Part One: The Powers That Be
by Nick Mays, Chief Reporter
THIS IS the first of OUR DOGS' in-depth features focusing on parts of the Animal Welfare Bill
that have a particular impact on dogs and dogdom. This week Nick Mays considers
the increased powers for the seizure if animals in suspected cruelty cases
WHEN THE Animal Welfare Bill was first considered some three years ago, one of the main planks of the proposed legislation was that cruelty to animals and general neglect of animals would be targeted with increased vigour. There would be stiffer sentences following a conviction of cruelty, but also there would increased powers to alleviate cruelty and neglect of animals, perhaps even to prevent it from taking place. To this end, there would increased powers for animal welfare inspectors to enter premises to seize an animal. Not only this, these powers would allow the seizure of animals if the designated inspector believed that cruelty would take place if the animal remained in this location.
This, naturally, gave rise to fears amongst a number of individuals and organisations that a form of 'sus law' would apply. There suspicion of cruelty of neglect would be enough for the designated inspector to enter a private dwelling - presumably without a warrant - and seize whatever animals were to be found there. Needless to say, allusions to the 'jackboot kicking the door down' were rife.
Besides, who would wield these increased powers? Who were these 'designated inspectors'? Many believed that the Government's choice of enforcement agency would be the RSPCA in England and Wales. Indeed, one source in DEFRA remarked at the time that the RSPCA had the "knowledge and experience of policing animal welfare issues," so they would be "a natural choice."
In an interview with OUR DOGS newspaper at the time, a Press Officer for the RSPCA denied that the charity was seeking such increased powers - a view that they have maintained since, even following the publication of the Animal Welfare Bill two weeks ago.
So what does the AWB actually say about the increased powers of seizure and who should enforce the legislation?
Section 16 of the Bill reads: Powers in relation to animals in distress
(1) If an inspector or a constable reasonably believes that a protected animal is suffering, he may take, or arrange for the taking of, such steps as appear to him to be immediately necessary to alleviate the animal’s suffering.
(2) Subsection (1) does not authorise destruction of an animal.
(3) If a veterinary surgeon certifies that the condition of a protected animal is such that it should in its own interests be destroyed, an inspector or a constable may— (a) destroy the animal where it is or take it to another place and destroy it there, or (b) arrange for the doing of any of the things mentioned in paragraph (a).
(4) An inspector or a constable may act under subsection (3) without the certificate of a veterinary surgeon if it appears to him— (a) that the condition of the animal is such that there is no reasonable alternative to destroying it, and
(b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon.
(5) An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies— (a) that it is suffering, or (b) that it is likely to suffer if its circumstances do not change.
(6) An inspector or a constable may act under subsection (5) without the certificate of a veterinary surgeon if it appears to him— (a) that the animal is suffering or that it is likely to do so if its circumstances do not change, and (b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon.
(7) Where an animal is taken into possession under subsection (5), an inspector or a constable may— (a) remove it, or arrange for it to be removed, to a place of safety; (b) care for it, or arrange for it to be cared for— (i) on the premises where it was being kept when it was taken into possession, or (ii) at such other place as he thinks fit; (c) mark it, or arrange for it to be marked, for identification purposes.
(8) A person acting under subsection (7)(b)(i), or under an arrangement under that provision, may make use of any equipment on the premises.
(9) A veterinary surgeon may examine and take samples from an animal for the purpose of determining whether to issue a certificate under subsection (3) or (5) with respect to the animal.
(10) A person commits an offence if he intentionally obstructs a person in the exercise of power conferred by this section.
(11) A magistrates’ court may, on application by a person who incurs expenses in acting under this section, order that he be reimbursed by such person as it thinks fit.
Of course, this leads to further concerns that the 'suspicion of suffering' is a very subjective matter for the inspector or constable. Also remaining to be clarified is the question of how easy it would be for an animal's owner to gain information as to the animal's whereabouts and return of that animal if cruelty, neglect or suffering is in dispute.
However, in the AWB as published, it is clearly spelled out that the inspector or constable may NOT enter a private dwelling without a warrant of entry, signed by a magistrate or Justice of the Peace, which perhaps goes some way to alleviating fears of 'jackboot tactics'.
Section 17 of the Bill reads: Power of entry for section 16 purposes
(1) An inspector or a constable may enter premises for the purpose of searching for a protected animal and of exercising any power under section 16 in relation to it if he reasonably believes—(a) that there is a protected animal on the premises, and (b) that the animal is suffering or, if the circumstances of the animal do not change, it is likely to suffer.
(2) Subsection (1) does not authorise entry to any part of premises which is used as a private dwelling.
(3) An inspector or a constable may (if necessary) use reasonable force in exercising the power conferred by subsection (1), but only if it appears to him that entry is required before a warrant under subsection (4) can be obtained and executed.
(4) Subject to subsection (5), a justice of the peace may, on the application of an inspector or constable, issue a warrant authorising an inspector or a constable to enter premises for the purpose mentioned in subsection (1), if necessary using reasonable force.
(5) The power to issue a warrant under subsection (4) is exercisable only if the justice of the peace is satisfied— (a) that there are reasonable grounds for believing that there is a protected animal on the premises and that the animal is suffering or is likely to suffer if its circumstances do not change, and (b) that section 46 is satisfied in relation to the premises.
Chris Newman, Chairman The Federation of Companion Animal Societies (FOCAS) which formed part of the consultation Committee on the Draft AWB expressed some concerns over the 'increased powers' and who would wield them.
Mr Newman told OUR DOGS: "FOCAS welcomes the introduction of the Animal Welfare Bill, we see it as a significant step forward in ensuring animal welfare. The major concern to pet (companion animal keeper) should be that of the role of 'inspector,' clearly the RSPCA are lining up to step into this role’. Mr Newman points out however that any appointed body of inspectors must be held accountable for its actions, and its prosecutions be independently reviewed.
Powers not sought
Mr Newman's comments regarding independently reviewed prosecutions is a valid one; currently the RSPCA carry out their own prosecutions which are, in effect, private prosecutions. However, their sister organisation the Scottish SPCA are a recognised specialist reporting agency - an usual position for a charitable organisation - and, as such, they submit any evidence for prosecutions for cruelty to the Procurator Fiscal's office - the Scottish equivalent of the Crown Prosecution Service.
Therefore, if the RSPCA were to be accorded increased powers under the AWB, would they also act as private prosecutors, or would they have to submit evidence to the CPS as the police do, thus allowing the CPS to decide whether or not a prosecution should be brought? Again, this leads to quite natural concerns amongst animal keepers that whoever acts as 'inspector or constable,' would a matter of prosecution - as with suspicion of suffering - be a purely subjective matter resting with an individual?
Becky Hawkes from the RSPCA's Press Office commented: "The RSPCA has not asked for, nor has it been given, any increased powers under the Animal Welfare Bill.
"Also, with regard to the point regarding prosecutions undertaken by the RSPCA: There is independence between RSPCA investigators, the Prosecutions Department, and the Solicitors we use in Court - the prosecutor has a duty to the court, so this is a significant safety feature.
"The RSPCA applies the CPS code of conduct to its prosecutions:
· Is there a reasonable expectation on achieving a conviction?
· Is it in the public interest?
"Only if it fulfils both of these requirements will a case be taken to court."
Ms Hawkes added that the RSPCA's system reflects the changes that were recommended in the Butterfield Report on how HM Customs & Excise should deal with its cases.
North of the border
The Scottish Parliament is currently coinsidering its own version of the AWB, The Animal Health and Welfare Bill. The SSPCA's Parliamentary Officer, Leonora Merry explained how the SSPCA currently investigated and conducted prosecutions for cruelty and outlined their future role in the light of the new legislation.
"The Scottish SPCA is recognised as a specialist reporting agency to the Crown," said Ms Merry. "This means that Inspectors submit reports to the Procurator Fiscal (Scotland's public prosecution service) relating to breaches of animal cruelty legislation in much the same way as the police. The Procurator Fiscal then examines the reports and decides whether or not to proceed with a prosecution under the legislation concerned. Currently most prosecutions for animal cruelty come under the 1912 Protection of Animals (Scotland) Act. The Scottish SPCA Inspectorate has a high rate of success in its reporting of animal cruelty offences. In 2004, of 34 cases lodged with the Procurator Fiscal, only 7 of these resulted in no proceedings.
"The Scottish SPCA's status as a recognised reporting agency will remain unchanged by the Animal Health and Welfare Bill. Inspectors will report cases of suspected breaches of the new legislation to the Procurator Fiscal."
Under the new legislation it is intended that individual Scottish SPCA Inspectors will also be authorised by the Scottish Ministers to act as Inspectors under the Bill for for certain purposes, such as to take possession of animals which are suffering or are in danger of suffering.
Ms Merry added: "This will allow Inspectors to continue reporting cases to the Procurator Fiscal as they currently do, and coupled with the improved welfare provisions in the Bill will greatly assist in the Scottish SPCA's aim of preventing cruelty to animals and promoting kindness and humanity in their treatment."
Both Bills contain the aim of promoting greater animal welfare and, as such, both confer increased powers on the agencies enacting those powers. In Scotland, it will continue to be the SSPCA. In England and Wales, it is apparently unclear as to who will assume this role - the RSPCA have stated that they do not wish to assume any extra powers in this regard.
It is to be hoped that, whoever ultimately exercises these new powers, they do so with appropriate legal safeguards in place.