Section 11 - Livestock genotypes: specification, breeding and slaughter

69.     Section 11 of the Act (inserting Part 2B into the 1981 Act) deals with Transmissible Spongiform Encephalopathies (TSEs). A TSE is a disease which causes changes to the brain and nervous system of an animal leading to death. Whilst scientific knowledge in relation to genetic control of TSEs is limited to sheep at the present time, section 11 provides power to deal with TSEs in other species of livestock (a definition is given in section 36X of Part 2B) if necessary and where scientifically possible.

70.     There is presently no vaccine or cure for TSEs. It is currently possible to identify whether sheep are naturally resistant or susceptible to Scrapie (a TSE of sheep and goats) by testing a blood sample or tissue containing the animal's DNA and thereby discovering its genotype which is the genetic constitution of an organism. Control of TSEs in sheep is possible by selective breeding to increase the levels of natural genetic resistance. The provisions of Part 2B will enable similar steps to be taken for other livestock species as scientific knowledge increases.

71.     The new Part 2B of the 1981 Act provides powers to: specify TSE susceptible livestock genotypes; ascertain, by sampling, genotypes and identify livestock; place restrictions on breeding; review the above restrictions; enforce the restrictions if not complied with; slaughter livestock susceptible to TSEs; gain entry to premises; and to pay compensation compulsorily in certain circumstances. It also makes it an offence to fail to comply with restrictions or requirements without reasonable excuse, or to do certain other things.

72.     Section 36N allows the Scottish Ministers by order to specify livestock genotypes if they are satisfied that an animal of a particular livestock genotype has (or has had) a form of TSE (whether in Scotland or elsewhere). If it is appropriate they may also specify the form of TSE concerned. It is envisaged that this power would be used where an outbreak of TSE had occurred and it was known that a particular livestock genotype was susceptible to that TSE.

73.     Section 36O provides Scottish Ministers with regulation making powers, by statutory instrument, to make provision requiring keepers of livestock to allow an inspector to obtain a sample from an animal to enable its genotype to be identified, to administer or otherwise attach an identification device to a livestock species and to make record keeping requirements.

74.     Section 36P applies to livestock whose genotype has been specified under section 36N. Restriction notices, applicable to the circumstances of the case, may be issued to prevent the using of livestock, its semen, eggs or embryos in connection with breeding. The semen, eggs or embryos must be destroyed. The owner must arrange for the creature to which the notice applies to be castrated, sterilised or slaughtered. This will enable a breeding programme to be set up where livestock would be used to produce offspring which are resistant to TSEs. The Scottish Ministers, under certain exceptional circumstances, may allow breeding with more susceptible genotypes if for example the breed is in danger of extinction.

75.     Section 36Q makes provision for persons in receipt of a restriction notice to request a review of the restriction notice.

76.     Section 36R applies if the Scottish Ministers are satisfied that an owner has not complied either entirely or in part with a restriction notice except where a review under section 36Q is still ongoing or has been successful. The Scottish Ministers may take such reasonable steps as they consider appropriate to secure compliance. In particular they may cause to be destroyed eggs, semen or embryos and may also have livestock castrated, sterilised or slaughtered.

77.     Section 36S makes it an offence for a person to: sell or transfer livestock, semen, eggs or embryos to which a notice applies; fail without reasonable excuse to comply with a restriction notice; use any semen, eggs or embryos which the person knows, or ought reasonably to know, to have been taken from livestock to which a restriction notice applies; fail, without reasonable excuse, to comply with any provision of regulations made under section 36O; or fail to give an inspector such assistance or information as the inspector may reasonably request in connection with the exercise by the inspector of any of the inspector's functions under this Part. Where the person seeks to rely on the defence of excuse the onus is put on that person to prove - on balance of probabilities - the facts which underpin that defence.

78.     Section 36T provides that the Scottish Ministers may cause to be slaughtered, with a view to preventing the spread of any form of TSE, livestock whose genotype has been specified by virtue of section 36N in relation to the form of TSE concerned. The Scottish Ministers may also cause to be slaughtered, to prevent the spread of any form of any TSE, livestock whose genotype has not been ascertained either due to matters of urgency or that the science does not enable the genotype to be identified.

79.     Section 36U provides for an inspector to enter premises to ascertain whether a function of the Scottish Ministers or inspectors, conferred under Part 2B, should be exercised or to do anything in pursuance of or in connection with the exercise of that function. Inspectors must if required produce evidence of their authority to do this. Any power of entry must be exercised at a reasonable hour unless the inspector thinks the case is one of urgency (see section 62G(6)) and in relation to the power to enter premises used exclusively as a dwelling house, 24 hours' notice of the intended entry is to be given unless the case is one of urgency (see section 62G(5)). The provisions of section 62H (warrants) and section 62I (entry and warrants: supplementary) (see below) also apply to this power of entry.

80.     Section 36V provides for the paying of compensation (by order, subject to negative resolution of the Scottish Parliament) for livestock slaughtered and property which has been destroyed by virtue of the restriction notice or by virtue of section 36R or livestock slaughtered by virtue of section 36T(1). The order may make different provision for different cases or classes of case.

Section 12 - Powers of entry etc.

81.     Section 12 inserts new sections 62G (Powers of entry etc.: Scotland), 62H (Warrants) and 62I (Entry and warrants: supplementary) into the 1981 Act. In order to prevent or limit a fast spreading animal disease, it may be necessary to enter land or premises to take action. Entry may be necessary as a matter of urgency because of the nature of the disease.

82.     The 1981 Act contains a number of powers relating to the entry of land or premises.

83.     Section 62G provides an explicit power of entry for the purpose of ascertaining whether a power to slaughter, conferred by or under any provision mentioned in subsection (3), should be exercised or doing anything in pursuance of, for the purpose of, or in connection with, the exercise of that power. In relation to the power to enter premises used exclusively as a dwelling house, 24 hours' notice of the intended entry is to be given unless the case is one of urgency.

84.     Section 62H makes provision for the issuing of warrants by a sheriff or justice of the peace and the conditions which must be satisfied to obtain a warrant. Where the conditions are satisfied a sheriff or justice of the peace may issue a warrant authorising an inspector appointed or authorised by the Scottish Ministers to enter, if necessary using reasonable force, any premises to ascertain whether a function conferred on the Scottish Ministers or an inspector by or under the 1981 Act should be exercised or doing anything in pursuance of, or in connection with, the exercise of that function. A warrant must be executed at a reasonable hour unless the inspector thinks the case is one of urgency.

85.     Section 62I contains supplementary provisions where an inspector enters any premises under the powers conferred by or under the 1981 Act or under a warrant under section 62H including the provision that the inspector may take such persons or equipment as the inspector considers necessary. It also includes a provision for the inspector to require assistance by any person on the premises as detailed in subsection (4). If the inspector enters any unoccupied premises the inspector must leave the premises as secure as the inspector found them.

Section 13 - Inspection of vehicles

86.     Section 13 (inserting section 65B into the 1981 Act) provides a power to enable an inspector who is accompanied by a constable in uniform to stop, detain and inspect any vehicle within an infected place or area (as declared by an order made under section 17 of the 1981 Act) to ascertain compliance with any provision under the 1981 Act, any order made under the 1981 Act, any regulation of any local authority made under an order, or any regulations of the Scottish Ministers under that Act. This power would be used as necessary to help ensure containment of a fast spreading disease.

Section 14 - Penalties and time limits

87.     Section 14 of the Act (substituting section 75 of the 1981 Act) revises and brings up-to-date the penalties (financial and/or custodial) for existing animal health offences committed under the 1981 Act and for the new offences detailed in the Act where a penalty is not specified by any other provision of the 1981 Act.

88.     Subsection (2) provides that a person who commits an offence is liable on summary conviction to imprisonment up to 6 months or to a fine up to level 5 (currently £5000) on the standard scale or to both.

89.     Subsection (3) extends the time limits within which prosecutions for offences under the 1981 Act can be brought. It provides that proceedings may be brought within the period of 6 months from the date on which evidence of that offence came to the knowledge of the prosecutor, provided this is within 3 years of the date on which the offence was committed (subsection (4)).

90.     Subsection (5) provides clarification in the case of continuous contravention. Subsection (6) explains when proceedings are to be deemed to have started

Section 15 - Electronic communication

91.     Section 15 widens certain provisions in the 1981 Act, that are specified in subsection (3), so that a requirement for something to be done in writing may be met by using a document that is transmitted by electronic means and capable of being reproduced in legible form. However, in relation to the provisions specified in subsection (4), electronic communications are only permissible if the recipient has consented to receive the electronic communication for the relevant purpose, and an email address is provided by the recipient. Subsection (5) provides that, in respect of certain sections of the 1981 Act, a document sent electronically is taken only to be received on the day after the day of its transmission. Subsection (6) provides that Scottish Ministers may, for the purposes of the 1981 Act, by order make further provision for using electronic communication, including the use of electronic signatures, and for using documents in electronic form. Such an order is subject to negative resolution of the Scottish Parliament.

PART 2 - ANIMAL WELFARE

Section 16 - Animals to which this Part applies

92.     This section provides the definition of "animal" for the purposes of Part 2 of the Act, and thereby defines the living species which enjoy the protection afforded by Part 2. This is necessary at the outset as the definition of the term "animal" can potentially be extremely wide. For example, a zoologist might classify a microbe as an "animal". For the purposes of this Part the term "animal" means a vertebrate other than man. Therefore insects, for example, are not "animals" for the purposes of this Part.

93.     It should be noted that, by virtue of section 47, Part 2 of the Act does not apply in relation to anything which occurs by virtue of, or in accordance with, the Animals (Scientific Procedures) Act 1986 (the subject matter of which is reserved to the UK Parliament), or to anything which occurs in the normal course of fishing.

94.     Subsection (2) provides that the provisions in Part 2 do not apply to an animal whilst it is in its foetal or embryonic form.

95.     Subsection (3) provides that the Scottish Ministers will be able to make regulations to change this definition so that it can be extended to include invertebrates of any description or an animal at an earlier stage of its development.

96.     Subsection (4) provides that the Scottish Ministers can only invoke the power to extend the definition once satisfied, on the basis of scientific evidence, that other creatures are capable of experiencing pain or suffering. This approach will enable the definition to be amended in line with scientific developments and knowledge, and without recourse to primary legislation.

97.     Subsection (5) imposes a duty on the Scottish Ministers to consult interested persons before introducing regulations to amend the definition of animal under this section.

Section 17 - Protected animals

98.     Animals that are not of a kind commonly domesticated in the British Islands are only "protected animals" if they are under the control of man or are not living in a wild state. The term "not living in a wild state" is intended to cover circumstances where a non-native captive animal escapes. This would cover, for example, a penguin escaping from a zoo. The penguin would not be commonly domesticated in the British Islands, nor would it be under the control of man (as it had escaped). However, although it had escaped, it would not be living in a "wild state" and therefore would continue to be considered as a "protected animal".

Section 18 - Responsibility for animals

99.     The welfare provisions of the Act distinguish between the duties owed towards an animal by the man in the street and the duties owed by a person who is responsible for an animal. Naturally, the duties of the responsible person are greater. In order that it is clear whether a person is responsible for an animal or not, section 18 makes specific provision as to who is the person "responsible" for an animal for the purposes of the animal welfare provisions of the Act.

100.     Responsibility for an animal is only intended to arise where a person can be said to have assumed responsibility for its day-to-day care, or for a specific purpose, or by virtue of owning it. The owner is always to be regarded as responsible for an animal. But, in addition, a person who is in charge of the animal is also responsible for it. This applies whether the person owns or is in charge of the animal on a temporary or permanent basis. If an animal is abandoned, the person responsible for it continues to be responsible for the animal even after it has been abandoned.

101.     Where a person under 16 years of age is responsible for an animal, the person who has care and control of that young person is also responsible for their animal (subsection (4)). This seeks to ensure that an adult can normally be identified as a person responsible for an animal.

102.     As noted above, responsibility for animals is a key concept in the welfare provisions, particularly in determining a person's duties in relation to sections 19 (unnecessary suffering), 20 (mutilation), 21 (cruel operations) 22 (administration of poisons etc.), 24 (ensuring the welfare of animals), 25 (care notices) and 29 (abandonment). Similarly, the regulation-making power in section 26 (provision for securing welfare) can be exercised only in relation to animals for which a person is responsible. The same is true for the provisions allowing for the making of regulations about licensing and registration under section 27.

Section 19 - Unnecessary suffering

103.     This section sets out the circumstances in which a person who causes a protected animal to suffer commits an offence. Unnecessary suffering can be caused in two ways: either by taking action which causes unnecessary suffering, or by failing to take steps to prevent unnecessary suffering. The concept of "unnecessary suffering" is central to the legal definition of cruelty and was previously included in the Protection of Animals (Scotland) Act 1912 ("the 1912 Act"). The infliction of pain, even if extreme, is not in itself sufficient to constitute unnecessary suffering, as pain may be caused for beneficial reasons such as in surgery or medicine. Therefore, consideration must be given to whether pain or suffering is necessary.

104.     Subsection (1) provides that it will be an offence for any person, by an act, to cause unnecessary physical or mental suffering to a protected animal where the person committing the act knew or ought reasonably to have known, that the act would cause, or would be likely to cause, suffering.

105.     Subsection (2) provides that a person who is responsible for an animal commits an offence if, by an act or omission, that person causes unnecessary suffering to their animal and the person responsible for the animal knew or ought reasonably to have known that the act or omission would cause, or would be likely to cause, suffering. It will not be necessary to show that an accused person actually knew that their act or omission would cause suffering, but only that they ought reasonably to have known.

106.     Subsection (3) provides that a person who is responsible for an animal commits an offence if they let another person cause their animal to suffer unnecessarily, either by an act or by an omission, and the person responsible for the animal actively permits that to happen, or fails to take reasonable steps to prevent it from happening.

107.     Subsection (4) sets out a non-exhaustive list of considerations to which the courts are to have regard in determining whether suffering is unnecessary. These considerations include whether the suffering could reasonably have been avoided or reduced, compliance with any relevant enactment, licence or code of practice issued on a statutory basis, the purpose of the conduct, the proportionality of the suffering to the purpose, and whether the conduct was that of a reasonably competent and humane person.

108.     Subsection (5) provides that nothing in this section applies to the appropriate and humane destruction of an animal. However the infliction of suffering over and above that necessarily caused by appropriate and humane destruction is not exempt.

Section 20 - Mutilation

109.     This section prohibits the mutilation of any protected animal unless the purpose of the mutilation is medical treatment or the procedure is one carried out in accordance with regulations made by Scottish Ministers or in circumstances specified by Scottish Ministers Subsection (6) imposes a duty on the Scottish Ministers to consult interested persons before making regulations under this section.

110.     Subsection (3) makes it an offence to take (or cause another person to take) a "protected animal" from Scotland for the purpose of having a "prohibited procedure" undertaken.

111.     Prohibited procedures are those which involve interference with the sensitive tissues or bone structure of the animal, for example, tail docking, castration and dehorning. Subsection (5)(b) provides that this section does not apply to certain procedures to be specified in regulations. It is intended that normal farming practices (such as castration of lambs) will be permitted under regulations made under this section.

112.     The definition of "prohibited procedure" in subsection (4) is based on the definition of "mutilation" adopted by Royal College of Veterinary Surgeons.

Section 21 - Cruel operations

113.     This provision supersedes section 1(1)(e) of the 1912 Act. Subsection (1) makes it an offence for a person to perform an operation on a protected animal without due care and humanity. Whilst it is difficult to envisage circumstances in which such an offence would be prosecuted except where it appeared that an animal had suffered, it is not necessary to prove that the animal suffered to establish the commission of the offence.

114.     Subsection (2) provides that if a person who is responsible for an animal permits another person to perform an operation on that animal without due care and humanity or fails to take reasonable steps to prevent that from happening, then an offence is committed. Subsection (3) states that this section is subject to the Protection of Animals (Anaesthetics) Act 1954 (see amendment to Protection of Animals (Anaesthetics) Act 1954 in schedule 2 to the Act).

Section 22 - Administration of poisons etc.

115.     This section makes it an offence for a person, without lawful authority or reasonable excuse, knowing a drug or substance to be poisonous or injurious to administer it to a protected animal, or to cause such a drug or substance to be taken by a protected animal.

116.     Subsection (2) makes it an offence for a person who is responsible for an animal to permit another person to administer a poisonous or injurious substance or drug to that animal, or to cause such a substance or drug to be taken by that animal unless that person has lawful authority or reasonable excuse. Where a person knows a drug or substance to be injurious or poisonous that person must take reasonable steps to prevent any other person administering to any animal, for which the first person is responsible, that drug or substance or causing that drug or substance to be taken by that animal.

117.     Under this section it is not necessary to show that the animal did in fact suffer as a result of the prohibited action in order to establish liability. But it is necessary to show that the person accused of the offence knew the poisonous or injurious nature of the substance administered to, or taken by, the animal.

118.     By virtue of subsection (3), subsections (1) and (2) apply in cases where substances that are otherwise harmless have been administered in a harmful quantity or by a harmful method.

Section 23 - Animal fights

119.     This section creates specific offences in relation to animal fights. In the 1912 Act provisions relating to animals fights were subsumed under the general heading of "offences of cruelty". It is intended that anything done by a person in connection with an animal fight which would amount to a criminal offence under the existing law, will continue to amount to a criminal offence under the new provision.

120.     The offences under section 23 replace the offences under section 1(1)(c), 1A and 1B of the 1912 Act.

121.     Subsections (1) and (2) penalise various forms of involvement in animal fights. The majority of the specific offences contained in the 1912 Act such as advertising a fight, allowing premises to be used, and accepting money for admission to an animal fight are covered by subsection (2)(a) to (e). Some of the offences under this section can be committed without a fight having taken place, for example the offence of making arrangements for an animal fight would not depend on the fight subsequently taking place. An animal fight could be arranged which is later cancelled.

122.     Subsection (4) sets out offences in relation to the video recording of an animal fight. It will be an offence to supply or publish a video recording of an animal fight, to show a video recording of an animal fight to another person, or to possess a video recording of an animal fight with the intention of supplying it to another person.

123.     Subsection (5) restricts the offences created by subsection (4) to video recordings of an animal fight which took place in Great Britain after the date on which subsection (5) came into force.

124.     Subsection (6) provides that subsection (4) does not apply to anything done by way of broadcasting, anything done for the purposes or in connection with law enforcement, and anything done in the course of any other lawful activity done in the public interest or with a view to the public interest being served. In consequence, no offence is committed under subsection (4) where the thing done falls within subsection (6).

125.     Subsection (7) provides definitions for terms used in the above subsections in relation to video recordings of animal fights.

126.     Subsection (9) defines an animal fight as an occasion on which a protected animal is placed with an animal or with a human for the purpose of fighting, wrestling or baiting. This means that an animal fight can be deemed to have taken place, even if both animals are wild animals, as the definition of protected animal in section 17 includes any animal under the control of man whether on a permanent or temporary basis.

Section 24 - Ensuring welfare of animals

127.     The welfare offence in this section and the regulation-making power in section 26 of the Act replace provisions in the Agriculture (Miscellaneous Provisions) Act 1968 and extend a similar level of protection to both farmed and non-farmed animals. Where someone is responsible for an animal, they have a duty to take such steps as are reasonable in all the circumstances to ensure its needs are met to the extent required by good practice (subsection (1)).

128.     In considering whether a person has complied with section 24, the court is required to take into account all relevant circumstances. However, for the avoidance of doubt, subsection (2) specifies certain matters which the court is to take into consideration when deciding whether a person has committed an offence, namely, "any lawful purpose for which the animal is kept" and "any lawful activity undertaken in relation to the animal". This provision recognises that some lawful practices may prevent or hinder a person from ensuring that certain welfare needs are met, and requires the court to take that into account when considering what is reasonable in the circumstances of each case. For example, a dog used for search and rescue purposes may be placed in a dangerous situation and such an activity would not give rise to an offence under subsection (2).

129.     Subsection (3) lists examples of the needs of an animal for the purpose of this section. This list is not exhaustive.

130.      Subsection (4) makes clear that the killing of an animal is not in itself inconsistent with the duty to ensure its welfare if it is done in an appropriate and humane manner.