Animal Health and Welfare (Scotland) Act 2006: consultation on proposed amendments

Consultation Proposals

Increase the maximum available penalties for serious animal cruelty offences

The Scottish Government proposes to increase the maximum prison sentence available to the courts for the most serious animal welfare offences under the Act. In particular, the Scottish Government proposes that the maximum prison sentence for offences under sections 19 (unnecessary suffering) and 23 (animal fights) of the Act, including but not limited to those involving service animals, be increased from twelve months to five years. The Scottish Government also proposes to remove the upper limit (£20,000) on the fines available for such offences.

As a related measure, the Scottish Government proposes to change the rules that specify the court procedures to be used for prosecuting offences under sections 19 (unnecessary suffering) and 23 (animal fights) of the Act. Offences under the Act must currently only be prosecuted using a form of court procedure known as “summary procedure” (which is available in both the sheriff and justice of the peace courts). This rule is contained in the Act and is appropriate for the maximum penalties currently available for such offences.

As a consequence of the requirement to bring prosecutions by way of summary procedure, the time limit for bringing a prosecution under section 19 (unnecessary suffering) is six months from the date of the offence. This time limit is set out in the Criminal Procedure (Scotland) Act 1995^[1]. Such a time limit does not apply to offences that may be prosecuted using “solemn procedure” (which is available in both the sheriff courts and the High Court). Special rules regarding the time limits for prosecuting offences under 23 (animal fights) are set out in section 44 of the Act.^[2]

In keeping with the proposals to increase the maximum penalties for the offences under section 19 (unnecessary suffering) and 23 (animal fights), the Scottish Government proposes that the Act be amended to specify that such offences may be prosecuted using either summary or solemn procedure. By doing so, the current statutory time limit (six months from the date of the offence) for bringing a prosecution under section 19 (unnecessary suffering) would no longer apply in relation to that particular offence, unless a fixed time limit for bringing a prosecution under section 19 is introduced.

The Scottish Government does not presently propose to introduce such a new time limit. As an additional measure, it is proposed that the statutory time limits for bringing prosecutions of the offence under section 23 be entirely removed from the Act.

The combined result of the proposals above would be that no statutory time limit would exist for bringing prosecutions under either section 19 or section 23. It is not proposed that these changes would apply to offences committed before the date these proposed changes come into force.

A benefit of these proposals is that prosecution would become possible in circumstances in which sufficient evidence to prosecute an offence under section 19 or section 23 came to light over six months after such an offence had been committed. The existing statutory time limit (six months from the date of the offence) for prosecuting other offences under the Act would remain in place.

Introduce fixed penalty notices for less serious animal welfare offences

The Scottish Government considers that there is a need for an additional level of enforcement that does not require the intervention of the Scottish courts, but provides a meaningful penalty for those breaching animal welfare rules made under the Act.

We consider that police officers and inspectors should be allowed to issue fixed penalty notices in relation to appropriate animal welfare offences (e.g. those arising in relation to identification and licensing rules).

We anticipate that such fixed penalties would be set at an amount that provides a proportionate but effective deterrent.

There is currently no provision in the Act which specifically gives the Scottish Ministers the power to make regulations providing for the use of fixed penalty notices. The Scottish Government proposes conferring such a specific power on the Scottish Minsters in relation to animal welfare offences. This could be used to make appropriate regulations permitting the use of fixed penalty notices. The power could also be used to update such regulations in future. Such fixed penalty notices would provide an alternative to prosecution of various specified offences.

Fixed penalty notices are widely used by local authorities in other 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.

Introduce a power to quickly make the best arrangements for animals taken into possession

The Scottish Government is considering the introduction of measures to speed-up the process of making permanent arrangements for animals after they have been taken into possession to protect their welfare under section 32 of the Act.

These measures would only apply to animals kept in relation to business activities (such as farming, breeding or puppy dealing); they would not apply to animals held as pets or companion animals.

In particular, the Scottish Government is considering the possibility of creating a new power to make any of the various arrangements for animals that are currently available under section 34 of the Act but without the need to obtain a court order.

Using this power, animals could be sold or otherwise rehomed, given specified treatments, or (where a vet considers that it would be in the interests of an animal) humanely killed.

The power would be available regardless of whether the previous owner or keeper of the animal was subject to any criminal prosecution in relation to the welfare of the animal.

We would consider giving such power to the following persons:

• inspectors appointed or authorised as an inspector by the Scottish Ministers;
• inspectors appointed by the relevant local authority (i.e. the local authority in which the animal was taken into possession);
• any police officer who took the relevant animal into possession under section 32 of the Act;
• any police officer who is caring for, or has arranged for the care of, the relevant animal under section 32 of the Act; and
• bodies approved by Scottish Ministers for this purpose; such as APHA, local authorities and Scottish SPCA

It is anticipated that the power would be exercised by serving a notice on the owner and/or person previously responsible for the animals. The notice would include the following information:

• a description of the animals concerned;
• the decision taken regarding the intended arrangements for those animals; and
• an explanation of the procedure for appealing the decision taken in relation to the animals (including the deadline for doing so).

There would be a specified time period of three weeks from service of the notice before the intended arrangements could be implemented. We are considering the possibility of giving the owner of the animals (or other persons appearing to have sufficient concern for the animals) the opportunity to appeal against the decision to a specified body (e.g. a court or appropriate tribunal) and thereby seek to prevent the proposed arrangements being implemented. It would not be possible to implement the proposed arrangements unless the appeal was refused.

There would be a procedure for the owner of the animal to claim compensation for the financial value of the animals (less any expenses reasonably incurred by an inspector or a constable in consequence of acting under section 32 and any additional costs as a consequence of an unsuccessful appeal against the decision by the owner).

We are also exploring the possibility of including a rule that any compensation due to the owner must be held pending the outcome of any prosecution of that owner for an animal welfare offence in relation to the circumstances that led to the animal being taken into possession under section 32 of the Act. This would allow for payment to be sought from the owner of any fines imposed following conviction before any compensation is paid to the owner.

During the period of notice, the owner of animals, or any other person appearing to have sufficient concern for the animals, would continue to be able to apply to the relevant court for a release order under the existing section 33 of the Act.

A court may order that animals taken into possession under section 32 be given up to a person specified in the release order. This existing right enables the owner or other concerned party to make specific arrangements for the care of the animals after they have been taken into possession under section 34.

The creation of these powers and procedures would be an innovative approach to dealing with animals taken into possession and has not been adopted by any other administrations in the UK.

Such a power would serve the welfare needs of commercially kept animals whilst also recognising the property rights of their owners. Any relevant convention rights and international obligations would need to be taken into account when creating such a power.