Animal Health Fixed Penalty Notice Scheme: consultation

Section 3: Offences

There are certain conditions that must be met in order for the FPN power to be used for an offence:

1. the offence must be made under either one of the specified pieces of legislation:

• the Act, or an order or regulation made under the Act;
• the Bees Act 1980 (or an order made under that Act); or
• another enactment which the Scottish Ministers consider relates to animal health; and

2. the maximum penalty on conviction for an offence cannot exceed 6 months in prison or a fine of level 5 on the standard scale, or both.

This section of consultation will consider the offences that meet this criteria and that we propose should be eligible for FPNs.

Offences that relate to animal welfare and wildlife crime are out of scope of the animal health FPN power and have therefore not been considered in this consultation.

Offences that meet the FPN criteria

There are many pieces of animal health legislation that contain offences that meet the criteria detailed above. A list of legislation that we think may contain offences that could be applicable for FPNs can be found in Annex A.

However, as FPNs will be a new enforcement tool to deal with non-compliance of animal health legislation, we think it would be beneficial to introduce FPNs for only a small number of selected pieces of legislation initially. This will allow us to monitor the scheme to ensure it works in the way it was intended to. We can then make adjustments to the scheme if necessary, before expanding it to cover more animal health legislation that meets the criteria set out in section 76A of the Act.

We have identified the following legislation as containing high priority offences, and propose that this legislation should be specified in the Animal Health FPN Scheme when it launches:

• The Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006: for example, failure to comply with emergency bio-security measures made under Section 6 during a period of heightened risk from highly pathogenic avian influenza virus.
• The Avian Influenza (Preventive Measures) (Scotland) Order 2007: for example, failure to comply with the prohibition under article 4 on permitting birds to be collected together at any fair, market, show, exhibition or other gathering except under the authority of a license issued by a veterinary inspector.
• The Bee Diseases and Pests Control (Scotland) Order 2007: for example, failure to comply with disease control measures when served under notice under Article 7 requiring treatment or destruction where notifiable disease is confirmed
• The Bovine Viral Diarrhoea (Scotland) Order 2019: for example, failure to comply with the requirements for sampling of breeding herds in accordance with compliance deadlines under Article 9
• The Disease Control (Interim Measures) (Scotland) Order 2002: for example, failure to ensure sufficient separation of animals in accordance with Article 4
• The Sheep Scab (Scotland) Order 2010: for example, failure to notify disease or suspected disease as required under Article 4
• The Tuberculosis (Scotland) Order 2023: for example, failure to comply with the conditions of Article 13 requiring a diagnostic test for tuberculosis to be applied and read before moving a bovine animal.
• Markets, Sales and Lairs Order 1925: for example, failing to pave a lair adjoining a market, fair or saleyard used for the reception or temporary detention of animals before or after their exposure for sale with cement, concrete, asphalt or other hard material impervious to water as required by Article 2.

By introducing FPNs for this high priority legislation we can ensure that enforcement agencies have an additional tool to deal with non-compliances at the earliest opportunity whilst also providing data for us to monitor the scheme to ensure it works in the way it is intended. However, it is important to remember that whilst we intend to introduce FPNs for offences contained in this legislation, it would be for those enforcing the legislation to determine whether a FPN will be issued as it may not be suitable in every circumstance. The option to offer verbal advice or written warnings will continue to be available and is likely to be used in the first instance. Additionally, the option to refer the case to COPFS for consideration of prosecution instead of offering a FPN will continue to be available and be used for more serious or repeat offending.

Question 24: Do you support the proposal that FPNs should be introduced for selected pieces of legislation initially before being expanded to cover more animal health legislation that meets the criteria set out in the FPN power?

Question 25: We propose that FPNs should be introduced for only a small number of selected pieces of legislation initially and have identified the following legislation as containing high priority offences that should be included in the Animal Health FPN Scheme when it launches:

• The Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006;
• The Avian Influenza (Preventive Measures) (Scotland) Order 2007
• The Bee Diseases and Pests Control (Scotland) Order 2007
• The Bovine Viral Diarrhoea (Scotland) Order 2019
• The Disease Control (Interim Measures) (Scotland) Order 2002
• The Sheep Scab (Scotland) Order 2010);
• The Tuberculosis (Scotland) Order 2023, and
• The Markets, Sales and Lairs Order 1925

* all as amended from time to time

Offences that meet criteria but are not considered appropriate for FPNs

There are some offences contained in legislation that meet the criteria set out in the Act but which we would not consider to be appropriate for receiving a FPN. For example, we would not consider it appropriate to offer a FPN for offences relating to the operation of a laboratory. These offences would be dealt with in other ways, for example by suspending or revoking a laboratory’s approval.

Question 26: Are there any offences that you think should not be eligible to receive a FPN?

Offences that do not meet the criteria for FPNs

The FPN power contained within the Act has limitations to ensure that FPNs can only be used for less serious offences. The FPN power limits offences to those where the maximum penalty on conviction does not exceed imprisonment for a term of six months or a fine of level 5 of the standard scale, or both. This limitation means there are a number of offences that FPNs cannot be used for.

For example, offences contained within the Trade in Animals and Related Products (Scotland) Regulations 2012 (TARP) do not meet the criteria set out in the Act. Offences contained in TARP can be tried under summary procedure or on indictment. Summary procedure is used in less serious cases, whereas indictment (solemn procedure) is used for more serious cases. The decision to use either summary or solemn procedure is taken by the Procurator Fiscal. Under TARP, the maximum penalty on summary conviction is a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding three months or to both, or on conviction on indictment to imprisonment for a term not exceeding two years, to a fine, or to both. As the maximum penalty for the offences would be that on indictment, offences under TARP do not meet the criteria set out in the Act.

Other animal health legislation that does not meet the FPN criteria set out in the Act include:

• The Animal By-Product (Enforcement) (Scotland) Regulations 2013: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum or imprisonment for a term not exceeding twelve months or both, or on conviction on indictment is a fine or imprisonment for a term not exceeding two years or both;
• The Cattle Identification (Scotland) Regulations 2007: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum or imprisonment for a term not exceeding three months or both, or on conviction on indictment is a fine or imprisonment for a term not exceeding two years or both;
• The Enzootic Bovine Leukosis (Scotland) Regulations 2000: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum (£10,000);
• The Diseases of Swine Regulations 2014: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum or imprisonment for a term not exceeding three months or both, or on conviction on indictment is a fine or imprisonment for a term not exceeding six months or both;
• The Rabies (Importation of Dogs, Cats and Other Mammals) Order 1974: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum , or on conviction on indictment, a fine or imprisonment for a term not exceeding 12 months or both; and
• The Transmissible Spongiform Encephalopathies (Scotland) Regulations 2010: The maximum penalty on summary conviction is a fine not exceeding the statutory maximum or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment is a fine or imprisonment for a term not exceeding two years or both.

Question 27: Are there any offences contained in this legislation that you think would benefit from having the ability to offer a FPN in order to aid enforcement?

Cross Compliance and FPNs

Cross Compliance is a mandatory set of requirements and standards that land managers have to meet in order to receive support scheme payments. These requirements relate to public health, animal and plant health, animal welfare, and environmental protection. Failure to meet Cross Compliance requirements and standards may result in payment reductions being applied to support scheme payments.

Under Cross Compliance rules there are a number of Statutory Management Requirements (SMRs) that relate to animal health. These are:

• SMR 4: rules to ensure the safe production of food for human consumption and food or feed that is fed to food-producing animals;
• SMR 6: rules to maintain a system for the identification, registration and traceability of pigs;
• SMR 7: rules to maintain a system for the identification, registration and traceability of cattle;
• SMR 8: rules to maintain a system for the identification, registration and traceability of sheep and goats; and
• SMR 9: rules to minimise the risk posed to human and animal health by certain transmissible spongiform encephalopathies (TSEs)

Allowing FPNs to be used in relation to animal health offences will not affect arrangements for the payment of financial support and Cross Compliance. This is because those arrangements operate separately from any proceedings for a criminal offence. For example, a claimant who is considered to have committed an offence (e.g. altering the identity tag of cattle found to be infected with bovine tuberculosis (TB)) may be given an option to pay a FPN as an alternative to the case being referred to COPFS for consideration of prosecution. Regardless of whether any such fixed penalty may be paid, separate consideration would still be given to whether a payment reduction ought to be applied to the claimant’s support scheme payments as part of the Cross Compliance requirements.

This is the approach taken in other regulated areas, for example by SEPA who have the ability to issue monetary penalties for non-compliance in areas where a Cross Compliance penalty may also be applied.

It is also important that we have appropriate and proportionate enforcement options in place for non-claimants. FPNs will provide an additional enforcement tool to promote compliance whilst providing a timely and proportionate deterrent when prosecution in court and any resulting criminal record may be excessive.

Enforcement agencies will be able to consider the unique circumstances of every case and will have discretion in determining whether a FPN should be issued and, if a FPN is deemed appropriate, the level of penalty issued. We will work with industry representatives and enforcement agencies to develop guidance that will ensure FPNs are issued correctly and that the most appropriate and proportionate enforcement action is taken.

Question 28: Do you have any comments about the interaction between FPNs and Cross Compliance?