Animal Health Fixed Penalty Notice Scheme: consultation

Section 2: Penalty levels and amounts

This section of the consultation will consider the penalty levels and amounts that we think should be applicable for the animal health FPN scheme, and the circumstances in which a penalty amount could be increased or decreased.

This section only considers offences generally in how they might relate to the penalty amount. Information on the specific offences that will be covered by the animal health FPN scheme can be found in Section 3.

Maximum and minimum penalty amount

The Act limits the fixed penalty amount that can apply to an offence to no more than level 5 on the standard scale. This equates to a financial penalty of no more than £5,000.

When considering the appropriate FPN amount we have looked at the financial penalties that are already in place elsewhere. For example, there are already some financial penalties available for animal health offences:

• FPNs issued for certain offences under the Equine Animal (Identification) (Scotland) Regulation 2019 are set at 40% of level 1 on the standard scale (which equates to £80);
• In England and Wales, variable monetary penalties can be issued for offences under Eggs and Chicks (England) Regulations 2009 and the Eggs and Chicks (Wales) Regulations 2010 (the Eggs and Chicks Regulations). These can range from £100 to £4,500; and
• In England, the Animals (Penalty Notices) Act 2022 enables fixed penalty notices to be introduced for certain animal health and welfare offences. The maximum amount will be whichever is the lower of £5,000 or the maximum fine for which a person convicted of the offence is liable on summary conviction.

In addition, there are several FPN schemes in place out with animal health that have a spectrum of FPN amounts, including:

• The Dog Fouling (Fixed Penalty) (Scotland) Order 2016, which sets the amount for FPNs issued under the Dog Fouling (Scotland) Act 2003 at 40% of level 1 on the standard scale (this equates to £80);
• The Marine Scotland FPN scheme in place under the Aquaculture and Fisheries (Scotland) Act 2007 (Fixed Penalty Notices) Order 2015 provides for seven levels of penalty ranging from £500 to £10,000 for FPNs issued under the Aquaculture and Fisheries (Scotland) Act 2007;
• Under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015, the Scottish Environment Protection Agency (SEPA) can issue fixed monetary penalties of £300, £600 or £1,000 in relation to relevant offences. For certain offences, variable monetary penalties can also be issued up to £40,000; and
• The Sale of Tobacco (Registration of Moveable Structures and Fixed Penalty Notices) (Scotland) Regulations 2011 sets the amount for FPNs issued under the Tobacco and Primary Medical Services (Scotland) Act 2010 for some offences at £50 and others at £200 (however, this can increase to up to £1,200 if there have been multiple enforcement actions).

Although it would be possible to set the maximum penalty for the animal health FPN scheme to £5,000, we do not intend to do so. Instead, we propose that the maximum FPN amount should be £1,000. We think this amount is proportionate to the most serious offences that will be offered a FPN, for example failing to notify suspicion of a high risk disease such as foot and mouth disease. It also means there will be a clear distinction between the maximum fine available for FPNs and the maximum fine available if convicted.

We would also like to set a minimum level of penalty and we propose that this should be £100. We think this amount is proportionate to the least serious offences that would be offered a FPN, for example, minor record keeping offences.

Question 13: Do you agree that the minimum penalty for the animal health FPN scheme should be £100, and the maximum penalty should be £1,000?

Scale

There were a number of responses to the 2019 consultation that suggested a scale of penalties should be available for animal health offences. Some respondents proposed multiple levels of fine for different categories of offences whilst others suggested penalties should be increased for multiple offences.

We have considered having a single fixed penalty amount for all offences within the FPN scheme. This penalty amount could be set at the minimum (£100) or maximum (£1,000) penalty level proposed above, or it could be set somewhere in the middle (for example, £500). However, we do not think this would be practical for the Animal Health FPN scheme. We intend to introduce FPNs for a variety of animal health offences that have varying levels of maximum penalty on conviction. Having a single penalty amount would not offer any flexibility for the different types of offences that will be covered by scheme and this may result in the FPN being disproportionate to the seriousness of the offence.

For example, we intend to introduce FPNs for offences committed during a disease outbreak, such as failing to follow the conditions of licence, which could result in an immediate risk of disease spreading or lowers our assurance that control measures could contain the disease. We also intend to introduce FPNs for minor record keeping offences that would not result in a biosecurity risk or loss of protection from disease. We do not think it would be proportionate to have the same FPN amount for all of these offences.

Given the number and variety of animal health offences, we think it would be beneficial to have multiple levels of penalty as this provides flexibility to impose a penalty amount that is proportionate to the offence. The specific penalty level assigned to each offence will be set in legislation.

To account for the number and variety of animal health offences that will be covered by the scheme, we think there should be seven penalty levels. These would be set at increments between the minimum and maximum penalty levels proposed:

FPN Level	FPN Amount
Level 1	£100
Level 2	£150
Level 3	£200
Level 4	£300
Level 5	£500
Level 6	£750
Level 7	£1,000

Offences that are considered to be the lowest risk would be dealt with by having a penalty imposed at a lower level, whereas offences considered to be the most serious risk would be dealt with at the higher levels. To determine the appropriate penalty level for an offence we will consider the overall risk of the offence taking into account:

• the type of breach: for example, failing to keep records, failing to disinfect, or failing to notify disease;
• the seriousness of the disease: considering the impact of the disease on public health, animal welfare, wider society and international trade; and
• the disease context: for example, whether the offence has occurred during peacetime, when there is a suspicion of disease, or when disease has been confirmed.

An example of an offence that would be considered appropriate for each penalty level is set out below:

• Level 1: The Bovine Viral Diarrhoea (Scotland) Order 2019 (as amended). Article 3(4)(c) failure by a person moving a bovine animal under the authority of a licence granted under the Order to keep the licence (or a copy of it) for a 6 month period after the movement is completed.
• Level 2: The Bee Diseases and Pests Control (Scotland) Order 2007 (as amended). Article 12 – Failure to make available facilities and provide such information to an authorised person as that the authorised person reasonably requires for the purpose of the Order.
• Level 3: The Disease Control (Interim Measures) (Scotland) Order 2002 (as amended). Article 7 - (1) Failure by a person responsible for organising any occasion at which animals are brought together for the purposes of show or exhibition to notify an authorised veterinary inspector in writing at least 24 hours prior to the holding of the show or exhibition.
• Level 4: The Tuberculosis (Scotland) Order 2023. Article 9(2) Breach of the requirement prohibiting the occupier of any premises in Scotland from allowing any bovine animal from premises in a high incidence area to enter their premises unless it has been pre-movement tested 30 days before its move.
• Level 5: The Tuberculosis (Scotland) Order 2023. Article 34. Breach of the requirement prohibiting , manure, slurry or other animal waste from being removed from premises where a notice has been served under the provisions of article 33 of the Order, except under the authority of a licence issued by an inspector.
• Level 6: The Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006. Schedule 5: Paragraph 7 (1) Movement of poultry, other captive birds or mammals of domestic species from or to premises within a surveillance zone without the movement being either licensed by a veterinary inspector or by an inspector under the direction of a veterinary inspector
• Level 7: The Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006. Schedule 4: Paragraph 11. Breach of the prohibition within a protection zone of the removal from premises in the zone or spread of used poultry litter, poultry manure or poultry slurry unless licensed to do so by a veterinary inspector.

Question 14 : Do you agree that the animal health FPN scheme should have multiple levels of penalty to account for the variety of offences that will covered?

Question 15: What do you think of the penalty amount proposed for each level?

Scale of harm

We are proposing the introduction of a scale of harm to FPNs whereby we factor in the additional impact associated with the risk of disease spread to calculate the level of the penalty. This recognises that, for the same breach, the risk of disease is different depending on the disease situation in the country or zone, and certain types of enterprises carry a greater risk than others. FPNs should reflect the increase in disease risk (i.e. the scale of the harm) that could be incurred due to the offence committed.

We recognise that calculating the risk of disease spread depends on many factors . It would be unpractical to apply complex disease risk assessments for each FPN calculation, therefore we seek to establish a small number of key criteria that enable an easy-to-understand scale of harm model, that is proportionate to risk and to the reality of Scottish farming and animal keeping.

We propose to sets out in advance the criteria that are associated with disease risk and responsibility of the keeper of animals, so that enforcement agencies can then apply the FPN level prescribed to the circumstance of the offence.

All these criteria must be easily understood and applied by the enforcement authority when determining the value of an FPN. Therefore, they are designed to be simple, broad and clear. Any proposal to increase or decrease the FPN amount to take into account of the scale of harm will be set out in regulations, together with the percentage or fixed amount of that increase or decrease.

We would propose to use the following criteria within the scale of harm framework.

Criterion	Veterinary rationale
The number of animals in the enterprise	A higher number of animals generally means more opportunities for infectious diseases to spread within a flock or herd.
The proportion of the herd/flock which is traded	A higher rate of trading means more opportunities for spreading disease to other flocks/herds, which can be long distance.
Disease presence in the establishment, area or country	If a relevant disease is known to be present, the risk of it spreading is higher

Question 16: Do you agree with the principle of scale of harm for animal health related offences, where FPN levels are proportionate to the risk of disease spread associated with the circumstances of the offence?

Question 17: Do you agree that the scale of harm, which would be based on the number of animals, proportion of herd/flock traded and disease presence in the establishment, area or country, would strike a balance of simplicity and proportionality to risk in a scale of harm FPN model?

Escalation for repeat offending

We think it is important to define an escalation process for repeat offending when FPNs have been issued. We are proposing that, if a person who has been issued a FPN for breaching a particular animal health requirement subsequently breaches that same animal health requirement again within a 3 year period, (which is consistent with cross compliance periods), then another FPN can be issued but this would be double the value of the first. If the same animal health requirement is breached for a third time, then this would automatically be referred to COPFS for consideration of prosecution. A similar principle for doubling penalties for second offences is used by Marine Scotland in the FPN scheme under the Aquaculture and Fisheries (Scotland) Act 2007.

Doubling penalties for second breaches of the same animal health requirement would be an added deterrent to non-compliance and would ensure a clear enforcement pathway for repeat offenders as there is an escalation in penalty amount and third offences would automatically be referred to COPFS for consideration of prosecution.

The table below demonstrates our proposed escalation process if there are multiple levels of penalty:

FPN Level	First Offence	Second Offence	Third Offence
Level 1	£100	£200	Refer to COPFS
Level 2	£150	£300	Refer to COPFS
Level 3	£200	£400	Refer to COPFS
Level 4	£300	£600	Refer to COPFS
Level 5	£500	£1,000	Refer to COPFS
Level 6	£750	Refer to COPFS	Refer to COPFS
Level 7	£1,000	Refer to COPFS	Refer to COPFS

Penalty levels 6 and 7 would exceed the overall maximum penalty amount if they were to be doubled. As these penalty levels would be for the most serious offences that could be applicable for FPNs, we think it is appropriate that when a second offence is committed, then this is automatically referred to COPFS for consideration of prosecution. As stated above the scale of harm would also come into play here whereby those with a low, medium and high risk would have the penalty applied at 50%, 75% and 100% respectively of the level applied.

Question 18: Do you agree with the proposed escalation process, where FPNs issued for second offences are double the value of the first, and third offences are automatically referred to COPFS?

Question 19: Do you think three years would be an appropriate time period for considering second and third offences for the animal health FPN scheme?

Increasing or decreasing payments

The FPN power allows us to specify if a FPN can be increased or decreased in certain circumstances. For example, we could decrease the penalty by a set amount when the payment is made early or increase the penalty by a set amount when the payment is made late. Offering a discount for early repayment is common in other FPN schemes. For example:

• For FPNs issued under the Tobacco and Primary Medical Services (Scotland) Act 2010, the amount of the penalty can be discounted if it is paid within 14 days. The discount varies depending on the FPN amount specified – for certain offences it reduces from £50 to £30, whilst others are discounted from £200 to £150;
• FPNs issued by the Police for certain parking offences under the Road Traffic Offenders Act 1988 offer a reduced rate if the FPN is accepted within 21 days. After this time, the amount increases by 50%;
• In England, the Animals (Penalty Notices) Act 2022 prescribes a 50% discount for payment in 14 days.

For the animal health FPN scheme, we propose to decrease the penalty amount by 50% for early repayment. This would mean the proposed minimum FPN of £100 would be discounted to £50 if it was paid within 14 days, and the proposed maximum FPN of £1,000 would be discounted to £500. We think this will encourage those offered a FPN to make payment promptly and will still change behaviour to reduce the likelihood of re-offending.

We do not propose to increase the penalty amount for late payments as we think it is fairer to offer a discount for early repayment. In addition, we propose that penalties that are unpaid at the end of the payment period should automatically be referred to COPFS for consideration of prosecution. This is set out in Section 1: Effect of paying a FPN and the consequence of not paying.

Question 20: Do you agree that the FPN amount should be discounted if it is paid early?

Question 21: If a discount is offered for early repayment, do you agree that the discount should be 50%? This would mean the minimum FPN of £100 would be discounted to £50, and the maximum FPN of £1,000 would be discounted to £500.

Question 22: If a discount is offered for early repayment, do you agree that the early repayment period should be 14 days?

Partial Business Regulatory Impact Assessment

We have completed a partial Business Regulatory Impact Assessment (BRIA) to allow us to make an informed decision on the policy changes. BRIAs help to identify the likely positive and negative impacts of a policy change or introduction of regulation. It provides a structured process for considering the implications of proposed polices and actions while there is an opportunity to shape the proposal and mitigate against any negative impacts. One of the areas we have looked at is the cost implications of the introduction of the Animal Health FPN scheme.

Question 23: Do you agree with the BRIA that there will be minimal cost impact in the introduction of the FPN?