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SUMMARY
OF THE ANIMAL WELFARE BILL
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- The Bill defines the animals to which
it relates as being animals which are vertebrate and to something which
the Bill calls a "protected animal". By definition there are
three such categories.
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(a) those which are "commonly
domesticated" in the British Isles.
(b) animals under the control of man whether permanently or temporarily.
(c) an animal not living in a wild state. |
However, what is also clear is that all mammals are in fact protected
(whether wild or not because of amendments to the Wild Mammals (Protection)
Act 1996 in that the definition section of that Act is changed so as
to include all mammals that are not "protected animals" within
the meaning of this Bill.
- The Bill sets out to define what is
unnecessary suffering and the persons who may be responsible / guilty
of an offence in relation to such matters. I have no doubt that this
will be interpreted in much the same way as the current legislation,
but a new concept is introduced concerning knowing or ought reasonably
to have known that the conduct would cause unnecessary suffering. This
removes the offence from a simple objective test, to one which involves
an element of subjective knowledge or some kind of test involving what
is reasonable for someone to know.
- Specific offences are created in relation
to mutilating animals S.5, administering poisons S.6 and using animals
for fighting S.7. All these may be laudable aims but unfortunately the
definition sections are very poorly drafted and will in my view cause
real practical problems.
- S.8 creates a further new concept and
an offence if a person fails to take steps to meet the needs of an animal.
This is a really difficult concept and one which is likely to be very
difficult to know when an offence is or is not being committed. The
real problem is that it is an offence to not take steps to meet an animals
welfare needs. This in my view involves a very subjective approach to
what those are and will create a great deal of debate from all areas.
The door is opened to any viewpoint being possibly accepted.
- It is an offence to sell or transfer
ownership of an animal to a person under 16 unless in the presence of
an adult or that it is within a family context
- Regulations can be made to "promote
welfare", license or create registration in respect of various
activities E.G. Pet Shops, boarding and similar activities which are
currently the subject of several different Acts.
The authority can also issue Codes of Practice.
Unfortunately none of the regulations are even at a draft stage and
the effect of these regulations cannot be judged.
- Powers are created under S.16 in relation
to animals in "distress". These authorise veterinary surgeons,
inspectors and constables to seize, and/or destroy animals without the
consent or even consultation with the owner.
- S. 17 gives power to inspectors and
constables to enter premises without warrant for the purposes of enforcing
S.16, but limited to any premises which are not used as a private dwelling.
There is power to obtain a warrant and reasonable force may be used
to gain entry.
- S.18 empowers Courts to make orders
concerning the animals up to and including making destruction orders
and if necessary they can do so without the owner being consulted. The
major problem with this is the fact that it appears that these orders
can be made without there having been a conviction or proof that an
offence has been committed. Further, as the procedure is by way of complaint
it is technically a "civil" action and thus no legal representation
order can be made.
If the Court has made an order and empowered people to carry it out,
it is an offence to obstruct such a person carrying out the Courts order.
The cost involved in all of this can be ordered against the person responsible
for the animal.
- There is particular provision in relation
to animals used for fighting and a constable may seize and enter premises
without a warrant in pursuit of such offences, but cannot enter a dwelling
without a warrant. Warrants may be granted for this purpose.
- S. 20 contains the general powers to
issue warrants. However, this cannot be taken in isolation in that S.46
sets out the grounds upon which a warrant may be granted.
- Sections 21 to 25 inclusive contains
the power to make inspections where licences have been issued and when
registration has taken place. Further, Farms may be inspected and all
may be inspected for compliance with EEC obligations.
- Gives specific power to Local Authorities
to prosecute.
- Section 27 sets out the time limits
for prosecutions, which is Three years. There is also a very odd part
which suggests that the prosecutor (not defined) can issue a notice
specifying when sufficient knowledge to commence proceedings came to
his notice and his certificate is conclusive. This means that it is
unchallengeable. After so certifying the proceedings can then be commenced
up to six months later. The problem is that the section does not say
that it is the shorter of the two periods which is the relevant time
for the commencement of the proceedings. It follows that this can mean
that they can be begun 3years 6months (less one day) after the event.
Further the consequence is that it is unlikely, even with such a delay,
that an abuse of process argument would succeed.
- S.28 sets out the penalties for the
offences and all are expressed to be a maximum of 51 weeks imprisonment
and/or fines or both. The level of fines vary, but for the offences
against S.4 to 7 the maximum is £20,000.
So far as the breach of regulation offences are concerned they are left
unspecified and power is given to make those in the regulations themselves,
once again 51 weeks and/or level 5 fines or both are set as the possible
maximum.
None of these penalties can be greater than 6months custody and level
5 fines until S.281 (5) of the Criminal Justice Act 2003 is brought
into force. It should be noted that as yet there is no commencement
date for this.
- Sections 29 and 30 deal with orders
that the Court may make upon conviction regarding deprivation and disqualification.
The powers are considerably greater than the current equivalent power.
- The previous sections only deal with
animals subject of the proceedings but S.31 deals with the position
of other animals which a disqualified person may own and which they
could not then have, following the disqualification. This empowers the
Court to make orders in respect of them and to dispose of them including
making an order to destroy them.
S.32 then allows the Court to appoint someone to carry out the Courts
order and also make the defendant pay for that cost.
Unfortunately there is no provision to make such persons accountable
to the court for their actions. The Court can give directions, but how
do they check and what is the consequence if the order is not operated
as the Court directs?
- S.33 allows the Court to make a destruction
order and order the person whose animal has been destroyed to pay for
it. S.34 creates a specific power in relation to animals used for fighting
even where there is no requirement in the interests of the animal, which
is the prerequisite in S.33.
- S.35 deals with specific orders for
payment of expenses to do with animals kept for fighting.
- S.36 deals with forfeiture of equipment
used in connection with offences under sections 4 to 7 inclusive.
- S.37 details the Courts powers where
notice of appeal is served and in particular says that none of the orders
to do with destruction and forfeiture can be carried out until the period
allowed for appeal, with one exception. However the Court can make orders
to seize and retain pending the hearing of an appeal. Once again they
can make the defendant pay for all of this. It is a separate offence
to dispose of an animal pending appeal.
- S.38 deals with the effect on licences
after conviction. They do not have to cancel the licence, but may do
so.
- S.39 deals with provision for making
application for removal of a disqualification. The earliest point of
time being 12 months after conviction.
- Sections 40 to 44 deal with the effect
in Scotland of orders made in England or Wales.
- S.45 defines who can be an "inspector",
without saying who these may be.
- S.46 sets out the conditions for the
grant of warrants. All of the individual entry powers and powers to
obtain warrants require that one of the conditions must be satisfied
before a warrant can be granted. This section makes it clear that any
one of the four conditions must exist. However, the fourth condition
allows for the issue without the occupier being informed if to do so
would defeat the purpose of entry or it is a matter of urgency. When
is anyone seeking a warrant not going to use this provision?
- Sections 47 to 49 deal with powers of
entry, inspection, stopping and searching vehicles and even boats, aircraft
and hovercraft.
- S.50 deals with production of documents
and seizure powers. It is an offence not to produce any such documents
once the requirement has been made.
- S. 51 makes an officer of a corporate
body liable to prosecution as well as the corporate body where the act
or default can be attributed to such persons.
- S. 52 and 53 exempts from liability
some scientific research and fishing.
- S. 54 exempts the Crown from prosecution
and prevents entry onto the Queens property.
- S. 55 relates to powers of the Welsh
Assembly.
- S. 56 creates definitions of some terms
used in the Act.
- Sections 57 to 63 sets out financial,
amendments, repeals, transitional and areas covered by the Bill.
THE SCHEDULES TO THE BILL
SCHEDULE 1
All of this concerns the making of regulations with regard to Licences
and Registration in connection with section 11. This also includes power
to amend legislation and to create offences and set penalties.
There is no indication how these regulations will be phrased or what
activities will be the subject of this kind of regulation. In theory
they could regulate almost any activity to do with animals, not just
those which are currently so regulated.
SCHEDULE 2
This supposedly clarifies the powers of entry, inspection and search
and what such persons may do. It is an offence to obstruct a person
exercising their powers BUT it is also an offence for a "qualifying
person" not to provide assistance to those persons investigating,
without a reasonable excuse. The effect is that not only are you raided,
but commit an offence if you don't help the raiders!
SCHEDULE 3
Lists amendments to other Acts. This needs careful examination as some
of these are significant alterations to existing Acts.
SCHEDULE 4
Lists repeals of other Acts. Surprisingly it does not repeal the whole
of the 1911 Act, nor the whole of the Pet Animals Act 1951.
I say surprisingly, because for example the section which is disputed
with regard to PET FAIRS is still in place. There is sufficient powers
taken in the making of regulations that other consequential repeals
may later take place.
The author, Granville Rooley, is accepted by the Legal Services Commission
as having an area of expertise in all types of animal cases and has been
conducting such cases for the last 19 years.
Mr. Rooley has also defended general
criminal defence cases for the last 21 years and before that was a prosecutor
for 11 years.
He can be contacted by e-mail: granvillerooley@williamhicks.co.uk
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