In the second of two articles on the Animal Welfare Act 2006, Tim Ryan and James Pavey examine penalties and orders on conviction

All main offences under the Animal Welfare Act 2006 are summary only, punishable by a maximum 51 weeks’ imprisonment (six months before commencement of s 281(5) Criminal Justice Act 2003) and/or a fine (increased to a maximum of £20,000 in case of cruelty, mutilations, tail docking, administering poisons and fighting).

In addition, other orders are available to ensure that animals are not put at further risk from the offender.

Court orders (ss 20-21)

Where an animal has been seized, an application can be made to a magistrates’ court under s 20(1), irrespective of whether proceedings have been commenced. The court may order any of the following:

(a) that specified treatment be administered to the animal;

(b) that possession of the animal be given up to a specified person;

(c) that the animal be sold;

(d) that the animal be disposed of other than by sale;

(e) that the animal be destroyed.

Where an order is made, the court may, under s 20(5), appoint a person to carry it out, give directions, confer additional powers (such as a right of entry to premises where the animal is being kept) and order “a person” (presumably any person it sees fit) to reimburse the expenses of carrying out the order.

When deciding how to exercise its powers, the court must consider the financial effect the decision will have on the owner of the animal and others (s 20(6)). Where it orders that the animal should be sold, the proceeds of sale, to which the owner is entitled, may be reduced to take account of expenses incurred.

A right of appeal lies to the crown court, by the owner (s 21(1)), any other unsuccessful applicant (s 21(5)) and any person ordered to pay the expenses (s 21(6)).

Nothing may be done under the order until the period for giving notice of appeal has expired, or any appeal has been determined or withdrawn (s 21(2)), but the court may give directions about how the animal is to be dealt with in the meantime. This may be problematic in practice. As nothing can be done in the notice period, even if no appeal is pursued, interim directions will be required from the court.

Deprivation (s 33)

Following conviction of the owner for any of the main offences (cruelty, mutilation, tail docking, administering poisons, fighting or lack of care), the court may make an order depriving him of ownership of the animal and for its disposal (which includes destruction) (s 33(1)). A similar order may be made where the owner is convicted of breaching a disqualification order (s 33(2)).

While there is no express presumption in the Act that a deprivation order will be made, the court is obliged to give reasons where it declines to exercise its discretion to make such an order . Such a requirement on a tribunal is, to our knowledge, unique and, in terms of the proper administration of justice, unfortunate. In practice, it will make it much more difficult for magistrates to be independent and free from pressure to choose not to make deprivation orders.

The starting presumption under Art 1, First Protocol ECHR, should be not to make an order, then to consider whether such an order is justifiable and proportionate and, if so, to make it.

Disqualification (s 34)

Unlike deprivation, a disqualification order can be made against any person convicted of an offence, not just the owner. Again, where no order is made, the court must give reasons (s 34(8)). Any breach of the order is itself an offence (s 34(9)).

The court may suspend the operation of the order pending an appeal or for such time as is necessary for enabling alternative arrangements to be made in respect of animals owned or kept by the offender (s 34(7)).

Where a disqualification order is made, the court may also order seizure of any animal owned or kept contrary to the terms of the order (s 35(1)). This has effect as an order for disposal, which includes a power of destruction. Where seizure is ordered, the court, under s 36, may appoint a person to carry it out and give directions and confer additional powers as required (eg to enter premises where the animal is kept). It may also order the person against whom the disqualification is made, or another person, to reimburse the expenses involved. In exercising its powers, the court has to have regard to the desirability of protecting the value of the animal and avoiding increasing any expenses which may be payable (s 36(3)).

The court may also order the cancellation of or disqualification from holding any relevant licence (s 42), in which case it may suspend the order pending an appeal. Where livelihoods are likely to be at stake, the arguments in favour of doing so will be powerful.

An application can be made for a disqualification order to be terminated (s 43(1)), but not within one year of the order being made or before the expiry of any period that may have been specified by the sentencing court (s 43(2)). In determining the application, the court shall have regard to “the character of the applicant, his conduct since the order was made and any other circumstances of the case” (s 43(4)).

Destruction (s 37-38)

Following conviction for any of the main offences, the court may order destruction of an animal in relation to which the offence was committed, if satisfied on the evidence of a veterinary surgeon that it is in the interests of the animal (s 37(1)). The owner must be given an opportunity to be heard if it is reasonably practicable to communicate with the owner (s 37(2)).

The court may appoint a person to carry out the order, give directions and confer powers as required and order that the offender or another person reimburse the expenses (s 37(3)).

There is a right of appeal from the magistrates’ court to the crown court, unless the court directs that, in the interests of the animal, the destruction should not be delayed

(s 37(4)). Such a direction must be rational/ reasonable in public law terms and it is suggested that it should be exercised on the basis of veterinary evidence. The opinion of police constables, inspectors or RSPCA inspectors should not be sufficient, in particular as the exercise of the discretion may engage both Art 6 and Art 1, First Protocol ECHR.

For animals used in connection with fighting offences, destruction may be ordered on grounds other than the interests of the animal (s 38(1)). The Explanatory Notes suggest, by way of example, that this may be if the animal is considered a danger to public safety, but no such limitation appears in the Act itself.

Bearing in mind the emotive nature of animal fights, magistrates may need to be reminded that it is the defendant not the animal who has offended, and that the purpose of the Act is “to make provision about animal welfare”.

Forfeiture of equipment (s 40)

Following conviction for any of the main offences except breach of the s 9 welfare offence, the court may order forfeiture and destruction in relation to any “anything designed or adapted” for use in connection with the offence or, in the case of fighting, any video recording (s 40(1)).

A person claiming to be the owner or otherwise to have an interest in the property may apply to the court to be heard, and forfeiture should not be ordered until he has been given an opportunity to show why the order should not be made (s 40(3)).

Suspension pending appeal (s 41)

Nothing may be done under orders for deprivation, seizure, destruction and forfeiture of equipment unless the periods for giving notice of appeal against the order and against conviction have expired, and any such appeal has been determined or withdrawn (except where the court has directed that the execution of a destruction order on welfare grounds should not be delayed) (s 41(1)-(2)).

As with court orders made before any prosecution, the court may give directions on how the animal is to be dealt with during the suspension (s 41(3)). These may include seizure, removal to a place of safety, who is to care for the animal, and any additional powers where necessary (s 41(4)).

In practice

The powers under the Act are much more extensive than those previously available and are likely to make a substantial difference to the investigation and prosecution of animal cruelty cases.

The early intervention measures available to inspectors appointed under the Act, including the powers to enter premises and to seize animals even in the absence of any actual suffering, will require considerable care in their proper and proportionate exercise.

The new court orders that can be applied for on seizure and independently of any prosecution are unlikely to be straightforward in practice and, as with the increased powers on sentencing, are likely to raise a number of competing interests. It may require some time before any consistent approach is discernible.