6Enforcement
129.In this Chapter we look at the enforcement of the Animal Welfare Act 2006. We examine the role of local government and the police, as well as examining the role of the RSPCA.
Formal investigatory and enforcement powers—local government and police
130.No specific body is under a statutory duty to enforce the welfare requirements in the Animal Welfare Act 2006. The Act sets out a discretionary power for national and local authorities to appoint ‘Inspectors’.101 The assumption at the time was that local authorities would appoint Inspectors from amongst their staff.
131.However, this has not happened. In 2011, Dr Fiona Cooke, an independent researcher, found that just under 40% of local authorities in England had failed to appoint any Inspectors under the authority of section 51. In respect of those authorities in England which had made appointments, only 17% had Inspectors dealing with companion animal welfare on a daily basis.102
132.Some witnesses said that the discretionary nature of the power had meant that many local authorities had chosen not to exercise it, with animal welfare issues taking low priority. Winchester City Council stated that:
It is a shame that Local Authorities received powers only as very few are using their enforcement powers under this legislation due to lack of resources. Had Local Authorities been given duties, rather than powers, plus sufficient funding to allow extra staffing/training etc, animal welfare for domestic pets could have been a standard Local Authority function.103
Other local government authorities told us that, having previously appointed Inspectors, they were now withdrawing from that activity due to financial constraints.104 World Horse Welfare told us that prosecutions were often not taken forward by local authorities due to the prohibitive cost of housing horses during court cases.105
133.An overwhelming majority of witnesses felt that enforcement was a major weakness of the Act. The NPCC told us that for as long as no agency had ownership of the Act, “service provision and enforcement activity across the country will remain inconsistent leading to missed opportunities”.106
134.A major weakness of the Animal Welfare Act is that no state organisation is statutorily responsible for animal welfare. It is unacceptable that in a modern society no state organisation is responsible for animal welfare.
135.We recommend that the Government place a statutory duty on local authorities to enforce the Animal Welfare Act 2006. The Government must ensure that appropriate resources are made available to local authorities to support them in this extension of their statutory duties.
Role of the RSPCA
Investigations
136.The RSPCA is the oldest animal welfare charity in the country, established in 1824. It undertakes investigative work, campaigning and prosecutions. It has recently come under sustained criticism not only for the way in which it carries out enforcement, but also for the fact that it has a role in enforcement at all. These strong feelings were reflected in the written and oral evidence we received.
137.In October 2014, the RSPCA Council appointed Mr Stephen Wooler CB, former Chief Inspector of HM Crown Prosecution Service Inspectorate, to conduct an independent review of the Society’s performance. The Wooler Report made 33 recommendations, all of which were accepted by the RSPCA.107 We touched on some of these recommendations during our inquiry.
138.Some witnesses were strongly in favour of the role taken by the RSPCA, arguing that the organisation filled a role in animal welfare not currently performed by local government. Mike Radford and his colleagues stated that without the RSPCA’s advisory and investigatory functions, “The Act would effectively be moribund in many parts of the country”.108 They noted that while police and local authorities had a role in enforcing animal protection legislation, “neither they nor central government had ever shown any interest in assuming (or paying for) the full role presently undertaken by the RSPCA”.109
139.The NPCC confirmed that the response of local police authorities to animal welfare issues was varied, with many forces sign-posting to the RSPCA and providing a police response in emergency cases only.110
140.Some witnesses were strongly critical of the role of RSPCA. The Self-Help Group for farmers, pet owners and others experiencing difficulties with the RSPCA (SHG) noted that the RSPCA’s attitude towards the public, “their targeting of vulnerable, ill or elderly people and removal of their animals” had led to the alienation of the animal keeping public.111
141.In particular, we heard evidence that there had been occasions where RSPCA inspectors had been happy for vets to sign for the removal of animals without seeing the animal.112 The RSPCA, perhaps acknowledging that its staff had been over-zealous in the past, told us that this should no longer happen. It had recently issued guidance to its inspectors on this issue.113
142.One witness was also critical of the “belligerent” attitude of the inspectorate.114 Christopher Laurence agreed that it was appropriate for the RPSCA to investigate and prosecute cases of animal cruelty. However, he did acknowledge the importance of adequate training. They currently went through an extensive six-month training programme, but he said that a probation period after that would be helpful. He noted the negative attitude that some inspectors had:
In some ways I have great sympathy for inspectors because they do not have legal powers. They can see animal suffering, and it is then difficult to do something about it because they do not have the authority. That generates, in some inspectors, the almost belligerent attitude that [SHG] describes. It is much more difficult to control that if they do not have the oversight and the legal power to do it.115
143.The RSPCA told us that it was “very keen to make sure we engage much better with the public”.116 It said that a new performance management system had been introduced to try and change cultural behaviour, and would provide development training for all inspectors. For each inspector, this amounted to two a days a year to bring them up-to-date on procedural and legislative changes.117
144.The Wooler Report concluded that the RSPCA should receive statutory status under section 51 of the Animal Welfare Act 2006 once it had met the requirements of accountability and transparency. At the moment RSPCA officers have no more power than members of the public. RSPCA told us that its current position was effectively a “halfway house”.118
145.The Wooler Report stated that a key requirement of accountability would be the establishment of a complaints system. We were pleased to note that the new complaints system had started on 1 June, but were unimpressed by the initial lack of clarity given by the RSPCA about how the process would work.
146.While the Report stated that the RSPCA operated in an “unstructured and haphazard environment”, it asserted that the Society was not only making a huge contribution to animal welfare, it was also “fulfilling a very significant constitutional role” whose contribution in terms of expertise and resources was huge and “simply too valuable to lose”.119
147.The RSPCA has an invaluable role in investigating allegations of animal mistreatment. We recognise that the organisation fulfils a role in animal welfare not currently performed by local government. However, recent criticism has led to its reputation being diminished in the eyes of the public. We welcome the organisation’s acknowledgment that it needs to be more transparent and accountable.
148.The RSPCA must ensure that its new complaints procedure is better publicised, including the external reviewer aspect, and made clear for members of the public.
Prosecutions
149.The RSPCA exercises its right to act as private prosecutor under s.6 (1) of the Prosecution of Offences Act 1985. It is responsible for over 90% of prosecution activity on animal welfare issues. All prosecutions are brought via independent solicitors acting for the RSPCA, as the Association has no legal enforcement powers or authority in its own right. The RSPCA has no obligation to inform the Crown Prosecution Service (CPS) when it is undertaking a private prosecution. Although relatively complex and costly, it should be noted that all individuals have the right to refer their case to the CPS at any stage. The Director of Public Prosecutions (as Head of the CPS) does have the right to intervene in any criminal proceedings if he feels that proceedings are unjustified.
150.The terms of reference of the Wooler review stated that private prosecutions were “an integral component of its [RSPCA] strategy”. His report therefore did not question whether the RSPCA should be a prosecutor of first resort. The report highlighted the unique remit of the RSPCA as a successful prosecuting animal welfare organisation, whose prosecuting team “enjoys good standing before the courts for the effective manner in which its cases are presented”.120
151.However, the Wooler Report highlighted the need for separation between the investigative and prosecution role of the RSPCA: “In order to provide the degree of separation necessary to achieve confidence in the objectivity of decision-making and handling at all stages of cases, the Prosecutions Department should be established as a self-contained unit with its own discrete governance mechanism”.121
152.In March 2016, the RSPCA appointed Hayley Firman as Head of Prosecutions; she had previously held a senior position in the CPS. She told us that there was a clear barrier within the charity between the prosecutions department and the inspectorate to avoid conflicts of interest: “we work very independently and make our decisions objectively”.122 Christopher Lawrence suggested that investigations and prosecutions should be based in different buildings, in order for the separation of the two roles “to be much clearer”.123
153.The charity’s day-to day management is run by the Chief Executive. There is also a council of trustees who are responsible for providing “leadership and direction; and also ensure the effective use of [its] resources to maximise the benefit to animal welfare”.124 The question was raised as to whether charitable trustees could fulfil their fiduciary duties on the one hand, whilst remaining entirely separate from the decision making process on prosecutions on the other, as the latter could have such a significant impact on the former. We wanted to know what influence, if any, the trustees had on the RSPCA’s decision to prosecute a particular case. The RSPCA told us that trustees did not have a role in the prosecution process, but it was possible for them to halt a prosecution for financial reasons.125
154.A number of witnesses were against the RSPCA prosecuting animal welfare cases. They asserted that the role of the Prosecutions Department was inappropriate because the RSPCA was an organisation that both investigated and prosecuted and had other responsibilities that were incompatible with its position as a de facto prosecuting authority.
155.A number of other non-governmental organisations which had regularly used private prosecution as a primary means of enforcing legislation prior to the creation of the CPS in 1985 have subsequently ceased to do so. The NSPCC had been regularly involved in highly complex and extremely sensitive private prosecutions for child abuse but now worked with the CPS and other statutory authorities to investigate allegations of child abuse and support CPS prosecutions. The RSPB had also been a regular private prosecutor with specialist expertise in wildlife law, but had not undertaken a private prosecution since 1992.
156.In Scotland, where private prosecutions are not an option, the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) is a Specialist Reporting Agency. All decisions relating to whether to prosecute in any particular case that is reported are taken solely by the Crown Office and Procurator Fiscal Service; the SSPCA has no influence on the decision to prosecute. Under the Scottish system, the SSPCA report all facts to the Crown Office and Procurator Fiscal Service which makes a decision as to whether the evidential burden has been met and if prosecution is in the public interest. The SSPCA set out benefits of such as system:
… the evidence is checked for sufficiency by an independent body. This can protect the Scottish SPCA in a number of ways, as it removes any possibility of alleged victimisation of an individual, group or activity. It can also protect the Scottish SPCA where an individual is not prosecuted as that decision has been made by the Procurator Fiscal service and not the Scottish SPCA.126
157.The NPCC expressed concern regarding the RSPCA’s role as prosecutor. It considered that the primary prosecutor should be a single agency, preferably a statutory body funded by Government. It noted that, “with this would come greater governance and accountability along with a right to review prosecution decisions in line with all other criminal offences”.127
158.The RSPCA accepted that, in principle, the CPS could do the prosecution work.128 However it told us that the CPS had not built up expertise in animal welfare. While the RSPCA acknowledged that the organisation had not always used the ‘public interest’ test appropriately in previous years, it told us that it was the best organisation to prosecute animal welfare cases: “We have 190 years of experience. We have a breadth of knowledge that nobody has”.129
159.Christopher Laurence defended the right of the RSPCA to bring forward prosecutions. However, he also suggested a potential hybrid model, where the RSPCA investigated the crime and gave a report to the CPS, the CPS made the decision about whether to prosecute, and then the RSPCA would take the decision forward. He acknowledged that the ability to prosecute brought with it the responsibility to be open, transparent and accountable.130
160.The Head of Prosecutions at the RSPCA stated that she had “no problem” with cases being referred to the CPS. However, under the Prosecution of Offences Act 1985, the CPS can only take cases from the police. It is only able to take over and stop RSPCA cases if evidential and public interest tests are not met. Hayley Firman explained what would currently happen if the RSPCA had to instruct the CPS:
In reality, as it stands at the moment, what would happen is that the RSPCA would investigate the case, incur the welfare costs, have to make a decision, institute proceedings and probably incur legal costs. We would then have to forward it to the police, who would then forward it to the CPS, and there would be no guarantee that it would take the case on if the test had not been met. The likelihood is that it would have to be sent back to us in order for us to continue to prosecute it. Having regard to all those considerations and factors, the current system is not necessarily set up for [the RSPCA instructing the CPS].131
161.The Wooler Report recommended the establishment of a prosecutions oversight group. Christopher Laurence described this as “a critical element to ensuring that the society does the job properly”.132 We were surprised to find during our evidence session that, almost two years after the Report recommended it, the oversight group has not yet been established. The RSPCA told us that it had sent out letters to certain organisations asking for members to sit on the group, but still seemed unsure about the full membership. This seems to be an unstructured way of finding members for such a vital group. As we are preparing the report the group has not been established. However, we have received assurances that it will be established in November.
162.The Minister congratulated the RSPCA for the work that it does. However, he told us that he did not see a case for it having statutory powers. He thought the “status quo” of prosecution activity could continue if the organisation ensured greater separation between investigation and enforcement.133 He was not convinced that the model in Scotland, whereby another body made the decision to prosecute “would be in the interest of animal welfare”.134
163.The Wooler Report recognised that the RSPCA needed to make changes in terms of accountability and transparency before receiving statutory authority. We are surprised that some of these changes are only being put in place two years after the publication of the Report. At this time, we do not recommend that the RSPCA is given statutory status. The Committee recommends that the RSPCA swiftly, and fully, implements all recommendations of the Wooler review.
164.The Committee does not believe that the current model in England and Wales where the RSPCA brings private prosecutions alongside its investigative, campaigning and fundraising functions provides the necessary separation to ensure that there is no conflict of interest.
165.The Committee recommends that the RSPCA should continue its important work investigating animal welfare cases and working closely with the police and statutory authorities. It should, however, withdraw from acting as a prosecutor of first resort where there are statutory bodies with a duty to carry out this role. We are not convinced by its arguments that it is in a better position than the CPS to prosecute animal welfare cases.
166.However, the Committee notes that the CPS would need to be suitably resourced and trained in the area of animal welfare to take on what will be an increased work load.
167.We recommend that the Government look at amending current legislation to make the RSPCA a Specialist Reporting Authority.
168.The Committee believes that the RSPCA should retain the ability to bring private prosecutions where it reasonably believes that there is no statutory alternative and where such a prosecution would further its charitable objectives.
Sentencing
169.The maximum sentence for a welfare offence is six months in prison and an unlimited fine.135
170.Witnesses expressed concern that the sentencing powers under the Animal Welfare Act 2006 were too low, neither recognising the seriousness of the offence nor acting as a significant deterrent. The British Veterinary Association and British Small Animal Veterinary Association told us that the maximum sentence was very rarely given and that even the most serious offences did not receive a custodial sentence. The sentencing guidelines gave a starting point of 18 weeks for serious offences.136
171.The Association of Lawyers for Animal Welfare noted that the sentencing powers under the Animal Welfare Act within England were some of the weakest within the international community, and that in Northern Ireland the maximum sentence was five years.137 Below is a table of the penalties for offences of animal cruelty in other parts of the world.
Figure 2: Maximum prison sentences for animal cruelty available in Europe 138
|
Country |
Maximum prison sentence available |
Notes |
|
Austria |
1 year |
Under review to increase |
|
Belgium |
3 months |
|
|
Bulgaria |
3 years |
|
|
Croatia |
1 year |
|
|
Cyprus |
1 year |
Under review to increase |
|
Czech Republic |
3 years |
|
|
Denmark |
2 years |
|
|
Estonia |
1 year |
|
|
Finland |
4 years |
|
|
France |
2 years |
|
|
Germany |
3 years |
|
|
Greece |
2 years |
|
|
Hungary |
3 years |
|
|
Ireland |
5 years |
|
|
Italy |
3 years |
|
|
Latvia |
5 years |
|
|
Lithuania |
1 year |
|
|
Macedonia |
6 months |
|
|
Malta |
1 year |
Planned to raise to 3 years |
|
Montenegro |
5 years |
|
|
Netherlands |
3 years |
|
|
Norway |
3 years |
|
|
Poland |
2 years |
|
|
Portugal |
2 years |
|
|
Romania |
1 year |
|
|
Serbia |
3 years |
|
|
Slovakia |
3 years |
|
|
Slovenia |
1 year |
|
|
Spain |
18 months |
Recently increased from 1 year |
|
Sweden |
2 years |
|
|
Switzerland |
3 years |
|
|
Ukraine |
2 years |
|
|
UK |
||
|
England & Wales |
6 months |
|
|
Northern Ireland |
2 years |
Recently increased to 5 yrs |
|
Scotland |
1 year |
172.The RSPCA noted increasing disparity in sentences available in differing animal legislation in England. For example, the Law Commission recently recommended imprisonment for up to two years for cruelty towards wildlife. Under the Crime and Policing Act 2014 a person could go to prison for three years if their dog injured a guide dog but only six months for beating their dog to death: “if you look at those sorts of comparisons, I would say that the overall sentencing is probably out of kilter with current thinking”.139
173.Witnesses called for the maximum custodial sentence to be increased to two-years.
174.The Minister told us that Defra was contributing to the Sentencing Council’s consultation (which closed on 11 August 2016) about whether the guidelines were adequate within the existing regime. This was a separate issue from whether the maximum penalties were sufficient. He told us that Defra had held discussions with the Ministry of Justice at the end of the last Parliament, although he gave us no evidence that discussions on the issue had taken place since then.140
175.The current penalties for animal welfare offences in England are amongst the lowest in Europe. We recommend that the maximum penalty is increased to five years. We recommend that Defra should start discussions with the Ministry of Justice by the end of the year to achieve this.
Animal Abusers Register
176.Under the Animal Welfare Act, the court can subject those found guilty of an offence to a disqualification order for such a period as it thinks fit from owning, keeping, and/or participating in the keeping of animals.141 These are a way to “prevent animal abuse, cruelty and poor welfare in the future”.142
177.Witnesses were in favour of disqualification orders. However, they recognised that lack of effective enforcement was an issue. For disqualification orders to be effective there needed to be some mechanism by which authorities could easily check whether a person was disqualified.
178.Witnesses called for the establishment of an animal abusers register in England. This had been originally considered during the passage of the Animal Welfare Act.
179.Several US cities, including New York City, have animal abuse registries. In January 2006, Tennessee became the first US state to publicly post an animal abuse registry. This includes the names, photos, birth dates and home addresses of people who have been convicted of animal abuse. In their case, “animal” is defined as a companion animal, such as cat or dog. It does not include livestock or wildlife. First time offenders will spend two years on the registry, while second-time offenders will spend five years on it. The NPCC told us that there was a growing body of research suggesting a link between the abuse of animals and violence against people.143 In the USA, the FBI has begun tracking incidents of animal abuse as part of its National Incident-Based Report System.
180.On 21 June 2016, the Northern Ireland Assembly supported a call from the DUP to establish an accessible register of those convicted of animal cruelty offences.
181.The Minister said that he was “interested” in the establishment of a register. He pointed out that the police already had a list of such people, but there was an argument for making it available to other relevant organisations. There was a need however to guard against vigilante activity.144
182.It is very difficult to track those who have been banned from keeping animals. An accessible register could play an important role in protecting animals, and prevent abusers from accessing animals.
183.We recommend that the Government examines the potential for the establishment of an animal abuse register of those convicted of animal cruelty offences and who have been disqualified from keeping animals.
101 Section 51, Animal Welfare Act 2006
105 Q367
107 The independent review of the prosecution activity of the Royal Society for the Prevention of Cruelty to Animals
111 The Self-Help Group for farmers, pet owners and others experiencing difficulties with the RSPCA (SHG) (AWF0272)
112 Q205
113 Q673
114 Q464
115 Q464
116 Q666
117 Q665
118 Q721
119 The independent review of the prosecution activity of the Royal Society for the Prevention of Cruelty to Animals
120 The independent review of the prosecution activity of the Royal Society for the Prevention of Cruelty to Animals
121 The independent review of the prosecution activity of the Royal Society for the Prevention of Cruelty to Animals
122 Q796
123 Q481
125 Q774
128 Q745
129 Q783
130 Q509
131 Q746
132 Q487
133 Q962
134 Q963
135 Animal Welfare Act section 32, as amended by SI 2015/664, Sch 4, para 38
139 Q838
140 Q981
141 Section 34, Animal Welfare Act 2006
142 Q69
143 Q627
144 Q985
11 November 2016