ANALYSIS OF RESPONSES TO THE CONSULTATION DOCUMENT 'PROPOSALS TO REVISE EXISTING ANIMAL WELFARE LEGISLATION'
(19) Power to seize animals
Paragraph 45 of the consultation document stated: Our previous consultation paper proposed to give statutory powers to local authorities to remove neglected farm livestock, which are suffering or at risk of suffering, to a place of safety. From the comments we received it was clear that many organisations felt that this provision was far too narrow. We now intend to increase the scope of this provision to cover all animals, not just agricultural animals. All the other provisions and safeguards would still apply, including the need to obtain a warrant from a Sheriff. The Sheriff would be required to have regard to protecting the interests of the owner who would have the right of appeal. Views on this significant increase in the scope of this provision are sought.
Overview
The 82 responders to this subject included 14 local authorities and their representative body, LACORS; 2 police forces and their representative organisation, ACPOS; 9 welfare organisations; 6 farming and rural interest organisations; 12 canine organisations; 3 feline organisations; 5 veterinary associations; 18 individuals also responded.
Reactions to the proposal
71 responders agreed that the scope of the earlier proposal to give statutory powers to local authorities to remove neglected farm livestock, which are suffering or at risk of suffering, to a place of safety, should be extended. Aberdeenshire Council disagreed with the proposal, believing that 'this power should relate to farm livestock and licensed premises. To extend it to pet animals and horses is a huge change from what has been allowed previously'. Other responders did not state their agreement, but noted practical problems and issues that should be considered if the new proposal was to be introduced.
Support of the proposals
A number of responders specifically stated the extent of their support to the proposal:
Welcome the proposal in principle. (Fife Council)
Give a cautious welcome to this proposal. (City of Edinburgh Council)
Proposals … are sensible. (Macaulay Institute)
Support the proposal. (NFU Scotland)
Fully support the proposal. (Advocates for Animals)
Strongly endorse the proposals. (Dogs Trust)
Wholeheartedly support the proposal. (West Lothian Animal Rights and Veggies)
Will be welcomed. (Angus Council, LACORS, individual)
Very much welcomed. (individual)
A very necessary measure. (Animal Concern)
The need for this is immense. (WAG)
A great idea. (Minches Hovawarts)
A desirable addition to animal welfare legislation. (Scottish Centre for Animal Welfare)
Probably a necessary adjunct to the proposed new legislation. (individual)
Such a provision is necessary if we are to attempt to prevent cruel treatment or the suffering of animals. (Angus Council)
The seizing of animals suffering or at risk can only be commended. (South Ayrshire Council)
The merit of the extended proposal
Responders noted why they supported the proposals and their reasons for welcoming the extension of the earlier proposal:
It seems archaic to restrict such action to farmed species. (Dogs Trust)
To limit the power of seizure solely to farm livestock is too narrow. (ACPOS)
The proposal would overcome the potential problems associated with the keeping of farm animals as pets or in non-commercial situations. For agricultural species, the increase in hobby farming may represent a significant risk. (Macaulay Institute)
Widening the scope of this provision will bring in species such as horses, which the Society has found to be extremely vulnerable to long-term neglect. (Scottish SPCA)
Aspects of the proposal
The responders commented in some detail about aspects of the power to seize animals. These fell into a number of distinct areas of the proposals: (1) allocation of powers to seize animals, (2) safeguards in procedures, (3) warrants, (4) seizure, (5) appeals, (6) human rights, (7) penalties. Each will be discussed in turn:
(1) Allocation of powers to seize animals
The allocation of powers to enable an authority to seize animals, undertake actions that are involved in a seizure, and the looking after of any seized animals, was debated by responders, mainly local authorities, Scottish Police forces who would be involved in seizure, and countryside/rural organisations, whose members could be affected by this new power:
To whom these powers are given would also have to be carefully considered. Simply landing the enforcement responsibility at the door of e.g. the local authorities, as they enforce most of the other legislation in this field, without addressing these issues would be unfair. With proper resourcing, local authorities could carry out this work and as a public body whose policy is influenced and scrutinised by the local population as well as by central government in a way that an independent organisation or charity is not, would be the best option. (Central Scotland Police, LACORS)
There is a need for the law to enable Animal Health Officers to take possession of a stray animal and have them put it down in such cases as stray sheep in woods infected with disease. (South Ayrshire Council)
Almost all of the other legislation referred to in this document is enforced by the local authorities but this power would also presumably be given to charitable or independent organisations which currently have no more statutory authority than a member of the public. (Aberdeenshire Council)
Local government officers are subject to a number of statutory controls and council policy is influenced by the local population in a way a charitable organisation is not. Any new legislation would have to state clearly who would enforce, as the police are unlikely to have the staffing to take on these additional duties. Local authorities are required to provide information on various contraventions of the legislation to central government but, again, it would be difficult to extend this to charitable or independent organisations. (Aberdeenshire Council)
Power to remove animals from immediate danger of extreme suffering must be instantly available to a police officer, veterinarian, Scottish SPCA inspector etc. (Scottish Kennel Club)
Any new powers should remain with the police. (Union of Country Sports Workers)
The police should be given increased powers to seize animals. Any new powers should remain with the police. If any of these new powers were delegated elsewhere to any person other than the police, public confidence in rural areas would not be commanded. The presence of any other member of the public, not directly involved with the alleged offence, is wholly inappropriate and could lead to the contamination of a crime scene. (Scottish Countryside Alliance)
Last year's Consultation Paper stated that local authorities working with the police might authorise the slaughter or taking into care of animals already in distress or suffering, without the consent of the owner. Where farm livestock prosecutions are concerned, the Society believes that it is relatively rare for the police to act as the reporting agency. The Society seldom refers farm welfare matters to the police to deal with, although Inspectors do work with police officers, particularly when entering farm premises. In practice, the Society reports more farm livestock prosecutions than the police. Therefore the burden on resources falls as much, if not more, on the Society than on the police. (Scottish SPCA)
(2) Safeguards in procedures
Responders noted the adequacy and need for safeguards in the proposals:
The legislation should be subject to the proper legal process. (East Ayrshire Council)
Inclusion of the necessary safeguards would ensure no abuse of this power. (WAG)
Safeguards should apply. (Canine Concern Scotland Trust)
The proposed safeguards are adequate. (Dogs Trust)
Whilst there are safeguards against the misuse of police powers, such as recourse to the Police Complaints Authority, no such safeguards exist for private prosecutors. This unaccountability means that a claim for malicious prosecution is extremely difficult to make and very expensive. (Scottish Countryside Alliance)
(3) Warrants
Responders suggested a number of issues regarding the power to issue and use warrants:
It is important that the need to obtain a warrant does not lead to delays in helping neglected animals. (Advocates for Animals)
The process of obtaining a warrant from the Sheriff and the appeal process should not be such that the animal continues to suffer at the hands of an uncaring and belligerent owner. (Vetwork UK)
If any animal is noticeably distressed, there should not be a need to wait for a Sheriff's warrant as this takes time. In the meantime, the animal could die or be tortured and killed. (CARROT)
Requirement to obtain a Sheriff's warrant, while desirable, should not rule out action taken in an emergency situation. (Scottish Kennel Club)
Should not give a right of entry to anyone other than a police officer with a warrant. (The Brittany Club of Great Britain)
(4) Seizure
The power to seize all species is directly connected with the proposal. (PDSA)
Powers should be available to enforcement agencies when the welfare of animals/livestock is compromised. (Perth and Kinross Council)
Consideration should be given to determine whether there is an argument for amending the law on seizure. (CAWC)
The grounds for removal need to be considered again in the new context. Last year's Consultation Paper stated that an Animal Care Order might be applied for 'where animals are suffering cruelty or neglect or are at risk from suffering cruelty or neglect'. This will normally, but not necessarily, involve a prosecution on animal cruelty offences under the Protection of Animals (Scotland) Act 1912, but the removal of the animals will not depend on whether a prosecution is to be pursued nor its outcome. This suggested that an applicant could remove and dispose of animals without there being any firm prospect of court proceedings. However, the draft Bill issued at the time did not indicate whether this would in fact be the case. (South of the Border, the Protection of Animals Act 2000 requires proceedings to have been brought, but this test may be too stringent). A practical approach would be to state that applications will only be granted where there is sufficient evidence to warrant a prosecution. All applications would require to be supported by expert opinion as to the likelihood of suffering. There would still be a problem for local authorities in funding the removal and care operation. As disposal of the animals will not normally be permitted for 14 days, plus additional time to obtain documents thereafter, costs are likely to be substantial in most cases. (Scottish SPCA)
Whereas the procedure proposed last year was for a local authority to obtain an Animal Care Order from a Sheriff to remove commercial livestock, this may not be the most efficient procedure where a single, non-commercial animal is concerned. A local authority might not have the manpower or expertise to remove and care for all types of animals, particularly the more unusual species or breeds; it might be more appropriate, as the Society suggested last year, for applicant status to be extended to others such as Scottish SPCA Inspectors. (Scottish SPCA)
If an animal needs to be seized then the appropriate authorities should have the power to do it there and then. (CARROT)
If an animal is suffering, it should be taken away immediately and not held in unsuitable situations while appeals rage. (Lothian Cat Rescue)
It is essential that a vet is involved in this process at an early stage. An independent vet such as a SEERAD employee should be involved in the final decision. (individual)
More thought and care for the animals involved should be given than at present. (BVA Scottish Branch)
It should be the responsibility of the local authority to ensure that the animal welfare problems cease as soon as identified without prejudicing the owner. (BVA Scottish Branch)
Adequate provision for the welfare of those animals must be provided by the police or a local authority. (Union of Country Sports Workers)
There should be provisions to ensure seized animals are cared for in good living conditions until their fate is decided. (individual)
Priority must be given to the welfare of the animal until its fate is decided. (individual)
The seizing authority must make proper provision to care for the animals until their fate is decided in court. (Animal Concern)
During the prosecution process, adequate care provision should be made for the animals until the case is heard and decided and all routes of appeal exhausted. (West Lothian Animal Rights and Veggies)
Any seizure or Removal Order should be carried out by 'fast tracked' application to a Court of Law with a right of appeal within a 'short' specified period to protect the owner but not protract the operation. (Central Scotland Police, LACORS )
Where less serious neglect is suspected and the owner agrees, there should be opportunity for the owner to give up the animal or animals concerned and accept a penalty from the Procurator Fiscal without resorting to a court. (individual)
(5) Appeals
Responders suggested the length and scope of the appeals process:
Owners must have a right of appeal. (Cat Action Trust 1977)
There should be the current warrant safeguard and right of appeal in place. (Scottish Association for Country Sports Workers)
Keepers should have the right of appeal but the welfare of the animals must be paramount and take precedence to any rights of 'ownership'. (Grampian Animal Welfare League)
Owner should be allowed to put forward their defence and a final decision made regarding the outcome. (CARROT)
The appeal process needs to be as speedy as possible. (individual)
The time of appeal at 14 days is reasonable and manageable. (individual)
Even if an appeal is lodged, the animals must be held at least until the result of the appeal is known. (individual)
(6) Human rights
Responders suggested the need to comply with Human Rights legislation and the rights that should be given to owners and keepers:
Any extension on the power to seize animals would have to comply with the requirements of the Human Rights Act 1998. (CAWC)
There should be appropriate safeguards for the owner's legitimate interests. (RCVS)
Need to protect the owner as well as the animal. (individual)
Where neglect is established humans should not have any rights. (individual)
Animal's interest should come before the owner's. (3 individuals)
If legislation is introduced which allows the enforcement body to seize and remove animals this should be extended to removing them from the owners custody without moving them from the premises as often animals in this situation are unfit to be transported. However squaring this with the rights of the owner of the land may be difficult. (Central Scotland Police, LACORS)
(7) Penalties
Current punishments are not severe enough. (individual)
In most cases of neglect, owners are well aware that the chance of them ending up in court are rather slim. (individual)
There should be tangible penalties for the offender, both financial and custodial, as appropriate. They should also be banned from future ownership of an animal, and perhaps added to a register of offenders accessible to all animal traders and re-homing charities. (Catflap)
The courts' ultimate discretion to make disqualification orders should be preserved, but it would be desirable for the legislation to be amended to introduce a presumption that such an order will be imposed, unless the court is satisfied that it is in the interests of the welfare of any animals which were at the time in the custody of the convicted person to decide otherwise. Provision should 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. There would also be merit in introducing a register containing the names of those who had orders made against them. These powers are significant in that they are intended to prevent further cruelty being inflicted upon the victim and, in the case of a disqualification order, other animals. It should be noted, however, that a confiscation order differs in two important respects from a disqualification order. First, a confiscation order can be made only in relation to an animal whose treatment has resulted in a conviction for cruelty and, secondly, there must be evidence before the court that further cruelty is likely. However, a disqualification order, while not being subject to these two restrictions, is solely concerned with custody; it does not prevent the person to whom it applies from owning animals or, indeed, having further contact with them. 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. Furthermore, a confiscation order should not be dependent on the owner of the animal being convicted of cruelty; it should also be available to the courts to make such an order against the keeper of an animal. Similarly, 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 animals. There is also 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 took place where they are convicted of an offence. (Mr Mike Radford)
At present, the courts have complete discretion to decide whether to impose a banning order. This should now be limited by legislation. (individual)
The banning of individuals from owning or keeping livestock is a much better deterrent than either fines or imprisonment. (individual)
Practical problems in undertaking the proposal
A number of responders, largely local authorities, Scottish police forces and animal welfare organisations, pointed out that the proposal had a number of practical problems. East Lothian Council acknowledged that 'this is an area that without doubt from a practical point of view is fraught with difficulty'. Their concerns fell into two areas:
Who should look after the animals and where should they be looked after?
What resources are available to enforcers to undertake seizure?
(1) Who should look after the animals and where should they be looked after?
This problem was especially noted by local authorities which would be directly involved with the seizure of any animals. (City of Edinburgh Council, East Ayrshire Council, East Lothian Council, Fife Council, Glasgow City Council, Scottish SPCA, Animal Concern, Scottish Gamekeepers' Association, The Institute of Auctioneers and Appraisers in Scotland, Scotlean Pigs, 3 individuals)
Fife Council noted that 'one of the major problems we would envisage with the increasing of powers to seize animals would be where these animals are to be held after seizure'. The Scottish Gamekeepers' Association considered that this issue had a number of aspects. The first was the place where the animals would be kept so that they would not be subject to any further suffering; the second was the type and availability of facilities to hold the animals; the third was the place where specific types of animals, such as a neglected or starving deer herd on an animal sanctuary, would be taken. This last issue was also noted for specialised animals such as exotic or dangerous animals (South Ayrshire Council). Scotlean Pigs suggested that 'each species could require different accommodation. The quantity of space required at very short notice would be costly to maintain'.
Responders envisaged a number of problems with the place where seized animals would be kept. However, they also suggested the types of place and premises that could be used:
There is a great stigma about such cases and finding alternative accommodation for them may prove not only difficult but also expensive. (The Institute of Auctioneers and Appraisers in Scotland)
It may not always be easy to locate a suitable place that would look after the animals. It is unlikely that any local farmer/owner will volunteer to take the animals, especially as they could be there a considerable time. (East Lothian Council)
It might be necessary to rely on the goodwill of a local farmer who would need to provide farmland and facilities along with trained and experienced personnel until suitable disposal was arranged or could be effected. (City of Edinburgh Council)
The animals could be allowed to remain on the farm under strict supervision until the welfare issue is resolved. (Fife Council)
If it is not possible to remove the animals from the site, the authorities should be empowered to put on site competent staff and any necessary resources to care for the animals. (Animal Concern)
A substantial place of safety could be developed, through additional funding from Parliament. (Glasgow City Council)
There is the need to have trained and experienced personnel to look after the animals. (East Lothian Council)
(2) What resources are available to enforcers to undertake seizure and who would meet the cost of looking after the animals?
The resources that were available to undertake seizure were considered by responders who largely included enforcement agencies:
The proposal may have significant resources and cost implications which would need to be addressed before such a provision is enacted. (West Lothian Council)
As the outcome of a court case could take some time, the outlay to look after animals could become high. (individual)
The power to seize animals would be welcomed but the extension of these provisions to all animals from what was previously consulted on has huge implications for resourcing, equipment and facilities required to fulfil these obligations and this needs to be looked at carefully. (Central Scotland Police)
The seizure of a sick or neglected animal would transfer the liability and cost for its care to the local authority who discharged the power afforded to it. In many circumstances the magnitude of this responsibility cannot be underestimated. (City of Edinburgh Council)
The practicalities of seizure must also be looked at. Removal and boarding of a couple of dogs or cats is relatively straightforward but removing 100 cattle or several hundred or even thousand sheep is a different matter and would require specialist equipment, knowledge and experienced people. (LACORS, Central Scotland Police)
Authorities are likely to be cautious about embarking on cases where animals are 'only' at risk of suffering, as expenses, particularly in large livestock cases, can mount up rapidly. One Scottish SPCA case involved the seizure and disposal of over 100 cattle, their veterinary treatment, feeding and accommodation and husbandry care. Costs rose to over £24,000 in a matter of weeks. These costs did not include manpower costs for Scottish SPCA personnel. (Scottish SPCA)
The local authority would have to bear all the costs of looking after the animals for an unspecified period of time. Even if costs were eventually awarded in its favour there is no guarantee that they will be recovered from the accused. (City of Edinburgh Council)
Currently, the local authorities are empowered to claim expenses from the owners of the animals/livestock. However, this invariably leaves the local authority 'out of pocket' as lack of money is often the root of the problem in the first place. (Perth and Kinross Council)
As many welfare issues emanate from a farmer's lack of funds, it would be difficult to recover costs. (Fife Council)
Where a court finds against the owner or keeper then he or she should, in addition to any other sentence, cover all costs involved. This could be recovered from any financial value of the animals plus seizure of any assets (including vehicles, property and land) in the enterprise which led to the prosecution. (Animal Concern)
An aspect of the issue was the owner or keeper's liability for costs incurred in exercising this power. This should be clearly defined to avoid abuse of the system as a cheap way of offloading the owner's financial problems. (The Home of Rest for Horses)
The length of time for detention should be made clear. (South Ayrshire Council)
Adequate resources are required by local authorities if seizure is to be effective. (North Lanarkshire Council)
The authorities charged with policing farmed livestock have neither the manpower nor the finance in place to carry this out in a satisfactory fashion. (individual)
There may be a potential increase in workload. (Scottish SPCA)
Resources are required to store animals. (Highland Council)
Who would pay for carriage, feed, grazing, housing, veterinary fees and stockmen? (Fife Council)
The person who pays the cost for keep and veterinary treatment should be clear. (South Ayrshire Council)
There should be clear guidance to local authority enforcement officers. (East Lothian Council)
There should be a statutory power to dispose of the animals by sale. (Fife Council)
Permission to sell the animals where they are fit would be appropriate with a power to recover costs before returning any extra money generated to the owner. (Central Scotland Police, LACORS)
The Executive was asked whether it was prepared to put finance in place in order that future legislation could be enforced in a satisfactory manner. (individual) Extra funding should be available from the Scottish Executive to allow agencies to seize animals/livestock in major welfare incidents. (Perth and Kinross Council)