Animal Health Fixed Penalty Notice Scheme: consultation

Part B: Consultation

Introduction

The Animal Health Act 1981 (the Act) was introduced to protect public health and the health of animals through reducing the risks of disease entering the animal population. It is the primary legislation that provides Scottish Ministers with the powers to make secondary legislation for the prevention, control and eradication of animal diseases. In 2020, an amendment was made to the Act through the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020, to give Scottish Ministers the power to make regulations allowing for fixed penalty notices (FPNs) to be used for certain animal health offences.

Under the Act, FPNs are a financial penalty offered to a person alleged to have committed an offence and may be an alternative to the case being referred to the Crown Office and Procurator Fiscal Service (COPFS) for consideration of criminal prosecution under relevant animal health legislation. This is to support early redirection through behaviour change to promote compliance with animal health rules. The Act provides that a FPN may be issued, however, there is no compulsion to issue a FPN. The use of a FPN will not be suitable in every instance and it would therefore be a matter for those enforcing the legislation to determine when they will be used. Penalty notices are not designed for serious offences or for minor breaches where advice and guidance in the first instance would be sufficient in rectifying the issue. Therefore, the option to use alternative enforcement measures, including offering verbal advice or written warnings, will continue to be available. Additionally, the option to prosecute instead of offering a fixed penalty will continue to be available and may be used for more serious or repeat offending.

This consultation sets out our proposal for the Animal Health FPN scheme and is split into three sections:

• Section 1 will consider the general characteristics of the animal health FPN scheme including how FPNs will be issued, how they should be paid, and how they can be appealed or withdrawn;
• Section 2 will consider the penalty levels and amounts; and
• Section 3 will consider the offences that will be applicable for FPNs.

You may wish to read the consultation document in full before answering the questions related to each section.

Current enforcement measures

Under the Act inspectors are appointed by a local authority or by Scottish Ministers. Inspectors who have been appointed under the Act for the enforcement of particular animal health legislation include employees of local authorities, Food Standards Scotland (FSS), the Rural Payments and Inspections Division (RPID) in the Scottish Government, or the Animal Plant and Health Agency (APHA). Under the Act, the Police also have enforcement powers.

Secondary legislation often states that non-compliance with the legislation is a criminal offence. However, seeking to prosecute an individual for an offence might not, depending on the circumstances, be the most proportionate or effective means of addressing the circumstances of a particular case, nor of securing future compliance with a legislative requirement. Currently, non-compliance with animal health legislation is dealt with using a variety of methods:

• “Education” via oral or written advice: the majority of infringements are currently dealt with in this way. Advice, guidance and support will be provided in order to achieve compliance as quickly as possible with a view to avoiding the need for further enforcement action; it may be followed by a warning letter.
• Warning letters: this may state what should be done to rectify non-compliance and to prevent re-occurrence;
• Formal notice: this may be served if there has been a significant contravention of the legislation, a failure to comply with previous oral or written advice or a licence issued by an inspector, or if the consequence of non-compliance could pose a serious risk to animal or public health. It may require action to be taken or that certain operations/activities be stopped immediately. Service of a notice may be followed by an investigation and further enforcement action; and
• Report to COPFS: for cases of a more serious nature, or cases where a notice has not been complied with, inspectors would normally gather evidence and put a case forward to COPFS for potential prosecution through the Scottish courts. COPFS also has non-court options available where appropriate including warning letters or fiscal fines.

Rationale for introducing FPNs

Following an Avian Influenza (AI) outbreak in 2016/2017 it was found that current enforcement methods were not working with a small group of livestock keepers; the hobby/back garden farmers. They were found to be repeatedly failing to comply with either education methods or warning letters and where referral to the COPFS was not warranted there was no method of encouraging compliance from this group. In developing the strategy it was suggested that allowing local authorities to issue FPNs to deal with less serious offences such as these, would allow offences to be dealt with quickly and would be more appropriate than referral to COPFS for possible prosecution in court, whilst also improving standards and encouraging compliance during disease outbreaks. In subsequent outbreaks the need for a quick and proportionate enforcement response, and the suggestion of using FPNs, has been repeated.

We held a public consultation in 2019 to seek views on our proposal to give Scottish Ministers the power to make regulations allowing FPNs to be used in relation to appropriate animal health offences and 83.3% of respondents agreed that the introduction of proportionate fixed penalty notices would improve the enforcement of animal health offences. A full analysis of the responses to the 2019 consultation is available on the Scottish Government website. The responses informed the amendment to the Act and have also informed the proposals contained in this consultation.

FPNs are considered to be a quicker and more proportionate means of dealing with the relevant behaviour, but still provide a meaningful and dissuasive penalty. They are already widely used by enforcement authorities in relation to other kinds of offences, and can be a valuable additional enforcement tool. Introducing FPNs for certain animal health offences would complement the existing enforcement options that are available, and would be expected to:

• Allow minor and technical offences to be dealt with quickly and proportionately;
• Promote compliance with legislative requirements and reduce the likelihood of re-offending, whilst providing a timely and proportionate deterrent when prosecution in court and any resulting criminal record may be excessive;
• Give more flexibility to enforcing authorities by providing them with an additional enforcement option as an alternative to issuing guidance, warning letters, formal notices or referring to COPFS for consideration of prosecution in the criminal courts;
• Speed up the process of dealing with offences as persons issued with a fixed penalty notice would not have to wait to appear in court; and
• Reduce the number of lesser offences being dealt with by the courts.

Introducing FPNs for animal health offences will complement the existing enforcement options rather than replace them. It inserts a new method of enforcement into the existing portfolio of enforcement measures and provides an additional option that benefits the person. The person knows with certainty the outcome of the alleged offence and the FPN provides a quick and costed solution, with potentially reduced uncertainty around legal costs.