Monday, November 25, 2019
Animal Welfare Act 2006 defences and offences
The Animal Welfare Act 2006 is one of the more controversially used pieces of legislation on the statute books; it can form the basis of state prosecution but is often privately prosecuted by either the RSPCA or concerned individuals.
Prosecutions under the Act have frequently attracted press attention. This can be because of widespread condemnation of those cruel to pets and livestock or because of the misuse of the Act to prosecute those undeserving of sanction or those acting in the best interests of the animals concerned. In this article, I will examine some of the offences and defences under the Animal Welfare Act 2006.
What is the Animal Welfare Act?
The Animal Welfare Act 2006 is an Act of Parliament which imposes a duty on keepers of animals to take reasonable steps to ensure their welfare and creates various offences of causing suffering to animals. It states that it exists to promote the welfare of vertebrate animals, other than those in the wild. It also provides enforcement powers to inspectors and constables.
Different categories of animals are protected by the Act: the duty to ensure an animal’s welfare only applies to those that are owned by someone or for whom someone is responsible. However cruelty and fighting offences have a wider application.
Harming Animals - Unnecessary Suffering
A person commits an offence under section 4 Animal Welfare Act 2006 in one of two ways:
Firstly, a persona can be prosecuted for doing an act, or failing to do an act, which causes a ‘protected’ animal unnecessary suffering and knowing, or reasonably foreseeing that the act or failure to act would have that effect
In order to prove this offence, the prosecution has to establish that the defendant knew or ought reasonably to have known both that his or her act or failure would cause a protected animal to suffer and that the suffering was unnecessary: R. (on the application of Gray) v Aylesbury Crown Court  EWHC 500 (Admin);  3 All E.R. 346. In that case the Court held that the phrase “knew or ought to have reasonably known” is a common expression in English law and does not need to be glossed.
Secondly, a person can be prosecuted, in relation to an animal they are responsible for, in respect of permitting or failing to take reasonable steps to either prevent an act of another person causing an animal unnecessary suffering or to prevent an omission by another person from causing unnecessary suffering to the animal.
What is Unnecessary Suffering?
Suffering is given a broad definition in the Act and is defined in section 61(1) as meaning “physical and mental suffering.” Whether physical or mental suffering has occurred will be a question of fact to be determined by the Court.
‘Unnecessary suffering’ is not defined in the Act but section 4(3) sets out a range of factors that a Court is to consider when determining whether the suffering was unnecessary:
- whether the suffering could reasonably have been avoided or reduced
- whether the conduct which caused the suffering was in compliance with any enactment, licence or code of practice
- whether the conduct was for a legitimate purpose such as
i) to benefit the animal
ii) to protect a person, property or another animal
- whether the suffering was proportionate
- whether the conduct was in all the circumstances competent and humane.
The explanatory notes to the Act shine some further light on how the Court should approach these considerations. The notes state that all relevant considerations should be taken into account and weighed against each other as appropriate. Significantly, the notes also give practical examples of when the considerations may be relevant. For example, where a horse suffers whilst being used for the purpose of riot control this may be considered to be for a justified purpose as the horse was protecting a person or property. A further example is of an animal suffering as a result of legitimate pest control activities. The notes suggest that in such circumstances the Court may consider whether the suffering was in compliance with a relevant enactment, for a legitimate purpose and proportionate to that purpose.
A further offence is set out in section 5 of the Act. Under this section it is an offence to carry out, or cause to be carried out, prohibited procedures. A person can also commit the offence of mutilation if they are responsible for an animal and they permit a prohibited procedure to be carried out or fail to prevent such a procedure being carried out.
Subsection (3) defines a prohibited procedure as a procedure which involves interference with the sensitive tissues or bone structure of the animal, otherwise than for the purpose of its medical treatment. Subsection (4) permits the Secretary of State and the National Assembly for Wales to specify exempt procedures.
Section 8 of the Act effectively creates the three offences in relation to animal fighting.
The first offence is contained in subsection 1 and attempts to capture the individuals involved in organising, hosting and promoting animal fights as well as those who take bets on animal fights or train animals to participate in them.
The second offence is contained in subsection 2 and applies to those who are present at an animal fight without lawful authority or reasonable excuse.
The third offence is contained in subsection 3 and seeks to capture individuals who supply, publish or show video recordings of an animal fight as well as anyone who knowingly possesses a video recording of an animal fight with the intention of supply it. Subsection 4 introduces an important proviso in relation to this offence as it provides that the offence in subsection 3 is not committed if the animal fight which the video recording relates to took place outside of Great Britain. Subsection (5) also provides an exemption for recordings used, or intended to be used, in a “programme service” as defined in the Communications Act 2003.
Subsection 7 defines an “animal fight” as ‘an occasion on which a protected animal is placed with an animal, or with a human, for the purpose of fighting, wrestling or baiting’.
The case of RSPCA v McCormick  EWHC 928 (Admin);  1 W.L.R. 2641 explored the meaning of the phrase ‘animal fight’. In that case the Court held that the clear focus of section 8 is on organised and controlled animal fights and that the phrase ‘placed with’ does not mean a chance meeting for example simply letting a dog loose into woods in the hope it hunts and attacks wild animals. Instead it denotes a ‘contrived or artificial creation specifically for the purpose of a fight during which, on the assumed facts, the other animal has no natural means of escape’ [paragraph 31]. The Court went on to set out the test for an animal fight at paragraph 32:
1. proximity - the other animal must immediately be present (not a hunt or a chase) and
2. control - the other animal cannot escape (although there is not a requirement for confinement in every case).
A further offence is contained in section 9(1) of the Animal Welfare Act 2006. This offence is committed if an individual does not take reasonable steps to ensure that the needs of an animal for which he is responsible are met to the extent required by good practice.
Subsection 2 defines an animal’s needs as including:
- a suitable environment
- a suitable diet
- the ability to exhibit normal behaviour patterns
- being housed with, or apart from, other animals and
- protection from pain, suffering, injury and disease.
Subsection 3 sets out certain factors that the Court should consider when looking at all of the circumstances. These include whether there was a lawful purpose for which the animal was kept and whether any lawful activity was undertaken in relation to the animal. It is important to bear in mind that the explanatory notes to the Act make clear that subsection 3 does not constitute an absolute defence. Courts are only directed to consider whether there was a lawful purpose or a lawful activity. The existence of such an activity or purpose will not necessarily mean that no offence was committed. The Court will ultimately have to consider the activity or purpose as a relevant matter when determining whether the offence was committed.
This has been a brief summary of some of the main pieces of law used under the Act and Animal Welfare Act 2006 defences. It may be clear from the above that the Act is complex and gives rise to many difficult factual and legal issues. If you find yourself accused of an offence under the Act you may wish to avail yourself of specialist legal representation. Quentin Hunt is an expert Criminal Barrister who has a reputation for providing excellent advice and a high level of service. You may contact him for a no obligation conversation about any case or legal problem in respect of the Animal Welfare Act 2006.