ANALYSIS OF RESPONSES TO THE CONSULTATION DOCUMENT 'PROPOSALS TO REVISE EXISTING ANIMAL WELFARE LEGISLATION'
(2) An obligation to ensure good welfare
Paragraph 12 of the consultation document stated: We believe that anyone responsible for animals should have a duty to secure and promote the welfare of those animals. This should require them to ensure that, in addition to the animals' physical needs, the physiological and behavioural needs of the animals are met in accordance with good animal management practice and scientific knowledge. Such an obligation goes much further than current legislation and views on whether this is desirable and practical are sought.
Overview
85 responses were received on this subject. The responders were 13 local authorities and their representative organisation, LACORS; 2 police forces; 13 canine clubs (and 2 businesses); 3 equine organisations; 3 feline organisations; 10 rural and agricultural organisations; 4 veterinary organisations; 3 pet organisations; 3 education/research centres; 9 animal welfare organisations; and 19 individuals.
Views on the proposal
Responders were generally supportive or very supportive of the proposal. One local authority, East Ayrshire Council, noted that the proposal was 'probably desirable' while LACORS welcomed the proposal, though 'with caution'. Only one organisation, the Scottish Association for Country Sports, disagreed with the proposal. It believed that 'current legislation which concentrates on animals' physical needs is sufficient' and it did not 'believe that there is sufficient understanding of animal physiological or behavioural needs to provide legislative protection'. A total of 15 organisations and 5 individuals did not state whether they agreed with the proposals, but commented on aspects of it, usually practical issues.
A number of responders who agreed with the proposal were enthusiastic about it, and considered that it was central to the development of new animal welfare legislation:
A fundamental element within this legislation. (WAG)
A vital starting point for any new legislation. (Animal Concern)
A desirable addition to the animal welfare legislation. (Scottish Centre for Animal Welfare Sciences)
A sound proposal. (Kirkwall Dog Training Club)
A practical concept. (Faculty of Advocates)
Applauds the inclusion of this measure. (Dogs Trust)
Very much agree with this proposal. (The Vegetarian Society)
Strongly agree with the proposal. (Greyhound Action Scotland)
Fundamentally supportive of the proposals. (Pet Care Trust)
Support the concept. (British Equine Veterinary Association)
Supports the proposal. (Scottish NFU)
Vital. (West Lothian Animal Rights and Veggies)
Keen to see. (Perthshire Canine Club, Scottish Utility Breeds Clubs)
A welcome development. (Game Farmers' Association)
Welcome. (British Horse Society, West Lothian Council, 3 individuals)
Very welcome. (Scottish Countryside Alliance)
Warmly welcome the proposals. (Advocates for Animals)
Welcome with caution. (Central Scotland Police, LACORS)
Probably desirable. (East Ayrshire Council)
Is desirable. (East Lothian Council, Inverclyde Dog Training Club, individual)
A desirable aim. (Angus Council)
Certainly desirable. (individual)
Most certainly desirable. (Scottish Kennel Club)
Very desirable. (individual)
Enthusiastically supported. (individual)
Should be the basic tenet of all animal welfare legislation and should apply to all animals. (Scottish Countryside Alliance)
Need for the proposal to be introduced
Responders recorded why they believed that it was necessary to introduce the proposal of the obligation to ensure good welfare. These included the need to improve animal husbandry:
Public policy makers have thought it appropriate in some circumstances to give priority to human interests over and above those of other species, with the result that the welfare of the latter may be seriously compromised. Grounds on which such a situation may be justified include commercial considerations and the pursuit of scientific knowledge and medical advance. In consequence, and notwithstanding the increasingly rigorous regulatory regimes which govern their treatment, the law may permit the application of a utilitarian cost-benefit analysis which results in the interests of the human animal being given precedence over those of other species. However, no such competing consideration exists in relation to the breeding, supplying, and keeping of companion animals, where the purpose is principally (and most often, exclusively) one of pleasure. The grounds on which it is justifiable to give preference to human interests, and thereby to override the interests of a companion animal, are extremely limited and the law should therefore require that those who own and keep, or are otherwise responsible for, a companion animal (or an animal intended to become such) must take all reasonable steps to ensure that it benefits from a high standard of welfare. (CAWC)
In order to try and improve the welfare of all animals, including domestic pets, the new legislation needs to introduce a preventative element of care instead of the current Protection of Animals (Scotland) Act 1912 which only comes into force once the animal has already experienced suffering. (British Equine Veterinary Association)
Proper provision should be made for the welfare of an animal by its owner or keeper. All to often, once the novelty of a new rabbit wears off and its hormones kick in (an understanding of rabbit behaviour is required by the reader), it is often neglected or assisted to 'escape' by its 'owners'. This is a common occurrence and a major problem throughout the United Kingdom. This usually happens within the first year of owning a rabbit. …. Domestic rabbits rarely survive in the wild and become 'food' for wild animals, or targets for people with nothing better to do than go out trapping, shooting, tormenting, and torturing animals. Some domestic rabbits are stolen from hutches, taken to a remote place, tied with a length of string to a stake in the ground and used as bait and/or target practice. (CARROT)
Sheep can suffer appallingly through neglect, especially where there are large numbers and few people to look after them. (individual)
Unless animals show physical signs, such as injuries, infections or massive weight loss, vets are often unwilling to say that an animal is suffering even when it is living in conditions that are far from comfortable. (Scottish SPCA)
In the winter of 2002, Scottish SPCA Inspectors became aware of 140 cattle in a 4 acre field. There was no grass in the field and it had become thick with deep mud. The area round the feeder was particularly poached and the cattle were struggling to walk and reach the feeder. Although a dry lying area was available, the cattle had to wade through an area where the mud came up to their bellies so that they could reach it. Most could not cross to the dry area and were effectively forced to lie in the wet mud. The cattle were in acceptable condition and the Ministry vet was unwilling to support a case against the farmer, as there was no detectable suffering at that time. The vet did comment, however, that the situation was not ideal and could lead to problems in the future. (Scottish SPCA)
Horses and ponies in a field in Aberdeen were found in very poor conditions with very little food. The ponies were up to their knees in mud with poor coats and lice. Eventually the owner did agree to the Inspector's requests that he sign over the ponies, but before the Scottish SPCA could take custody of them, members of the public took matters into their own hands and removed the ponies themselves. Inspectors tracked them down and took them for care and rehoming. (Scottish SPCA)
A common occurrence is horses kept in extremely poor fields, often with no grass, possibly containing ragwort and with poor fencing which can be very hazardous to horses as they can get caught in loose wiring. Fields can be full of debris such as scrap metal which can cause serious injury to a careless horse. Although horses can receive supplementary feed and hay, living in a muddy field can lead to mud fever and long term foot problems. However, as this case illustrates, situations can linger on unless an emergency occurs, such as horses getting caught in fencing or debris. (Scottish SPCA)
In 2003 Scottish SPCA Inspectors received a complaint about two dogs and a cat in Edinburgh. The dogs had not been out of the flat in over a year and no rubbish had been removed from the property. When entered, the two dogs were terrified, having received no socialisation over the last year or so. Their claws were overgrown and their pads soft. The dogs were elderly and a little underweight but otherwise in reasonable physical condition. The cat was in reasonable condition though it was extremely nervous. There are definite risks to animals living in such conditions, but the degree of suffering experienced is hard to quantify. (Scottish SPCA)
Scottish SPCA Inspectors often find 'forgotten' dogs, usually kept outside, receiving the minimum attention, rarely walked, with no mental stimulation or ability to display normal behaviour. Suffering in such cases is hard to prove until the situation changes for the worse. (Scottish SPCA)
Dog wardens now receive many complaints in relation to dogs left alone during the day while the owners work. Legislation should be designed to protect these vulnerable few. (Falkirk Council)
Advantages of the proposal
Responders considered that the proposal would have a number of positive benefits for the welfare of animals covered by the legislation. They also considered that the proposal would also improve the quality of the legislation that was available to deal with cases of cruelty and suffering:
All humans have an obligation for the welfare of any animal in their keeping. Humans must realise, understand and comply with a duty of care towards animals of all species. (PAWSI)
Anyone who accepts responsibility for an animal assumes a moral obligation to provide it with proper care and attention which should be clearly reflected in the law. This is already present to a limited extent in the symbolically important (but too often overlooked) provision, which specifies that in the context of the offence of cruelty, the owner of an animal is deemed to have permitted the cruelty if he has failed to exercise reasonable care and supervision to protect it from suffering unnecessarily. The principle should extend beyond ownership to include any other person who is responsible for the day-to-day care of an animal, and should also embrace a duty to ensure its welfare. (CAWC)
Where someone introduces an animal to the 'wild' they have a duty of care for it. Where management practices are to have an impact on both prey and predator species, that duty of care should be extended to all the animals affected. 'Wild' should not become an opt out defence for actions that would otherwise constitute an offence under the proposed legislation. (League Against Cruel Sports)
It must be right that anyone who takes responsibility for animals should have a positive duty to secure and promote their welfare. The nineteenth and twentieth century legislation prohibiting various forms of cruelty recognised that animals are sentient creatures, but there is now ample evidence that it is not enough simply to refrain from overt mistreatment. (RCVS)
The current legislation does not go far enough and any moves to improve it are welcomed. (The Vegetarian Society)
Currently the law provides merely for punishment and not prevention. (The Kennel Club)
At present people can only be prosecuted after they have caused an animal to suffer. Action or lack of action which is likely to cause an animal to suffer should be an offence. (Animal Concern)
The major flaw in the Protection of Animals Act is the inability to take action where a dog is not being properly managed but where unnecessary suffering cannot yet be shown. The proposed duty of care would go a long way towards prevention. (Dogs Trust)
On the whole, current legislation is inadequate to prevent cruelty and may give rise to prolonged or unnecessary suffering. Whilst any individual has responsibility for an animal's welfare, there must be an obligation placed on that person, no matter how rarely such a duty needs to be called to account. (Scottish Rural Property and Business Association)
The modern approach to animal welfare requires that the relevant authorities protect animals rather than be forced to wait until harm has occurred. A change of wording of the legislation … would meet the modern expectation. (British Horse Society)
Public expectations are that the law should protect animals from suffering, rather than merely imposing penalties after the event. Scottish SPCA Inspectors have repeatedly commented that the 1912 Act does not give them grounds to intervene early to prevent unnecessary suffering. Members of the public find it difficult to accept that (without the owner's consent) animals cannot be removed from very poor conditions without evidence of unnecessary suffering. In practice, Inspectors have to acquire a veterinary statement confirming that unnecessary suffering has occurred, and this can pose problems. Having to wait for an animal to suffer unnecessarily before action can be taken is clearly inconsistent with modern animal welfare thinking. (Scottish SPCA)
From years of dealing with equine welfare cases we are aware that the phrasing of the existing legislation (Protection of Animals (Scotland) Act 1912) has been difficult to apply. The test applied by the courts in interpreting the legislation has meant that animals involved must be seen to be suffering before action can be taken. Animal welfare would be better protected if the wording was changed to make it an offence to act or fail to act in a manner likely to cause unnecessary suffering. Such a change would allow action to be taken by the relevant authorities before the animals involved had actually suffered. The owner or keeper of the animal would still be protected by the need for the likelihood of suffering to be proved to the criminal standard, and it would at present be open to him or her to show that no suffering was likely to be occasioned. (British Horse Society)
Favour idea of new laws that help in the prevention of cruelty before it occurs, rather than allowing for prosecution afterwards. (Game Farmers' Association)
Supports a change to enable prosecutions to be brought prior to suffering having been caused if the management or treatment of a horse is likely to cause suffering. (NEWC)
The proposal marks a fundamental shift of welfare legislation away from focusing on cruelty to a requirement on those who keep or manage animals on a permanent or temporary basis to show a duty of care to those animals and to be deemed responsible for their welfare. (NFU Scotland)
From an enforcement perspective, the welfare of animals to include their physiological and behaviour needs certainly goes further than any previous legislation. (Dumfries and Galloway Constabulary)
Would allow veterinary officials, the police and Scottish SPCA Inspectors to step in where an animal is suffering distress as a result of its keeping or environment, even though there may be no obvious or urgent physical sign. (Scottish SPCA)
An obligation would assist in adding consistency to the approach to animals which appears to being promoted. At present some Acts make such an obligation, whilst others do not. (North Ayrshire Council)
Scope of the obligation to ensure good welfare
Responders considered the extent of the proposed obligation to ensure good welfare. They noted that the concept of 'welfare' existed in relation to humans. They considered what animal welfare was and suggested that it should be defined. They suggested the aspects of welfare that should be included and standards that should be introduced in the obligation:
The 'welfare of a child' is a well-known concept in children's legislation, although it is recognised that it 'gives rise to difficulties in application' (A B Wilkinson et al Parent and Child, 2 nd ed., W Green 1999, p. 319). Some of the case law on child welfare should be readily applicable to animal welfare. It should be noted that the obligation in section 1(1)(a) of the Children (Scotland) Act 1995 is 'to safeguard and promote the child's health, development and welfare' and this might be an appropriate provision in any animal welfare legislation. (Faculty of Advocates)
Animal welfare is principally a scientific notion which has emerged as a discreet area of study only comparatively recently. Cruelty, in contrast, is a long-established legal test. (Mr Mike Radford)
Need to define what good welfare is. It should involve a definition of quality of life, an animal's ability to be active and relate in a positive way to its environment, and to be free from uncontrollable pain. (Canine Concern Scotland Trust)
A clear definition and understanding is required of where that responsibility for the obligation to ensure good welfare exists. Is it the keeper or the owner who is ultimately responsible and liable to prosecution? (The Home of Rest for Horses)
Need to ensure that the quality of an animal's life is not defined solely from a human perspective. (Canine Crisis Council)
Animal welfare legislation should focus on the intrinsic welfare of the animal and not vary according to how an animal may be used or perceived. (Born Free Foundation)
Should be the same for domestic animals, pets and farm animals. (The Royal Institute of Chartered Surveyors in Scotland)
Good welfare is essential and each species of animal has different needs, therefore consideration has to be given to meet the requirements regarding housing and the environment in which animals are kept. (South Ayrshire Council)
It is necessary to continue to protect all animals whether wild or captive from acts of cruelty and domestic and captive animals must be kept in suitable conditions for the species. (South Ayrshire Council)
All reasonable means should be employed to achieve that standard in all situations, except perhaps in instances where the requirements of human welfare might otherwise be unreasonably compromised. (Ornamental Aquatic Trade Association)
In the wild, animals have no rights and the use of the term in respect of managed animals should be taken as a soubriquet for the sense of obligation to animals (albeit less definable) felt in civilised human societies. (Canine Crisis Council)
Taken together, the considerations - having due regard to the possible nuisance and threat to public health and safety on the one hand, and the promotion of high standards of welfare on the other - are essential elements of responsible animal ownership and keeping, and it is this concept which the law should ultimately be promoting. (CAWC)
As is the case in other contexts, we would envisage that such provisions would focus on matters such as the provision of appropriate diet, accommodation, and environmental conditions, which satisfactorily meet the animals' physiological and behavioural needs. The list is intended to be indicative, not exhaustive. (CAWC)
Should deal with physical, psychological, and behavioural needs or aspects of these. (Dogs Trust, Advocates for Animals, Angus Council, Lothian Cat Rescue, PDSA, Cats Protection, Fife Council, The Bearded Collie Club of Scotland, Scottish Centre for Animal Welfare Sciences, Edelhof Kennels, PAWSI, BASC Scotland, Macaulay Institute, Born free Foundation, Greyhound Action Scotland, IFAW, Cats Protection, 5 individuals)
We are particularly keen that the physiological needs of animals are taken into account. (British Horse Society)
Where the physiological and behavioural needs of animals is a requirement for animal welfare, it would be inconsistent not to include them. As regards the practicability of such measures, the same argument would apply. (Stirling Council)
The welfare of animals should be of as high a standard as possible. (Born Free Foundation)
There should be no question of keeping any species in minimal accommodation or fed to minimal standards. There should be recognition that best practice should be the norm. Although a minimum standard is required, no-one should strive to attain it and even one place above the standard should be seen as unacceptable. (BVA Scottish Branch)
The current legislation does protect animals from neglect and ill treatment and should not be lost when the legislation is improved. (South Ayrshire Council)
Care should be taken not to destroy the spirit of this legislation by being too prescriptive. (Scottish Countryside Alliance)
Existing prohibitions against cruelty and causing unnecessary suffering, pain, and distress must be retained, and where possible strengthened in this legislation. (individual)
The offence of 'likely to cause suffering' should be linked to a clear definition and understanding of suffering. This could be achieved by imposing a duty of care on animal owners. (NEWC)
The indication that 'good animal management practice and scientific knowledge' will be used as a determinant for this requirement must enable some, and in some instances considerable, latitude to encompass all the valid but conflicting views which might meet these criteria for some species. There is often more than one successful method of keeping companion animals that also ensure welfare. Any legislation must also recognise that the best husbandry and care techniques may be developed by hobbyists or in commerce rather than in university laboratories. A method of arbitration might be necessary in cases of dispute about whose practice or scientific knowledge is best. (Ornamental Aquatic Trade Association)
Any obligations with regard to behavioural and physiological needs must be backed up by good scientific research in order that the legislation can be enforced where necessary and to prevent impractical and unnecessary obligations being imposed upon people. (LACORS)
All animals and birds should have the right to live in as natural an environment as possible and to exhibit natural behaviour. (individual, British Horse Society)
It is strongly urged that a precautionary principle in favour of animals should be applied. 'We consider that is morally incumbent upon us to give the animal the benefit of the doubt and to protect it as far as possible from conditions that may be reasonably supposed to cause it suffering', the Brambell Committee asserted, 'though this cannot be proved.' It is entirely legitimate that this moral duty should be promulgated and underpinned in legislation. (Mr Mike Radford)
Any legislation will need to decide whether there are deliberately selected genetic features that are unacceptable and whether there are breeding practices that should not continue. (Canine Crisis Council)
Legislation should state that no domestic or captive animal shall be kept by a person unless it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without detrimental effect on their health or welfare. (Mr Mike Radford)
The extent and nature of the duty to ensure an animal's welfare would be developed by means of secondary legislation and codes of practice and recommendations. However, it is recommended that primary legislation should set down the following principle:
The keeper of an animal shall remain under a continuing duty to take all reasonable steps to ensure that it is provided with:
(a) proper care and attention at all times;
(b) a wholesome and suitable diet, in quantities and at intervals appropriate to the animal's species, breed, size, age, condition, lifestyle, and other relevant physiological needs;
(c) unless the requirements of the species are recognised by reputable scientific opinion to be otherwise, a supply of fresh water, in quantities and at intervals appropriate to the animal's species, breed, size, age, condition, lifestyle, and other relevant physiological needs;
(d) a living environment which is constructed and maintained so as to avoid injury or unnecessary suffering to the animal;
(e) a living environment which is appropriate as regards the behavioural and physiological needs of the individual animal, including size, space, privacy, nesting and bedding, lighting, ventilation, temperature, protection from the elements, cleanliness and hygiene, health, adequate opportunity to exercise, contact with its own kind, security, and other facilities sufficient to meet its behavioural needs. (Mr Mike Radford)
Issues raised by the definition of 'obligation to ensure good welfare'
It would be difficult to define an 'obligation to ensure good welfare' in primary legislation. (Fife Council)
It is not specified how this 'good practice' or 'scientific knowledge' would be promulgated or maintained in terms of currency. (East Ayrshire Council)
It is not clear how physiological needs differ from physical needs. (Macaulay Institute)
Currently the emphasis of existing legislation is directed towards the physical needs of an animal, but our experience indicates that the demarcation between physical well-being and psychological is largely inappropriate. (PDSA)
There are a wide range of creatures to be included and there is an ever more diverse range of physiological and behavioural needs that require to be considered. (Angus Council)
It would be difficult to assess and enforce the physical, physiological and behavioural needs. (Fife Council)
Determining what satisfied an animal's physiological, behavioural and perhaps psychological needs is far from easy. (Pets at Home)
It can be difficult to assess if the behavioural needs of an animal are being met. (PDSA)
It may not be practical to demonstrate physiological or behavioural cruelty until after the damage is done. (Avon (Lanarkshire) Dog Agility Club)
In some cases, it is easy to identify distress through signs such as behavioural disturbance or stereotypes. However, not all animals react to distress in ways that most people could recognise. (Scottish SPCA)
There may be some difficulty in both providing the needs of physiological and physical needs and assessing the adequacy of meeting a target for managed wild deer in every circumstance. Under severe winter conditions lack of food may lead to increased calf losses. (Macaulay Institute)
It may be difficult to enforce conditions relative to the psychological and behavioural needs of animals. (West Lothian Council)
Infringement may be difficult to prove in law. (Dumfries and Galloway Constabulary)
To go further than current legislation regarding the behavioural needs could create a huge difficulty for legal implementation and will create a cost penalty for United Kingdom livestock farmers and may reduce their trade unreasonably. This could have the effect of importing even more products from around the globe where the same standards are neither required or implemented. (Scotlean Pigs)
Such an obligation would be desirable but in practice would be difficult to regulate in private households. (individual)
The practicality of proposals will depend on proof of responsibility including ownership (Kirkwall Dog Training Club)
May be limited in its practicability due to its subjective nature. (individual)
What would pork, eggs and chickens cost if every hen had to be free range and every pig have an oak wood to grub about in? How would you protect hens and young pigs from fox predation or walkers' dogs if everything was free range? (Scottish Gamekeepers Association)
Considered that the existing level of knowledge within the veterinary scientific community is not adequate for the task at present in relation to the physiological and behavioural needs. It is considered inevitable that modified farming systems will continue to develop leading rather than following legislation. (Glasgow City Council)
Implementation of the obligation to ensure good welfare
Responders noted the ways in which the obligation to ensure good welfare could or should be implemented. These included: (1) general issues that should be considered, (2) cruelty and the offence of cruelty, and (3) unnecessary suffering:
(1) General issues that should be considered
The Scottish Executive needs to work to develop and establish ways of making this practicable and enforcing it. (Grampian Animal Defence League)
Legislation should allow for changing husbandry. (Pets at Home, Pet Care Trust)
Any obligations with regard to behavioural and physiological needs must be backed up by good scientific research so that the legislation can be enforced and to prevent impractical and unnecessary obligations being imposed upon people. (Aberdeenshire Council, Central Scotland Police)
The obligation to recognise the behavioural needs of captive or independent animals must be qualified by the presence of good scientific knowledge. (BASC Scotland)
Need to outline 'good animal management practice and scientific knowledge'. (British Equine Veterinary Association)
Veterinary opinion changes as knowledge of animal needs and welfare increases so it is important to include 'scientific knowledge' although this could be further defined with words such as 'current' or 'expert'. The practicalities would depend on updating any guidelines on a regular basis. (PDSA)
In order for any new legislation to be effective it is of paramount importance that animal welfare inspectors have power to prevent cruelty from occurring, at the earliest opportunity. (The Kennel Club)
The word 'keeper' should be defined. It should have the same meaning as already found in the Welfare of Farmed Animals Regulations - 'any person responsible for or in charge of animals whether on a permanent or a temporary basis'. (CAWC)
The principle that directors and senior managers of a body corporate may be held personally responsible for the treatment of animals used by commercial undertakings where it can be proved that the offence was committed with their consent or connivance, or is attributable to any neglect on their part, which is already contained in welfare legislation should be extended to all other commercial situations, most particularly pet shops. A similar provision should also be introduced in relation to any offence of cruelty inflicted on an animal for which a body corporate was responsible at the time of the offence. (CAWC)
(2) Cruelty and the offence of cruelty
Since the 1960s there has evolved a separate body of legislation to extend the legal duty that is owed to animals beyond the need to ensure that they are not treated cruelly. While some legislation has been introduced in many spheres of animal use, this development has largely passed companion animals by. This lack of progress in the development of legislation may have been caused by a number of reasons. There is therefore an urgent need to address this significant lacuna in the law. The prevention of cruelty can be regarded as a synonym for the promotion of high standards of welfare. The affinity between cruelty and welfare are far from being synonymous. Prejudicing an animal's welfare does not of itself amount in law to cruelty. Welfare is inherent to the individual, influenced by external factors, while cruelty is something which is inflicted upon an animal as a result of the act (or omission) of, in law, a human being. Cruelty is defined by the attitude and behaviour of the perpetrator. Intention of public policy is to prevent cruel treatment by proscribing particular forms of behaviour. On the other, the aim is to promote improved standards of welfare by identifying those matters which are important to animals and translating these into rules, guidance and advice, to which those responsible for their care are required to have due regard. Offence of cruelty merely defines the standard below which conduct towards animals becomes unlawful. The concept of cruelty is not in itself sufficient to protect animals from inappropriate treatment. There are many ways in which their standard of care may be less than satisfactory without it amounting in law to an offence of cruelty. Animal welfare is principally a scientific notion which has emerged comparatively recently; cruelty is a long-established legal test. (CAWC)
The legal definition of animal cruelty is widely drawn, for the most part in very general terms, and the resulting versatility is undoubtedly its most advantageous characteristics. It can be applied to a wide variety of different situations and enables courts to interpret the offence in the light of developing scientific understanding about the nature of animals' suffering and changing social attitudes as to their proper treatment. (Mr Mike Radford)
In terms of both defining the legal notion of cruelty and forming the basis for prosecutions, it is already without question the most important single offence. This can be attributed to its very general nature, and to the express inclusion of omissions. The latter is of very considerable practical importance, for it allows prosecutions on the basis of failure to provide an animal with proper care and attention. (Mr Mike Radford)
By defining the offence of cruelty and making it, for the most part, generally applicable to all domestic and captive animals (except those which are being used lawfully under the authority of the Animals (Scientific Procedures) Act 1986), the Protection of Animals (Scotland) Act 1912 constitutes the basis of animal protection legislation in Scotland. Longevity of the 'offence of cruelty' owes something to its effectiveness. In most cases of cruelty which come before the courts, there is no necessity to consider the nuances and niceties of legislative interpretation. Once the animal's suffering has been established, there is seldom any excuse for it and, if not inflicted intentionally, it will generally be possible to prove that the defendant knew, or must have known, of the animal's condition. To that extent, the legislation works well, and many who have practical experience of its application consider it to be both efficacious and successful. (Mr Mike Radford)
Cruelty, the infliction of unnecessary suffering, is usually easy to identify, at least in lay terms. Deliberate acts such as beating, starving or mutilating animals are unacceptable to the public and must be addressed with the full rigour of the law. Difficulties in defining cruelty arise when one section of the population takes the view that an activity once traditionally viewed as humane, and therefore legal, is no longer acceptable. Modern views on traditional pest control methods such as snaring are a good example of this. The definition of offences, therefore, will need to be sufficiently flexible to incorporate advancing scientific knowledge and evolving public opinion. (Scottish SPCA)
At present, the offence of cruelty is generally defined by reference to the concept of unnecessary suffering. To cause an animal to suffer unnecessarily, or subject it to any other treatment which amounts to an offence of cruelty, is self-evidently detrimental to its welfare. To that extent, there is a degree of affinity between cruelty and welfare, but the two are far from being synonymous; prejudicing an animal's welfare does not of itself amount in law to cruelty. There are other important differences. An animal may or may not become the victim of cruelty during the course of its life, but every animal can be said to have a welfare, which persists for the duration of its existence. The state of this welfare will vary according to the circumstances which confront the animal, together with its physiological and behavioural response to them. In consequence, at any given time, the state of its welfare will be located on a point somewhere along a spectrum between very good at one end, indicating an excellent quality of life, and, at the other, so poor that it ultimately proves fatal. Welfare is therefore inherent to the individual, albeit influenced by external factors, whereas cruelty is something which is indicated upon an animal as a result of the act (or omission) of, in law, a human being. Furthermore, cruelty is defined as much by reference to the attitude and behaviour of the perpetrator, and the object which he seeks to achieve, as it is by the effect upon the victim, while welfare is concerned exclusively with assessing the state of the individual animal. This involves taking account of influences which may be either positive or negative, while cruelty is concerned only with treatment that is deleterious. This distinction is reflected in the thrust of public policy. On the one hand, the intention is to prevent cruel treatment by proscribing particular forms of behaviour. On the other, the aim is to promote improved standards of welfare by identifying those matters which are important to animals, and translating these into rules, guidance and advice, to which those responsible for their care are required to have due regard. The offence of cruelty merely defines the standard below which conduct towards animals becomes unlawful. It imposes no requirement to improve upon that basic benchmark. Crucially, it fails to direct how animals ought to be cared for. (Mr Mike Radford)
At present the offence of cruelty gives rise to a number of problems. The catalogue of specific actions in section 1(1)(a) - cruelly beat, kick, ill-treat, over-ride, over-drive, over-load, torture, infuriate or terrify any animal - is the direct descendent of the nineteenth century anti-cruelty legislation. The list clearly reflects the priorities for animal protection in society which was still heavily dependent upon the horse. It also presents problems of interpretation: to torture cruelly appears tautologous, and it is difficult to define precisely what behaviour constitutes cruelly infuriating an animal. The English High Court has recently confirmed that there is nothing in this offence that could not be equally well prosecuted under the second limb of section 1(1)(a) (that arising from wantonly or unreasonably do or omit to do any act causing unnecessary suffering to any animal). (Mr Mike Radford)
Courts in Scotland and England have been critical of the offence of cruelty as presently defined. (CAWC)
At present, after an offence of cruelty has occurred, Scottish SPCA Inspectors generally find the 1912 Act to be comprehensive, although, as has been said, the framing of charges is generally the last of a series of intervention actions including advice, monitoring and warnings. The Society believes that a distinct offence of cruelty must be retained, with appropriate penalties. (Scottish SPCA)
The offence of cruelty is well-established and this should remain the central tenet of statutory protection of animals in Scotland. (CAWC)
Recommended that …[the] Animal Welfare Bill should … incorporate the offence of cruelty. (individual)
Legislation should be focused primarily at preventing cruelty and unnecessary suffering; although provision should also be made to allow an appropriate response to these situations as they arise. (IFAW)
The proposal should at all times protect the animals against cruelty. (2 individuals)
The obligations to prevent cruelty and proactively promote improvements in animal welfare must be clearly defined with suitable legislation and additional specific guidance which is species specific. (PDSA)
It is essential to retain the existing prohibitions against cruelty and against causing unnecessary suffering, unnecessary pain or unnecessary distress; 'suffering' is the word used in the 1912 Act and 'pain' and 'distress' in the Agriculture (Miscellaneous Provisions) Act 1968. (Advocates for Animals)
Would like to see an update to the wording of the Protection of Animals (Scotland) Act 1912 aimed at preventing cruelty to animals. (British Horse Society)
It is desirable to simplify and to make more effective the definition of the offence of cruelty. Characteristics of the present definition should be retained. The existing case law should not become redundant. The overwhelming majority of prosecutions for cruelty are brought about by wantonly or unreasonably doing or omitting to do any act, cause unnecessary suffering. This is wildly drawn and set down in very general terms, and can apply to a wide variety of different situations. This offence should form the basis of an amended definition of cruelty. (CAWC)
The first limb of section 1(1)(a) of the 1912 Act could usefully be repealed, with one important caveat. The allusion to infuriating and terrifying an animal indicates that the offence of cruelty not confined to physical suffering, but extends also to mental suffering. For the avoidance of doubt, this would need to be expressly stated in any revised definition of the offence. (Mr Mike Radford)
The offence of conveying or carrying an animal in such a manner as to cause it unnecessary suffering adds nothing to the offence of wantonly or unreasonably doing or omitting to do any act causing unnecessary suffering. Indeed, it has essentially fallen into disuse, and could usefully be repealed. (Mr Mike Radford)
The offence committed by reference to the administration of poisonous substances appears as an offence of cruelty by historical accident rather than principle. Like fighting and baiting, it is submitted that this would be better removed from the catalogue of cruelty and made an offence in its own right. (Mr Mike Radford)
The definition of cruelty should be: 'intentionally or unreasonably to do or omit to do any act causing unnecessary suffering to any animal'. Many of the individual offences of cruelty already fall within the terms of Section 1(1)(a), but it is acknowledged that if a single definition of cruelty were to be adopted, consideration would need to be given to whether any elements of the existing offences of cruelty would be lost. For the avoidance of doubt, however, a saving provision could be included, for example: Reference in this section to 'unnecessary suffering' means unnecessary mental or physical suffering caused as a result of:
(a) a failure to provide an animal with proper care, attention, or supervision;
(b) the manner or position in which an animal is carried or conveyed:
(c) the conditions or manner in which any animal is carried or conveyed;
(d) the conditions or manner in which any animal is tethered/restrained:
(e) the circumstances in which it is left unattended, whether permanently or not; or
(f) any other act or omission. (Mr Mike Radford, CAWC)
The practices and procedures which are presently exempt from this requirement should be reviewed, and those which it is decided to preserve should be brought together in a single legislative provision. In the same way procedures which are expressly required to be carried out under anaesthetic should continue to be specified in a similar manner. These are:
(i) the making of injections by means of hollow needle;
(ii) any procedure duly authorised under the Animals (Scientific Procedures) Act 1986;
(iii) the rendering of emergency of first aid for the purpose of saving life and relieving pain;
(iv) the docking of a puppy's tail or the amputation of its dew claws before the animal's eyes are open;
(v) the castration of a pig before it is 4 weeks old; a bull or goat before it is 2 months old; or a sheep before it is 3 months old; but if a rubber ring or other device to constrict the flow of blood to the scrotum is used, it must be applied within the first week of life;
(vi) any minor operation performed by a veterinary surgeon which, by reason or of its quickness is painlessness, is customarily carried out without using an anaesthetic;
(vii) any minor operation which is not customarily performed by a veterinary surgeon or practitioner. (CAWC)
(3) Unnecessary suffering
The term 'unnecessary suffering' should be retained. The term has been widely used and it is the nearest thing to an international standard. It offers a high degree of protection for companion animals. (CAWC)
The offence should be extended to apply not only where unnecessary suffering has already been caused to an animal, but also in circumstances where there is sufficient evidence to demonstrate beyond reasonable doubt that unnecessary suffering is likely to be caused. To introduce such a change would be to extend the principle which is already well-established; such wording is already included in the offence of cruelty arising from abandonment, and is also used in relation to the treatment of animals at markets and during commercial transport. Such an amendment would avoid difficult decisions for those responsible for enforcing the law in assessing when an animal's situation has crossed the line from inadequate to unlawful, especially in cases of neglect where it condition and environment may deteriorate gradually over a period of time. (CAWC)
Ways to implement the proposal
Responders suggested ways in which the obligation to ensure good welfare could be developed and implemented. They identified two main approaches. The first was the adoption of concepts found in the existing regulations governing the welfare of farmed animals. The second considered the use of the five freedoms of the Farm Animal Welfare Council (FAWC):
(1) Adoption of the existing provisions for farm animal welfare
There is a need to introduce on the owners and keepers of animals a continuing statutory duty to promote the welfare of any animal under their care. The template for this provision already exists in Regulation 3(1)(a) of the Welfare of Farmed Animals Regulations. Thus, it would become a general duty, applicable to all domestic and captive animals, that: 'owners and keepers of animals shall take all reasonable steps to ensure the welfare of the animals under their care'. (Mr Mike Radford)
Codes of recommendation for the welfare of farmed livestock already places on those responsible for farm animals a duty to consider the animals' physiological and behavioural needs. These codes relate these needs to good animal management practice and up-to-date scientific knowledge. No such mechanism exists at present for non-farmed species. (Scottish Agricultural College)
It is recommended that the meaning of 'keeper' in relation to both the offence of cruelty and the duty to ensure welfare should be the same as that specified in Regulation 2(1) of the Welfare of Farmed Animals Regulations, viz: 'keeper means any person responsible for or in charge of animals whether on a permanent or temporary basis'. (Mr Mike Radford)
(2) The five freedoms
The use of the five freedoms was seen as one way that the obligation to ensure good welfare could be implemented. (Born Free Foundation, BVA Scottish Branch, Central Scotland Police, Highland Council, IFAW, LACORS, The Kennel Club, North Lanarkshire Council, Scottish Centre for Animal Welfare Sciences, Mr Mike Radford). Mr Mike Radford noted that FAWC believed that 'good animal welfare implies both fitness and a sense of well-being; and it suggests that these can be effectively promoted by reference to the 'Five Freedoms''. These are essentially minimum standards (Born Free Foundation) which define the ideal state in which any animal should be kept (The Kennel Club) and are used so that the best welfare possible is maintained (BVA Scottish Branch). They were considered to underpin the development of standards and welfare codes (IFAW). These are:
(1) Freedom from Hunger and Thirst - by ready access to appropriate nourishment in order to sustain the animals wellbeing.
(2) Freedom from Discomfort - by providing an appropriate environment including shelter and a comfortable resting area.
(3) Freedom from Pain, Injury or Disease - by prevention or rapid diagnosis and treatment.
(4) Freedom to Express Normal Behaviour - by providing sufficient space, proper facilities and company of the animal's own kind.
(5) Freedom from Fear and Distress - by ensuring conditions and treatment which avoid mental suffering.
However, one organisation, Pet Care Trust, did not agree with this approach. It noted that it agreed 'with Defra's conclusions that the so-called Five Freedoms are not the way to define a duty of care'.
Specific issues in implementing the proposal
Responders noted a number of specific issues that should be considered when implementing the obligation to ensure good welfare. These related to: (1) education and information, (2) implementation through a code of practice, (3) enforcement, and (4) penalties.
(1) Education and information
Those responsible for animals should be made fully aware of their responsibilities and are knowledgeable about how to care for the animals. (Cat Action Trust, The Bearded Collie Club of Scotland)
Legislation should be aimed at developing the knowledge of those that work with, breed from or own animals to develop the 'duty of care' that such persons have. (PDSA)
It is essential that anyone who cares for animals has adequate knowledge of the particular animal's physical, physiological and behavioural needs. (LACORS)
It may be practical to introduce a requirement that all licence holders must demonstrate their competence by completing appropriate courses. (East Lothian Council)
Education in the proper use of and care for animals is fundamental to the enforcement of this Act. For example, someone who is taught good horsemanship would never need to resort to over using a whip. Or a trainer applying correct and humane methods would never resort to using electrical prods or gadgets in their work. (British Horse Society)
In most circumstances education, training and persuasion are the best means to raise awareness of welfare and thereby raise standards and will, in many instances, be preferable to legal intervention. That said, an effective underpinning mechanism to enforce good welfare standards may be required. (Ornamental Aquatic Trade Association)
Need to have information available that should be disseminated to the appropriate persons. This would entail a substantial education programme of persons involved in the keeping/breeding/sale of animals. (Scottish Kennel Club)
The Scottish Executive should draw up a document/leaflet carrying the weight of the law, for each species or each group of animals, making it a legal requirement setting out legal requirements of care required. (Cat Action Trust)
Clear guidelines should be drawn up for specific animal types. (Fife Council, British Equine Veterinary Association)
There would be a need for clear guidelines or, for certain groups of animals, regulations. (Fife Council)
More detailed guidance in the '5 freedoms' may need to be given in relation to specific pet animals. (LACORS)
(2) Code of practice
Such legislation should have enabling powers providing Ministers to introduce by way of secondary legislation and codes of practice, guidance as to the nature and extent of this duty. (CAWC)
Code of practice or best practice guides should be introduced. (Angus Council, Scottish Agricultural College)
Codes of practice would promote owner education and responsibility (British Equine Veterinary Association), would be sufficient to encourage owners and managers to take care of their animals appropriately and the law should be used as a back up. (Scottish Countryside Alliance), would provide a sound basis for the development of legislation concerning the health and welfare of animals kept for purposes other than agricultural production. (Scottish Agricultural College)
Basic animal welfare codes are already provided for agricultural animals, under the Agricultural (Miscellaneous Provisions) Act 1968. These codes do not have the force of law, but evidence of failure to comply with them can be used in court. It is more difficult to make legally binding codes for pet animals, but a similar approach would be helpful. Ideally, codes should be published by the Scottish Executive. It may be possible for some other agency to produce them and have them endorsed by the Executive. (Scottish SPCA)
The definition of the duty should be based on codes of practices. (NEWC, individual)
(3) Enforcement
Enforcement/prosecution should differentiate between failure in the duty to ensure good welfare and actual cruelty and that penalties should reflect this. (NFU Scotland)
Enforcement should be based on a code of practice. (Dogs Trust)
Care should be taken to ensure that it is enforceable. (PAWSI)
Local authorities should be given sufficient powers and resources. (Inverclyde Dog Training Club)
Clear powers would have to be given to the Police, the Scottish SPCA or other enforcement body. In relation to the physical welfare of animals and the procedures to be adopted in the event of suffering it is essential that 'immediate' action is made possible, that clear guidance is made available not only in relation to the relevant procedures but also the respective roles of the various enforcement agencies and the liaison arrangements. The power to recover costs from the owner must also be included in any legislation. (Glasgow City Council)
(4) Penalties
(a) the person who is directly responsible for the cruelty;
(b) any person who causes or procures the cruelty;
(c) the owner or keeper of the animal, where he has permitted the cruelty by failing to exercise reasonable care and supervision of the animal;
(d) the owner or occupier of the premises (including land) where the offence has taken place if it is proved that the cruelty occurred with their consent or connivance, or is attributable to neglect on their part;
(e) where a corporate body is guilty of an offence of cruelty, any director, manager, secretary, or similar officer if the offence is proved to have been committed with their consent or connivance, or to be attributable to neglect on their part. (Mr Mike Radford)
At present, upon for conviction for an offence of cruelty, in addition to any other sanction which it might impose such as a fine and/or term of imprisonment, the court may:
(1) where the owner of an animal is convicted, deprive that person of ownership of the animal, provided there is evidence (such as a previous conviction, the character of the person, or otherwise) that not to do so is likely to expose it to further cruelty;
(2) regardless of whether the it is the owner who is convicted, disqualify for such period as it thinks fit, the defendant from having custody of any animal at all, or one of a kind specified in the order.
The intention underlying these orders is to prevent further cruelty being inflicted upon the victim and, in the case of a disqualification order, other animals. (Mr Mike Radford)
(i) First, except where it relates to a question of public safety, a court when determining whether to make any order relating to an animal, should be placed under an express duty to give its welfare paramount consideration. This would replace the existing requirement that the court may grant a confiscation order only if it has heard evidence of either a previous conviction or other evidence to suggest that if the animal is left with the owner it is likely to be exposed to further cruelty.
(ii) Second, a confiscation order should not be dependent on the owner of the animal having been convicted of cruelty; the courts should be empowered to make such an order against the keeper of an animal. This would address problems which have been encountered in establishing whether the accused, especially a person responsible for the day-to-day care of the animal is actually the owner.
(iii) Third, although the courts should be left with a discretion to determine in every case whether it is appropriate to grant a confiscation order and/or a disqualification order, it recommends that the wording be changed to introduce an assumption that, when a person is convicted of an offence of cruelty, the court will grant one or both orders unless it is satisfied that it is in the best interests of any animal which would be affected by such orders not to do so.
(iv) Fourth, an associated amendment is required in relation to a breach of a disqualification order; at present, legislation provides only that a person may be fined or imprisoned (or both). Provision should also be made for the immediate and permanent seizure of any animal found to be in the custody of a person who is subject to a disqualification order.
(v) Fifth, consideration should also be given to extending the scope of disqualification orders beyond custody and/or responsibility, to include the possibility of disqualifying a person from being the keeper of an animal.
(vi) Sixth, we consider there to be merit in providing the courts with the power to make a disqualification order against the occupier of the premises on which an offence of cruelty has taken place. (CAWC)