The Act was hailed as a revolutionary step forward in animal welfare law and, for once, parliament appears to have got it right, says Tim Ryan
When it came into effect nearly five years ago, the Animal Welfare Act 2006 marked the beginning of a new era in the protection of animals in England and Wales. Described by Ben Bradshaw, animal welfare minister under the last government, as “the most fundamental piece of animal welfare legislation in nearly a century”, it swept away nearly a hundred years of piecemeal and inadequate legislation, and replaced it with what was intended to be a modern, fit for purpose and accessible codification of the law.
In summary, the Act widened the scope of the existing offence of causing unnecessary suffering; introduced “a duty of care” on owners for all animals for which they are responsible where previously this had only applied to farmed animals; created a new offence of failing to provide for an animal’s needs; and specific offences targeting certain cruel practices. It also raised from 12 to 16 years the minimum age at which a child may buy an animal or be given one as a prize while unaccompanied.
The Act established a new enforcement framework, allowing action to be taken on a preventative basis in the absence of any actual suffering. Powers include issuing improvement notices, and, in cases of emergency, the seizure or destruction of animals without the need to apply for a court order. On conviction, penalties include fines of up to £20,000 and/or six months’ imprisonment, and, in addition, a court must consider making a disqualification order.
Provision was made for the law to be updated quickly and easily by regulations and for “practical guidance” to be provided through codes of practice. Regulations, enacted as secondary legislation, have the force of law and create additional offences and penalties. The codes of practice are advisory only, but may be relied on at court as tending to establish or negate liability.
Five years on, regulations are in force for such matters as the docking of working dogs’ tails, permitted procedures involving interference with sensitive tissues or bone structure and additional welfare requirements of farmed animals and racing greyhounds. There are also codes of practice setting out welfare guidance for various species, including cats, dogs, horses and donkeys, and reared game birds.
Although the Act applies across England and Wales, the regulations and codes of practice do not. Consequently, battery operated electric dog collars, which are perfectly legal and still widely used in England, are banned in Wales under the Animal Welfare (Electronic Collars) (Wales) Regulations 2010.
In most cases both countries have introduced identical or very similar codes of practice, but in Wales (not England) there is one for rabbits, whereas in England (but not Wales) there is one for primates. The harsh reality of living on the wrong side of the border was felt by the unfortunate Mr Pook, when he appeared at Bridgend Magistrates’ Court in July 2011. He was fined £2,000 and ordered to pay £1,000 costs after pleading guilty to using a battery-operated electric collar to prevent his border collie straying.
The regulations survived a legal challenge in R on the Application of Petsafe Ltd, The Electronic Collar Manufacturers Association v The Welsh Ministers  EWHC 2908 (Admin), and whether similar regulations are eventually adopted in England remains to be seen.
Other cases to have reached the High Court so far relate to the time limit for the commencement of proceedings, disqualification orders and the requirements that apply in the exercise of emergency powers.
Section 31 of the Act provides that a magistrates’ court may try an information under the Act where it is laid within six months of the date on which sufficient evidence to justify the proceedings comes to the knowledge of the prosecutor, subject to an overall time limit of three years.
Under section 31(2): (a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact; and (b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.
In RSPCA v Johnson  EWHC 2702 (Admin), the defendant had been prosecuted for failing to provide adequate veterinary treatment to a horse. An information was laid and a summons issued a full 12 months after the date of the alleged offence, supported by a letter signed by J Fletcher, RSPCA prosecutions case manager, stating: “Please accept this letter as certification of the fact that evidence which the prosecutor thinks is sufficient to justify the proceedings came into the possession of the prosecutor on 21 December 2007.”
Where cross-examination of the RSPCA investigating officer revealed that he was in possession of all the necessary evidence more than six months before the date of the information, the district judge at Consett Magistrates’ Court dismissed the case, holding that the prosecution was out of time. The RSPCA appealed to the High Court, which disagreed. It was held that the role of the RSPCA prosecutions department is separate from the role of the investigating officers on the ground, and the RSPCA was therefore entitled to rely on the certificate from Mr Fletcher: “There is no principle of law that knowledge in a prosecutor begins immediately any employee of that prosecutor has the relevant knowledge, it is in the public interest that prosecutions are brought only upon consideration of the evidence by an expert mind.”
The effect of the judgment is qualified only slightly by the concession that “it is right that prosecutors are not entitled to shuffle papers between officers or sit on information so as to extend a time limit” (Pill LJ). Four months later, a similar issue came before the court in RSPCA v King and King  EWHC 637 (Admin), when a differently constituted bench took a somewhat more robust view of the RSPCA’s obligations. The defendants had been prosecuted for alleged offences under the Act and, again, informations were laid and summonses issued outside the usual six months’ time limit.
The district judge who heard the case at Portsmouth Magistrates’ Court held that there was no case to answer when after three days of evidence the prosecution had failed to produce a signed certificate in the form required by section 31.
The High Court refused to accept that a statement from Mr Fletcher stating that a letter in the appropriate form had been provided and exhibiting an unsigned copy of the letter was sufficient. “Given that a certificate in proper form is conclusive, subject to limited qualifications recognised in the case law, the court should not adopt a loose approach to the formal requirements, a prosecutor can only avail himself of the benefits of such a certificate if the certificate fully complies with the statutory requirements” (Toulson LJ).
The court was unimpressed with the prosecution argument, and, unusually, ordered that the defendants’ costs should be paid by the RSPCA directly rather than by the taxpayer out of central funds.
Under section 34 of the Act, a court may disqualify a convicted person for such period as it thinks fit from owning, keeping or participating in keeping animals or being party to an arrangement entitling him to control or influence the way in which animals are kept. Such an order may be in relation to animals generally, or limited to specified kinds.
In R v Stacey  EWCA Crim 760, a disqualification of five years was held to be beyond criticism, where the appellant had twice previously breached an earlier three year disqualification.
In Anthony Ward v RSPCA  EWHC 37 (Admin), a disqualification of ten years was upheld as entirely justified, where the appellant had two previous convictions for similar offences, and it was appropriate to include cattle within the disqualification although the present offence related only to horses. It was not inconsistent with not disqualifying his co-defendant, who had no previous convictions, and the fact that he was a farmer carrying on a business in partnership was irrelevant.
In James v RSPCA  EWHC 1642 (Admin), the facts were that a veterinary surgeon, at the request of the RSPCA, went to the stables to examine the appellant’s horses. She put nothing in writing but said that the horses were suffering and in need of veterinary attention, and as a result a police officer took possession of them and handed them over to the RSPCA.
The appellant pleaded guilty to three charges of causing unnecessary suffering and was sentenced to a community order with a requirement to perform unpaid work, deprived of ownership and disqualified from keeping horses for an unlimited period. She was also ordered to pay the RSPCA’s costs of £38,644, the vast majority of which related to the costs of looking after the horses, and it was in connection with the costs that she appealed.
The first ground of appeal was that the horses were unlawfully taken into possession owing to the lack of a written certificate. Section 18(5) of the Act states: “An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies (a) that it is suffering, or (b) that it is likely to suffer if its circumstances do not change.”
The High Court, after reviewing a number of conflicting Crown Court decisions, held that section 18(5) does not require the certification to be in writing. It is enough that a veterinary surgeon states orally at the scene that the animal is suffering. That is consistent with the overall aim of the Act, to promote animal welfare, and the explicit aim of section 18, headed ‘Powers in relation to animals in distress’.
To hold otherwise might subject an animal to further suffering if a veterinary surgeon is not in a position to produce a written certificate immediately, which might happen if there are a large number of animals or if the circumstances make the production of a written certificate impracticable; for example, if the weather was too bad or the site was dangerous.
The High Court also decided that, in principle, it is appropriate for a court to make an order for costs or the reimbursement of expenses when a defendant without immediate means or prospects of being able to satisfy the order may be able to at some time in the future. Unlike a fine, which is a punishment, an order for costs or the reimbursement of expenses is entirely compensatory.
Whether to make such an order is a judgment call for the sentencing court in any particular case, the issue being whether the interest of the prosecutor in being compensated for its outlay outweighs the fact that a defendant may have the prospect of having eventually to pay out a large sum hanging over their head for years.
The Act was introduced without much controversy and passed through parliament with cross-party support. In December 2010, DEFRA published a memorandum providing a preliminary assessment of the Act in which Caroline Spelman, secretary of state, said that it had “lifted the law on animal welfare in England and Wales into the 21st century”.
The limited amount of case law over the past five years suggests that, on this occasion at least, parliament may have got it about right.
For more information please contact Tim Ryan on 01732 770 660 or email@example.com
This article was first published by Solicitors Journal on 6 March 2012, and is reproduced by kind permission. www.solicitorsjournal.com