Nigel Weller

Section 1(1)(a) of the Protection of Animals Act 1911 is the section favoured by the RSPCA and DEFRA in prosecuting welfare matters in the summary Courts of this country.  There has been continued argument in the Court of Appeal as to whether the offence was one of strict liability or whether the prosecution had to prove an appropriate Mens Rea.  The RSPCA believe that Mr Justice Holland in the case of Isaac decided on the 12th November 1993 in the Queens Bench Divisional Court that the offence was one of strict liability, and that the prosecution merely had to prove the following ingredients for the offence to be proved:

  1. Was there enough evidence that the animal had suffered?  If yes, was that suffering unnecessary?  That is was the suffering not inevitable in that it could be terminated or alleviated by some reasonably practical measure.  The prosecution then have to prove that the suffering has been caused by the defendant unreasonably “unreasonably doing or omitting to do any act”.  The Court therefore has to ask itself was there enough evidence that the defendant had omitted to do anything so as to caused unnecessary suffering.

  2. If the answer were yes, was there enough evidence that omission was unreasonable.  That is viewed objectively, that no reasonably caring reasonably competent owner would be guilty of a similar omission.

This is an objective test, so the animal owner was being judged by the objective standards of the reasonable, competent, caring shepherd, or whatever is appropriate.

The case of Peterssen, which was decided on the 23rd March 1993 by the Divisional Court, prior to Isaac suggests that this approach was wrong.  Peterssen says that the prosecution have to prove that by your act or omission that you were aware of the condition of the animal and that you knew animal was suffering as a result.  Unfortunately, notwithstanding the RSPCA were party to both cases, their Lordships in the case of Isaac were not referred to the earlier case of Peterssen, and were not aware of it until the recent case of Hussey.

Hussey, again decided by the Divisional Court on Monday 5th March 2007, confirms that Peterssen is the preferred view of the law and that the offence under Section 1(1)(a) requires a Mens Rea.

However both Lord Justice Latham and Mr Justice Davis who heard this matter, by way of comment stated that as far as the Mens Rea was concerned, they believed that it would merely be appropriate for the prosecution to prove that the defendant knew of the condition of the animal and it was not necessary for there to be any further finding, that the defendant knew or that there would also or might be inconsequence suffering on the part of the animal.  The Divisional Court were not being specifically asked to deal with this matter, this is only comment and Peterssen effectively is still good law.

What has changed under the new Welfare Act 2006, which became law on the 6th April 2007?  The Section 1(1)(a) offence is now embodied in Section 4 of the Act and it finally confirms that there is an element of subjective knowledge, the Act actually states that the defendant must know or have reason to have known that the conduct complained of would cause unnecessary suffering.  Whether this relates purely just to the condition of the animal, or knowledge that suffering has actually occurred, we will have to wait and see how the Divisional Court interprets the statute. 

However as a lawyer dealing in this area of the law solely, I have serious concerns over the new duty of care offences created under Section 9 of the Act.  Particularly in the light of recent comments by the RSPCA.  This section creates a further new concept and it is an offence if a person fails to take steps to meet the needs of an animal.  Section 9(2) requires that the Court when deciding whether an animal’s needs have been met, has to consider the five freedoms which of course we are familiar with and are contained in the Welfare Codes and were in an advisory form only.  The five freedoms are now embodied in statute and therefore, mandatory.  In this section, no suffering has to be proved and in my view allows scope for a very subjective interpretation on behalf of those who enforce the legislation or offence when committed. (The Inspectors charged with enforcing the Act haven’t been identified yet)  If an Inspector doesn’t like the conditions in which animals are being kept, you have committed an offence. 

My fears have been confirmed in a recent article in the Veterinary Times dated 25th June 2007 and shows perhaps the way in which the act already is being interpreted.  Tim Wass of the RSPCA, Regional Superintendent for East Anglia and the Midlands said he was enthusiastic about the effect its introduction had had on the RSPCA’s day-to-day operations.  He said “I am personally and professionally delighted, because the Animal Welfare Act is doing exactly what it says on the tin.  In actual fact it is working beyond our wildest dreams.  Under the 1911 act I could turn up at your door and say “your dogs outside 24 hours a day and it’s got no shelter.  It would be the right thing to do to provide it with a kennel or somewhere it can go when the weather is inclement.  However, you could figuratively put two fingers to me and simply fail to heed my advice.  Under the Animal Welfare Act, we’ve got a local animal welfare community investigating complaints, arriving on the doorstep and saying “technically you have committed a criminal offence, you’ve allowed your dog not to enjoy one of the five freedoms and as a result I’m going to issue you with an enforcement notice.  This means that you have 14 days to provide shelter for the animal.  If you don’t, having committed that you will, then you face the potential of going to Court”.  In fact, the Act goes further and no warning notice has to be served before a prosecution can be invoked.

This offence carries as with the welfare offence under Section 4, imprisonment for a term not exceeding 51 weeks or a fine not exceeding £20,000 or both.  Section 9 appears to be an offence of strict liability as the standards of husbandry are to be judged against the Welfare Codes, it has to be an objective test.  You could go to prison for 12 months for committing an offence of which you were not aware

In any case of suffering therefore, why bother to use Section 4 and run the risk of losing a case because you cant satisfy a Court of the various tests a prosecutor must achieve according to Isaac and Peterssen, when you can prosecute under Section 9 which at first blush appears to be an offence of strict liability and no suffering has to be proved and the penalties are the same.

The RSPCA are not the Inspectorate under the Act, but Mr Wass added:   However, to ensure that the charity continues to cope with its extended remit, Mr Wass revealed that the RSPCA was currently “building up” the organisation and was preparing to train twice as many animal inspectors than it had previously.  He also said “with the Police and in most cases, Local Authorities saying this was not a matter for them to enforce, we were concerned that the RSPCA would struggle if it had a huge lurch in complaint activity”.  However I think it is very ominous that he went on to say “to be honest, RSPCA officers are not doing anything more or less than they ever did before.  All they are doing is the same activities in a more structured way and they are doing it with the weight of the Animal Welfare Act behind them”.

I am afraid that Section 9 has created an anthropomorphic stick to beat every large animal farmer and pet owner that comes to the attention of the charity known as the RSPCA, who promoted and helped farmers and owners alike with the welfare of their animals, but according to Mr Wass would now prefer to see them in the dock.

Get Tidying!

Since dictating this article Mr. Weller has been instructed by numerous clients whose animals have been seized under s. 9 of the New Act.

The RSPCA is claiming that the conditions the owners and animals were living in could compromise their welfare, when in fact the animals seized are in perfect health.

Mr. Weller advises you should get cleaning and tidying before they arrive.

SHG addendum

The SHG is now taking calls from people who have been "ordered" to dispose of most of their animals on the grounds that over 2 or 3 in a house means they don't have room to express themselves. This has led to some people having healthy animals killed.

Please contact the SHG on 08700 72 66 89 immediately you know the RSPCA have been around and *BEFORE* taking any irreversible steps.

The Shg RSPCA Animadversion