I. Introduction
The Animal Welfare Act 2006 (‘the Act’), which came into force in April 2007, is the starting point in respect of the legal protection of vertebrate animals in England and Wales. Certain provisions of the Act extend to Scotland (Sections 46-50), and separate, similar, legislation covers Scotland and Northern Ireland as discussed below. Additional legislation is in place to address animals outside the scope of the Act, namely animals used in research and the majority of wild living animals [see related statutes]. A significant amount of animal welfare legislation is directly applied to the UK from the EU, particularly legislation surrounding farm animals, however, this is outside the scope of this discussion.
The Act replaced the Protection of Animals Act 1911, nearly 100 years prior. It combined over 20 pieces of legislation and leading case law relating to animal protection, in attempt to provide comprehensive legislation.
In sum, the Act’s focus is on responsible animal ownership and the prevention of harm to animals by way of ‘unnecessary suffering.’ It encompasses what have been coined the ‘five freedoms’ as the duties for the promotion of animal welfare; in addition to prohibited acts of cruelty, the Act created a welfare offence for failing to provide adequate care for an animal. This covers instances of neglect and companion animals in particular. Previously this duty had extended to farm animals only. Additional responsibilities, or duties of care, were introduced for those responsible for animals, and the Act expanded the definition of those legally responsible. This provides the opportunity for early intervention in cases of cruelty, rather than the position under the 1911 Act, which only allowed for reactive responses to cruelty. The Act also introduced tougher penalties and additional enforcement measures for neglect and cruelty; raised the minimum age to purchase a companion animal from twelve to sixteen years of age; and banned most routine tail docking of dogs and other forms of mutilation. Further, the Act provides a mechanism for Parliament to create secondary legislation, by way of enabling powers. These include the introduction of Codes of Practice, in respect of all animals covered under the Act.
The Department for Environment, Food and Rural Affairs (Defra) is the Government body tasked with enforcing the majority of animal welfare legislation in England and Wales, specifically the Animal Welfare Act 2006. (The Home Office licenses and monitors scientific procedures on animals, and the Food Standards Agency inspects and licenses slaughterhouses.)
The writer of this discussion found great assistance from Noel Sweeney’s recent book: A Practical Approach to Animal Welfare, 2nd Edition (5m Publishing Ltd, 2017), as well as case law analysis from Mike Radford’s 2001 book, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press,2001), and discussion by other leading academics and professionals in this field, to include Alan Bates, UK barrister.
II. The Animal Welfare Act - England & Wales
This discussion covers the offences of cruelty established under the Animal Welfare Act 2006, and the duty of care placed upon animal owners under the Act.
A. The animals protected by the legislation
Categories of animals protected under the Act depend on the activity and offence in question. For example, animals ‘lawfully’ used in research facilities, and animals involved in the regular practice of fishing, are excluded from protection (see below). Further, the duty to ensure an animal’s welfare (Section 9) applies to animals for which someone is responsible only (e.g. an owner, although responsibility extends further). Cruelty and fighting offences have a wider application.
“Animal” is defined as ‘vertebrate other than man,’ pursuant to Section 1 of the Act. An animal is excluded if in foetal or embryonic form. Section 1 does however provide for this definition to be extended via secondary legislation (or Regulations). This definition could include invertebrates and foetuses in the future if the appropriate national authority is satisfied, on the basis of scientific evidence, that certain types of animals are ‘capable of experiencing pain or suffering’ (s1(3) & (4)). The appropriate national authority is the Secretary of State in England, and the National Assembly for Wales. It is noted that, whilst the Act provides a basic definition for ‘suffering,’ there is no definition for ‘pain.’
By virtue of Section 2 of the Act, the key offences are more limited in scope, applying to “protected animals” only. Specifically, the relevant provisions cover the primary offences of: unnecessary suffering (s4(1)), mutilation (s5), poisoning (s7) and animal fighting (s8). Although, non-protected animals may also come under these sections where noted below. Further, a local authority inspector has various powers in respect of “protected animals” only (s18 and s19).
What is a “protected animal”?
This term covers domestic animals, with limited application to wild animals. Wildlife becomes protected only when an otherwise wild animal is under human control. For example, traditional field sports, where the animals are strictly wild, are not affected by this Act. Specifically, to be “protected” an animal must be determined to be under one of three scenarios (s2):
(a) of a kind commonly domesticated in the British Islands,
(b) under human control whether on a temporary or permanent basis, or
(c) not living in a wild state.
The first two situations are fairly clear. For example, animals of a kind commonly domesticated in the British Islands includes feral cats and stray dogs, without need for any element of human control. What is deemed to constitute ‘commonly domesticated’ is set out in Government guidance attached to the Act, namely: animals ‘whose collective behaviour, life cycle, or physiology has been altered as a result of their breeding and living conditions being under human control, in the British Islands, for multiple generations.’ [1]
As the second definition of protected animals covers temporary or permanent human control, this would including keeping a wild animal only briefly, such as overnight. As suggested by Noel Sweeney, this could include: ‘wondering hedgehogs, Dartmoor ponies and visiting Canada geese if people become involved in their feeding and living conditions.’ [2] ‘Under human control’ has wider meaning than ‘captive animal’ as worded in the repealed 1911 Act. A relevant factor is whether the animal can independently control its own environment.
‘Not living in a wild state’ is less clear as to its scope. However, this provision would cover animals that, although may have been originally wild, have been conditioned by humans, such as an escaped zoo or circus animal.
B. Who does the Act apply to?
The Act is broader in scope than the 1911 Act in this regard. In addition to those who commit cruelty, the Act imposes various duties of care on those deemed responsible for an animal (Section 3). This relates to any vertebrate animal (s1), and covers responsibility on a temporary or permanent basis. Responsibility includes straight ownership (thereby always deemed responsible), or being in charge of an animal. Further, a person who cares for another person under the age of 16 shall be treated as jointly responsible for any animal on their behalf. The relevant sections applicable to those responsible are: 4(2), 5(2), 6(2), 7(2) and 9.
Being in charge of an animal on a temporary basis can be interpreted in its ordinary sense. It would cover situations such as a dog being held in a kennel, animal sanctuary or veterinary clinic overnight, or by a friend whilst a dog’s owner is in hospital for several weeks. It also applies to a police officer who seizes a dog. Acting as temporary carer for an animal equates to legal responsibility. Further, as pointed out by Sweeney, the case of Gray v RSPCA [3] confirmed that this section is to be clearly interpreted as extending responsibility for any animal looked after by a child under 16 to those responsible for that child. This means that a number of individuals can be legally responsible for an animal at any one time.
C. Prevention of harm and prohibited offences of “unnecessary suffering”
Unnecessary Suffering
Section 4 of the Act creates the offence of “unnecessary suffering,” which is split into two.
Subsection 1 criminalises acts or omissions that cause unnecessary suffering to a protected animal, the suffering of which the defendant knew, or reasonably ought to have known, would be likely. This covers situations where a person fails to prevent unnecessary suffering to an animal as well as specific actions that cause unnecessary suffering.
Specifically:
4 (1) A person commits an offence if -
(a) an act of his, or a failure of his to act, causes an animal to suffer
(b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,
(c) the animal is a protected animal, and
(d) the suffering is unnecessary.
Section 4(2) is a ‘complicity offence.’ [4] An offence is committed where a person responsible for an animal fails to take reasonable steps (in all the circumstances) to prevent another person (through that person’s act or failure to act) from causing unnecessary suffering to that animal.
As stated by Defra in the Act explanatory notes, Section 4 is intended to replicate, simplify and update the protection provided by the 1911 Act.
Although causing an animal suffering is not explicitly prohibited under the Act, causing suffering is prohibited if it is deemed “unnecessary.” This is a 2-part test.
1. What is “suffering”?
There must be found to be suffering. A definition of “suffering” is provided in Section 62 of the Act, namely: ‘physical or mental suffering or related expressions.’ Whilst the statute is not particularly prescriptive, in practice what constitutes actual suffering is a question of fact to be determined by the Court. This was confirmed in the case of Bandeira and Brannigan v RSPCA. Further, in the 1984 case of Patchett v. Macdougall, [5] it was held that the painless killing of an animal (in this case, a dog killed by a gun) will not necessarily constitute suffering. This was also held in the case of Isted [6], where an animal was found to have been killed instantaneously. There is no offence committed if it cannot be shown that any suffering occurred. Although these cases pre-date the 2006 Act, the principles remain relevant.
Where it is not possible to infer from the circumstances of the case that an animal clearly suffered, the Court will require expert evidence from a veterinary surgeon or animal behaviorist. Scientific knowledge of animal physiology may be significant. Both tests must be addressed: has the animal suffered? If it has suffered, was the suffering necessary?
In accordance with criminal law principles, suffering under the Animal Welfare Act 2006 must be established beyond reasonable doubt. This is a high threshold for prosecutors.
The relevance of whether suffering is brief or prolonged has been addressed in court. Lord Hunter stated in Patchett that suffering ‘imports the idea of the animal undergoing, for however brief a period, unnecessary pain, distress or tribulation.’ Sometimes the distress and fear that an animal suffers may cause both mental and physical suffering. As pointed out by Darren Calley, the duration of suffering had also been discussed years prior in the case of Murphy v. Manning [7] in respect of suffering caused to fighting cocks that had their combs cut off:
The fact that it is done quickly does not make any difference. Let anyone try to hold his hand over a flame for two seconds, and I think he would say that half a minute, not to say a minute, was a long time... [8]
As explained by Radford, if suffering beyond reasonable doubt is ascertained, the question turns to necessity.
2. What kind of suffering is deemed “necessary”/ “unnecessary”?
In restating the cruelty offence of causing unnecessary suffering from the 1911 Act, the Act offered some guidance as to what constitutes ‘unnecessary suffering.’ This was achieved by incorporating the leading case law on this point into the statute. It is noted that ‘cruelly’ and ‘unnecessary suffering’ have been used interchangeably in case law.
Whilst there is no clear definition of “unnecessary suffering” under the legislation, Section 4(3) lists considerations in determining this, namely whether: (a) the suffering could have reasonably been avoided or reduced; (b) the conduct which caused the suffering was in compliance with any relevant enactments or provisions of a license or codes of conduct (so otherwise lawful); (c) the conduct which caused the suffering was for a legitimate purpose; (d) the suffering was proportionate to the purpose of the conduct concerned and (e) the conduct causing the suffering was (in all the circumstances) that of a reasonably competent and humane person.
However, guidance must continue to be sought from case law in conjunction with the Act, whilst the language of this section is convoluted. The main elements of Section 4(3) that have attracted discussion are ascertaining: legitimate purpose, proportionality and a reasonably competent and humane person.
Legitimate purpose is defined under the Act as: for the purpose of benefiting the animal, or protecting a person, property or another animal (s4(c)). In the Act’s explanatory guidance, Defra provides an example, where a police horse suffers while being used for the purpose of riot control. This use may be considered necessary for the purpose of protecting persons or property. Another example of legitimate purpose is suffering caused through a veterinary operation for the animal’s benefit, such as neutering (provided the procedure is carried out lawfully, in accordance with relevant regulatory requirements). An act of self defence against an aggressive dog would also be a legitimate purpose for example, provided it is proportionate and reasonable and there are no alternative courses of action. Pest control activities may also be deemed legitimate.
Proportionality concerns a balance of interests, between the object to be achieved and the means of achieving it. These interests (i.e. human and non-human ) are often in conflict. How much the animal suffers must be weighed against the purpose of the conduct to ascertain whether it is justifiable.
A ‘reasonably competent and humane person’ is difficult to define. The word “unreasonable” connotes an objective test, yet there is a spectrum of opinion as to what is reasonable. Obviously, different reasonable people will ascribe different value to animal welfare as compared to human benefits (as will different courts). The question for the court is whether the act or omission of the defendant resulted in a balance outside of the range which reasonably humane people would find acceptable. Importantly, the mere fact that a defendant considers that his conduct was appropriate, justified, or even humane, is insufficient to show that it was not unreasonable. Circumstances are relevant. For example, an individual may encounter an injured animal in an emergency situation, such as in a road traffic accident. In the urgent circumstances, they may try their best to prevent suffering, but may make a mistake and cause suffering nonetheless. This individual may not reasonably have known the risk of suffering as an the outcome in the circumstances, and be exempt from prosecution by virtue of the reasonable person test.
The 1993 cases of Hall v. RSPCA and RSPCA v. Isaacs make it plain that the reasonableness of the defendant’s conduct is to be judged by the standards of a reasonably humane and caring person. That hypothetical person will be regarded as having any special knowledge that the defendant had by virtue of his status. Thus, in Hall, pig farmers who failed to seek veterinary attention for their arthritic pigs had their convictions upheld by the Divisional Court because there was insufficient evidence to show that a reasonably competent, reasonably humane modern pig farmer would have acted in the same way. Although these cases pre date the Animal Welfare Act 2006, the principle guidance remains relevant, having been considered, and largely incorporated into the Act. As explained by Radford, the court posed 3 questions in the Hall case to address necessity: ‘Did the pigs suffer?’ If yes, was the suffering necessary ‘in the sense of it being inevitable’ (a fairly high threshold)? If no, ‘would a reasonably competent, reasonably humane modern pig farmer have tolerated such a state of suffering?’ [9]
Although the prosecution does not have to demonstrate that the defendant intended to cause unnecessary suffering, any knowledge of the potential suffering will be relevant (s4(b)); specifically if the accused is shown to have intended to cause unnecessary suffering, forseeing the likely outcome of his actions or omissions. Yet, it is enough that the accused ought reasonably to have known that his actions or omissions would cause unnecessary suffering, and thereby acted negligently. A Section 4 offence can therefore be established by a subjective or objective test. This was considered in the 2013 case of Gray v RSPCA, from which Sweeney cites:
What has to be established is either subjective knowledge namely personal knowledge, or objective knowledge namely that the individual ought reasonably to have known that his or her act or failure to act would cause an animal to suffer.
In the Hall and Isaacs cases, noted above, the Divisional Court held that a cruelty offence is committed only where the suffering of an animal:
(a) was unnecessary, in the sense of its not being inevitable despite proper husbandry, and
(b) resulted from the unreasonable acts or omissions of the defendant.
It appears that suffering will be considered necessary if it would inevitably be caused by the keeping of the animal within the system of husbandry in which it was being kept, provided that that system of husbandry is a commonly recognised one that has not been specifically prohibited by legislation. In the earlier case of Roberts v. Ruggiero, [Unreported 3/4/85] for example, the Divisional Court upheld a decision to dismiss a prosecution for an offence under the 1911 Act in respect of the raising of calves in ‘veal crates’ in order to produce white veal. Under that system of husbandry, which has now been banned, calves were individually kept in narrow stalls in which they were unable to exercise or even turn around. The Divisional Court refused to consider evidence that alternative systems of husbandry were available that would cause less suffering. Stoker J stated that a magistrates’ court was ‘not the appropriate forum in which, nor [was] a criminal prosecution the appropriate method by which, the legality of the system of husbandry should be established’.
However, where acts or omissions have caused an animal to experience suffering that was not an inevitable part of its husbandry according to a common system, that will be regarded as supplying the element of unnecessary suffering needed for the offence. Attention then shifts to whether the act or omission was unreasonable.
The leading case on what constitutes “unnecessary suffering” is the 1889 High Court case of Ford v. Wiley. The case concerned a farmer who had arranged for his oxen to be dehorned with a saw. He was prosecuted under a Victorian statute which made it an offence for any person to ‘cruelly beat, ill-treat, over-drive, abuse, or torture … any animal.’ (This wording has since been replaced, now largely covered by Section 4 of the Animal Welfare Act 2006). Local justices dismissed the case despite scientific evidence that considerable pain would have been caused to the oxen and that goring could be effectively prevented by alternative means. The prosecutor appealed. In the Divisional Court, Hawkins J, who adopted an established definition of “cruelly” as meaning “the unnecessary abuse of an animal,” stated:
To support a conviction then, two things must be proved - first, that pain or suffering has been inflicted in fact. Secondly, that it was inflicted cruelly, that is, without necessity, or, in other words, without good reason.
With respect to the second of these things, that of the suffering having been inflicted without necessity, Hawkins J continued:
What amounts to a necessity or good reason for inflicting suffering upon animals protected by the statute is hardly capable of satisfactory definition - each case in which the question arises must depend upon a variety of circumstances; the amount of pain caused, the intensity and duration of the suffering, and the object sought to be attained, must, however, always be essential elements for consideration. To attain one object the infliction of more pain may be justified than would be ever tolerated to secure another.
Thus, where no legitimate object exists in pursuit of which the suffering was inflicted, the suffering is clearly not necessary. Where, however, the suffering was inflicted in the pursuit of a legitimate object, there must be proportionality between the suffering caused and the benefit sought. As Hawkins J put it:
In each case, however, the beneficial or useful end sought to be attained must be reasonably proportionate to the extent of the suffering caused, and in no case can substantial suffering be inflicted, unless necessity for its infliction can reasonably be said to exist.
He also stated that:
The legality of a painful operation must be governed by the necessity for it, and even where a desirable and legitimate object is sought to be attained, the magnitude of the operation and the pain caused thereby must not so far outbalance the importance of the end as to make it clear to any reasonable person that it is preferable the object should be abandoned rather than that disproportionate suffering should be inflicted.
Hawkin’s J’s reference to what would be clear ‘to any reasonable person’ makes it plain that whether suffering was necessary is to be judged objectively and not by the standards of the defendant.
Since goring could be effectively prevented by other means, such as removing the tips of the horns or placing knobs over them, the farmer was left to rely on supposed justifications for his conduct that were essentially economic in character. The Divisional Court unanimously concluded that such economic efficiencies could not justify the very great suffering caused by dehorning. As Lord Coleridge CJ stated:
There is no necessity and it is not necessary to sell beasts for 40 [shillings] more than could otherwise be obtained for them, nor to pack away a few more beasts in a farm yard …. These things may be convenient or profitable to the owners of cattle, but they cannot with any show of reason be called necessary.
While Ford v. Wiley remains good law, its effectiveness in enabling successful prosecutions to be brought in respect of painful procedures performed on animals to enable them to be farmed intensively has been greatly circumscribed by the Divisional Court’s decision in Roberts v. Ruggiero. In that case, also referred to above, the Court upheld a decision by magistrates to dismiss a prosecution brought for a cruelty offence under the 1911 Act in respect of the keeping of calves in veal crates. Stephen Brown LJ and Stocker J refused to find that the practice caused unnecessary suffering simply because more humane systems of rearing were available, and criticized the attempt to use an offence of cruelty to attack a common system of intensive farming that Parliament had not at that time chosen to ban. Thus, it appears that, where suffering is caused which is an inevitable part of a recognised and common system of husbandry that Parliament has not chosen to directly prohibit, the suffering caused will not be regarded as unnecessary. Such a situation is not the same as that in Ford v. Wiley, in which the Court attacked a practice which had resurfaced in one locality after a 30-year absence, and which had been roundly condemned by the veterinary profession.
The more recent, and widely discussed, case of Gray and Others v RSPCA involved a number of offences under sections 4 and 9 of the Animal Welfare Act 2006 at a family horse breeders. Over 100 horses were found in a terrible state of neglect, along with many dead. It was held that an offence under Section 4 is committed regardless of knowledge or intention; it is an objective test and covers both acts and omissions, as discussed above. In respect of necessity under Section 4 of the Act, Darren Calley points out that the judges in this case were not prepared to allow for common practices, that may limit the basic care of animals for economic reasons, to be accepted as reasonable under this section. [10]
It is noted that wild animals are not directly covered under s4, whilst this offence applies to protected animals (s4(1), and as defined in s2), and to those for which someone is responsible (s4(2)), and as defined in s3).
Further, Section 4 excludes the destruction of an animal in “an appropriate and humane manner” (s4(4). Whilst not clearly defined, this allows for animals to be killed in certain circumstances provided that they do not suffer unnecessarily in the process.
Mutilation
Mutilations, other than docking of dogs’ tails (see below) are prohibited under Section 5. This provision makes it an offence to carry out, or cause to carry out, a ‘prohibited procedure on a protected animal.’ Medical treatment is excluded, and for these purposes “mutilation” is defined as involving: ‘interference with the sensitive tissues or bone structure of the animal.’
Under the second limb of Section 5 of the Act, an offence is also committed by a person if he/she is responsible for an animal (see Section IIB), and permits or fails to prevent another person from carrying out a prohibited procedure. Specifically, the latter is worded as ‘failing to take such steps...as were reasonable in all the circumstances’ (s5(2)(c)).
A prohibited act under Section 5, would address cutting a dog’s ears, or unlawful medical operations on a dog used for fighting for example (Sweeney).
The Act does however allow for the appropriate national authority to create exemptions by way of separate Regulations (s5(4)).
The word “reasonable” indicates that the test is an objective one. The question of whether or not the owner exercised an adequate level of care and supervision to protect the animal from cruelty is judged by the standard of a hypothetical reasonable person. Thus, an owner should not be acquitted simply because he thought that the care he exercised was adequate.
Docking of Dogs’ Tails
Section 6 of the Act prohibits this practice (other than for medical treatment), defined as: the removal of, or causing the removal of, ‘the whole or any part of a dog’s tail.’
Similar to other cruelty offences under the Act, should another person carry out this prohibited action, the individual that is responsible for that animal (see Section 3) is guilty of an offence if he/she permitted that to happen, or reasonably failed to take steps to prevent the prohibited activity (an objective test).
Yet, there are exemptions in place. Section 6(3) permits docking the tails of ‘certified working dogs’ up to five days old. Certification must be provided by a veterinary surgeon, who must be satisfied that two additional conditions are met from the evidence provided. Firstly, they must be satisfied that the dog is ‘likely to be used for work in connection with’ a certain activity listed as: law enforcement, armed forces, emergency rescue, lawful pest control or the lawful shooting of animals. Secondly, they must be satisfied that the dog is of the correct type as specified for the purposes of the exemption, in accordance with Regulations created by the appropriate national authority. Pursuant to subsequent Regulations entitled ‘The Docking of Working Dogs’ Tails (England) Regulations 2007:' hunt, spaniel and terrier breeds are exempt from the banning prohibition, provided that certain conditions are met. The tail docking must be carried out by a veterinary surgeon, and the dog must be no older than 5 days old. The veterinary surgeon must be satisfied of the breed, evidenced by the puppy’s mother. Evidence, by way of applicable certificate or identification must also be provided to show that the puppy is intended to work in one of the activities listed above (Section 3 of these Regulations). Similar legislation exists in Wales.
It is a defence if it can be shown that the accused had a reasonable belief that the dog met the exempt conditions, i.e. a veterinary surgeon had certified the dog and it appeared over 5 days old (s6(7)).
There are additional offences under this Section, for example: showing a dog with a docked tail to the public for a fee, unless the dog is certified as exempt from the prohibition and exhibition is for the purpose of demonstrating the dog’s working ability (s9-10). Further, it an offence to knowingly give false information to a veterinary surgeon in connection with the giving of a certificate for the purpose of this section (s6(12)).
This Section was one of the most controversial in the initial bill. Whilst some interested parties supported an outright ban, others wholly supported the practice. This resulted in Parliament taking this compromise position.
Administration of Poisons
Section 7(1) prohibits the administering, or causing, of any ‘poisonous or injurious’ substance to a protected animal. The offence requires knowledge of the substance’s poisonous or injurious properties (to include knowledge that a substance taken in a certain quantity or manner may be poisonous, although may not ordinarily be defined as such). Such action is however permitted should the administrator have lawful authority or reasonable excuse, although it is not clear when a specific circumstance would arise.
The term ‘administer’ is understood to indicate deliberate or intentional action, and requires proof that the accused knew the poisonous nature of the substance administered to the animal. Accidental poisoning is exempt, and establishing liability under this Section does not require proof that the animal suffered (as noted in Defra’s explanatory notes.)
Further, under Section 7(2), an offence arises if a person responsible for an animal (see Section IIB) allows that animal to be poisoned by another, or fails to take reasonable steps to prevent this from occurring.
Animal Fighting
Organised animal fighting is prohibited under Section 8 of the Act. An animal fight is defined as a scenario where a protected animal is ‘placed with’ an animal, or human, for the ‘purpose of fighting, wrestling or baiting’ (s8(7)). This restricts the definition to certain activities, and requires proof of intent to constitute an offence.
To be guilty of an offence under Section 8(1) the offender must have committed one of the following actions: caused or attempted to cause an animal fight to take place; knowingly received money for admission to an animal fight; knowingly publicised a proposed fight; provided information about an animal fight with the intention of enabling or encouraging attendance at a fight; made or accepted a bet on the outcome of a fight; taken part in an animal fight; possessed anything intended for use in connection with a fight; kept or trained an animal in connection with a fight; or kept any premises for an animal fight.
It is also prohibited to be indirectly involved by way of attendance at an animal fight without lawful authority or reasonable excuse (s8(2)).
Further, Section 8(3) makes it an offence to knowingly: supply, publish, show, or possess with intention to supply, a video recording of an animal fight that took place in Great Britain (and since the Act’s commencement), without lawful authority or reasonable excuse.
Lawful or reasonable excuse covers undercover investigations, and legitimate pest control activities that involve placing one animal for the purpose of catching another, as the purpose is not for fighting.
‘Video recording’ is broadly defined to cover amateur, as well as professional recordings, and can be shown by any means (s8(8)).
For an offence to occur, the fight must involve a “protected animal” as defined under Section 2 of the Act. The definition also includes non-protected animals, and therefore, under s2 of the Act, can include an animal for which no one is responsible.
Section 22 of the Act confers powers of entry, search and seizure upon a constable in respect of animals used for fighting (see Section IIH below).
D. Promotion of welfare and the “five freedoms”
The Animal Welfare Act 2006 introduced a positive duty to promote animal welfare, incorporating principles of care towards all domestic and captive animals (including companion and farm animals), where proof of suffering is not required to constitute an offence. Pursuant to Section 9(1) it is a criminal offence to unreasonably fail to meet the needs of an animal for which one is responsible, in accordance with “good practice” (s9(1)).
Subsection 2 sets out the duties for the promotion of animal welfare that spring from what have been coined the ‘five freedoms,’ established by the Farm Animal Welfare Council (now Committee) [11] in 1979, and originally set out in the Bramble Report of 1965. [12] This Section requires consideration towards an animal’s need for: (a) a suitable environment; (b) a suitable diet; (c) the ability to exhibit normal behaviour patterns; (d) to be housed with or apart from other animals depending on the animal’s need and; (e) to be protected from pain, suffering, injury and disease (s9(2)).
What is reasonable, again looks to the objective person test and, specifically what is an objective standard of care which is ‘reasonable in all the circumstances’ (s9(1)). This was confirmed in the 2010 case of Gray v RSPCA.
The Act itself does not provide any guidance on how these duties are to be met. Instead, ‘good practice’ guidance is delegated to the appropriate national authority who are to set the standards under Section 12 (see below). For example, The Welfare of Farmed Animals (England) Regulations 2007 provide minimum welfare criteria in accordance with Section 12 of the Animal Welfare Act 2006.
Section 9(3) which is intended to complement the welfare duty is not wholly clear. The wording is as follows:
9(3) The circumstances to which it is relevant to have regard when applying subsection (1) include, in particular -
(a) any lawful purpose for which the animal is kept, and
(b) any lawful activity undertaken in relation to the animal.
This wording can be seen to create inconsistency. What is a lawful purpose or activity where ‘good practice’ may be less important? Certain actions may constitute an offence under Section 9, and yet others may not, provided the actions are performed under separate legislation. This is not an absolute defence however; the Court has discretion to take this into account. For example, subsection 3 could address wild animals in circuses for which there are separate Regulations (at the time of writing).
If an animal is abandoned, it would be an offence under this Section, as by abandoning an animal after an individual fails to meet its needs or, for example, in failing to provide adequate food and water.
Similarly to Section 4, this Section is not intended to apply to ‘the destruction of an animal in an appropriate and humane manner,’ which is not deemed inconsistent with the duty to ensure an animal’s welfare (s(9)(4)).
E. Other Key Provisions
Section 10 of the Act provides for an inspector to serve an ‘improvement notice’ upon a person failing to comply with Section 9 [see penalties section below].
Further, Section 11 makes it an offence to sell an animal or, to provide the opportunity to win an animal as a prize, to a person whom one has reasonable cause to believe is under the age of 16. This is however permitted provided the vender has reasonable cause to believe the child is accompanied by a person aged 16 or over, or that an absent parent/ other family member with responsibility for the child has consented to this arrangement. There is no offence if such arrangement is entered into in a family context. This increases the age from 12 in previous legislation.
One key update to animal welfare legislation since 1911 is that under Section 12 of the Act, the appropriate national authority is able to make secondary Regulations to promote the welfare of animals (or their progeny) for which a person is responsible. This is intended to assist in developing animal protection legislation, whilst secondary legislation is less arduous to create. Including future offspring provides for potential Regulations regarding animal breeding. This is a general power, but examples are provided in the Act, such as the creation of bodies to advise on animal welfare matters and to improve coordination between persons concerned with animal welfare. Further, under this provision, the Secretary of State (England) or National Assembly for Wales may create associated penalties for breach of subsequent Regulations, to include disqualification. Before Regulations are affirmed in parliament, interested persons must be consulted.
F. Codes of Practice
Sections 14-17 detail the purpose and procedure for the issuance of associated Codes of Practice (or codes of conduct), by the appropriate national authority. These codes are intended to supplement the Animal Welfare Act 2006 in promoting responsible ownership; by providing practical guidance on how to adhere to the Act. Codes concerning the care of certain domestic animals (farm animals and companion animals) have been produced and updated and are available on the Defra website. Although not all type of animal use has been provided with a code of practice, these are important in the absence of detailed guidance in the Act itself.
The Act provides that codes can be created at any time by Parliament, and amended and revoked at any time, provided interested persons are consulted.
It is not an offence in itself to fail to comply with Codes of Practice issued under Section 14 of the Act. However, evidence of failing to comply may be relied upon in establishing liability under the Act, or alternatively to negate liability (s14(4)(a)& (b)).
At the time of writing, various codes of practice are in the process of being updated through public consultation, including those concerning pigs, poultry, laying hens and chickens raised for meat.
G. Exempt activities
1. Scientific procedures
Section 58(1) states that ‘nothing in this act applies to anything lawfully done under the Animals (Scientific Procedures) Act 1986.’
The 1986 Act establishes a licensing regime for both particular research projects and individual researchers, at designated establishments. Scientific procedures performed on animals that are carried out by a researcher with a valid personal license and in accordance with a project license are lawful even if they would otherwise constitute offences of cruelty. Where these conditions are not satisfied, the scientific procedure will not be ‘lawfully done’ under the 1986 Act and thus, if the procedure causes unnecessary suffering, an offence of cruelty under the Act will have been committed. Further, an offence under Section 9 of the Act may be committed in connection with anything unlawful.
2. Fishing
Nothing in the Act applies in relation to anything which occurs in the ‘normal course of fishing’ (s59). No further guidance is provided, other than the Defra explanatory notes which point out that this provision prevents a fish in these circumstances from being a ‘protected’ animal under the Act. Further, ordinary fishing practices include the use of live bait and catch and release. Any practice deemed abnormal could bring the fish in question under the 2006 Act.
H. Penalties and Enforcement
Enforcement powers under the Act address the prevention of suffering towards animals as well as actual suffering. These include imprisonment, fines, deprivation and disqualification orders. The power to prosecute is addressed to local authorities which includes a county or district council. However, these powers are discretionary, whilst an inspector ‘may’ prosecute, and does not limit these powers to local authorities only (s30). This discretion has resulted in the RSPCA (Royal Society for the Protection of Animals) leading the majority of prosecutions in England and Wales (on a private, common law basis), whilst the Crown Prosecution Service has limited expertise, interest or resources. The RSPCA’s involvement has been contested by those with vested interests, and addressed by way of recommendations in a detailed report of 2015; ‘the Wooler Report.’ However, this analysis is not applicable to this summary discussion. Key penalty provisions are summarised as follows:
Section 10 of the Act provides that should an inspector believe that an individual is failing to comply with Section 9 (in meeting an animal’s welfare needs) he/she may serve an improvement notice upon them. Issuance of a notice, and extending such notice are discretionary; immediate action can be taken without need for an improvement notice. The notice is required to to specify the following: why the inspector has come to this conclusion, the steps considered necessary to comply, and a timeframe during which appropriate steps should be taken in order to comply. An inspector is defined as appointed by a national or local authority (s51). Ignoring an improvement notice would constitute an aggravating factor in any subsequent court case.
Sections 18-20 provide power of entry and search to local authority inspectors or constables where they have reasonable belief that a protected animal is suffering on the premises (or is in distress). Reasonable belief is a fairly low threshold. He/she may take such steps as immediately necessary to alleviate the animal’s suffering. ‘Distress’ is not defined and requires the subjective opinion of an inspector or constable at the scene. Section 19 provides that an inspector or constable may enter premises in order to search for such animal in an emergency under Section 18, but is not authorised to enter any ‘part of premises’ that is used as a private dwelling. This therefore restricts these powers, as it excludes any yard, garden, garage or outhouse which is used for purposes in connection with it, as defined in Section 62. They have the power to take possession of a suffering animal (and any dependent offspring), as well as an animal that they believe is likely to suffer if it is not removed. This may be certified by a veterinarian through an examination and taking samples such as blood or urine. This certificate does not need to be in writing. Further, in an emergency when it is not reasonably practicable to wait, a certificate is not required. It is noted that intentionally obstructing a power of entry is an offence. Where an animal is taken under Section 18 the court is able to make an order for the treatment, giving up, disposal or destruction of the animal, before which which the owner of the animal is provided with the opportunity to be heard (s20).
Sections 22 and 23 also provide for the application of a warrant (which may cover a private dwelling in some circumstances) while section 52 sets out detailed conditions upon which a warrant will be considered and granted. These provisions address animals involved in fighting offences and entry to search for evidence concerning other offences under the Act, and associated Regulations created under Section 12 of the Act, where applicable. Again, reasonable belief only is required. In some circumstances a warrant can be granted without notice to the occupier; it must be shown that entry is required as a matter of urgency and it would defeat the object of entering the premises if notice were provided (s52). A warrant may enable the use of reasonable force if necessary. In executing a warrant, a constable or inspector may take samples, seize evidence and arrange for a post-mortem examination of the animal amongst other things (Schedule 2). It is an offence to deliberately obstruct anyone exercising their powers under Schedule 2. The power to seize an animal used for fighting is available to a constable only under Section 22. As above, entry, search and seizure must be based on reasonable belief that an animal fight has occurred. Lastly, Section 24 confers powers of entry for the purposes of arrest.
Sentencing provisions are set out in Section 32 of the Act. Crimes of unnecessary suffering (s4), mutilation (s5), tail docking (s6), poisoning (s7) and animal fighting (s8) are summary offences which carry maximum sentences of imprisonment for a term not exceeding 6 months, or a fine not exceeding £20,000, or both. This maximum is rarely exercised. The Magistrate’s Court Sentencing Guidelines, as amended in 2017, recommend a starting point of 18 weeks custodial sentence for cases where ‘greater harm’ is caused to the animal and where there is a high level of culpability. It is noted that in pleading guilty to an offence a defendant’s sentence can be reduced by up to one third.
An order depriving a convicted offender of an animal connected to the offence can be an alternative to or in addition to imprisonment or a fine (s33). This relates to convictions under sections 4, 5 6(1) and (2), 7, 8 and 9 of the Act. A deprivation order will include confiscation of any dependent offspring of the animal. Under the Act it is also open for the court to make a disqualification order for such period as it deems fit in order to prevent further cruelty. This covers various dealings with animals and can include a lifetime ban. It can cover owning or participation in the keeping of animals, or even third party involvement in any arrangement concerning animals (s34). It may be imposed in relation to specific kinds of animals or animals generally, and can be combined with a seizure order. Such order can be an alternative to or in addition to imprisonment or a fine. Should a court choose to not issue a disqualification or deprivation order in relation to an offender, the court is required to set out their reasons for this.
Section 13 and Schedule 1 address licensing and registration of activities involving animals, and Section 42 provides associated enforcement provisions, such as cancelling or prohibiting the issuance of a license. Licenses are relevant to various provisions of the Act, as well as associated Regulations created under Section 12. In sum, a license can be granted for any period up to three years. An offence is committed in carrying out an activity that requires a license or registration without these, as is breaching any condition of a license. The Act provides that an inspector may enter premises to assess whether there has been any breach, and must provide a minimum of twenty four hours notice if the premises is defined as a private dwelling. The inspector must have reasonable belief that an offence has been committed. Further, Section 28 specifically provides for inspection of farming premises.
As a general point, as noted above, there is no provision under the Act prohibiting the killing of an animal without evidence of unnecessary suffering. In fact, Sections 4 and 9 are explicitly stated to not extend to ‘destruction of an animal in an appropriate and humane manner.’
III. The Welfare of Animals Act - Scotland
This section provides a brief summary only. Sections 46-50 of the Animal Welfare Act 2006 (focused on England and Wales), are also applicable to Scotland. Specifically, these Sections make provision for disqualification orders under the Act to apply across England, Wales and Scotland, and provide powers of enforcement for Scottish courts. Section 47 provides for deprivation orders when disqualification orders are breached, and Section 50 lists connected offences. Section 67 of the Act lists procedural provisions also relevant to Scotland.
The primary piece of animal protection legislation in Scotland is the Animal Health and Welfare (Scotland) Act 2006 (‘the Scottish Act’). This piece of legislation is very similar in format in and content to the Animal Welfare Act 2006, addressed above. Key variations are as follows:
- Part 1 of the Scottish Act contains detailed provisions concerning animal health and preventing the spread of disease. The most serious offences, such as causing unnecessary suffering, attract a higher penalty of 12 months under the Scottish Act (s46). Docking dogs’ tails is prohibited with no exemptions (although at the time of writing there have been government discussions to lift the full ban concerning working dogs). Guidance, by way of examples of Regulations that can be made under the Scottish Act (s26), are slightly more extensive, and suggest addressing the breeding and rearing and transportation of animals amongst other matters. Further, it is an offence to fail to comply with an improvement notice (or ‘care notice’) under Section 25(7) of the Scottish Act, which is a helpful enforcement mechanism. Lastly of note, the Scottish Act contains a section prohibiting the keeping of certain animals, at domestic or other premises, for which subsequent specific Regulations can be made (s28).
- Animal cruelty and welfare prosecutions are handled by the Procurator Fiscal, as public prosecutor in Scotland, who will assess each case and instigate court proceedings if deemed appropriate. Investigations are mainly carried out by the Scottish Society for the Prevention of Cruelty to Animals, who will then refer cases on; there is no private prosecution.
IV. The Welfare of Animals Act - Northern Ireland
This section provides a brief summary only. The Animal Welfare Act 2006 (focused on England and Wales) is only applicable to Northern Ireland in respect of procedural matters, such as the extent of repeal of other animal welfare legislation that relates to Northern Ireland.
The primary animal protection legislation is the Welfare of Animals Act (Northern Ireland) 2011 (‘the 2011 Act’), and the Animal Health and Welfare Act 2013. The 2011 Act is very similar in format and content to the Animal Welfare Act 2006 of England and Wales. For example, the routine docking of dogs’ tails is banned but working dogs are exempt. Notable variations with the Animal Welfare Act 2006 are as follows:
- Similar to Scotland, the 2011 Act contains a section prohibiting the keeping of certain animals, at domestic or other premises (s13). ‘The normal course of’ hunting and (hare) coursing are exempt from the 2011 Act. Hare coursing events have since been banned in separate legislation, but Northern Ireland is the only part of the UK that does not currently have a hunting ban. Further, dog breeds that may be exempt from the tail docking prohibition are detailed in Schedule 1 of the 2011 Act, rather than in separate Regulations.Under The 2011 Act, serious offences can lead to a sentence of up to five years.
- Bodies responsible for enforcement of the 2011 Act include the Department of Agriculture, Environment and Rural Affairs (farm animals), local Councils (domestic pets and horses), and the police.
V. Future reform
At the time of writing there is increasing parliamentary activity concerning animal welfare legislation, particularly in view of Brexit discussions. There are a number of public consultations concerning bills at various stages, which are arranged by Defra. This discussion notes just some of this reform action.
For example, England’s Environment Secretary has announced plans to increase maximum sentencing for deliberate acts of animal cruelty to five years in 2018, as has also been announced in Scotland, bringing the UK in line with much of the international community.
Further, legislation is in the process of being finalised to make CCTV mandatory in all slaughterhouses in England, following a 99% percent positive response from the public on consultation, whilst a similar outcome is hoped for following a consultation concerning Scottish abattoirs.
There are also proposals under review to change licensing regimes for breeders of companion animals. These bills strengthen Regulations, particularly concerning puppy mills.
As a final example, and perhaps long overdue, much discussion is underway to end the use of wild animals in circuses across the UK.
[1] Explanatory Notes, Animal Welfare Act 2006, Department for Environment, Food and Rural Affairs (Defra) http://www.legislation.gov.uk/ukpga/2006/45/notes
[2] Noel Sweeney, A Practical Approach to Animal Welfare Law, 2nd Edition (5m Publishing Ltd, 2017), p10
[3] Gray v. RSPCA [2013] EWHC 500 (Admin)
[4] Developing a Common Law of Animal Welfare: Offences Against Animals and Offences Against Persons Compared, Darren Calley, Crime, Law and Social Change, 55(5), pp.421-436 (2011), https://www.ssoar.info/ssoar/bitstream/handle/document/29058/ssoar-clsc-2011-5-calley-developing_a_common_law_of.pdf?sequence=1
[5] Patchett v. Macdougall 1984 SLT 152
[6] Isted v. DPP [1998] Crim. L. R. 194
[7] (1876-77) l.R. 2 Ex. D. 307
[8] [ibid.] Developing a Common Law of Animal Welfare: Offences Against Animals and Offences Against Persons Compared, Darren Calley, Crime, Law and Social Change, 55(5), pp.421-436 (2011), https://www.ssoar.info/ssoar/bitstream/handle/document/29058/ssoar-clsc-2011-5-calley-developing_a_common_law_of.pdf?sequence=1
[9] Mike Radford, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford: Oxford university Press, 2001), p252
[10] [ibid.] Developing a Common Law of Animal Welfare: Offences Against Animals and Offences Against Persons Compared, Darren Calley, Crime, Law and Social Change, 55(5), pp.421-436 (2011), https://www.ssoar.info/ssoar/bitstream/handle/document/29058/ssoar-clsc-2011-5-calley-developing_a_common_law_of.pdf?sequence=1
[11] The Farm Animal Welfare Committee is an independent advisory body established by the Government in 1979. It is specifically tasked with regular review of the welfare of farm animals.
[12] Report of the Technical Committee to Enquire into the Welfare of Animals Kept Under Intensive Livestock Husbandry Systems available at: http://www.aph.gov.au/binaries/senate/committee/history/animalwelfare_ctte/intensive_livestock_production/03ch3.pdf