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 Post-Conviction Orders
Deprivation orders - Section 39
A court on convicting a person of a relevant offence under the Act can make an order, in addition to or instead of any other penalty, depriving an animal owner of possession or ownership (or both) of an animal in relation to which an offence was committed. This order can also extend to dependent offspring of the animal subject to the order. The relevant offences under which a deprivation order can be made are: causing unnecessary suffering; mutilation; cruel operations; administration of poisons etc; animal fights; failing to ensure the welfare of an animal; failure to comply with a care notice; abandonment; and owning or keeping an animal in breach of a disqualification order. However, the court is required, wherever practicable, to allow the animal's owner an opportunity to make representations before the court makes an order. Where a person has been convicted of a relevant offence and the court decides not to make a deprivation order, the court must state the reasons why it has reached that decision, unless the court has made a disqualification order.
A deprivation order can order the destruction of an animal, or its disposal by way of sale or any other way which the court thinks appropriate. The order could, for example, give the animal to an animal welfare organisation such as the Scottish SPCA, the Dogs' Trust or the International League for the Protection of Horses.
Before ordering the destruction of an animal the court must be satisfied, on the basis of veterinary evidence, that this would be in the best interests of the animal. The veterinary surgeon can provide his or her evidence either orally or in writing. Therefore the veterinary surgeon does not necessarily require to attend the court in person but can provide evidence via alternative methods (such as video link, teleconferencing or in writing).
The only exception to the requirement that the destruction must be in the interests of the animal is where the order applies to an animal which has been the subject of a prosecution under the animal fighting section of the Act. In such cases the court could order the destruction of an animal for reason other than the welfare of that animal. For example the court could take into consideration other factors such as public safety.
The deprivation order can include provisions for appointing someone to carry out the order, requiring delivery of relevant animals, conferring powers of entry on the person appointed to carry out the order and such other provision as the court considers appropriate.
Disqualification orders - Section 40
On convicting a person of a relevant offence, a court can make an order in addition to, or instead of, any other penalty disqualifying that person from one or a number of activities relating to animals. The relevant offences are: causing unnecessary suffering; mutilation; cruel operations; administration of poisons; animal fights; failing to ensure the welfare of an animal; failure to comply with a care notice; abandonment; and failure to comply with a previous disqualification order. If the court does not make a disqualification order when convicting a person of a relevant offence it must state its reasons for not doing so.
A disqualification order disqualifies a person from participating in one or more of a range of animal-related activities. These activities are: owning or keeping animals (or both); dealing in animals; transporting animals; working with or using animals; riding or driving animals; providing any service relating to animals which involves taking possession of animals (this could include dog walking or pet grooming businesses); taking possession of an animal for the purpose of an activity in respect of which one of the foregoing disqualifications is imposed; and taking charge of animals for any, or any other, purpose. It will be for the court to decide exactly which activities the disqualification order will cover.
A disqualification may be imposed on a person in relation to animals generally or animals of a particular kind. Thus a court may, for example, use its discretion under this subsection to disqualify a person who has been convicted for failure to ensure the welfare of livestock, only from keeping livestock, but not domestic pets. A court can also make a disqualification order to restrict the number of animals of a particular kind (or kinds) which a person may own or keep (instead of prohibiting the owning or keeping of all such animals). This is intended to cover the situation where a person is convicted of a relevant animal welfare offence but the court considers it appropriate to make an order restricting the number of animals that the person can keep, rather than prohibiting them from keeping animals altogether. It would be possible, for example, for the disqualification order to state that the person is disqualified from keeping animals except two dogs and three cats. The disqualification can be for a specific length of time or it can be a lifetime ban.
Where a disqualification order restricting the number of animals that a person may own or keep is breached, all animals that the person owns or keeps are to be treated as being owned/kept in breach of the order. This provision is necessary for the proper operation of any subsequent deprivation orders. Without such a provision, disputes could arise as to which particular animals are kept in breach of the order.
Disqualification from any animal-related activity disqualifies the person subject to the order from any participation in that activity. The Act provides examples of the types of activities which a person subject to an order is disqualified from undertaking. These are making arrangements in connection with the activity, being party to arrangements under which the activity may be controlled or influenced, and being concerned in the management or control of a body whose business involves the activity. This will ensure that a person disqualified from keeping or owning livestock cannot simply transfer the ownership of the animals to a spouse or other family member, and continue to work with them. It is an offence to breach a disqualification order.
The section does provides an exception where a disqualification order includes disqualification from taking charge of animals for any (or any other) purpose. A person subject to such a disqualification may take charge of an animal (for so long as is necessary in the circumstances) if no other arrangements for its care are reasonably available and the disqualified person takes charge of the animal, with the consent of the owner or keeper of the animal for the purposes of caring for the animal, or for the purpose of alleviating suffering. We expect that such cases will be rare. But this provision will allow a disqualified person to take control of an animal on a temporary basis if no one else is available and it is necessary for welfare reasons for the animal to be looked after. An example would be a person responsible for an animal being admitted urgently to hospital. It would not be an offence for a neighbour to look after that person's animal if no other arrangements could be made in the time available.
The court can suspend the operation of a disqualification order to enable practical arrangements to be made for the animals affected, including their re-homing, or while an appeal takes place. However, if inspectors have reason to believe that the animal or animals are suffering or are in danger of suffering they are able to take possession of the animal(s) as detailed in paragraphs 60 - 64 above.
A person can apply to the court to have a disqualification order terminated or varied, such as a reduction in the length of time that the disqualification will be enforced. However, the court is able to specify a minimum length of time which must pass before the person who is the subject of a disqualification order may make such an application to the court.
Seizure orders where disqualification breached - Section 41
This section gives the court power, where that court is satisfied that a person subject to a disqualification order owns or keeps any animal in breach of that order, to make an order that the animals so owned or kept by the disqualified person be seized. A seizure order can be made following summary application to the court by an inspector where it appears that a person is owning or keeping animals in breach of a disqualification order. The order may be made by the court even if proceedings have not, or are not, or are not likely to be, taken against the person for breaching a disqualification order. The purpose of this section is to have a power to remove animals from a person who has been disqualified from keeping animals, even although the animals he or she is keeping are not suffering or in danger of suffering.
In some ways a seizure order is similar to a deprivation order and may deprive a person of possession or ownership of an animal (or both) and provide for the destruction, sale or other disposal of the animal. Seizure orders can include provisions for: appointing the person who is to carry out the order; and requiring delivery of the animal in question. The order may include such other provision as the court considers appropriate, such as requiring the disqualified person to reimburse any reasonable expenses incurred in carrying out the order, and make provisions about what should happens to any proceeds from the sale or other disposal of the animals. The seizure order may also include provision authorising a person appointed to carry out the order, and anyone acting on their behalf, to enter any premises where the animal subject to the seizure order is kept.
The court may not make a seizure order involving the destruction of an animal unless it is satisfied on the evidence of a veterinary surgeon that destruction would be in the interests of the animal. A veterinary surgeon may provide evidence in relation to the destruction of an animal, either orally or in writing, before a seizure order is made by a court. Therefore a veterinary surgeon does not necessarily require to attend the court in person but can provide evidence via alternative methods (such as video link, teleconferencing or in writing).
The court is required to give the owner of the animals concerned the opportunity (where practicable) to make representations to the court prior to making a seizure order and must consider both protecting the value of any animal and avoiding increasing expenses when determining whether to make a seizure order.
The court may make an interim order in relation to the keeping of an animal before the application for a seizure order is determined. The interim order will be effective until the application for a seizure order and any appeal is determined.
Termination of disqualification - Section 42
A person who has been the subject of a disqualification order may apply to the court which made the disqualification order to have the order applying to them terminated or varied. Such an application cannot be made within a year from the date that the disqualification order was made, within a year of a previous application being decided, a time period set by the court which made the disqualification order, or a time period set by the court when considering a previous application to terminate or vary the order.
The court may refuse the application, terminate the disqualification order or vary the order to relax the conditions of the order, such as reducing the disqualification period, allowing certain activities to be undertaken and/or allowing some animals to be exempt from the order. It would be possible, for example, for the court to vary an order which disqualified a person from keeping all animals, so that it applied only to livestock. When considering a request to terminate or vary an order the court must consider the nature of the offence which resulted in the disqualification, the character of the applicant and the applicant's conduct since the order was made.
Appeals against orders - Section 43
Appeals can be made against deprivation, disqualification and seizure orders. Where a deprivation or disqualification order is imposed it is to be treated for the purposes of any appeal as part of the convicted person's sentence. Any appeal will follow the appeal procedure set out in the Criminal Procedure (Scotland) Act 1995 (c.46) for appeals against sentence.
Any person who has an interest in an animal to which a deprivation order applies may appeal to the High Court of Justiciary against the order using the appeal procedure set out in the Criminal Procedure (Scotland) Act 1995 (c.46) for appeals against sentence. It would be possible for a person who has care of an animal in an animal sanctuary to appeal against a deprivation order, for example, if the deprivation order were to order the destruction on an animal but the animal sanctuary believed that the animal should be given to them.
In relation to a seizure order, the disqualified person or any person who entered the process prior to the making of the order may appeal to the Sheriff Principal.
The operation of any deprivation or seizure order is suspended until the periods for appeal against the order and conviction have expired and any appeal has been withdrawn or determined. Where the operation of a deprivation or seizure order is suspended or inexecutable the court may make an order making interim provision in relation to any animal to which the suspended order applies for as long as the suspended order remains suspended or inexecutable. The kind of provision which could be made in such an interim order include appointing a person to ensure that the order is carried out, requiring a person possessing the animal to give it up to an appointed person, and allowing a person to enter premises where an animal to which the order applies is kept.
Where the operation of a deprivation order has been suspended a person commits an offence if he or she sells or disposes of the animal to which the order applies.
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