Post-Conviction Powers

Section 32: Imprisonment or fine

136.     This section prescribes the penalties for offences under the Act. It distinguishes (at subsection (5)) between the penalties available for offences committed before and after the commencement of section 281(5) of the Criminal Justice Act 2003. The new provision for punishment by custodial sentence under the Criminal Justice Act is commonly known as 'custody plus'. It provides for a short term of imprisonment combined with a period of release on licence, the combined periods totalling not more than 51 weeks. Until this provision comes into force, the maximum term of imprisonment for offences under the Act is six months.

137.     The section also ensures that all offences under the Act, or which may be created by regulations under it, are to be dealt with by a magistrates' court.

138.     Subsection (1) sets the maximum penalty for an offence under sections 4, 5, 6(1) and (2), 7 and 8 of the Act (cruelty and fighting offences) as imprisonment for a term not exceeding 51 weeks or a fine of up to £20,000, or both. The option of a very high fine is intended for use in very serious cases.

139.     Subsection (2) sets the maximum penalty for an offence under section 9 (failure to ensure welfare of animals), section 13(6) (carrying on an activity as specified by regulations without a licence or without being registered) or section 34(9) (breaches of disqualifications) as imprisonment for a term not exceeding 51 weeks or a fine up to level 5 on the standard scale (currently £5,000), or both.

140.     Subsection (3) applies to offences under regulations made under sections 12 (for the promotion of welfare) and 13 (licensing and registration) of the Act. Those regulations may prescribe penalties by way of imprisonment or fine. Section 12(4) provides that a maximum term of imprisonment of 51 weeks and a fine up to level 5 on the standard scale (currently £5,000) or both may be set for offences under regulations made under section 12 for the promotion of welfare. The reason for this is that some breaches of section 12 regulations may be the equivalent of a welfare offence under section 9 and warrant the same penalty. Paragraph 9 of Schedule 1, which applies to regulations made under section 13, provides the same upper limit in relation to breach of licence conditions.

141.     Subsection (4) provides that all other offences under the Act attract a maximum penalty of 51 weeks' imprisonment or a fine up to level 4 on the standard scale (currently £2,500), or both. These offences include obstruction of inspectors.

Section 33: Deprivation

142.     The aim of this section is to enable the courts to confiscate an animal from an owner who has been convicted of an offence in relation to that animal. A deprivation order is limited to cases where there is a clearly identifiable animal in respect of which the offence was committed.

143.     In cases where a court has convicted a person of (a) a cruelty offence, (b) a fighting offence, (c) breach of the duty of care in relation to animal welfare, or (d) breach of a disqualification order (i.e. offences under sections 4, 5, 6(1) and 6(2), 7 to 9 and 34(9)), subsections (1), (2) and (3) give the court power to make an order depriving him of ownership of the animals in respect of which the offence was committed, and any dependent offspring of those animals, and to make an order for the disposal of those animals. Disposal in this section includes slaughter of the animal. Deprivation of ownership of animals may be ordered in addition to or instead of other penalties.

144.     Subsection (4) confers ancillary powers to appoint someone to carry out the deprivation order, to require delivery of relevant animals and to confer additional powers on the person appointed to carry out the order, including powers of entry. The offender can also be made to meet the costs of carrying out the order.

145.     Subsection (6) requires a court to give reasons if it decides not to make a deprivation order against a convicted person. By way of exception to this, subsection (7) provides that reasons for not imposing a deprivation order do not have to be given if a disqualification order is made under section 34(1).

146.     Subsection (8) makes it clear that where a person is convicted of an animal fighting offence, the power to make a deprivation order is exercisable in relation to any animal which took part in the fight.

Section 34: Disqualification

147.     Under the Protection of Animals Act 1954 a person convicted of an offence under the Protection of Animals Act 1911 may be disqualified from 'having custody of' specified animals for a specified period. However, it has proved difficult in practice to determine in many cases when a disqualified person 'has custody of' animals, so as to place him in breach of a disqualification order; and this has limited the effectiveness of such orders. Furthermore, the 1954 Act does not give any power to make consequential orders to provide for the welfare of animals kept or owned by a disqualified person nor does it provide for removal of such animals on conviction for breach of the disqualification. The lack of such a power was commented upon by the Court of Appeal in Worcestershire County Council v Tongue (CA 17th February 2004). This section and section 35 are designed to make good this omission.

148.     Subsection (1) confers a power on the court to disqualify a person from doing the things mentioned in subsection (2), (3) or (4) or any combination of those subsections.

149.     Subsection (5) provides that disqualification may be imposed in relation to animals generally or to one or more kinds of animal. Thus a court may, for example, use its discretion under this subsection to disqualify a person who has been convicted of organising dog fights from owning or keeping dogs, but not any other kind of animal.

150.     Subsection (6) allows the court to decide the period which must expire before the person who is the subject of a disqualification order may apply to have it lifted. Under the current law, applications can be made after one year, and every subsequent year thereafter (see further section 43).

151.     Subsection (7) provides for suspension of a disqualification order pending appeal. It also gives the court power to suspend a disqualification order to give the disqualified owner or keeper time to make arrangements for the animal.

152.     Subsection (10) provides that disqualification orders can be imposed for offences including those relating to cruelty, fighting, welfare, operating without a required licence or without registering where this is required and for a breach of a previous disqualification order.

Section 35: Seizure of animals in connection with disqualification

153.     Subsection (1) enables a court to combine a disqualification order with an order that any animals owned or kept by the person disqualified be seized, where continued ownership or possession would put him in breach of the disqualification. Such an order could be made by the court when a person was convicted of any of the offences under the sections relating to cruelty, fighting, welfare or operating without a required licence or without registering where this is required or of a breach of a previous disqualification order.

154.     Subsection (2) deals with the case where a person is disqualified under section 34 from owning or keeping animals and is then convicted of the offence under section 34(9) of breaching the disqualification. It provides for the seizure of all animals that are owned or kept by that person in breach of the disqualification.

155.     A seizure order made under section 35(1) or 35(2) differs from a deprivation order made under section 33(2) in that a deprivation order may only be made against a convicted owner. A seizure order under these subsections may also be made against a person who keeps an animal in breach of a disqualification order.

156.     A further distinction between a seizure order made under section 35(1) or 35(2), and a deprivation order made under section 33(2), is that the former does not involve depriving the owner of his economic interest in it. Unlike an owner who is the subject of a deprivation order, an owner whose animal is seized under section 35 continues to be entitled to any disposal proceeds (less any relevant expenses).

157.     The effect of subsections (3) and (4) is that if an animal seized under subsection (1) or (2) is owned by the disqualified person, it automatically falls to be disposed of. But, if it is not, the court must order how it can be disposed of. Subsection (5) ensures in this case that the owner has a chance to intervene. Subsection (6) enables the owner to appeal against any order for disposal that may be made.

Section 36: Section 35: supplementary

158.     Subsection (1) sets out powers of the court when it makes an order under section 35. These include appointing a person to carry out the order and a power to give directions concerning the carrying out of the order. It can also provide that the owner of the animal or any other person the court thinks fit must reimburse costs incurred, and can confer additional powers, including powers of entry, on the person appointed to carry out the order.

159.     Subsection (2) clarifies the extent of the court's powers to give directions under subsection (1). It includes delegating the decision on the method of disposal to the person appointed by the court under subsection (1).

160.     Subsections (3) and (4) require the court and the person carrying out the order to have regard to protecting the value of the animal and to limiting the costs which may be payable under a reimbursement order under subsection (1)(e). If a reimbursement order is made against an owner for the costs of carrying out a section 35 order, subsection (5) allows the amount to be deducted from any amount due to the owner from sale of the animal.

Section 37: Destruction in the interests of the animal

161.     This section replaces the power previously in section 2 of the 1911 Act.

162.     Subsection (1) gives the court power, where it is persuaded by a vet that it is appropriate in the interests of the animal, to order the destruction of an animal in respect of which a cruelty, fighting or welfare offence under section 4, 5, 6(1) or 6(2), 7, 8(1) or 8(2) or 9 has been committed.

163.     Subsection (2) gives the owner the opportunity to be heard before a destruction order is made, unless the court decides it is not reasonably practicable to communicate with him.

164.     Under subsection (3), the court can make orders relating to practical arrangements for carrying out the destruction order and require the offender or any other person to meet the costs of carrying out the order.

165.     Subsections (4) and (5) confer a right of appeal on the offender or owner (if the owner is not the offender) unless the court considers the welfare of the animal requires it to be destroyed without delay.

Section 38: Destruction of animals involved in fighting offences

166.     Subsection (1) allows the court to order the destruction of fighting animals, otherwise than in the interests of the animal, where there has been a conviction for a fighting offence under section 8(1) or (2). This power is wider than that accorded in section 37, on the basis that there may be circumstances in which it is appropriate to order the destruction of an animal otherwise than in its interests; for example, if the animal is considered to be a danger to public safety. Section 38 is not the only power available to a court to deal with fighting animals, and a fighting animal will not necessarily be subject to a destruction order. This is simply an additional power to ensure the court has sufficient discretion to dispose of animals that have been involved in fights or trained to fight.

167.     Subsection (3) provides that the court can make orders relating to practical arrangements for carrying out the destruction order and require the offender or any other person the court thinks fit to meet the costs of its implementation, including keeping the animal until it is destroyed.

168.     Subsection (4) allows the owner (if different from the person convicted) to appeal the order made under subsection (1).

169.     Subsection (5) provides that destruction orders may be made against any animal which took part in an animal fight, in relation to which any offence under section 8(1) or (2) has been committed.

Section 39: Reimbursement of expenses relating to animals involved in fighting offences

170.     This section provides that a court which has convicted a person of an offence under section 8(1) or (2) can require that person, or another person as appropriate, to reimburse police for expenses they have incurred in looking after an animal involved in that offence. This includes animals that took part in the fight in relation to which the offence was committed.

Section 40: Forfeiture of equipment used in offences

171.     This section gives the court power, where a person is convicted of an offence under sections 4, 5, 6(1) or (2), 7 or 8, to order equipment that it considers to have been used in the offences for which the offender has been convicted to be forfeited and destroyed (or otherwise dealt with).

172.     Subsection (3) provides that a court shall not order the forfeiture of any equipment if the owner, or someone claiming an interest in it, has applied to the court to be heard, and has not already had the opportunity to show cause why the forfeiture order should not be made.

Section 41: Orders under section 33, 35, 37, 38 or 40: pending appeals

173.     Subsection (1) suspends the operation of various orders relating to animals and equipment under the Act until the possibility of a successful appeal has expired. Subsection (3) provides that if an order is suspended under subsection (1), 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.

174.     Subsection (5) provides that costs which a court directs a person to pay will be recoverable as a civil debt.

Section 42: Orders with respect to licences

175.     Subsection (1) provides that where a person is convicted of a cruelty, fighting, or welfare offence, an offence in connection with transferring an animal by way of sale or prize to a person under sixteen, or an offence against regulations made under section 13, the court may cancel his licence and make an order disqualifying him from holding such a licence.

176.     Subsection (3) enables a court to decide the length of time that must expire before the person who is the subject of an order disqualifying him from holding a licence may apply to have it lifted (see further section 43).

Section 43: Termination of disqualification under section 34 or 42

177.     Subsection (1) enables a person subject to a disqualification order under section 34 or 42 to apply to the court for termination of the disqualification, but subsection (2) imposes restrictions on the right to apply. An application cannot be made until one year has elapsed since the disqualification order was made (subsection (2)(a)). Where a previous application for termination of a disqualification order has been made under this section, the application cannot be made until one year after the determination of that application (subsection (2)(b)). In addition to this, applications cannot be made until a period specified by the court under sections 34(6), 42(3) or subsection (5) of this section has elapsed (subsection (2)(c)).

178.     Subsection (3) sets out the court's powers in relation to an application to terminate a disqualification order. The court may terminate the disqualification, make it less onerous, or refuse the application. Subsection (5) provides that, if a court dismisses the application, it may specify a longer period than the period given at subsection (2)(b) in which the offender may not make an application for termination of the disqualification order. The court may also order the applicant to pay all or part of the costs of the application.

179.     Subsection (7) specifies the court to which application must be made.

Section 44: Orders made on conviction for reimbursement of expenses

180.     This section clarifies that where a court makes an order for the care or disposal of an animal under section 33(4)(e), 36(1)(e), 37(3)(e), 38(3)(e) or 39(1), and a person incurs expenses in carrying out that order, their expenses are recoverable as a civil debt. They are not to be treated as a fine imposed on conviction for the purposes of the Magistrates' Courts Act 1980.

Section 45: Orders for reimbursement of expenses: right of appeal for non-offenders

181.     This section provides that where an order for the reimbursement of expenses is made under section 36(1)(e), 37(3)(e), 38(3)(e) or 39(1) against a person other than the person convicted of an offence under the Act, that person will have a right of appeal against the order. The convicted person will already have such a right of appeal by virtue of the Magistrates Courts Act 1980.

Scotland

Section 46: Effect in Scotland of disqualification under section 34

182.     The disqualification provision in section 34 replaces, for England and Wales, that under the Protection of Animals (Amendment) Act 1954 (c.40). Because the 1954 Act extends to Scotland, as well as to England and Wales, the position at present is that a disqualification order made by a court in England and Wales has effect in Scotland. Since section 34 only extends to England and Wales, it is necessary to make further provision in this section to secure the result that disqualification orders made by a court in England and Wales also have effect in Scotland.

183.     Subsection (1) ensures that disqualification orders imposed by courts in England and Wales have effect in Scotland. Subsections (2) and (3) provide that breach of a disqualification order constitutes an offence and set down the penalties that apply. As the 'custody plus' scheme (see section 32) does not extend to Scotland, the maximum prison term there will be six months.

Section 47: Deprivation orders in connection with offence under section 46(2)

184.     This section gives a Scottish court power to deprive a person of ownership or possession (or both) and order disposal of an animal to which a conviction under section 46(2) for breach of a disqualification order relates.

185.     Subsection (2) gives the court power not only to deprive a person of ownership or possession of the animal but also to order that the animal be disposed of, including destruction or sale.

186.     Subsection (6) gives the court ancillary powers when making a deprivation order, such as the power to appoint a person to carry it out, and a power to require the person in possession of the animal to give it up. Subsection (7) provides that these powers may include a provision ordering the convicted person to reimburse the expenses of the person carrying it out, and a provision depriving the convicted person of the proceeds of the animal's disposal.

187.     Subsection (8) stipulates that destruction of the animal may only be ordered where it is in the animal's interests.

Section 48: Seizure orders where disqualification breached: Scotland

188.     This section provides that an inspector may make an application to a court in Scotland for seizure of animals that are being kept in Scotland in breach of a disqualification order made in England and Wales. Unlike under section 47, subsection (2) provides that criminal proceedings for breach of the disqualification need not have been initiated against the person, nor need there be any intention of doing so. However, the court will have to be satisfied that a person owns or is keeping animals in breach of the disqualification order concerned.

Section 49: Appeals against deprivation orders and seizure orders

189.     This section provides the mechanism by which orders made under section 47 or 48 can be appealed and also ensures that no orders made under section 47 or 48, can be given effect until the period for giving notice of appeal against the order or conviction has expired, or if notice of appeal is given, until the appeal has been withdrawn or decided.

190.     Subsection (5) provides for the court to make interim orders in relation to the animal's keeping while the order under section 47 or 48 is suspended.

Section 50: Deprivation orders, seizure orders and interim orders: offences

191.     Subsection (1) makes it an offence to sell or dispose of an animal that is subject to a suspended deprivation order.

192.     Subsection (2) makes it an offence to obstruct a person carrying out a deprivation, seizure or interim order.

General

Section 51: Inspectors

193.     Subsection (1) defines the term "inspector" for the purposes of the Act. An inspector is a person appointed either by a local authority or by the appropriate national authority (either the Secretary of State or the National Assembly for Wales). In practical terms, an inspector of the appropriate national authority is currently likely to be a State Veterinary Service inspector.

194.     Subsection (2) requires local authorities, when appointing inspectors for the purposes of the Act, to have regard to any guidance that may be issued by the Secretary of State or National Assembly for Wales. It is expected that such guidance would, for example, set out relevant criteria (qualifications, experience etc.) for the appointment of inspectors.

195.     Under subsection (3) the Secretary of State or National Assembly for Wales may also issue a list of approved persons who are considered suitable for appointment as inspectors by local authorities.

196.     Subsection (4) provides that a person may be included on the list kept under subsection (3) either for all the purposes of the Act or for limited specified purposes.

197.     Subsection (5) provides immunity for inspectors for actions taken outside their powers, so long as in purporting to act under their powers, they acted reasonably and in good faith.

Section 52: Conditions for grant of warrant

198.     The Act makes provision for warrants in order to obtain entry to premises in a variety of circumstances. A justice of the peace can issue warrants under sections 19(4) (animals in distress), 22(4) (seizure of animals involved in fighting), 23(1) (entry and search for evidence of offences) and 28(4) (inspection of farm premises)

199.     In all of the cases cited above, one of four conditions set out in this section must be met before a magistrate can grant a warrant to allow a constable or inspector to enter. Subsections (4) and (5) apply equally to private dwellings and other premises.

Section 53: Powers of entry, inspection and search: supplementary

200.     This section gives effect to Schedule 2, which sets out supplementary powers and duties relating to powers of entry, inspection or search conferred by the Act, or conferred by warrants under the Act.

Section 54: Power to stop and detain vehicles

201.     Where there is a right of entry for constables and inspectors under the Act, the definition of premises includes vehicles and various moveable structures (see definition in section 62(1)). In order to facilitate searches of this kind, section 54 creates powers to stop and detain vehicles.

202.     Subsection (1) allows a constable, or an inspector if he is accompanied by a constable, to stop and search vehicles to search for animals in distress and gather evidence where there is reasonable suspicion that a relevant offence has been committed. Subsection (3) allows an inspector, if accompanied by a constable in uniform, to stop and detain a vehicle in order to search it in connection with the exercise of his powers of inspection in relation to licensed activities, registration, inspection of farm premises and compliance with EC obligations. These subsections also apply where the constable or inspector is acting under a relevant warrant.

203.     Subsection (2) allows a constable to stop and detain a vehicle for the purposes of seizing an animal used in connection with a fighting offence if he reasonably believes that it contains such an animal or he is acting under a warrant for these purposes.

204.     Subsection (4) provides that the vehicle can be detained for as long as is reasonably required to enable a search or inspection to be carried out (including the exercise of any other related power, e.g. to take tests or samples).

Section 55: Power to detain vessels, aircraft and hovercraft

205.     Subsection (1) provides that a vessel can be detained in port if an inspector believes that an offence is being or has been committed on board. He must put his reasons in writing. He must present a copy of this as soon as practicable to the person in charge of the vessel (subsection (4)).

206.     Subsection (3) allows the detention of the ship to be enforced. Section 284 of the Merchant Shipping Act 1995 provides various penalties should the ship leave port before it has been granted permission to do so.

207.     Subsection (6) allows the Secretary of State or National Assembly for Wales to make regulations extending this section to aircraft or hovercraft, or to make other provision for detaining aircraft or hovercraft that they consider appropriate.