Section 11: Transfer of animals by way of sale or prize to persons under 16

61.      Subsections (1) and (2) prohibit vendors from selling animals to any person under 16 in circumstances where they have reasonable cause to believe that the person is under 16. The prohibition applies equally to the direct sale of an animal and to any indirect sale that may accompany an otherwise legal transaction. The section extends the scope of the existing offence in section 3 of the Pet Animals Act 1951, which prohibits the sale of pet animals to children under 12.

62.     Subsections (3) and (4) make it an offence to enter into an arrangement with a person reasonably believed to be under 16, who is not accompanied by an adult, whereby an animal is to be won as a prize, except in the circumstances specified.

Section 12: Regulations to promote welfare

63.     Section 12 enables the Secretary of State and the National Assembly for Wales to make regulations to promote the welfare of animals for which a person is responsible, or the progeny of such animals. Those regulations made by the Secretary of State will be subject to affirmative resolution in Parliament. Including the progeny of animals in this regulation-making power enables regulations to be introduced governing animal breeding that protect the offspring as well as the parent animal.

64.     Subsection (1) creates a general power to make regulations for the purpose of promoting the welfare of animals for which a person is responsible.

65.     Subsection (2) provides a non-exhaustive list of purposes for which the regulation-making power in subsection (1) may be exercised. This includes power to make regulations specifying how people responsible for animals should meet their animals' needs (section 62(5) provides that an "animal's needs" are to be understood as including those set out in section 9(2)).

66.     Subsection (3) authorises the appropriate national authority to make it an offence to breach specified provisions of the regulations and confers associated powers. The power to apply a "relevant post-conviction power" in relation to conviction for an offence under the regulations enables the regulations to provide that conviction for certain offences will have certain consequences. For example, the regulations could provide that, on conviction for breach of a specified regulation, the court should have power to disqualify a person from owning animals under section 34. The phrase "relevant post-conviction power" is defined at section 62(6).

67.     Subsection (6) imposes a duty on the Secretary of State and the National Assembly for Wales to consult interested parties before introducing regulations under this section.

Licensing and registration

Section 13: Licensing or registration of activities involving animals

68.     Under subsection (1) regulations made for the purpose of promoting animal welfare may require certain animal-related activities to be licensed by the local authority or appropriate national authority. At present, licensing regimes contain many identical or similar provisions and are to be found in a variety of statutes and secondary legislation.

69.     Under subsection (3) activities may be subject to a registration rather than a licensing requirement. The registration procedure would be used in cases where it is necessary for the enforcement authority to know of the existence and location of organisations or individuals who are keeping specific animals or carrying on particular activities, but where the additional controls and costs of a licensing regime are either unnecessary or would be unduly burdensome.

70.     Subsection (5) provides that licensing and registration requirements may only be introduced for the purposes of promoting the welfare of animals for which a person is responsible, or the progeny of those animals.

71.     Subsection (6) provides that it is an offence to carry on an activity for which a licence or registration is required without being licensed or registered. Schedule 1 makes further provision about licensing and registration under this power; see the relevant explanatory note.

72.     Subsection (7) enables the Secretary of State or the National Assembly for Wales to set out the regimes introducing a licence or registration requirement in regulations. As now, licensing and registration will normally be the responsibility of the local authority, though under the Act it would be possible in principle to fulfil this function centrally. Regarding entry and inspection in connection with licensed and registered activities, see the explanatory notes for sections 25 to 27.

73.      Subsection (8) enables the Secretary of State or National Assembly for Wales to repeal the provisions of existing Acts that impose licence or registration requirements relating to activities involving animals. Other provisions of the relevant Acts which assume the existence of the licence or registration requirement may be consequentially repealed (see paragraph 19(2) of Schedule 1). The power will be exercised where it is decided to replace provision for licensing or registration in an existing Act with provision for licensing or registration in regulations. The power will also enable provision for licensing or registration in an existing Act to be repealed without replacement should that be considered appropriate.

74.     Subsection (9) imposes a duty on the Secretary of State and the National Assembly for Wales to consult interested parties before introducing regulations under this section.

Codes of practice

Section 14: Codes of practice

75.     Codes of practice are already widely used to promote the welfare of farmed animals and the Act extends their use to non-farmed animals.

76.     Codes provide non-binding guidance - agreed by Parliament after appropriate consultation - that enforcers and the courts can refer to when making judgements on whether the relevant welfare standards stipulated in the Act have been attained. Owners and keepers of animals may also find the codes a useful resource by which to increase or confirm their understanding of acceptable welfare standards and to regulate their conduct accordingly.

Section 15: Making and approval of codes of practice: England

77.     Subsections (1) to (4) of section 15 provide that codes of practice shall only be issued following consultation with interested parties and subject to a negative parliamentary procedure whereby the code is laid before parliament in draft, and cannot be issued if the draft is disapproved within 40 days.

78.     Subsection (5) makes provision for the commencement of codes of practice.

Section 16: Making of codes of practice: Wales

79.     In relation to animals kept in Wales, the power to make codes of practice lies with the National Assembly for Wales in accordance with its own procedures. Similar consultation procedures must be followed in Wales as in England before the code is adopted. The code will state the date on which it comes into force.

Section 17: Revocation of codes of practice

80.     Codes of practice may be revoked by the Secretary of State or the National Assembly for Wales by order.

81.     Section 61 subsections (3) to (5) provide that where a code is revoked without being replaced, a draft of the instrument containing the revocation order must be laid before Parliament.

Animals in distress

Section 18: Powers in relation to animals in distress

82.     This section authorises an inspector or police constable who finds a protected animal that is suffering to take those steps that need to be taken immediately to alleviate the animal's suffering (see section 2 for the definition of "protected animal" and section 51 for the definition of "inspector"). Powers of entry are conferred by section 19. Section 18 is wider than the power in the Protection of Animals Act 2000 (which this Act repeals) in three ways. First, the power is available even if no proceedings have been commenced. Secondly, it is not restricted to animals kept for commercial purposes. Thirdly, it allows inspectors to take into possession not only animals which are suffering but also those which are likely to suffer if action is not taken.

83.     Under subsection (3), where an animal is suffering to such an extent that there is no alternative but to kill it and a veterinary surgeon issues a certificate to that effect, the enforcement authority (an inspector or police constable) may kill the animal or arrange for it to be killed either where it is or elsewhere, or arrange for those steps to be taken by someone else.

84.     Subsection (4) allows an inspector or constable to kill an animal without waiting for a vet. This only applies where the animal is suffering to such an extent that there is no alternative but to kill it immediately.

85.     Subsection (5) authorises an inspector or constable to take a protected animal into possession where a veterinary surgeon certifies that it is suffering or is likely to suffer.

86.     Subsection (6) authorises the inspector or constable to do the same without the certificate of a veterinary surgeon in an emergency.

87.     Subsection (7) ensures that where an animal taken into possession under subsection (5) has dependent offspring, those offspring can be taken into possession along with it. This ensures that even if the offspring are not themselves suffering or likely to suffer, they can still be taken with the parent.

88.     Subsection (8) gives an inspector or constable a right to remove the animal to a place of safety. They also have the power to care for the animal either on the premises where it was being kept or elsewhere. This subsection also allows an animal to be marked so it can be identified, for example if it is being kept with similar animals. Any method used to mark the animal would have to be compatible with the ban on mutilations in section 5 of the Act, and any regulations made under section 5(4).

89.     Subsection (10) gives a vet the power to examine and take samples (such as blood or urine) from an animal so that he can decide if it should be killed or taken into possession.

90.     Subsection (11) requires an inspector or constable as soon as reasonably practicable to take such steps as are reasonable in all the circumstances to notify the person responsible for the animal that he has taken action under section 18 in relation to that animal. This obligation is only engaged where the inspector or constable acts otherwise than with the knowledge of the person responsible for the animal.

91.     Subsection (13) allows a person to apply to the court for an order to reimburse him for expenses he incurs when acting under this section. The court can make an order against the person it considers most appropriate. Subsection (14) allows the person against whom such an order is made to appeal.

Section 19: Powers of entry for section 18 purposes

92.     This section confers powers of entry for the purposes of section 18. It authorises an inspector or police constable to enter onto premises to deal with a protected animal that is believed to be suffering or likely to suffer if remedial action is not taken. Obstruction of a person exercising such a power is an offence (paragraph 16 of Schedule 2).

93.     Subsection (1) confers a power to enter to search for a suffering animal which the constable or inspector reasonably believes to be there.

94.     Subsection (2) provides that the power of entry does not extend to any part of premises which is used as a private dwelling. For example, an inspector could enter the parts of a building used as an office but not those parts which are used for residential purposes unless he first obtains a warrant from a justice of the peace under subsection (4).

95.     Subsection (3) authorises the use of reasonable force to effect entry without a warrant, where entry is needed urgently before a warrant can be obtained, for example if an animal is suffering so much that it would be inappropriate to delay. Where there is no such urgency, if force is required to gain entry, a warrant must be obtained from a justice of the peace, as provided for by subsection (4).

96.     Subsection (5) sets out the criteria that an application must meet before a justice of the peace may grant a warrant. There must be reasonable grounds for believing that there is a protected animal on the premises, that is either suffering or likely to do so, and one of the four conditions in section 52 must be met.

Section 20: Orders in relation to animals taken under section 18(5)

97.     Where an animal has been taken into possession under section 18(5) and the animal is being retained, this section enables a magistrates' court to make an order for the treatment, giving up, disposal or destruction of the animal.

98.      Subsection (1) provides that the court can make an order relating to the treatment, giving up, sale, disposal or destruction of the animal. If a person responsible for an animal considers it was wrongly taken into possession under section 18(5), he could apply under section 20(1)(b) to have the animal returned.

99.     In subsection (1)(a) 'treatment' is intended to cover significant interventions such as castration. Routine day-to-day treatment such as worming or routine veterinary attention is considered to be caring for the animal as set out in section 18(8)(b).

100.     Subsection (2) provides that orders made under subsection (1) can also apply to the offspring of an animal that was pregnant at the time it was taken into possession under section 18(5).

101.      Subsection (3) enables an application to be made to the court for an order under subsection (1), either by the owner of the animal taken into possession or by another person with a sufficient interest in the animal. The court has the discretion to make any order under subsection (1) that it considers appropriate, including an order other than that applied for. For example, the court could hear an application for sale under section 20(1)(c), but determine that the animal should be returned to its owner under section 20(1)(b).

102.     Subsection (4) provides that an order cannot be made unless either the owner has been given an opportunity to be heard, or the court is satisfied that it is not reasonably practical to communicate with him.

103.     Subsection (5)(b) enables the court to make directions for carrying out an order under subsection (1).

104.     Subsection (6) provides that the court, when deciding how to exercise its powers under the section, must consider the financial effect the decision will have on the owner of the animal and on others.

105.      Subsection (8) provides that, where a court orders that the animal taken into possession under section 18(5) be sold, the proceeds of the sale to which the owner is entitled are to be reduced so as to take account of the expenses incurred by the person who seized or cared for the animal under section 18(5), and the expenses incurred by any person carrying out the order for sale.

     Section 21: Orders under section 20: appeals

106.     Where a court has made an order under section 20(1) in relation to an animal, section 21(1) allows the animal's owner to appeal to the Crown Court against the order.

107.     Subsection (2) suspends the operation of orders made under section 20(1) until the possibility of a successful appeal has expired. Subsection (3) provides that if an order is suspended under subsection (2), the court may, nevertheless, give directions as to how the animal(s) should be dealt with during the suspension. Subsection (4) gives examples of the kinds of directions the court may give under subsection (3)(b) to provide for the animal's welfare pending the determination of the appeal.

108.     Subsection (5) also allows the animal's owner a right of appeal where the court has refused to grant an order which he has applied for. So if the court, for example, refuses to return the animal, the owner can appeal against that decision.

109.     Subsection (6) provides that a person against whom an order for the reimbursement of expenses is made under section 20(5) shall also have a right of appeal to the Crown Court.

Enforcement Powers

Section 22: Seizure of animals involved in fighting offences

110.     This section confers on a police constable power to take possession of an animal in relation to which an offence under section 8(1) or (2) has been committed. The use of this power would ensure that a seized animal could not be involved in further fighting offences. The provision will also improve the chances of enforcing a deprivation or destruction order upon conviction. The Police (Property) Act 1897, which provides that a court may order the return of property seized by the police on application by the owner, will apply to animals seized under this power. This will achieve the same outcome as an order under section 20(1)(b) would for an animal seized under section 18(5).

111.     The effect of subsections (3) to (5) is that the power contained in subsection (1) may be exercised in relation to parts of premises used as a private dwelling only if a justice of the peace has issued a warrant authorising entry to them.

112.     Subsection (5) provides that, before a justice of the peace issues a warrant, he must be satisfied that there are reasonable grounds for believing that an animal used in connection with a fighting offence is to be found on the premises. One of the four conditions set out in section 52 must also be met.

113.     Subsection (6) provides that the power to seize extends to any animal which took part in the fight in relation to which an offence under section 8(1) or (2) has been committed. So, where an offence under section 8(2) is reasonably suspected, for example, the power to seize extends to the animals used in the fight at which the person was present.

Section 23: Entry and search under warrant in connection with offences

114.     This section provides that a justice of the peace may issue a warrant authorising an inspector or a constable to enter premises to search for evidence of offences relating to cruelty, mutilations, tail docking, administration of poisons, fighting, welfare, carrying out relevant activities without a licence or registration, or breaching a disqualification imposed under section 34 (these offences are listed in subsection (3)).

115.     Paragraph 10 of Schedule 2 confers a number of additional powers on a person exercising a power of entry under a warrant under this section. The effect of paragraph 14 of the Schedule is that a warrant authorises a person to use reasonable force in the exercise of those additional powers. Note that paragraph 1 of the Schedule imposes a number of safeguards in relation to warrants under the Act.

Section 24: Entry for purposes of arrest

116.     This section adds the most serious offences under this Act (those in sections 4, 5, 6(1) and 6(2), 7 and 8(1) and 8(2)) to the list of offences in section 17(1)(c) of the Police and Criminal Evidence Act 1984. This ensures the police have power to enter and search premises for the purposes of effecting an arrest in connection with these offences.

Section 25: Inspection of records required to be kept by holder of licence

117.     Subsection (1) enables an inspector to require that the holder of a licence, granted under regulations made under section 13, produce any records that he is required to keep by a condition of a licence.

118.     Subsection (2) deals with records stored electronically, for example on a computer. In this case, the inspector may require records to be printed or to be saved onto a disc or similar device. This is to enable them to be taken away and considered without removing the computer on which they are stored.

Section 26: Inspection in connection with licences

119.     This section concerns powers of inspection in relation to activities for which it is necessary to obtain a licence under section 13(1). It provides that routine inspections may be carried out to check that licence conditions are being complied with. Currently, in relation to some activities that require a licence, inspections can only be made when inspectors suspect an offence has been committed.

120.     Subsection (1) sets out the purposes for which the power of inspection may be exercised. Inspectors can check that any licence conditions are being complied with. They are also able to check that the general requirements of the Act and any secondary legislation made under it are also being complied with.

121.     Subsection (2) confers powers to enter and inspect licensed premises and premises where the inspector reasonably believes a licensed activity is going on. In both cases, the inspector may enter a private dwelling only if he gives 24 hours' notice (subsection (3)).

122.     There is no power for an inspector to apply for a warrant under this section. Powers to apply for a warrant to enter will be available elsewhere in the Act if the inspector reasonably believes that an animal in distress is to be found on the premises (under section 19(4)) or if he reasonably believes an offence has been committed on the premises (under section 23(1)). Other than in these situations, secondary legislation under which the licensing regimes are adopted will give an inspector the power to revoke a licence, or amend its conditions, should a request to enter premises in order to carry out an inspection be unreasonably refused.

Section 27: Inspection in connection with registration

123.     This section concerns powers of inspection in relation to activities for which it is necessary to register under section 13(3).

124.     Subsection (1) provides that inspections may be carried out to check compliance with any provision in the Act or in secondary legislation relating to an activity for which registration is required.

125.      Subsection (2) confers powers on an inspector to enter premises if he reasonably believes that someone who is registered to carry on an activity is carrying on the registered activity there.

126.     A private dwelling may only be entered if 24 hours' notice is given (subsection (3)).

Section 28: Inspection of farm premises

127.     This section allows inspectors to enter and inspect farm premises in order to check compliance with regulations made under the Act and in order to ascertain whether an offence under the Act has been committed.

128.     Subsection (2) enables an inspector to enter premises to carry out an inspection if he reasonably believes that animals are bred or kept there for farming purposes.

129.     The effect of subsections (3) and (4) is to prohibit entry into any parts of premises used as private dwellings, other than on the authority of a warrant issued by a justice of the peace. They also enable an inspector to use reasonable force to secure entry to premises if a warrant authorises this.

130.      Paragraph 10 of Schedule 2 confers a number of additional powers on a person exercising a power of entry under a warrant under this section. The effect of paragraph 14 of the Schedule is that a warrant authorises a person to use reasonable force in the exercise of those additional powers. Note that paragraphs 2 and 3 of the Schedule impose a number of safeguards in relation to warrants under section 28(4).

Section 29: Inspection relating to Community obligations

131.     This section provides a power for inspectors to enter and check compliance with regulations under section 12 made in order to comply with European Community obligations. This power mirrors a power contained in the Animal Health Act 1981. It does not extend to any parts of premises used as private dwellings (subsection (3)).

Prosecutions

Section 30: Power of local authority to prosecute offences

132.     The right to launch private prosecutions derives from the common law. This Act does not limit that right in respect of offences committed under this Act. In addition, local authorities are given a power to prosecute offences under the Act.

Section 31: Time limits for prosecutions

133.      Under the existing law, which requires that a prosecution be commenced within 6 months of the date of the offence being committed, it has sometimes proved difficult to prosecute for cruelty to animals when evidence of the offence has not been discovered until some considerable time after the offence was committed. For example, if a recording of an animal fight was discovered and the enforcer wished to bring a prosecution under section 8(1).

134.     Subsection (1) authorises prosecutions to be commenced within three years of the date the offence was allegedly committed, in the rare circumstance where evidence of the alleged offence has not come to light within the usual six month time limit, provided the proceedings are brought within six months of the date when sufficient evidence to mount a prosecution comes to the prosecutor's knowledge.

135.     Subsection (2) provides that if a prosecutor certifies the date on which he learnt of the relevant evidence, that date shall be the starting point for calculating the period within which proceedings must be commenced.