Section 1: Background
Animal welfare is a devolved matter and The Animal Health and Welfare (Scotland) Act 2006 (the Act) was introduced to help ensure the highest possible standard of care for animals across Scotland.
The Programme for Government 2018-2019 committed the Scottish Government to a suite of new improvements to animal welfare in Scotland.
The Scottish Government is determined that the welfare of animals across Scotland should be protected. The intention is to strengthen that protection through proposed amendments to the Act around enforcement powers and penalties that were consulted upon. These amendments were proposed in response to concerns raised by stakeholders involved in the enforcement of the Act about the existing penalties available for animal cruelty offences; and also how swiftly permanent arrangements for animals that have been taken into possession to protect their welfare can be made.
Current Penalties and Enforcement
At present, the maximum available penalties for the most serious offences under the Act are set at imprisonment of up to twelve months, or a fine of up to £20,000, or both. These penalties are available to the courts for offences under section 19 (unnecessary suffering) and section 23 (animal fighting) of the Act.
Inspectors enforcing the Act are appointed by either the Scottish Ministers (such as employees of the Animal & Plant Health Agency and the Scottish Society for the Prevention of Cruelty to Animals) or by local authorities. Constables are also empowered to take actions under the Act and have additional powers in relation to stopping and searching a vehicle and placing a suspect under arrest.
An inspector may issue a statutory care notice requiring certain actions to be taken if the welfare needs of an animal fail to be met. In cases where the notice is not complied with the person may be prosecuted for failing to adhere to the notice as well as the original welfare breach.
Fixed Penalty Notices
The Scottish Government considers that the ability to issue a fixed penalty notice as an alternative to prosecution in court may be a more proportionate means of penalising less serious offences under the Act and in future secondary legislation.
Fixed penalty notices are widely used by local authorities in circumstances out-with the context of animal welfare legislation and can be a valuable enforcement tool. It is expected that fixed penalty notices would achieve the following:
- allow minor and technical offences to be dealt with quickly and proportionately;
- reduce the likelihood of re-offending, whilst providing a proportionate deterrent when prosecution in court and any resulting criminal record may be excessive;
- improve standards and encourage compliance;
- speed up the process of dealing with offences (persons issued with a fixed penalty notice would not have to wait to appear in court);
- reduce the number of cases being dealt with by the Crown Office and Procurator Fiscal Service, the court system, welfare enforcers and animal keepers; and
- give more flexibility to local authorities by providing them with an enforcement option as an alternative to issuing care notices or prosecution in the criminal courts.
Greater Maximum Penalties
The Scottish Government considers that the current maximum available prison sentence is too short and the maximum available fine is too low regarding the most serious animal welfare offences. This is evidenced by the number of animal cruelty cases in recent years that have attracted media attention due to the shocking nature of the crime – the maximum sentence available to the court was considered by many to be insufficiently punitive.
In addition, the stabbing of a police dog, Finn, during an attempted arrest and criticism over the prosecution of that action has prompted a campaign originating in England named 'Finn's Law' calling for tougher sentencing for attacks on service animals. In the resulting criminal prosecution, the accused was convicted of the offence under English law of causing criminal damage to property under the Criminal Damage Act 1971 rather than under animal welfare legislation. The maximum length of prison sentence under the Criminal Damage Act 1971 is ten years but the accused was sentenced to eight months detention for causing criminal damage to the police dog (as property). This example drew attention to the contrast between the maximum possible prison sentences available under animal welfare legislation and under the Criminal Damage Act 1971. Therefore, the consultation also sought views concerning attacks on service animals.
Under section 32 of the Act, inspectors, usually from the Scottish SPCA or local authorities, may take animals into their possession in cases where a veterinary surgeon certifies than an animal is suffering or is likely to suffer if circumstances do not change, or without certification from a veterinary surgeon if it appears an animal is suffering or is likely to suffer. Where an owner does not agree to voluntarily transfer ownership, a court order under section 34 of the Act (known as a disposal order) can be employed to allow suitable permanent arrangements to be made for the animal. Obtaining a disposal order can be costly to the inspecting body and time-consuming, especially if the keeper of the animal is facing prosecution. Animals, therefore, may remain in the care of animal welfare organisation for an excessive period of time. The Scottish Government proposes speeding up this process to free up the resources of welfare charities, reduce costs and to allow the animal to have the best possible chances of rehoming.
The consultation provided an opportunity for all interested parties to scrutinise and comment on the proposals. The evidence gathered from the consultation will inform the legislation we will introduce to the Scottish Parliament for its approval.
The proposals were formulated into 15 specific questions for those responding to the consultation.