the
police, local authority enforcement officers and welfare groups,
and "[e]very group—regardless of its agenda—wanted
to see the modernisation of existing welfare laws".[10]
3. Likewise, during the course of its pre-legislative
scrutiny of the draft Bill, the Committee experienced a similar
response: "In written and oral evidence to us, submitters
and witnesses were almost universally supportive of the fact that
the Government has put forward a draft Bill on animal welfare."[11]
4. However, while the Committee indicated
that it "fully support[s] the Government initiative of seeking
to modernise and improve animal welfare legislation", it
has also recognised that the draft Bill raised "many important
and often complex issues which must be resolved before a final
Bill is introduced to Parliament."[12]
5. Undoubtedly, the Bill introduced in the
House of Commons on 13 October generally represents, in respect
of both its structure and its content, a very significant improvement
in comparison with its predecessor. This may be attributed in
large measure to the effectiveness of the pre-legislative scrutiny
undertaken by the Committee. Credit must also be given to the
Minister and his Bill team for the positive manner in which they
have responded to many of the Committee's observations and recommendations.
6. Nevertheless, significant issues remain
to be addressed. Many of these are questions of form rather than
substance, and it is perhaps regrettable that the Department has
not demonstrated the same degree of openness and willingness to
consult on the drafting of the Bill since the Committee published
its report as was the case previously. If it had been otherwise,
concerns could have been expressed and, if the Department was
persuaded of their merits, the Bill could have been amended administratively
prior to publication.
7. In particular, the Bill contains a number
of ambiguities and uncertainties as to its precise meaning, and
it is essential that these be clarified. As a matter of principle,
the criminal law should be as clear and unambiguous as possible
in order that all those to whom it is addressed can understand
the nature and extent of their respective duties, powers and responsibilities.
8. Furthermore, if the Bill is to achieve
the Secretary of State's ambition to become "a watershed
in ensuring that this country re-establishes itself as the pace
setter for animal welfare standards throughout the world",[13]
not only must its provisions be appropriate for the twenty-first
century, but they must also be easily understood and straightforward
to implement.
9. It is not intended to address all of
the matters to which the Committee drew attention in its Report,
but rather to focus on issues which are considered to be of particular
significance.[14]
For convenience, these are discussed in the same order as they
appear in the Bill.
DEFINITION OF
"ANIMAL"
10. It is to be regretted that the Department
has maintained its position that, for the time being at least,
the legislation will not extend beyond vertebrates. The disparity
between this position and that of the Home Office in relation
to octopus vulgaris, which have been brought within the scope
of the Animals (Scientific Procedures) Act 1986, is self evident.
11. In its response to the Committee's report,
the Department stated:
Defra veterinarians have reviewed the scientific
evidence for the inclusion of cephalopods and crustaceans. We
do not consider there is sufficient scientific evidence to suggest
that crustaceans can experience pain or suffering to warrant their
inclusion. The evidence for cephalopods is more balanced and we
will continue to review.[15]
12. Having—presumably—kept this
"more balanced" evidence under review, the explanatory
notes seek to justify the Department's position with the dogmatic
assertion that "[t]he Act will apply only to vertebrate animals,
as these are currently the only demonstrably sentient animals".[16]
13. It is submitted that the reason for
the apparent inconsistency with the approach adopted by the Home
Office is that the evidential threshold in the Bill is too high.
While it is accepted that the decision to extend the scope of
the legislation should be based on scientific evidence, the test
to be applied should be sufficiently flexible to give the benefit
of the doubt to a type of animal in relation to which there is
a respectable body of scientific opinion which considers that
it may be sentient. To this end, it would be in the interest of
animal protection if clause 1(4) were amended to read:
The power under subsection (3)(a) or (c) may
only be exercised if the appropriate national authority is satisfied,
on the basis of scientific evidence, that animals of the kind
concerned may be capable of experiencing pain or suffering.
THE MEANING
OF "PROTECTED
ANIMAL"
14. The explanatory notes clearly indicate
that sub-clauses (a) and (b) of clause 2 are to be read as though
the word "or" were included at the end of sub-clause
(a). However, without the assistance of the explanatory notes,
it is possible to interpret the definition as though the word
"and" were present. Even though the wording may satisfy
drafting conventions, it is submitted that, for the avoidance
of doubt, the word "or" should be inserted at the end
of sub-clause (a).
15. More significantly, the meaning of "control"
remains undefined, notwithstanding that the Committee recommended,
at the very least, a definition of the word "control"
should be included on the face of the Bill. Such a definition
should be drawn sufficiently narrowly so as to ensure that the
protection offered by the draft Bill would not extend to wild
animals, living in the wild.[17]
16. The Bill addresses the latter issue
by virtue of clause 2(c). However, the boundary between "under
the control of man" on the one hand, and "living in
a wild state" on the other, continues to lack clarity. For
example, is a wild animal caught in a trap to be regarded as an
animal living a wild state, albeit restrained, or one that is
at that time under the control of man (notwithstanding that the
animal may escape and return to the wild without human intervention,
or, indeed, a human even being aware that it has been caught)?
17. This may seem a somewhat esoteric issue.
In the vast majority of circumstances it will be self-evident
whether or not an animal is to be regarded as a "protected
animal". Nevertheless, the definition is fundamental to the
scope of the legislation, and its boundaries should be clear.
18. In response to the Committee's recommendation,
the Department conceded that the meaning of a "protected
animal" becomes "less clear when a wild animal is, for
example, stranded, or trapped, or injured in a road accident."[18]
19. In the view of the Department,
once an animal is under the control of man, it
is incumbent on man not to cause it, or permit it to be caused,
unnecessary suffering. We do not believe that wild animals in
these circumstances should be exempted.[19]
20. The principle is wholeheartedly supported,
but it still leaves open the meaning of "control".
21. The Department reports that it has been
advised against attempting a definition of "under
the control of man" by Parliamentary Counsel since it is
thought more likely to confuse than to aid interpretation. Listing
or categorising every scenario that may cause an animal to come
under the control of man is not possible and in most cases the
meaning of "under the control of man" will be clear.
In borderline cases, our view is the term should be open to interpretation
by the courts.[20]
22. Although one accepts that any attempt
to produce an exhaustive list would be impractical, in view of
the variety of situations in which humans come into direct contact
with wildlife, it would seem to be entirely desirable that the
concept of "control" should be better defined.
23. "Under the control of man"
is clearly intended to have a wider meaning than the concept of
responsibility contained in clause 8. Moreover, the explanatory
notes state that it is intended "to be a broader expression
than `captive animal', which was used in an equivalent context
in the Protection of Animals Act 1911."[21]
The latter term having been, as the explanatory notes acknowledge,
interpreted narrowly in the courts (strange, then, that the courts
are being relied upon to interpret and apply its replacement).
24. Against this background, it is appropriate
to consider the situations in which the courts have decided that
an animal which is otherwise unable to escape is not captive for
the purposes of the 1911 Act. These include:
— stranded whales (Steel v Rogers
(1912) 76 JP 150);
— stag injured in a road accident (Rowley
v Murphy [1964] 2 QB 43);
— hedgehog rolled in a ball to protect
itself (Hudnott v Campbell, QBD, The Times, 27 June
1986);
— rabbit restrained by throwing a coat
over it (Woods v RSPCA, QBD, 5 November 1993); and
— fox cornered in a culvert (Barrington
v Colbert, QBD, 10 November 1997).
25. It is not immediately apparent which,
if any, of the above situations might amount to an animal being
"under the control of man". Accordingly, it is a matter
of concern that, without further detail, the problems associated
with the notion of a "captive animal" are being re-invented.
UNNECESSARY SUFFERING
26. It is unfortunate that the term "cruelty"
has been expunged from the Bill: it is a word of huge symbolic
importance as well as being a concept which is widely understood
(even though its precise legal meaning may not be appreciated).
27. It is therefore strongly urged that
"Prevention of cruelty" be substituted for "Prevention
of harm" as the sub-heading for this section. Not only would
this restore the word to the legislation, it would also be more
apt: it is possible to cause an animal harm without causing unnecessary
suffering.
28. Of greater concern, however, is the
drafting of clause 4. According to the explanatory notes, this
clause is "intended to replicate the protection provided
by the 1911 Act, but to simplify and update the legislation."[22]
29. While this may be the intention, it
is submitted that the drafting of the clause will alter significantly
the way in which offences arising from unnecessary suffering are
decided by the courts.
30. Legal authority for the way in which
magistrates should determine whether a person is guilty of the
offence of causing unnecessary suffering under section 1(1)(a)
of the 1911 Act can be found in three cases.
31. In Ford v Wiley, the Court held
that to cause an animal to suffer in the absence of a legitimate
object is prima facie evidence of unnecessary suffering.
Where the suffering arises as a consequence of furthering a legitimate
purpose, however, it suggested that determining necessity was
a two-stage process. First, it must be shown that the animal's
treatment was to effect an "adequate and reasonable object";
secondly, "There must be proportion between the object and
the means."[23]
32. According to the court, in deciding
whether a defendant was guilty, should ask:
Whether the animal had suffered?
If it had, whether the suffering was in pursuit
of a legitimate purpose?
If not, the suffering was unnecessary; if it
was for a legitimate purpose, then one moves on to the third question:
Was the amount of suffering caused proportionate
to the purpose to be attained?
33. Hence the inclusion of the terms "legitimate"
and "proportionate" in, respectively, 4(3)(c) and (d).
34. The other two cases involved the interpretation
of the offence of wantonly or unreasonably doing, or omitting
to do, any act which causes any animal unnecessary suffering.
In Hall v RSPCA[24]
and RSPCA v Isaacs,[25]
the English High Court has held that "unnecessary" in
this particular context (and only in this context) is to be interpreted
to mean "not inevitable" or "could be avoided or
terminated". This is because it is the only offence of cruelty
which specifically includes the adverbs "wantonly or unreasonably"
in relation to causing unnecessary suffering.
35. In Hall, Holland J held that
considerations such as the reason for the suffering, together
with its nature, intensity and duration are to be taken into account
in determining whether the defendant acted unreasonably. It would
be inappropriate, he said, to repeat this exercise in deciding
whether the suffering was unnecessary. It is this which allows
the court to equate "unnecessary" with terms such as
"avoidable", or "not inevitable". According
to Holland J, "unnecessary" is to be taken to mean that
the statute "implicitly postulates that for an animal there
may be suffering which is inevitable despite proper husbandry
so as to be `necessary'", and the word therefore "seeks
to distinguish as an element for a prosecution that suffering
which is not inevitable; that suffering which could be avoided
or terminated and is thus `unnecessary'". Such a meaning
cannot be applied to "unnecessary" in relation to the
other offences of cruelty defined by reference to unnecessary
suffering, which are made up of only two components: suffering,
which is unnecessary. To do so would thereby make any suffering
which was not avoidable or inevitable potentially illegal, regardless
of its purpose, nature, duration, or intensity. While this might
be welcomed by some animal welfare campaigners, it is clearly
not the intention underlying the legislation.
36. Furthermore, in Hall, a case
involving alleged cruelty to pigs, Holland J, with whom Mann LJ
agreed "unhesitatingly", held that the word "unreasonably"
in the offence connoted "a purely objective test". It
refers, he said, "not to a state of mind, but to a prevailing
external standard so that a subjective input is essentially irrelevant".
Applying this principle to the facts of the particular case, the
appropriate objective standard against which to compare the defendants'
conduct was that of "the reasonably competent, reasonably
humane, modern pig farmer". Similarly, the same court applied
an objective test in Isaacs, which arose from the failure of a
dog owner to consult a veterinary surgeon. In these circumstances,
the test applied by the court was whether a reasonably caring,
reasonably competent owner would have made the same omission.
37. Uniquely, therefore, this particular
offence of cruelty is made up of three separate components:
1. unreasonable conduct on the part of the
defendant;
2. resulting in an animal suffering; and
3. that suffering being unnecessary.
38. Combining the court's interpretation
of "unnecessary" under the second limb of section 1(1)(a)
with its view that "unreasonably" connoted an objective
standard in relation to mens rea, the court posed three
questions:
2. was the suffering necessary "in the
sense of being inevitable"?
3. would a reasonably competent, reasonably
humane modern pig farmer have tolerated such a state of suffering?
— If the answer is again no, the defendant
is guilty of the offence.
39. The day following their decision in
Hall, the same two judges applied an identical formula
in Isaac. In these circumstances, the questions posed were:
2. Was the suffering inevitable, in that
it could not be terminated or alleviated by some reasonably practicable
measure?
3. Would a reasonably caring, reasonably
competent owner have made the same omission?
40. This novel analysis of the meaning and
application of the second limb of section 1(1)(a) of the 1911
Act laid down in the Hall and Isaacs cases is to
be welcomed both for its clarity and effect. It is easy to understand,
straightforward to apply, and the objective test it imposes is
greatly preferable to a subjective one based on the sensitivity
and standards of the individual defendant, which may fall considerably
below those of the reasonably caring and humane person.
41. Hence the terms "avoided"
and "reduced" in 4(3)(a), and "a reasonably competent
and humane person" in 4(3)(e).
42. The difference between the existing
case law and the Bill as drafted is this: although the analysis
of how the court should determine a case before it is not presented
in the judgments in such a formulaic manner as suggested above,
the effect of all three decisions is to provide the trial court
with a distinct route by which to reach its decision. Issue A,
leads to B, leads to C. The drafting of clause 4(3) is quite different.
While some of the terminology is clearly drawn from the case law,
the way in which the sub-clause is structured fails to give the
court any guidance as to how it should apply these tests, let
alone provide a structure by which the court may arrive at its
decision. Rather, the sub-clause provides the court with a (non-exhaustive)
list of relevant considerations, without any indication of how
they should be applied or weighed one against the other.
43. It is submitted that, despite the claim
in the explanatory notes, the effect of clause 4(3) is not to
replicate the existing law, but to change it—and to change
it for the worse. Not only will the meaning and application of
the unnecessary suffering test change, but the case law which
has provided a very valuable guide to the courts will no longer
be directly applicable.
FIGHTING
44. It may be that most of the activities
specified in clause 2(1) of the draft Bill can be included in
clause 8(1)(a) of the current Bill, but for the avoidance of doubt,
the former drafting would seem to be preferable.[26]
45. Furthermore, the definition of an animal
fight—"an occasion on which a protected animal is placed
with an animal, or with a human, for the purpose of fighting,
wrestling or baiting"—suggests that a fight has actually
to take place before the offence is committed. It is submitted
that clause 7 should be amended so as to state expressly that
the offence may also be committed by acts preparatory to a fight,
provided that the prosecution can demonstrate that the defendant
intended that a fight should take place.
46. It is also a cause for concern that
the offence appears to be committed only if the specified actions
can be related to a specific fight, rather than to involvement
in fighting generally. If this is so, it would represent a significant
change from the present position.
DUTY OF
A PERSON
RESPONSIBLE FOR
ANIMAL TO
ENSURE WELFARE—THE
WELFARE OFFENCE
47. As has been widely acknowledged, this
is the most significant clause in the Bill. As such, it is essential
that there is a general understanding of the nature of the duty
which it imposes. Indeed, the wording is extremely unusual for
defining an offence. Just how unusual can be demonstrated by the
fact that there are only four instances in the entire statute
book of similar wording in the definition of an offence,[27]
but none is directly comparable to the present provision.
48. There are six issues which merit consideration.
First, on the basis of the wording of clause 8(1), it is assumed
that this is to be a strict liability offence. That is to say,
the person's state of mind at the time the offence is committed
is irrelevant: criminal liability turns exclusively on the person's
conduct. This would be consistent with the Committee's recommendation.[28]
49. If it is indeed a strict liability offence,
this is entirely welcome in terms of its impact. However, the
relatively low threshold means that it is essential that there
should be a general understanding as to its meaning, and consideration
should be given to including safeguards against it being used
in an oppressive manner. The latter point is discussed further
below.
50. Second, the English Bill uses the term
"reasonable in all the circumstances", whereas the Scottish
Bill omits "all". One can speculate on the significance,
if any, of this difference in drafting. It is important, however,
that the relevant circumstances should be circumscribed so as
not to extend to factors which might excuse inadequate welfare.
For example, the intention to protect animals would clearly be
undermined if a court were able to take account as a mitigating
factor circumstances which directly contributed to poor welfare,
such as the person's ignorance or incapacity (financial, domestic,
physical, or mental) to care for the animal to an acceptable standard.
51. Third, it is regrettable that the concept
of "good practice" has been substituted for "appropriate
manner". The latter is greatly to be preferred. "Good
practice" suggests the existence of an objective standard
against which a person's standard of care can be compared, and
might encourage a "tick-box" mentality. "Appropriate
manner" much better conveys the complex nature of welfare
assessment, which involves looking at each animal as an individual,
weighing a variety of factors, together with the exercise of considerable
judgement.
52. Fourth, the explanatory notes categorically
state that, in the opinion of the Department, clause 8 will apply
to acts of abandonment. Given the wording of clause 8, it is by
no means clear that it would have the general application in cases
of abandonment as is suggested in the explanatory notes. The Scottish
Executive has decided to retain a specific offence of abandonment.
The Department has rejected a recommendation that a similar position
be adopted in England and Wales.[29]
It is submitted that the wording is more appropriate, and therefore
more effective, given the nature of the offence, and it is strongly
urged that a similar provision be included in this Bill.[30]
53. Fifth, there is a further inconsistency
in the explanatory notes. While the Department offers its view
of the reach of the clause in the case of abandonment and the
temporary transfer of responsibility,[31]
there is no mention of whether in the Department's opinion it
extends to the permanent transfer of responsibility of an animal,
such as a change of ownership. There is no reason in principle
why a person who has been under a duty of care for such time as
they have owned the animal, should not be under a responsibility
to take reasonable steps to satisfy themselves that the person
to whom they are transferring ownership is able adequately to
ensure the needs of the animal. Such a requirement is entirely
consistent with the intention underlying the legislation and,
like abandonment, should be expressly provided for.
54. Finally, there is the issue of enforcement.
Mention was made above that it may be necessary to provide safeguards
against the oppressive enforcement of this offence. At the same
time, it is important to appreciate that the impact and effectiveness
of the welfare offence will not be achieved primarily through
prosecution. Rather, in the vast majority of cases, its significance
will be in allowing those who enforce the law to intervene, identify
problems, and assist in correcting the situation.
55. To this end there has been some limited
support for the provision of improvement notices to those whose
standard of care is considered inadequate. This was the position
adopted by the Committee.[32]
Unfortunately, the Department has not been persuaded of the merits
of this proposal. However, a halfway house is proposed. Both to
prevent oppressive or disproportionate enforcement, and to inform
and advise those whose standard of care has slipped below that
which is required by law, it is suggested that, except in circumstances
where an animal has been taken into possession under the authority
of clause 16, the Bill should specify that no person may be prosecuted
for an offence under clause 8 unless they have first been informed
in writing by the person undertaking the prosecution: the basis
on which it is alleged that they are in contravention of the duty
of care; the steps they are advised to take to resolve the situation;
and a reasonable opportunity to correct the situation. Such a
measure would not impose any additional statutory powers on those
to whom it was directed, but would be of general application,
regardless of whether the prosecutor was bringing the prosecution
under the authority of statute or in a private capacity. Failure
to comply with the advice would not in itself amount to an offence.
PRIZES
56. Provisions relating to the sale of animals
to children and the offering of animals as prizes were contained
in separate clauses in the draft Bill. Why they now appear in
the same clause is incomprehensible.
57. In particular, the amalgamation has
resulted in a provision which makes it an offence to offer an
animal as a prize only to a child. It is assumed that this is
a mistake; if it were otherwise it would demonstrate a gross misunderstanding
of why offering an animal as a prize is unacceptable. The decision
to assume responsibility for an animal should only be taken after
due consideration; it should be a positive decision, rather than
an accident; and adequate preparation should have been undertaken
before the transfer of ownership takes place. Furthermore, the
person providing the animal should take reasonable steps to ensure
that the needs of the animal can be met by the new owner. None
of these criteria is consistent with offering an animal as a prize.
58. Clause 5 of the draft Bill should be
reinstated in its original form as a separate and discrete clause.
POWER OF
ENTRY FOR
SECTION 16 PURPOSES
59. It is assumed that clause 17(2) is intended
to have the effect of making it unlawful to enter a private dwelling
for section 16 purposes without the authority of a warrant, rather
than to impose a general prohibition on the entry to such premises.
If it were otherwise, the effectiveness of clauses 16, 17 and
18 would be fatally undermined, especially in view of the regrettably
wide definition of a private dwelling. Nevertheless, the way in
which clause 17 is drafted has caused some confusion as to its
precise meaning and application. For the avoidance of doubt over
what is an extremely important decision, further consideration
should be given to the drafting.
ENFORCEMENT AND
REGULATION
60. It is important to recognise the significance
of the regulatory regime which it is intended to introduce by
means of secondary legislation. Although the so-called duty of
care is concerned with welfare, it is predicted that, in practice,
enforcement will be primarily concerned with situations in which
an animal is already suffering, or is likely to suffer. However,
welfare policy is about more than preventing suffering: it is
attempting to promote a high quality of life.
61. The complexity of the subject is well
demonstrated by the following extract from a report of the Companion
Animal Welfare Council:[33]
The term "welfare" is often used loosely
to encompass two different concepts. One relates to the physical
health and evolutionary fitness of animals; the other to the quality
of their subjective feelings. There is much to be said for distinguishing
clearly between these by employing the terms "health",
"viability" and "evolutionary fitness" where
these meanings are intended, and referring to "welfare"
only where the quality of subjective feelings (eg pain, fear,
warmth, pleasure) is at issue.That is not to say that health is
irrelevant to welfare; it is certainly not—injuries and
illness can result in very unpleasant feelings—but not all
diseases cause welfare problems. There are many that very seriously
compromise health and evolutionary fitness (for example, by causing
infertility or death) but which are not associated with pain,
fear or other unpleasant feelings. Such diseases are certainly
serious from the point of view of health and evolutionary fitness,
but they are not welfare problems.
There are two difficulties associated with assessing
welfare that it is helpful to identify. First, it is impossible
to measure directly how an animal feels: we can only make inferences
about this based on behavioural and other observations. It is
appropriate therefore to be cautious in reaching conclusions about
an animal's welfare. Secondly, there is a fundamental difficulty
in defining precisely what constitutes good welfare. Good welfare
cannot be equated with never having unpleasant feelings, because
these are essential "sticks" that help keep us and other
animals from harm (thirst makes us drink; pain often prevents
us damaging ourselves; and so on). Is good welfare then to be
defined as the absence of severely unpleasant feelings? Or does
it also require the presence of pleasant feelings? If so, what
feelings? And how prevalent and intense should they be? We can
probably all agree that there are sensible balances to be struck
here, but we may disagree about where precisely these balances
lie. Again, this situation highlights the complexity of the subject
and the need for caution in making hasty judgments about animal
welfare.
62. With this in mind, effective regulation
by way of licensing or registration of premises, personnel and
activities can make a valuable contribution to raising and maintaining
standards. It would be wrong to think of the duty of care as a
substitute for effective regulation; rather, the two should be
thought of as complementing one another.
63. The Department should therefore be urged
to press forward with its plans to introduce further regulation.
Moreover, effective regulation requires knowledgeable, experienced,
and competent staff to enforce it. Much responsibility will fall
on local authorities. Neither the Department nor (except for a
handful of honourable exceptions) local authorities have demonstrated
that they have either fully recognised, let alone begun to address,
this issue.
CONCLUSION
64. In the main, the Department's policy
underlying the Bill is to be supported. However, in respect of
a number of issues, it is by no means certain that the Bill as
presently drafted meets the claims which are made for it in the
explanatory notes. If the legislation is to succeed, these matters
require urgent attention.
November 2005
10 DEFRA, Regulatory Impact Assessment,
October 2005, para 7. Back
11
EFRA Committee, The Draft Animal Welfare Bill,
First Report of Session 2004-2005, HC 52-I, para 9. Back
12
Ibid, Summary, p 5. Back
13
DEFRA, Launch of the Draft Animal Welfare Bill, 2004,
Cm 6252, Foreword. Back
14
This submission is made in a personal capacity. It
should not be assumed that the views expressed are necessarily
endorsed by any organisation with which the author is associated. Back
15
EFRA, Fourth Special Report, Session 2004-05,
response to Recommendation 4. Back
16
DEFRA, Animal Welfare Bill-Explanatory Notes, October
2005, para 10. Back
17
Note 2 above, para 41. Back
18
Note 6 above, response to Recommendations 5 to 9. Back
19
Ibid. Back
20
Ibid. Back
21
Note 7 above, para 14. Back
22
Note 7, para 17. Back
23
(1889) 23 QBD 203. Back
24
QBD, 11 November 1993. Back
25
[1994] Crim LR 517. Back
26
Clause 2(1) of the draft Bill provided:
A person commits an offence if he-
(a) arranges an animal fight;
(b) knowingly publicises an animal fight;
(c) uses a place, or permits a place to
be used, for an animal fight;
(d) keeps a place, or permits a place to
be kept, for the use of an animal fight;
(e) receives money for admission to a place
which is being or is to be used for an animal fight;
(f) gives or receives money (or money's
worth) by way of a bet on the outcome of an animal fight;
(g) keeps or trains an animal for the purposes
of an animal fight;
(h) places a protected animal with an animal,
or with a human, for the purpose of an animal fight;
(i) has in his possession anything capable
of being used in connection with an animal fight with a view to
its being so used;
(j) takes part in an animal fight.
Clause 7 of the present Bill provides:
A person commits an offence if he-
(a) arranges an animal fight;
(b) knowingly participates in making, or
carrying out, arrangements for an animal fight;
(c) makes or accepts a bet on the outcome
of an animal fight or on the likelihood of anything occurring
or not occurring in the course of an animal fight;
(d) takes part in an animal fight.
takes part in an animal fight. Back
27
Wireless Telegraphy Act 1949, s 1B(1)(b); Theft Act
1968, s 24A(1)(c); Prevention of Oil Pollution Act 1971, s 7(1)(a);
Merchant Shipping Act 1995, s 134(1)(b). Back
28
Note 2, para 117. Back
29
Note 2, paras 136-138. Back
30
Clause 26 of the Animal Health and Welfare (Scotland)
Bill provides:
(1) A person commits an offence if the
person abandons an animal for which the person if responsible.
(2) A person commits an offence if the
person leaves an animal for which the person is responsible and,
without reasonable excuse, fails to make adequate provision for
its welfare.
(3) The considerations to which regard
is to be had in determining for the purposes of subsection (2),
whether such provision has been made include-
(a) the kind of
animal concerned and its age and state of health,
(b) the length
of time for which it is, or has been, left
(c) what it reasonably
requires by way of-
(i) food
and water,
(ii) shelter
and warmth. Back
31
Note 7, paras 35 and 36. Back
32
Note 2, para 242. Back
33
CAWC, Report on the Welfare of Non-Domesticated Animals
Kept for Companionship, 2003, paras 5.1.1. and 5.1.2. Back
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