Current maximum penalties in Scotland
Currently, 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.
The maximum penalties for other animal welfare offences under the Act, such as abandoning an animal (section 29) or failing to take reasonable steps to ensure that the welfare needs of an animal are met (section 24) are set at imprisonment of up to six months or a fine of up to £5,000 or both.
Any offences created by regulations made under Part Two of the Act carry the penalty specified in the regulations, but these penalties cannot presently exceed sentences of imprisonment for six months or fines of £5,000 or both.
Concerns about maximum penalties
In recent years there have been a number of animal cruelty cases that have attracted media interest because the offence committed was so shocking that the maximum sentence available to the court was considered by many to be insufficiently punitive. In particular, cases that involve deliberate, calculated and sadistic behaviour are considered to require higher penalties than those currently available. A horrific example of such an atrocity is that of a Staffordshire terrier found tied to a tree and burnt to death in Fife, having been doused in flammable liquid and set on fire.
Concerns have also been raised that increased penalties should be available for attacks on service animals, including guide dogs, military and police dogs and horses.
These have been highlighted by the campaign in England for the introduction of ‘Finn’s Law;’ named after a police dog that was stabbed during an attempted arrest. 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. The maximum length of prison sentence currently available for the relevant English law offence under animal welfare legislation (of causing unnecessary suffering under section 4 of the Animal Welfare Act 2006) is six months.
The Scottish Government considers that the current maximum available prison term is too short and the maximum available fine is too low in relation to the most serious animal welfare offences. These maximum penalties may neither recognise the seriousness of the offence nor act as an effective deterrent.
Current enforcement mechanisms
Enforcement of the Act can be undertaken using a variety of methods including non-statutory verbal advice, warning letters, statutory care notices and prosecution.
Inspectors appointed under the Act by a local authority or the Scottish Ministers (such as employees of local authorities, the Animal & Plant Health Agency (APHA) and the Scottish Society for the Prevention of Cruelty to Animals (Scottish SPCA) may issue statutory care notices, as provided for in section 25 of the Act.
A statutory care notice can be issued when it comes to an inspector’s attention that a person is failing to secure the welfare of an animal for which that person is responsible and it appears to the inspector that the failure constitutes an offence under section 24 of the Act (failure to take reasonable steps to ensure that the needs of an animal are met).
These notices allow inspectors to require that those responsible for animals deal with welfare problems by following specific advice. It is an offence not to comply with a statutory care notice without reasonable excuse.
Secondary legislation made under the Act may also include the power to issue notices requiring particular actions. For example, under the Microchipping of Dogs (Scotland) Regulations 2016 an authorised person may in certain circumstances serve a notice on the keeper of a dog requiring that a keeper have the dog microchipped.
For cases of a more serious nature, or cases where a statutory care notice has not been complied with, inspectors would normally gather evidence and put a case forward to the Procurator Fiscal for prosecution through the Scottish courts.
Concerns about current enforcement mechanisms
Statutory care notices generally work well as most people issued with one take the action required. However, in the rare cases where a care notice is not complied with, those responsible may be prosecuted for the offence of failing to comply with a statutory notice in addition to the original welfare breach.
Preparing and prosecuting animal welfare cases is time consuming and costly for both the enforcement authorities and the courts. Animal welfare offences other than those committed under section 19 (unnecessary suffering) and section 23 (animal fighting) of the Act are not always a priority when scheduling court cases given the pressures on court time.
The Scottish Government has put in place, in secondary legislation made under the Act, rules on how animals should be kept and treated in certain situations (e.g. regulations that place requirements on persons responsible for farmed animals and regulations that place requirements on keepers in relation to microchipping of dogs). The Scottish Government is also intending to make further secondary legislation under the Act, which may include future requirements for licences, inspections and documentation.
It is common for secondary legislation to provide that failure to comply with such rules is a criminal offence. It is accordingly appropriate that action be taken in relation to offences of this type. However, such offences (an example from current legislation is failure to comply with a notice to have a dog microchipped) may not always, depending on the circumstances, be considered appropriate for enforcement by way of prosecution.
The ability to issue a fixed penalty as an alternative to prosecution in court may therefore be an appropriate means of penalising various offences under the Act and secondary legislation.
Current procedure for animals taken into possession to protect their welfare
Section 32 of the Act allows inspectors (who are usually employees of the Scottish SPCA or local authorities) and police officers to take possession of animals and any dependent offspring in the following circumstances:
- where a veterinary surgeon certifies that an animal is suffering or is likely to suffer if its circumstances do not change; or
- without certification by a veterinary surgeon, if it appears that the animal is suffering or is likely to suffer if its circumstances do not change.
Animals taken into possession will usually be taken to a place of safety such as an animal rescue centre, where they will be assessed and cared for on what is intended to be a temporary basis. The animals may in rare cases be assessed and cared for in the place where they were found (for example on a farm), although these arrangements can be complicated in practice because of interference by the owner.
After animals have been taken into possession under section 32 of the Act, permanent arrangements must be made for those animals that cannot be returned. These arrangements may include sale, other forms of rehoming or, in certain circumstances, humane killing.
Unless the owner agrees to voluntarily transfer ownership, a court order under section 34 of the Act (known as a “disposal order”) is required to allow suitable arrangements to be made.
Under section 34, a court may also order that an animal be humanely killed if a vet advises the court that doing so is in the interests of the animal. An animal may also be humanely killed under section 35 of the Act without a court order if a vet certifies that its condition is such that this is appropriate. A disposal order may also order that specified treatment be administered to the animal.
An application to the court for a disposal order under section 34 may be made by the following parties:
- the animal’s owner; or
- an inspector; or
- the police officer who took the animal into possession under section 32 of the Act (or who is caring for, or has arranged for the care of, the animal under section 32); or
- the person or organisation with whom an arrangement for the care of the animal has been made under section 32 of the Act (and who is authorised by the Scottish Ministers to make the application); or
- any other person appearing to the court to have sufficient concern for the animal.
The owner of the animal must be given the opportunity to make representations to the court, wherever practicable, before a disposal order is made.
The owner of the animal (or any other person appearing to the court to have a sufficient concern for the animal) may also apply for a release order under Section 33, where the court may order that an animal be given up to a specified person.
Concerns about current procedure for animals taken into possession to protect their welfare
Animal welfare enforcement bodies have reported that, in practice, the process of obtaining a disposal order from the court under section 34 of the Act can be excessively time-consuming, particularly in cases where the owner of the animal is facing prosecution.
Animals that are the subject of a court case can remain in the care of animal welfare organisations for an extended period because of the often complicated circumstances surrounding these cases. This can delay the sale or rehoming of animals.
While animal welfare organisations provide a good level of basic care, it is generally not in the best interests of animals to remain in the limited environment of a rescue centre for long periods of time. It is important that they find homes which provide for all of their welfare needs.
An example of this is dogs taken into possession following an investigation of illegal breeding. Puppies taken into possession by an inspector or police officer and put into the care of a rescue centre (or puppies born in the care of a rescue centre) may remain there for many months before a court order can be obtained allowing them to be rehomed.
By the time the puppies are eventually rehomed, they may have spent most of their lives in the rescue centre and lack the normal socialisation of puppies to a domestic environment. This can limit their suitability for rehoming and affect their welfare for the rest of their lives.
It is also generally not in the best interests of farm animals taken into possession to be kept in temporary care for longer than necessary to allow them to be assessed, treated as appropriate, and sold to competent keepers.
Lengthy stays in care are extremely costly for animal welfare organisations and local authorities. The Act provides that expenses reasonably incurred by an inspector or constable in consequence of taking the animal into possession are to be reimbursed by the owner or person responsible for the animal. However, recovery of expenses is rare in practice. Previous keepers can be unable or unwilling to pay the expenses and the costs incurred can exceed the value of the animal recovered through sale.
In practical terms, taking possession of animals under section 32 can seriously limit the capacity of the enforcement organisations to help other animals in need by blocking facilities for an extended period and using up significant financial resources.
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