CRITIQUE OF THE ANIMAL WELFARE BILL
Section by section each of the numerous difficulties with legal concepts that in my view will be occasioned will be commented upon and then I will comment upon the interrelationship and the cumulative effects which will create problems.
S. 1 (3)
By regulation amendments to the Act can be made, which by virtue of S.55 can be done by Statutory Instrument laid before both Houses of parliament.
Limits this power to being on the basis of scientific evidence and upon the national authority being “satisfied”.
The problem with this is that there is no provision as to what amounts to being “satisfied” or to what objective standard is to be applied, nor does it say from what source the opinion is to be gathered. There is a great deal of quasi-science expressed about animals. I am sure that there are people who express views about “animal rights” that have their own view about the science that convinces them about the views they hold.
All that this provision achieves is to make it easier to amend the legislation without there having to be a full and proper debate in passing a new Act. Such powers ought not to be taken unless there is an overwhelming need to do so. It puts the whole legislation into a potential state of flux without any overriding need. Given the number of animals that are in this country all who have custody or control of animals need to have a clear and definite piece of legislation. Ignorance of the law is no defence and a “Delphic” piece of legislation is the last thing that is needed.
I suspect no one can give an answer as to when such a power is likely to be needed. All will have some vague notion as to what it is supposed to mean. In my view that is not good enough reason to give extra powers “just in case”
Defines what is a protected animal.
Unfortunately this is so vague that it is almost certain to lead to much Court time being wasted as to what is or is not meant by it.
- What does “commonly domesticated” mean?
How domesticated does it have to be?
How common does it have to be?
No doubt someone will answer -- the problem is resolved look at sub-sections b&c.
- To what extent is the “control” sufficient to bring the animal within the Act?
- What on earth does “not living in a wild state” mean? As a supposed definition what is wrong is that it is a negative. How do you prove or disprove a negative?
Taken as a whole this is so badly worded that I can think of at least 10 immediate arguments in cases that I have dealt with where much time will be expended upon this one section.
Further in schedule 3 paragraph 13 there is an amendment to the Wild Mammals (Protection) Act which amends the interpretation section and taken together it means that every mammal in this country is now subject to control. This has a consequential effect through the back door of avoiding some of the things left open by the ban on hunting.
I can think of a number of reasons why it has been done this way.
It is apparent that this will cover all farm animals which are in fact more than adequately protected by the Farmed Animals Regulations 2003. There has been more than enough confusion in the farming world over the meaning of those regulations and how to apply them, to the great detriment of farming, without adding another layer on top and with further contradiction between the two different statutory provisions which will come into place. All this without the prospect of “regulations” on top.
Each sub paragraph should have the word “and” at the end of it.
It seems apparent that it is intended that all 5 elements should be in place before an offence is committed, otherwise there is little point in “and” at the end of para.( c ). But, as it stands it is possible to read it disjunctively.
A similar comment applies to this paragraph
This paragraph attempts to set out what the Court has to consider, but the problem with this is that it is over complicated and the pre-amble to the subsections makes it clear that other considerations can be taken into account as it uses the word “include”. I am sure that this will be taken to mean that these matters are not exclusive of other legitimate arguments. At first sight this looks alright, but why put it in at all? One could argue about an exclusive list but a least in the end you would have a definite definition, instead of something which is vague and not very well thought out.
I am sure that there will be endless debate about the correct definition of “ a reasonably competent and humane person”. What is one of these? By whose standards? The man on the Clapham omnibus !!!!
The problem is that what may well be thought in the Countryside to be a reasonable competent and humane farmer, may well be completely different from that of a person who lives in a town and has all the inate ignorant prejudices that many such people have. Again the debate over hunting shows this complete lack of understanding.
How competent do you have to be before you are one that can be regarded as reasonable? Put another way how incompetent before this is not available?
S. 4 (4)
At first sight this looks like a section which provides a protection, but once again we have anthropomorphism coming into play. What is an “appropriate and humane manner” Who decides what the test means and to what standard. The Courts will have to decide, but once again we have the shifting sands. Appropriate to whom----the animal or to the possible onlookers? Humane to the animal? Are we not in danger of applying human standards to animals? Do we in fact know enough even to be able to judge what anticipation an animal has.
We have no need to introduce all these complicated things. Why not simply say that it is an offence to cause or permit unnecessary suffering in any way to any animal whether by action or inaction by the person having responsibility for an animal. Such would be clearly understandable and all the arguments about who what why and in what way can be considered without such statutory tautology.
Again at first sight who could argue about it having to be an offence not to mutilate animals. Surely this would be a primary offence of causing suffering anyway? On that basis it is unnecessary. It follows that they are after something else.
The key is sub-section 3 when once again they purport to define a “prohibited procedure”, and miserably fail to be definite. In any event they do not define what amounts to medical treatment.
One example of a current dispute relates to the shoeing or otherwise of horses. The fact that for their well being horses need to have their hooves trimmed is not I believe disputed. Of course the only reason for this is that we have domesticated them and because they do not live as they would in the wild when they wouldn’t have such treatment, we have to attend to them. But there is now a largish body of opinion, with some science to back them up, that shoeing is in fact detrimental and has come into existence because of the use of horses by humans in ways not exactly appropriate. As you may imagine this does not go down very well with Farriers.
The relevance of this is the question of whether this is a medical treatment. I don’t know, but we ought not to pass legislation that leaves this open. In the instance given anyone can trim a horses hooves as that is not an act of farriery, it is the shoeing of a horse which is such an act and illegal unless you are a vet or registered farrier. If it is a medical treatment then it would not be an offence. If it is not, as it involves the interference with sensitive tissues (possibly) and has an effect on the bone structure then it would seem this would be an offence by this definition.
Does this affect trimming toenails on cats and dogs or cleaning animals teeth? On one view they are not medical treatments and they do have an effect on sensitive tissue (even though not sensitive in themselves). The point illustrates the inappropriateness of such badly thought out definitions.
Then we have the old favourite of specifying by regulation and consultation those circumstances to which this section will NOT APPLY. This means that it will ALWAYS apply unless the National Authority specifies that it won’t. This is cart before the horse thinking. Legislation should not in a free society operate by prohibiting something generally.
The primary rule should be that it is only an offence if it has been specifically prohibited.
Let them specify when it is prohibited not operate by creating exceptions when it isn’t.
Such methods eat away at the Rule of Law and restrict the freedom of individuals.
Once again the farmers will be the worst hit in that they routinely treat their animals by all kinds of methods. There isn’t the money in the farming community to pay for vets on a constant basis and how can anyone know if the exception will be regarded as a medical treatment. Anything that isn’t will be an offence!!!!
This section is irrelevant and unnecessary and to an extent conflicts with the Farmed Animals Regulations. If they want to ban something let them say what it is they are banning and lets have a debate about that, not ban everything and then say we will create exceptions. In my view this is neither proportionate nor necessary and is in clear breach of the ECHR. If Margaret Beckett thinks this complies with Convention Rights as her declaration says it does, then I consider that either she has not read it or has not understood what she has read.
S. 5 (5)
The regulations can only be made after a consultation by the authority. This again seems alright until you realise that it is those who propose the regs. who decide who are the appropriate people to consult. At present there seems to be quite a wide consultation, but there is nothing to say that this will be repeated.
If, at some later point in time, “the authority” decided that it was vital to get something through they could pay lip service to it but only “consult” with those who they thought would agree
It is once again merely the acquisition of power into the hands of a few and we know how that goes when we see how planning appeals get railroaded. When the authority want something to happen even though there is a supposed independent inquiry.
This like appointing yourself, the judge and jury who will hear your case. You would be mad to appoint someone who is unlikely to agree with you.
You do not need anything like this if you list the prohibited procedures rather than ban everything and then try to specify the exceptions. All this can do is prevent any kind of application of new knowledge or understanding unless it has been undertaken by “formal” research and then approved by the Authority.
This is sheer arrogance that we know enough to think that current answers are the correct ones. We do know that many advances are made by people who will not accept that current thinking is the final answer.
If this section was merely limited to “mutilation” There would not be a problem but it is the way that sub-section 3 is worded that then produces prevention of advancement.
Again all seems fine at first sight, but the problem begins when someone tries to define what they mean. S.6(3) creates the difficulty in that almost anything by this definition could be regarded as poisonous-----even food. Taken at its extreme if you feed the wrong food and create a fat animal, you increase the danger of heart conditions for example. You could even feed the correct food but in quantities that cause the problem.
Surely, by this definition it would have the effect of poison or injurious substance!
Is it really intended that this should be the effect? It does not end there, because it also begs the question --- in whose opinion?
Once again we produce a situation where we do not know whether this is to be an objective test or subjective. This is left open because a degree of knowledge is imported because of the use of the word “knowing”. If someone genuinely believed what someone else told him and in the end it turned out to be poisonous, but no sensible person would have believed it, what then?
Suppose he privately thought differently or had reservations, but didn’t “know” where would he then stand?
I raise these issues because it shows the total lack of proper and/or accurate thinking in drafting such proposals. There are much simpler and straightforward ways of achieving the primary aim without opening the backdoor to misuse. In a sense this section could be used to prosecute anyone with an obese animal. THIS HOWEVER THEN INVOLVES A QUALITATIVE JUDGEMENT AS TO WHEN IT IS AN OFFENCE. How fat is too fat, so as to make lawful substances injurious to have the effect of being a poison or injurious substances
This definition is, practically, unworkable.
This section is reasonable until again we come to the definition. In one sense it defines nothing, an “animal fight” is “for the purpose of fighting”. You cannot define “fight” and then use the same word and expect to have defined what you started out with, you have simply used the same word.
What is “baiting”? Saying “meeow” to a dog may be regarded as baiting it, by dictionary definition, but I am sure that this is not what is intended. It merely illustrates the lack of clarity of what is supposed to be a definition.
Wrestling with an animal is a new concept. At least in theory this would include some kinds of Circus Acts. Would this then produce a position where all the paying customers to a Circus may be liable to prosecution?
It may be that this is the consequence intended but again it lacks clarity.
Anthropomorphism reigns supreme in this section.
The aims may be laudable but the section is full of impracticalities and legal nonsense.
1. “ does not take such steps as are reasonable in all the circumstances”
2. You are trying to prove or disprove a negative. By positive evidence? A logical nonsense.
3. “reasonable” by whose standards? The animals? Humans with all their hang ups?
“in all the circumstances” Sub- section 3 gives some examples but these are not exclusive as this has the words “include, in particular” which clearly means that a Court or someone is going to have to try to consider what else should be included as part of all the circumstances.
At first sight and in view of the purpose of the section as a whole one may be forgiven for thinking that this is about the circumstances of the animal. NO its not, when one reads the examples given in (3) this is to do with the reasons that humans have the animal. It would seem likely that Courts will thus focus on the human needs. Thus if someone is doing the best that they can in “all the circumstances” does this have to be taken into account?
The fact is that the question of the steps that are reasonable is circumscribed by these words and this produces the anomaly between the animals needs and the human steps that are reasonable in particular circumstances.
What a field day the lawyers are going to have. I hope the Government have increased the Legal services budget substantially to pay all the extra legal costs of defending these cases and are aware of the number of and cost of the experts that will be needed.
4. The reason for this comment is because of the next part which is “to the extent required by good practice”. Who are going to be the arbiters of what is good practice? In any individual case no Court is going to have the expert knowledge to know what is currently regarded as “good practice”. I say “currently” because I suppose this act is intended to be operative for a number of years, and the fact of life is that attitudes change as knowledge increases, but unfortunately it also changes depending on current “fashion”. This concept opens the door to anyone who chooses to think up something and genuinely put it forward as being “good practice”.
To take the ridiculous, and to consider the effect of (2). A dog is a “pack” animal. Its natural behaviour pattern is to hunt with other dogs. We should therefore house it with other dogs. All this is required by (2). Failure to do this would be a failure to meet its needs according to this section. Indeed, as its natural way of life is to be free to roam shouldn’t we let them all go to do this?
Reality is of course that we employ dog wardens to clear the streets of roaming dogs and packs of semi wild dogs are a dangerous nuisance.
It is however not inconceivable that an “expert” may come to the conclusion that we ought to be more aware of the dogs natural needs and begin to advocate that the right of the animal should be to live a more natural life and genuinely hold the belief that this is good practice. We would hope that the courts would have more sense than to give credence to this but why open the door?
The fact is, it is meaningless nonsense because we could equally go to the other extreme and suggest that all dogs should be carried around on a silk cushion, as some are.
This gets worse as we again have “includes” What else should be considered?
These have been dubbed the five freedoms or the five rights. This is a concept dreamed up by those who believe that animals have rights. What this ignores is the fact that if there are rights then those who expect them must also know about them and take with any “right” the responsibility that goes with it. Unfortunately our society constantly goes on about their rights, but utterly fails to accept the responsibility that goes with it. Indeed it is difficult with some people to discover any recognition of responsibility.
For us then to decide that an animal without cognitive ability has “rights” is on a par with that shallow thinking.
I have already illustrated the nonsense that this can lead to if one applies this sub-section to its logical conclusion.
I do not take issue with the fact that animals should not be mistreated, if we do then we are diminished as human beings, but to legislate to this extent is over complicated and need only be part of a general offence of causing suffering if one were to define that concept properly, which this Act as drafted totally fails to do.
The central issue and thrust of what is aimed for appears to have been missed in a plethora minutiae.
However, the problem is even worse when it is realised that Section 10 may add to the question of “welfare” by regulation. I will comment further on the section when considering it fully.
I take no issue with this section
I consider that the principal of the creation of offences by regulation is wrong and should not happen in a free democratic society as it occur without public knowledge or consent and particularly where this has a damaging effect upon the rule of law and impinges on and can have the effect of removing their human rights
My comments about picking your own judge and jury on page 4 are equally applicable to sub-section 6 as it exactly the same wording as S.5 (5). It simply gives power to persons who are not elected by the electorate. This should not happen.
I have no problem with the idea that licences may be necessary or that power should be taken so as to make the necessary regulations work. However, where in my view this is incomplete is to take the necessary steps before bringing the legislation into effect so as to be able to identify which activities should be so regulated.
In my view it cannot be right to leave a power to repeal statutes passed by Parliament by regulation.
This suggests that the executive cannot be bothered to define what Acts need to be repealed or amended before passing the new Act. This is contrary to why Parliament is elected at all.
This however appears to be typical of the lazy ill-defined approach to almost every section thus far examined.
This section cannot be left without also considering the effect of Schedule 1 as this incorporates or amplifies the section. There can be noticed immediately the anomaly between S. 11 (5) and paragraph 18 of the schedule in that on the one hand the regulation can only be made for the purposes of promoting animal welfare and on the other regulation can be made for other purposes than that. As the regulations are all being made by the same people how do they decide which is to apply? How can any member of the public have any idea of when an offence is being committed either by themselves or by anyone else.
The essence of good legislation is clear unequivocal prohibition and some certainty as to when an offence is being committed these licensing provisions merely obfuscate. Perhaps that is what is intended. If it is then they have succeeded.
Law by regulation is in principal wrong, codes of practice not in themselves producing offences are mostly helpful. However, to upgrade those as Sub-section 4 does has to be wrong as there does not have to be any consultation with anyone before they are promoted although by section 13 they do at least have to be the subject of consultation and have to be laid before Parliament.
Surely the more sensible way would be consult before preparing a draft and for there to be some specific persons who should be consulted. The requirement to consult however is so lax that in fact there is no mandatory requirement to consult. The power or requirement as set out can be read to mean that there is just as equally the power not to have to consult. If the Secretary of State doesn’t think he needs to consult with anyone there is nothing in this which requires him to do it. He is only required to consult “such persons as he thinks fit”. Also he could choose to consult only with the RSPCA and no one else .
Thus all these regulations and codes of practice could be the work of only one body if the Secretary of State so chose and without any possibility of challenge other than at the point they are laid before Parliament.
I do not consider anything further needs to be said about S.13
A applies in Wales, I make no comment
Gives power to the Authority to revoke that which Parliament has approved. This has to be wrong in principal, in a democracy as it also gives power to make transitional Provisions. If it is necessary for parliament to approve them in the first place how can it be right for them to create its equivalent by this means without such approval?
This section is similar to section 11 of the Protection Of Animals Act 1911 or at least its intentions are similar. The very major difference is that if it was not necessary to kill the animal immediately then the owner could be required to treat the animal and if he did not do so then and only then had anyone authority to remove it for that purpose.
In my view that “old” power was proportionate and reasonable in a democratic society and when you are talking about property. The fact that the property is an animal should not make the slightest difference.
I can think of no other area of criminal law where property which is lawfully owned can arbitrarily be taken from that person and then be charged for the cost of removal and treatment which they have neither authorised nor even had any say as to what is to happen with their property.
Even worse is the fact that without consent of the owner or even a veterinary surgeon an “inspector or constable” can authorise destruction or removal if it appears to them appropriate.
I would not trust the average constable to make any such decision nor whoever is appointed as an “inspector”.
This section is open to so much abuse that it becomes a crime in itself.
I can think of a significant number of cases that I have dealt with where there has been clear abuse of the provisions as they were, never mind totally ignoring the rights of owners as is now proposed.
In one case when a horse had been removed (improperly by the RSPCA) when the owner eventually found where her horse was, she spoke to the vet instructed by the RSPCA and asked for access to have a second opinion. The vet threatened to put the horse down and said he would post the damaged leg to her vet if that was what she wanted. In the event we stopped this and eventually she regained possession of her horse which is still live and well today --- 5 years on.
In fact the same vet did visit a field of another client who had left his lame horse for lunch and when he returned the RSPCA, the vet and the knacker man had been and his horse was killed and carted away all within an hour.
If this kind of abuse can take place now, then I dread to think what will happen if this provision becomes the law.
If section 11 was updated into more modern language there is nothing wrong with it and at least it has stood the test of time. I know the RSPCA think it limits their actions, but as a private prosecutor they should be limited and should not be in a position where they can persuade naïve (in this area of law) police officers. They at present frequently deceive the police and others into thinking they have authority when they don’t, this potentially creates the possibility of greater abuse.
The problem becomes worse when S. 17 is considered.
This section and S.17 are a gross infringement of human rights and ought (if passed) be declared a breach of the Human Rights Act it is neither proportionate nor reasonable.
This section gives power of entry for the purposes of section 16. It is similar to the power given under the 2000 Amendment Act. The significant difference is that that Act was limited to animals kept for a commercial purpose.
This is not so limited and gives power of entry to ANY premises which are not used as part of a private dwelling.
Further, the section is not limited to where there is reasonable suspicion of an offence, it entitles entry to search for a protected animal AND in exercise of powers under S.16.
The person has to have reasonable belief that there is an animal on the premises and that the animal is suffering or it is likely to suffer if circumstances do not change.
In my view what may be regarded as a reasonable belief is a far lower standard than having reasonable suspicion that an offence is being committed. It is clear that there is a difference and intentionally so because we have the introduction of the subjective view about whether “it is likely to suffer”. In other words we don’t think it is suffering now but we think it will in the future.
Entry is authorised without a warrant and reasonable force can be used to gain entry, under (3) based upon the judgement of the “inspector or constable” and if it appears to them that entry is required before a warrant can be obtained.
Once again one asks why in that the investigator is judge, jury and executioner and once it has happened how can it be put right?
In a free society how can it be correct to give such power to invade peoples property.
There should be no power to enter anyones property without due process of law.
If it is necessary to have such powers given then there should equally be power to exclude the evidence if it has been improperly obtained. In other words if the “ivy is poisoned” then the prosecution should not be able to rely on its fruits.
Similarly in relation to the provisions concerning obtaining a warrant it at first sight seems reasonable, but the sting is in the tail of S.46 in that no police officer is not going to say that to inform the occupier would defeat the purpose of entry. Further it has to be realised that it is impossible to challenge how the warrant has been obtained, or to use any information gained to exclude the evidence. A warrant once issued is deemed to give lawful authorisation. The fact is that the Court may have been deceived into issuing a warrant, but there is nothing that can be done about it.
This section gives power to the Court to make orders in relation to animals which have been seized under S.16. This includes selling it, disposing of it in some other way and destruction.
Nothing in this section limit’s the power to it not being excersible before there has been a conviction. In other words an animal can be seized and then application made to dispose of it before anyone is convicted.
This conflicts with the requirement that an exhibit must be retained for the purposes of use in Court.
It conflicts with all ownership rights. At the end of the day animals are PROPERTY.
Again at first sight the Copurt should not make an order unless the owner has been given the opportunity to be heard, but can do so under subsection 3 if satisfied that it is not practicable to communicate with the owner. Unfortunately it has been my direct experience to be involved in numerous cases where such claims have been made---untruthfully. I do not see how this will change if in fact someone wishes to mislead a Court.
As this is a power which can be used before any conviction it is equally clear that it may also be used before any proceedings have been commenced. It is also clear that as this is by way of “complaint” it is a “civil” rather than “criminal” procedure. The only relevance of this is that legal aid will NOT be available for people to obtain defence lawyers. If a person wants to be represented then they will have to be able to pay the lawyers.
If they were to be prosecuted and this type of application was then to be made then they may be able to obtain assistance. I am sure that the bill is not worded in this way as the potential cost to the Legal Aid budget would be more than significant.
It is noted that subsection 5 does not even include the question concerning the possibility of proceedings as being one of the factors that the Court should have in mind.
The point is that this gives power to dispose of someone’s property without their consent even when they have not been shown to have committed any offence. This cannot be proportionate nor proper nor in accordance with ECHR.
Finally no standard of proof is mentioned and as it is a civil matter it can only be on a balance of probabilities, which is much less than being sure beyond reasonable doubt.
This in my view cannot be an appropriate power unless there is an absolute prohibition against the Court exercising this power before conviction or unless the owner consents if it is before such conviction.
The final insult in all of this is the power to order the person to pay for that to which they have not consented.
This section involves investigation of offences concerned with animal fights. The difficulty of course is the same difficulty in definition which has been identified in the discussion concerning S.7.
Once again we are left with the problem that the constable may do things “if it appears to him”. The average police officer cannot tell a “fighting” injury from a kennel fight. Dogs fighting, whether at an arranged dog fight, or in a kennel, fight in the same way and the injuries are as a result similar.
An injured dog is an injured dog most police officers know no more than this and cannot tell the difference between a fox bite, a badger bite or dog bite.
Further, once again we have the power of entry without a warrant. The same criticism applies to these powers as noted in connection with S. 17 bearing in mind that where a warrant is applied for then reference is made to S.46.
This section allows for the issue of warrants in connection with offences under Sections 4 to 8 inclusive, S.11 and S.30. This must be to an extent a duplication of powers as we have already noted that certain sections include such a power already.
Why is it necessary? The answer appears to be that this power may be used when there is no actual evidence that an offence has been committed, but if it is suspected that evidence of an offence may be found then a warrant can be issued for the purpose of entry.
Once again we have the reference to S. 46. The problem with this section has already been noted.
This section entitles access to records of a person who holds a licence. I have no comments to make in regard to this.
SS.22 and 23
Contain powers of inspection for licence holders etc. and do not seem to be unreasonable.
Relates to farm premises. These are in my view unnecessary as all such powers are contained as necessary in the 2003 Farmed Animals Regulations, which are EEC compliant. There is no point to this regulation or power.
Relates to powers under S.10. As I am critical of this section for its uncertainty I do not see how an inspector can then decide how he can check for compliance with that which is uncertain from the beginning. This leaves the whole thing in the air and left to “officals” to decide how to apply it. Nothing can be worse than leaving all in the dark and at the whim and fancy of whatever view point is then current fashion.
Gives power to a local Authority to prosecute, no other comment is needed.
This contains an appalling scenario in that it extends the period for the commencement of proceedings to 3 YEARS. It would seem that this explains the need for S.18 as who will want to look after an animal for that period of time and at the expense of boarding fees?
It is trite but true that “justice delayed is justice denied”. This cannot be allowed to exist given the fact that all wish matters to proceed to conclusion quickly. It simply cannot be correct to allow a potential prosecution so long after the event.
I cannot see any justification to increase the six month time limit for the laying of an information.
This is further exacerbated by the six month limit as to when the prosecutor (whoever that is) certifies that sufficient information has come to his knowledge. HIS CERTIFICATE IS CONCLUSIVE.
This provision is borrowed from Road traffic law, but only operates where the six month time limit has been exceeded. In other words if one gets to the penultimate day and then and only then does sufficient information come to be known there is a further six months that can be used to lay the information.
There is no purpose to this provision unless it is used in this way. Practically it means that a lawful information can be laid up to 3 years 6 months (less one day) after the event.
This is a monstrous proposition.
From an ECHR point of view I cannot see how this complies in that there is a requirement that if a person is to face proceedings then they should be dealt with within a reasonable time. Indeed 2 years has been held to be too long. That was after proceedings had begun. The principal can be argued to apply just as strongly before the commencement of proceedings.
From a practical view point the RSPCA even today often only start the proceedings a few days before the six month time limit. The only reason I can see for this provision is to give the prosecution as much time as they want, bearing in mind they could within this “backdate” the dates of any alleged offence so as to ensure that any default is caught. Many cases are delayed now and the only protection is the fact that they cannot backdate things to suit themselves. This has to be one of those things suggested by the RSPCA as no one else would think of it, and even less would it be thought reasonable.
This section 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.
This section deals with the Courts right to make deprivation orders and in essence is much as the 1911 Act was but also slightly widens the Courts powers and makes provision to deal with certain practical problems connected to enforcement.
The only knew thing is that the power to deprive an owner did have some limitations in the 1911 Act in that the order could only be made if the Court was satisfied that if the animal were left with the owner it would be exposed to further cruelty. This new section has no such limitation and indeed includes in subsection 6 an almost reverse assumption, in that if the Court does not make a deprivation order it must state its reasons in open Court. From a practical approach this in my experience will almost certainly mean that a Court will make this order unless there are very good reasons for not doing so.
However, emphasis should be placed upon the use of the word “may” in subsection 1. As this clearly shows that this is a discretionary power.
This relates to the Courts power to disqualify people from looking after animals and is much wider than the power under the old 1954 Amendment Act. The new provision does deal with some of the real problems of the old law, but again in my view goes too far in once again requiring a Court that does not make a disqualification order to give its reasons why it hasn’t. Once again it seems to reverse the presumption, without actually going that far.
This deals with the situation where a person keeps animals in breach of a disqualification order. This is necessary so that the Court has power to deal with people who ignore its orders.
However, once again there is provision to make orders removing peoples property before they are convicted of an offence, in relation to all animals of the type that they are prohibited from having owning or keeping. E.g. If a person is convicted in relation to a cow and an order is made under S.30 disqualifying them from keeping all animals not just Bovines, then the Court can make an order under this section in relation to every other animal the person possesses.
If this were connected to a business such as farming or keeping a pet shop then the actual cost of property lost may very well bankrupt such a business. This is wholly disproportionate in these circumstances. There is a practical way round the problem for a limited period (not in the Act), but nevertheless this is in my view a power too far.
This is supplementary to S.31 and contains provisions as to the practical implication of enforcing the order. It does include the power to make a person pay for the cost involved, but also allows for the fact that the value of the item may be set against such cost.
UNFORTUNATELY what it does not do is make provision for how the person appointed to dispose of the animals must do this and account for whatever they recover. It makes no imposition, for example, that they must get the best price obtainable or indeed require them to do anything to ensure that full value is obtained.
In my view if one makes this kind of provision then there should equally be a liability upon the person appointed to make proper account for what they do and allow for independent verification. We have all had the practical experience of unscrupulous people becoming involved in these situations even where the powers have not been as wide as these. This opens the door to such people.
This empowers the Court to make an order for destruction of an animal in respect of which an offence has been committed BUT only upon the evidence of a veterinary surgeon.
There are further consequential provisions in relation to enforcement of such an order.
There is a right to appeal, but unusually there is also power in the Court to direct that the order be carried out in the interests of the animal even though the Appeal is pending. In many instances the whole point of an appeal is thus lost in such circumstances.
Relates to powers after conviction for animal fighting offences to order destruction even on grounds other than the interests of the animal.
This is supposed to be about animal welfare, how can such a power be put in place and for what reason? It is hardly the animals fault it has been trained for the purposes of fighting. There are no criteria laid down as to when such an order can or should be made!
Makes additional provision to order the cost of keeping the animal in relation to fighting offences, to be paid by the person convicted.
Why is it necessary to make special provision? This is all covered elsewhere in the Act.
This seems to me to be something which has simply been copied from a written submission without the realisation of how unnecessary this is. In my view all of the provisions in relation to fighting are simply a reflection of the RSPCA wish list.
Power to order forfeiture of equipment used in connection with any of the offences under sections 4 to 7. No other comment is necessary.
Apart from S.33 (6) this suspends the operation of any of the Court orders until disposal on appeal and makes clear that none of the orders in relation to forfeiture and destruction or banning can be enforced until after the period allowed for making an Appeal has expired.
BUT, the Court can nevertheless take into care any animals subject of the orders until the Appeal has been disposed of and a person cannot sell or dispose of an animal which is the subject of a deprivation order and this would be a separate offence in itself.
If a person is the holder of a licence issued under this act then if they are convicted of an offence they can also have their licence cancelled and can be suspended from having such a licence for as long as the Court thinks fit. There is power to suspend this on Appeal, but it is clear that this is not one of those orders which is automatically supended upon appeal.
Where a person has been disqualified under S.30 or 38 an application can be made to terminate the order. However, the convicting Court can in both of those sections specify the period before which no such application can be made. If that has not happened then this section says that it cannot be made until 1 year after the order was first made, or if a previous application has been made and refused a further year since that application, or such period of time as the Court specifies in sub-section 5.
The Court can also order that the costs of the application be met by the applicant. This is not limited to the unsuccessful applicant so that it would seem that they can be ordered to pay whatever the outcome.
What is not clear is whether any such application will be treated as a matter connected to a criminal matter and will therefore be one to which there is a right to make an application for a legal representation order (legal aid). There may be but it is very unlikely that one would be granted in any event.
S.40, 41,42, 43 and 44
Relate to the effects of the various Court orders in Scotland. Effectively if you have been convicted then the powers are enforceable in Scotland as if they had been made there. In effect if you are convicted in England or Wales you cannot move to Scotland and avoid the effects of the Orders made in England.
This is a critical section in that it relates to who shall be an “inspector”.
This in effect gives power to the national authority and local authorities to appoint whoever they consider suitable and the local authority must have regard to guidance from the national authority as to who it may appoint.
As constables are mentioned elsewhere this clearly will be someone different. The key question is who?
The local authorities do not have the money or interest to set up in effect an animal police force. It almost begs the question therefore that by default the most likely will be the RSPCA.
I have noted earlier that there is no definition of “prosecutor” but this then leads in this context to whoever is the inspector who brings the case as being the prosecutor.
In my view there should be a limitation requiring authorisation for the commencement of any proceedings under this act to the CPS and /or the Local Authority legal departments. No action should be taken without that prior consent. Anything less leads to the Lunatics taking over the Asylum that this act turns this Country into, in relation to animals.
I have already mentioned this section when referring to other sections dealing as it does with the basis of the issue of warrants.
The “wrong” provision is sub-section 5 which suspends the necessity for informing the owner of the property from being told of the application. I cannot see any occasion when this won’t be used, so what is the point of any of the other requirements? This merely shows how ridiculously drafted this Bill is.
The section is a total over complication for what could be clear and unambiguous.
This need only be considered in connection with schedule 2. This schedule in effect relates to the powers in relation to entry, inspection and search.
It should be noticed that the schedule does limit the “inspectors” powers, but as always one can only work out how by reference back and forth omitting certain words when it comes to the inspectors authority.
Police power to stop and search a vehicle for such time as is reasonable to carry out that purpose. An inspector only has this power if he is accompanied by a constable in uniform and indeed only one in uniform can exercise the power anyway. The power is exercisable in relation to section 17, 19, 22,23,24,or 25 or upon a warrant issued under those sections.
Gives similar powers in relation to vessels, aircraft and hovercraft, subject to further requirements because of the nature of the items.
Where orders have been made under the various provisions of the Act a person authorised to carry out the directions of the Court may require production of relevant documents and it is an offence to fail to produce the documents within 10days of the requirement being made.
An offence by a body corporate is also committed if the officers or members of it are shown to have participated in the offence or it is attributable to such persons neglect.
Excludes operation of the Act to things done under the Animals (Scientific Procedures) Act 1986.
Excludes acts done as part of normal fishing
Relates to acts done by the Crown which makes them bound by the Act but not criminally liable and no right of entry to land belonging to the Queen or to her private estates.
Relates to the making of and validity of Regulations made under this Act which can be annulled upon resolution of either House of Parliament.
S.57 to 63
Are all regulatory in connection with finances, amendments, repeals and transitional provisions
Concerns the licence provisions none of which are specified and all are to be the subject of the making of regulations in due course. Part 2 of this similarly makes provision in respect of matters which require people to register for certain activities.
Part 3 has similar supplementary provisions in relation to the operation of the licensing and registration provisions.
This contains all of the detail to do with the exercise of the entry and search powers. The critical parts of this have largely been commented upon in connection with the relevant sections and in essence they may more or less do whatever they want.
These are described as “minor and consequential amendments”.
At least one of them has very far reaching effects in that the definition section of that Act is amended in such a way that any animal that is a mammal and that is not by definition a “protected animal” is included. It follows that every mammal is now subject of potential prosecution.
Others I am not sure about as I do not have direct knowledge of the various matters mentioned. I am one of the few solicitors who has ever defended a prosecution under the Wild Mammals (Protection) Act 1996. That piece of legislation does not and never has made sense, to now widen the definition does not help---- in my view it should have been repealed. However, what I believe it does do is to close some of the things left alone by the recent hunting act.
Contains a list of repeals, but it must be remembered that the Act permits other repeals and amendment of statutes by regulation. My criticism of that as a principal I have already made clear.
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: firstname.lastname@example.org
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