Animal Health Fixed Penalty Notice Scheme: consultation

Section 1: General Characteristics of the Animal Health FPN Scheme

As there are a number of FPN schemes already in use in other areas, in the 2019 consultation we asked respondents to identify FPN schemes that could be adapted for animal health. The respondents identified a number of FPN schemes and characteristics for us to consider and that have informed our proposals contained in this consultation.

This section of the consultation will explore the general characteristics that we propose the Animal Health FPN scheme should have. This will include our considerations for who should be empowered to issue FPNs and how they will be issued, how FPNs will be paid and the effect of doing so, and how FPNs can be appealed or withdrawn. Information on penalty amounts can be found in Section 2, and information on the offences that we expect to be covered by the FPN scheme can be found in Section 3.

Issuing FPNs

We propose that all inspectors that are involved in the enforcement of animal health legislation should be authorised to issue FPNs. This would include inspectors that are appointed by local authorities, or by Scottish Ministers such as those employees of APHA, FSS or RPID. All of these inspectors have powers and responsibility to act under relevant animal health legislation. However, we anticipate that the majority of FPNs will initially be issued by local authorities.

We foresee the majority of FPNs being issued by post. However, there may also be occasions where an FPN could be issued in person. Where FPNs are issued by post, the FPN should be sent to the keeper, person’s or business’ address. It will be deemed to have been issued at the time it was sent, as is the case for FPNs issued in other areas (for example, dog fouling and equine identification FPNs).

Question 1: Do you agree that all inspectors currently involved in the enforcement of animal health legislation should be empowered to issue FPNs under the animal health FPN scheme?

Question 2: We propose that FPNs should be issued by post or in person. It is also possible to issue FPNs electronically, for example by email. If the notice were to be issued electronically, it would only be when the person has agreed to receive the notice electronically and has provided an email address which was verified by the authorities for the delivery of the notice.

Do you think we should also allow FPNs to be issued electronically (i.e. by email)?

Paying FPNs

The Act requires that certain information relating to payment must be stated on the FPN. This includes:

• the effect of paying;
• the consequence of not paying;
• the payment period;
• where the FPN should be paid; and
• the method of payment.

Effect of paying a FPN and the consequence of not paying

FPNs are defined under the Act as a financial penalty offered to a person alleged to have committed an offence and may or must be an alternative to the case being referred to COPFS for consideration of criminal prosecution under relevant animal health legislation.

We propose that a FPN that is issued in relation to an animal health offence must be paid as an alternative to prosecution. This corresponds with responses received to the 2019 consultation that suggested FPNs should be a direct alternative to prosecution. We have considered options that do not result in unpaid penalties being referred for prosecution. For example, we have considered that unpaid penalties could be referred to debt collection agencies after the payment period has ended and if no appeal has been made. Whilst this would avoid enforcement agencies having to take further action against alleged offenders, we do not feel that it reflects the seriousness of animal health offences and the risk non-compliance can pose to animal and human health.

We propose that a person who is offered a fixed penalty will be able to pay the penalty and therefore discharge all criminal liability in respect of the matter. If the penalty is paid within the specified time, no criminal proceedings will be taken and no criminal conviction will be recorded in respect of the alleged offence. If the person does not pay the FPN within the payment period, the case will be referred to COPFS for potential prosecution of the initial offence. Non-payment of the penalty will not in itself constitute an offence.

Once a FPN is issued, enforcement proceedings cannot be commenced unless the payment period has expired without payment of the penalty and without an appeal being made. Where proceedings are commenced, the notice will be treated as withdrawn.

We propose that if a FPN is offered to a person, it is an alternative to court proceedings. This means that inspectors must be of the view that there is sufficient evidence to merit criminal prosecution. It also means that should a FPN be accepted and paid, then the matter in respect of the offence under consideration at that time is now concluded.

Question 3: Where a FPN has been issued in relation to an alleged animal health offence, do you support the proposal that the matter should be referred to COPFS if the FPN has not been paid by the end of payment period?

Payment period

We propose that the payment period should be 28 days. This would mean an alleged offender would have 28 days to pay or appeal the FPN. A 28 day payment period is common for FPNs issued in other areas. For example, FPNs issued for dog fouling and equine identification offences have a 28 day payment period. Whilst it is possible to have a shorter payment period of, for example, 14 days (as is the case for certain FPNs issued under the Environmental Protection Act 1990), we feel that 28 days would be fairer to those offered a FPN in relation to an animal health offence.

We intend to allow those issuing FPNs discretion in extending the payment period where there are special circumstances. This is currently permitted in FPN schemes in other areas:

• Under the Environmental Protection Act 1990 the payment period for a FPN issued in Scotland under section 80(4A) is set at 14 days in the legislation, but this can be extended in any particular case if the local authority considers it appropriate to do so.
• Under the Equine Animal (Identification) (Scotland) Regulations 2019 the payment period for FPNs issued in accordance with regulation 27 is 28 days but the local authority may extend this period in any particular case if it considers it appropriate to do so.

Question 4: Do you agree that the payment period should be 28 days?

Question 5: Do you support the proposal that those issuing FPNs should have discretion to extend the payment period in any particular case if the person considers it appropriate to do so?

Question 6: It is possible for us to specify certain circumstances where a shorter payment period is required. For example, the Aquaculture and Fisheries (Scotland) Act 2007 (Fixed Penalty Notices) Order 2015 provides that the payment period for FPNs issued under section 25 of the Aquaculture and Fisheries (Scotland) Act 2007 is reduced from 28 days to 7 days for persons domiciled or resident outside of the UK.

Are there any circumstances where you feel a shorter payment period would be necessary?

Making payment and destination of funds

We propose that all FPNs, are paid to the enforcement agency that issued the notice. All proceeds from FPNs will be retained by the enforcement agency. Where FPNs are paid to Local Authorities, it would be for them to decide whether the income will be retained in the service area responsible for animal health or be used for other purposes.

It is important to remember that FPNs are not intended to be a way for enforcement agencies to generate revenue. Inspectors will continue to work to educate and change behaviour through offering advice and guidance, or by issuing warning letters or formal notices. Enforcement agencies will be given clear guidance and instruction to inform and educate, and when these options have been exhausted FPNs can be used as an alternative to referring the case to COPFS. In addition, we intend to monitor how FPNs are applied by enforcing bodies to ensure they are used in a meaningful and proportionate way.

Question 7: Do you agree that FPNs should be paid to and retained by the enforcement agency that issued the notice?

Appealing and withdrawing FPNs

The Act requires that details of any procedure for challenging or appealing the FPN must be stated on the notice.

We propose that any challenge to an FPN must be made in writing to the enforcement agency that issued the notice, the address at which will be included in the notice. If the enforcement agency accepts the appeal, the FPN would be withdrawn. Should the enforcement agency reject an appeal, then the FPN will still stand and they will have 28 days to accept this decision and pay the fine in full or reject this decision, we will accept early repayment within 14 days. Once this time period is concluded the enforcement agency must then refer the case to COPFS for consideration for prosecution. We hope this process will dissuade spurious appeals whilst allowing genuine appeals to be considered independently by COPFS.

We propose that FPNs could also be withdrawn by the enforcement agency if they are found to have been issued in error, for example, if they have been issued to the wrong person.

A similar process of appealing and withdrawing FPNs is in place for FPNs issued in other areas:

• Under the Tobacco and Primary Medical Services (Scotland) Act 2010, the recipient of a FPN has until the end of the payment period to make written representations to the local authority as to why the notice should not to have been given. If these representations are accepted by the local authority the FPN may be withdrawn;
• Under the Aquaculture and Fisheries (Scotland) Act 2007, the recipient of a FPN has until the end of the payment period to make written intimation of an intention not to pay the fixed penalty. The Procurator Fiscal must be notified unless the FPN is withdrawn by a fixed penalty officer. A notice may be withdrawn if it is determined that the offence to which the notice relates was not committed or that the notice should not to have been issued to the person to whom it was issued;
• Under the Dog Fouling (Scotland) Act 2003, the recipient of a FPN has until the end of the payment period to make a written request for a hearing. The Procurator Fiscal will be notified unless the notice is withdrawn by the local authority. A notice may be withdrawn if it is determined that the offence to which the notice relates was not committed or that the notice should not to have been issued to the person to whom it was issued.

We propose that the FPN could be withdrawn after it has been issued. Where a FPN is withdrawn, no amount would be payable and any amount that had been paid must be repaid in full. For example, if a FPN should not have been issued to the person to whom it was issued then the FPN should be withdrawn. Any amount that had been paid would be repaid in full.

If no appeal is made within the payment period, the FPN is considered to be accepted. If no appeal is made and the FPN is not paid within the payment period, the case will be referred to COPFS for consideration for prosecution.

Question 8: Do you support the proposal that appeals must be made in writing before the end of the payment period to the enforcement agency that issued the notice?

Question 9: Do you agree that unsuccessful appeals should be automatically referred to COPFS for potential prosecution?

Offences of obstruction

The Act permits us to create offences relating to the obstruction of someone exercising functions in relation to FPNs or a failure to provide information requested in connection with a FPN. Section 76A(5) of the Act limits the maximum penalty for offences that will be created in any FPN regulations to, on summary conviction, a fine not exceeding level 5 on the standard scale.

We propose to make it an offence to obstruct an enforcing officer when that person is gathering information about an alleged offender for the purposes of reaching a decision about whether a FPN should be issued, for example, by failing to provide assistance. We also propose to make it an offence to obstruct the service of a FPN. This could include providing false information or failing to provide information, such as a name and address required for the issuing of the FPN. Similar offences of obstruction are in place in legislation for FPN schemes in other areas, for example, under the Tobacco and Primary Medical Services (Scotland) Act 2010. In addition, offences for obstruction are already in place under the Act and in other animal health legislation.

We propose that the maximum penalty for offences relating to the obstruction of someone exercising functions in relation to FPNs should be the maximum permitted under the Act (i.e. on summary conviction, a fine not exceeding level 5 on the standard scale). This is in line with penalties for obstruction under other animal health regulations, such as the Equine Animal (Identification) (Scotland) Regulations 2019.

Question 10: Do you agree that it should be an offence to obstruct an enforcing officer when that person is gathering information about an alleged offender for the purposes of reaching a decision about whether a FPN should be issued?

Question 11: Do you agree that it should be an offence to obstruct the service of a FPN?

Question 12: Do you agree that the maximum penalty for obstruction offences should be, on summary conviction, a fine not exceeding level 5 on the standard scale? This is the maximum penalty allowed by the Act for offences that are created in FPN regulations.