Animal Health and Welfare (Scotland) Act 2006: guidance
The Government has prepared notes to aid understanding by providing general guidance on the content of the Act and where appropriate, to give additional notes on its general and specific provisions. They do not form part of the Act and have not been endorsed by Parliament.
Guidance on Animals in Distress
Taking possession of animals - Section 32
This section allows an inspector or constable to take action where they find a protected animal which appears to be suffering or is likely to suffer if its circumstances do not change. Where a protected animal appears to be suffering, an inspector or constable may take steps which he or she considers need to be immediately taken to alleviate that suffering. This can be done without the need to seek the view of a veterinary surgeon. Such action could include providing feed or water for the animal, opening a gate or a door to allow the animal out of an enclosed area, or making arrangements for a car door to be opened where necessary if an animal was suffering from heat stress.
An inspector or constable has the power to take possession of a protected animal if a veterinary surgeon certifies that the animal is suffering or is likely to suffer if its circumstances do not change. In order for a veterinary surgeon to reach an opinion he or she may examine and take samples from the animal. However, where it is reasonable not to seek the assistance of, or wait for, a veterinary surgeon an inspector or constable can take possession of an animal without veterinary certification if it appears that the animal is suffering or likely to suffer. This would apply to circumstances when the action required is urgent, such as discovering an animal in danger of dehydration in a vehicle in direct sunshine. An inspector or constable may also take into possession any dependent offspring. For example if it appears that a bitch with a litter of young puppies is suffering, then the bitch and the puppies could be taken into possession to ensure that the puppies' welfare needs can continue to be met.
Where an inspector or constable has taken possession of an animal, they may take it, or arrange for it to be taken, to a place of safety (such as an animal welfare centre). Alternatively, they may care for the animal at the place where it was found (in which case they can make use of any equipment taken or found at the place). In some cases this may be a better way to deal with a number of large animals such as livestock or horses. Where a constable or inspector takes possession of an animal, he or she may, or arrange for, the animal to be marked, microchiped or identified by some other method.
Any reasonable expenses incurred by an inspector or constable in taking steps to alleviate suffering or taking possession of an animal under this section can be recovered from the owner or other person responsible for that animal as a civil debt.
However, the destruction of an animal cannot be undertaken under the provisions of this section. If the destruction of an animal were thought to be necessary it can only be undertaken by a constable or an inspector without seeking the view of a veterinary surgeon if the conditions set out in section 35 are met. These conditions require that the condition of the animal is such that there is no reasonable alternative to destroying it.
Release orders where animals taken - Section 33
A court, on summary application by the owner or any other person appearing to the court to have sufficient concern for the animal, can make an order which will specify to whom an animal taken into possession by an inspector or constable is to be delivered. Applications for these orders could be made by a number of people including, the animal's owner, the person who had the responsibility for the animal before it was removed, the person who took possession of the animal, or the owner or manager of the sanctuary or rescue centre where the animal is being looked after.
A wide range of people will be entitled to be heard by the court where an application for release of the animal is being considered. These are the owner, an inspector, a constable who took the animal into possession and is caring for the animal or arranged for its care, a person with whom an arrangement for the care of the animal has been made and who is authorised to be heard by the Scottish Ministers in relation to the application, and a person who appears to the court to have a sufficient concern for the animal.
Whilst the welfare of the animals is paramount, nevertheless, in determining what order to make, the court must take into consideration the desirability of protecting the value of the animal and of avoiding any increase in the expenses which may need to be reimbursed by a person responsible for the animal.
Disposal orders where animals taken - Section 34
After an animal has been taken into possession a court can make a disposal order in relation to that animal. The court may order that specified treatment be administered to the animal, and/or order that the animal be: destroyed; sold; or disposed of in another manner. The animal's owner, an inspector, a constable who took the animal into possession and is caring for the animal or arranged for its care, a person with whom an arrangement for the care of the animal has been made and who is authorised by the Scottish Ministers to make the application and any other person appearing to the court to have sufficient concern for the animal are all entitled to make an application to the court. It may be appropriate for an application to be made to the court for a disposal order before the outcome of a prosecution for an offence under a section of the Act was known. Before a court makes an order under this section, it must give the owner of the animal the opportunity to make representations unless it is not practicable to do so. It would not be practical to do so if the owner was not known, for example, where an animal had been abandoned.
People entitled to be heard in relation to an application for a disposal order are broadly the same as those entitled to make an application to the court. In addition, a person with whom an arrangement for the care of the animal has been made may be heard if they have been authorised to be heard by the Scottish Ministers. A court may not make a disposal order involving the destruction of an animal unless it is satisfied on the evidence of a veterinary surgeon (given orally or in writing) that destruction would be in the interests of the animal.
Whilst the welfare of the animals is paramount, nevertheless, when determining what order (if any) to make, the court must have regard to the desirability of protecting the value of the animal, and of avoiding any increase in the expenses which may need to be reimbursed by a person responsible for the animal. The order made by the court may appoint a person to carry out the terms of the order, make provision for the reimbursement of any expenses and make other provision as appropriate.
If the owner of the animal is subject to any liability for costs incurred when the animals were removed and cared for or for other expenses under this section, any sum due to the owner from any proceeds of the sale of the animal may be used to repay that liability. Thus if the court orders that the animal(s) be sold, the costs incurred by the police or the inspectors and others in removing the animal, caring for the animal (including veterinary costs and medicines), feeding the animal etc, may be deducted from the proceeds of the sale and any money left after these deductions would be given to the owner of the animal.
Report the destruction of animals - Section 35
An inspector or constable may destroy or make arrangements for the destruction of a protected animal where a veterinary surgeon certifies the condition of the animal is such that destruction is appropriate. The veterinary surgeon may examine and take samples from an animal with a view to forming an opinion on whether the destruction of the animal is the most appropriate course of action.
An inspector or constable may destroy or take steps for the destruction of a protected animal without veterinary certification if it appears to the inspector or the constable that the condition of the animal is such that there is no reasonable alternative to destroying it and it is reasonable in the circumstances not to seek or wait for veterinary advice. This provides for emergency situations such as mercy killing of severely injured animals at roadsides.
Reasonable expenses incurred by an inspector or a constable in destroying an animal are recoverable from the owner or an other person responsible for the animal.
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