Guidance on Animal Welfare Provisions
Unnecessary suffering - Section 19
Unnecessary suffering can be caused in one of two ways; either by taking action which causes unnecessary suffering, or by failing to take steps to prevent unnecessary suffering. The infliction of pain, even if extreme, is not in itself sufficient to constitute unnecessary suffering, as the pain may be caused for beneficial reasons such as in surgery or other medical treatment. Therefore, consideration must be given to whether the pain or suffering was necessary.
The courts will be able to take a number of factors into consideration in determining whether suffering is unnecessary. These include whether the suffering could reasonably have been avoided or reduced; compliance with any relevant enactment, licence or code of practice issued on a statutory basis; the purpose of the conduct; the proportionality of the suffering to the purpose; and whether the conduct was that of a reasonably competent and humane person.
Suffering includes mental as well as physical and suffering. Thus it is an offence to unnecessarily infuriate or terrify a protected animal as well as cause physical pain. A police horse on riot control duty may be subject to physical and mental suffering, but that suffering would normally not be considered to be unnecessary as using a horse in such a situation is for a legitimate purpose, i.e. protecting people or property.
It is an offence for any person, by an act, to cause unnecessary (physical or mental) suffering to a protected animal where the person committing the act knew or ought reasonably to have known, that the act would cause, or would be likely to cause, suffering. In addition, where a person is responsible for an animal, an offence would be committed if unnecessary suffering was caused to the animal by them failing to take some action, where that person knew or ought reasonably to have known that the omission would cause, or would be likely to cause, suffering. It is not necessary to show that the person actually knew that their act or omission would cause suffering, but only that they ought to have known.
It should be noted that a person only commits an offence of causing unnecessary suffering by omitting to take some action, if that person is responsible for the animal. Thus a person does not commit an offence by failing to feed a feral cat or pony if that person is not responsible for the animal.
The destruction of an animal in an appropriate and humane manner is not unnecessary suffering. However, destruction must not cause suffering over and above that necessary. In the vast majority of cases protected animals will be destroyed by a qualified and trained person, usually a vet. However, emergency situations arise such as mercy killing at roadsides, where there is no reasonable alternative to destroying an animal. Nevertheless, even in these emergency situations, the animal must be destroyed in an appropriate and humane manner. The term "appropriate and humane" is not defined in the Act, and is for the courts to interpret having regard to all the circumstances of the case.
Mutliations - Section 20
Mutilation (that is the interference with the sensitive tissues or bone structure of an animal) of a protected animal is prohibited unless, either the purpose of the mutilation is medical treatment or the procedure is permitted by regulations. Permitted procedures will be specified in regulations and will include most normal farming practices (such as castration of lambs and the disbudding of calves). Medical treatment includes surgical treatment.
It is an offence to take (or cause another person to take) a protected animal from Scotland for the purpose of having a "prohibited procedure" undertaken. This includes, but is not limited to, a "working" dog being taken to England or any dogs being taken to Ireland or elsewhere for the purpose of having their tails docked. This prohibition applies to any protected animal being taken to any place outwith Scotland for the purpose of having any procedure undertaken which is prohibited in Scotland.
Cruel operations and the administration of poisons - Sections 21 and 22
It is an offence for a person to perform an operation on a protected animal without due care and humanity. It is also an offence for a person, who is responsible for an animal, to permit another person to perform an operation on that animal without due care and humanity or to fail to take reasonable steps to prevent that from happening. Whilst, it is difficult to envisage circumstances in which such an offence would be prosecuted except where it appeared that an animal had suffered, it is not necessary to prove that the animal suffered to establish the commission of the offence.
It is an offence for a person to administer a poisonous drug or substance to a protected animal or to cause a poisonous drug or substance to be taken by a protected animal, if that person knew that the drug or substance was poisonous. The exception to both offences is where there is lawful authority or reasonable excuse. These offences include administering drugs and substances which are poisonous or injurious due to quantity or manner in which they are administered or taken. Thus, for example, the offences would include feeding an animal a large quantity of salt, or an excessive quantity of sugar or other foods in such a way or in such quantities as to be injurious.
It would not be an offence for a veterinary surgeon to administer drugs which have potentially harmful side effects to an animal because the veterinary surgeon has lawful authority to provide medical treatment to animals. Similarly, where a farmer, on veterinary advice, adds veterinary medicine which may have harmful side effects to animal feed, he has a reasonable excuse for doing so. However, it would be an offence to feed a protected animal rat poison but, as vermin are not protected animals, it would not be an offence to lay down rat poison as long as it was done in an appropriate manner and took reasonable precautions to prevent access by domestic animals.
It is an offence for a person to permit the administration of a poisonous or injurious substance or drug to an animal, for which he or she is responsible, unless the person administrating the drug or substance has lawful authority or reasonable excuse. Where a person knows the drug or substance to be injurious or poisonous, that person must take reasonable steps to prevent any other person administering it to any animal, for which the first person is responsible.
Under this section it is not necessary to show that the animal did in fact suffer as a result of the substance being administered or taken in order to establish liability. But it is necessary to show that the person accused of the offence knew the poisonous or injurious nature of the substance administered to or taken by the animal.
Animal fights - Section 23
The Act creates a number of specific offences in relation to animal fights and ensures that these acts which were offences under the Protection of Animals (Scotland) Act 1912 continue to be a criminal offence. The main offences are arranging or attending a fight, allowing premises to be used for an animal fight, accepting money for admission to an animal fight and making or accepting a bet on an animal fight. Some of the offences in the new Act can be committed without a fight having taken place. For example, the offence of making arrangements for an animal fight would not depend on a fight actually taking place. An animal fight could be arranged which is later cancelled, but the offence would still have been committed.
An animal fight is defined as an occasion on which a protected animal is placed with an animal or with a human for the purpose of fighting, wrestling or baiting. This means that an animal fight will be deemed to have taken place, even if both animals are wild animals, as the definition of protected animal includes any animal under the control of man. Dog fighting, cock fighting, bear and badger baiting are all prohibited as are bull fighting, kangaroo "boxing" and certain rodeo events such as bull wrestling. Allowing a cat to chase a wild mouse or a bird is not an animal fight as the cat (the protected animal) has not been placed with the mouse or bird (the animal) for the purpose of fighting, wrestling or baiting.
It is an offence to keep or train an animal for an animal fight and to possess equipment which is designed or adapted for use at an animal fight. However, no offence will have been committed if the person possessing the equipment can show lawful authority or reasonable excuse for possessing the articles. For example, no offence would be committed by a museum which exhibited cock fighting spurs, or an animal welfare organisation which possessed animal fighting equipment which it used for training or education purposes.
It is an offence to supply or publish a video recording of an animal fight, to show a video recording of an animal fight to another person, or to possess a video recording of an animal fight with the intention of supplying it to another person. These offences only apply if the animal fight took place in Great Britain after the date on which the Act came into force. Thus it is not an offence to distribute or show a recording of a bull fight which took place in Spain or a rodeo which took place in the USA. A video recording includes DVDs, computer discs or any other device in which a moving image can be reproduced.
The offences in the Act do not apply to broadcasting, anything done for law enforcement, and anything done in the course of any other lawful activity done in the public interest or with a view to the public interest being served. It would not be an offence for an enforcement officer or a member of the Scottish SPCA to attend an animal fight to obtain evidence for a prosecution or for a reporter to be present at an animal fight if the intent was to write an article to expose the criminal activities.