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THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE

Lorraine Poole


Faculty of Laws, University of Malta
Publish Date:
May, 2007
Place of Publication: University of Malta
Printable Version

THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE

CHAPTER I

GENERAL REGULATORY MEASURES PERTAINING TO COMPANION ANIMALS

1.1       DOG LICENCE

It may have escaped the attention of most of the general population but it seems a licence is required in order to lawfully keep a dog. This requirement emanates from the Dogs Act[1] which has been in force since its enactment by Act XXI of 1985 but despite being around for over two decades very few persons are aware of its existence.

The obligation to procure a licence comes into being once a dog reaches the age of six months and according to section 3(1) no person is allowed to keep a dog of this age or over without a licence. The legislator chose to use the term ‘to keep’ as opposed to the expected expression ‘to own’. This can be none other than an intentional choice of words to see to it that any person who keeps a dog, whether or not such person acknowledges ownership of the same, lays himself open to the responsibility of applying for the licence, thereby ensuring that as many dogs as possible are registered. As to who would qualify as a keeper of a dog, under section 2 this would include any person who has the charge of or who habitually feeds or looks after a dog. One would therefore have to comply with this law even if one simply regularly feeds a dog that lives in the neighbourhood. It could be argued that in carrying out acts which would normally be executed by an owner of an animal the keeper de facto becomes the owner thereof.

For the purposes of section 3(1) and the responsibility to obtain a licence that is conferred upon a keeper, subsection (2) of the same provision lays down a presumption juris tantum to the effect that ‘every person in whose custody or possession, or in whose house or premises, any such dog shall be found, shall be deemed to be the person who keeps such dog, unless the contrary is proved.’ Identification of the keeper therefore is a very matter of fact affair which nevertheless does allow for admission of proof to the contrary. Also dogs will be presumed to be old enough to require a licence, as can be gleaned from section 3(3) which declares that it is up to the person who keeps the dog to prove that a licence is not warranted because of the dog’s age.

Licences are issued by the Commissioner of Police upon application to the officer in charge of licences and if more than one dog is kept a separate licence is required in respect of each dog[2]. Dogs are protected from possible neglect arising out of immaturity or irresponsibility by section 4(3) which prohibits minors from obtaining a licence; licence holders must be eighteen years old and must also be capable of taking charge of a dog. Owing to the necessity of having a dog for guidance blind persons are exempt from this condition of majority and moreover do not have to pay the prescribed fee when applying for a licence for a dog that is to be used for such purpose[3].

Once the dog licence is issued the licence holder is given a metal badge inscribed with a number and the year of issue. This has to be worn by the dog at all times and is valid for the duration of the year in which it is issued. It ought to be renewed on the 1st of January of each year upon which the licence will be valid for a further period of twelve months[4].

This system allows for a person to be identified as the keeper or owner of a dog and establishes a link between the person and the animal.

Where a dog is presumed lost and taken to a police station or a voluntary organisation this badge will be instrumental in reuniting the dog with its keeper. One would hope that this could also allow the police to track down the keeper of an abandoned animal but at the end of the day the fact remains that it is simply a badge. Should the dog be abandoned the badge would be of no particular help in tracing the offender, unless of course he was dim enough not to remove the badge before abandoning it, in which case he would pretend the dog was lost when contacted by the police and be less careless on the second attempt at abandonment. This scenario makes a good case for the substitution of the badge with an electronic transponder or microchip which is implanted beneath the skin of the dog. The microchip would guarantee the discovery of the owner or keeper’s identity, not to mention any health conditions that may require medication to be administered until such time as the dog is handed over to the owner (if lost) or re-homed (if abandoned).

At present owners may have their dogs microchipped but this is done on a voluntary basis, it is not compulsory. This is performed by a veterinarian and is a quick and simple procedure which causes no more distress to the animal than would a vaccination. And ten liri is a small price to pay for anyone wanting peace of mind.

In any case, whether the licence is linked to the wearing of a badge by the dog or to the implantation of a microchip, one wonders what the purpose of this legal requirement is. The necessity of obtaining a licence is obvious, say, when speaking of owning a fire-arm but the rationale is not so evident when the same obligation is imposed with regards to the keeping of a companion animal, especially when the licence procedure is not even used a means of confirming that the animal has been given the necessary vaccinations The licence requirement could possibly be to increase government revenue but this law is not enforced, a detail which would defeat the purpose.

If the law were to be applied as intended, under section 9 any police officer would be lawfully entitled to seize and detain a dog for the purpose of examining the badge and could also require the owner or keeper to deliver the licence to him within seven days.

If a person does not have a licence for the dog he shall be guilty of a criminal offence and will be liable to the punishment of a fine (ammenda) of five liri. This provided a higher punishment is not provided for in any other law.[5]

1.2       BATHING RESTRICTIONS

Part XX of the Code of Police Laws, entitled Of Territorial Waters, Harbours and Wharves, contains bathing restrictions with regards to animals.

A public beach is not the same as a private swimming pool where one has control over whom or what goes into the water. For all one knows, the person doing the crawl to one’s left may well have lower hygiene standards than the dog paddling to one’s right. All the same, being a place open to the public, parliament thought it best to regulate what can and cannot set foot, or rather paw, on our beaches.

Section 225 was last amended in 1926 making it somewhat of an ancient law but it is still in force and thus of relevance because, although unlikely, it could still be enforced. Subsection (1) states that it shall not be lawful to allow any animal to approach any part of the seashore where any person is bathing, unless such place be expressly set apart for animals.

Animals of all kinds are thus excluded from the being by the seashore and from entering the water ‘where any person is bathing’ which could be interpreted to mean that if nobody happens to be bathing there at the time one would presumably be free to take one’s animal for a swim.

Subsection (2) gives the Commissioner of Police the power to make regulations to establish the hours and places in which animals may be taken into the sea. Accordingly Legal Notice 31 of 1960 introduced the Bathing Of Animals Regulations which set out such times and places in the schedule thereto. Animals are welcome at the following : the part of the foreshore at St. Thomas Bay known as Tal-Franċiż; opposite Ferretti Battery, St.George’s Bay, Birżebbuġa; the part of the beach at St.Julian’s known as I1-Qaliet at the far end of Spinola Road between 5.00 and 8.00 in the morning only mind you; the part of the beach just beyond Manoel Island Bridge, on Manoel Island proper to the left of the bridge and lastly the slipway area at Mġarr, Gozo. So, armed with a map and knowledge of the unofficial names given to some of these places which, as luck would have it, are generally known to nobody except for the locals, one may just about manage to locate one.

Taking an animal elsewhere when persons are bathing constitutes a contravention under section 318 of the Code of Police Laws and the owner would be liable to the punishments laid down in the Criminal Code for contraventions which can be applied either separately or cumulatively[6]. Any court of criminal judicature can therefore impose the punishments of detention for a period not exceeding two months, a fine (ammenda) of between three liri and twenty-five liri or a reprimand or admonition (basically a good telling off by the judge) which is delivered in open court, and where the ungrateful offender is overtly contemptuous or disrespectful when being reprimanded the judge will hand down a sentence of detention or a fine (ammenda) instead [7].

Under section 319(1) of the Code of Police Laws, if the Court is of the opinion that the offence deserves a heavier punishment it may award a fine (multa) or imprisonment for a term not exceeding one month. But given the nature of the offence this is highly improbable.

1.3       STRAY ANIMALS

Abandoning an animal constitutes a criminal offence under section 8(2) of the Animal Welfare Act. The implications of and the punishment for abandonment will be considered in the third chapter of this work insofar as abandonment falls under the heading of ill-treatment but what is relevant here is what becomes of the animal afterwards. Once abandoned it no longer has an owner and unless it is taken into another home technically it becomes a stray animal. And of course, should it procreate the offspring too will be stray animals. There are yet many others which are literally stray animals in the sense that although not abandoned they have somehow strayed from their home and have not been found or have simply not been looked for by their owners so that they too end up owner-less. The number of companion animals living on our streets is increasing and ultimately this is a problem that concerns all of us and needs to be dealt with.

It would be interesting to discover if our law provides for these animals and if so, how it goes about it and whether it provides a solution to the problem.

Our principal legislation on animals, the Animal Welfare Act, does not acknowledge the existence of stray animals in any of its provisions. This is surprising because the legislation in place prior to the coming into force of the Act did address the issue, albeit in a limited manner. Under section 158 of the Code of Police Laws, now repealed, any person finding a stray horse, ass, mule, pig, bull or any mischievous or ferocious animal in the street was allowed to take it to a police station or a police officer, whereupon the animal would be detained until the owner paid the expenses incurred for its removal, detention and maintenance. One wonders how many people would have been willing to approach a bull or tackle a ferocious animal in order to hand it over to the authorities, not many presumably, but in any case one could do so and thereby allow the owner of the animal to recover it.

Section 159 set out the procedure to be followed should the owner fail to claim the animal. If three days went by and the animal remained unclaimed the police were to serve a notice on the owner (where known) or cause a notice to be published in at least one newspaper stating that the animal would be sold at auction seven days after the receipt of the notice by the owner or of publication. Prior to the sale the owner could always recover the animal provided he paid the aforementioned expenses. Otherwise it was sold to cover such expenses and any surplus, if unclaimed by the owner, deposited in court to be claimed by any person proving a right thereto. Subsection (4) reveals that this law had less to do with the welfare of the animal and more to do with removing what was perceived as a nuisance for being present in the street. In fact, rather unpleasantly, if the proceeds of the sale were unlikely to cover the expenses the Police could destroy the animal.

Perhaps one reason the Animal Welfare Act did not incorporate a provision on stray animals is because the Dogs Act, which is still in force, already did and still does contain a couple of relevant sections.

Section 13 of the Dogs Act states that any person who takes possession of a stray dog must act in one of two ways. He shall either return the dog to its owner or keeper, if he knows who this is, or he shall take the dog to the nearest police station and inform them of the place where the dog was found.

The police will detain the dog until the owner or keeper claims it, produces the dog licence and pays all expenses incurred by reason of its detention. If the dog is not claimed or the licence is not produced or the expenses not paid within seven days the dog will be destroyed or otherwise disposed of by the police. This procedure is set out in section 10 and also applies where it is a police officer who finds a stray dog.

Once again the word destroy is used as though the animal were simply unwanted property to be thrown away and not a living creature. Thankfully section 10 does provide the more ethical alternative of disposing of the dog in another manner, again an unpleasant term but better by comparison because, unlike the first, this will not necessarily prove to be fatal for the unfortunate animal. The police may dispose of the dog by delivering it to a person or voluntary animal organisation that is willing to take the animal and care for it temporarily until a home is found for it. Sadly many dogs are not re-homed and become permanent residents at animal shelters.

The Dogs Act only speaks of dogs, indeed together with cats they are the most commonly kept companion animals and consequently are those which are more likely to be abandoned by their owners and be found on the streets. Somebody ought to be responsible for the welfare of our stray dogs but such responsibility is not assigned to anybody where the original owner is unknown. Moreover, the fate awaiting an unclaimed dog under the Act makes it clear that the legislator intended to eliminate any potential responsibility for the State by the crude act of destroying or otherwise disposing of a healthy animal.

One would assume that all that is not privately owned is owned by the State by default. Once a person has abandoned an animal this terminates the relationship of ownership and the animal could be said to become property of the State. After all property is all they are considered to be, otherwise the legislator would not have provided for their destruction as would be done with unwanted property. Following the above line of reasoning the responsibility for the well-being of a stray animal ought to lie with the State. The impression is that the legislator intentionally avoided addressing the issue of responsibility for these animals, lest it concluded that it fell upon the State. Whatever the case may be, stray dogs do roam the territory of the State and this alone ought to provide a sufficient incentive to set up a functioning system for the reception and care of these animals.

Because there is no effective structure in place to deal with stray animals the burden has fallen on individuals and non-profit organisations run by volunteers who have taken it upon themselves to give some of these animals food, shelter and medical treatment. Such organisations do the best they can for the animals with the money they obtain in the form of donations from the general public and sometimes from companies. But funding is always insufficient and this severely limits the number of animals that can be kept by them.

‘The State recognises that it is its duty to collaborate with voluntary organisations in the field of animal welfare’ under section 3(3) of the Animal Welfare Act but this is merely a declaratory principle meaning that this duty cannot be enforced against the State in a court of law. So far this collaboration has been minimal and certainly has not extended to the allocation of funds to them. I would personally rather have some of my taxes put to this use than to provide social security benefits to countless persons with blatantly fraudulent claims.

Perhaps a first step in funding would be to regulate the organisations themselves, possibly requiring them to be licensed and to annually publish the use of government funds received. The Island Sanctuary already does this for donations, voluntarily rendering itself somewhat accountable to its members and donors by providing an account of the amounts given to them and stating what the money was spent on, down to the last cent, by means of their newsletter. This inspires trust in the work they do and encourages further donations.

The neutering of stray animals can help keep their numbers down. This is an activity carried out by several animal associations at their own expense or with the kind generosity of some veterinarians who voluntarily collaborate with them and carry out these and other procedures without charging for their services. The Animal Welfare Act understandably does not address neutering because this would have necessitated attending to the subject of stray animals so carefully avoided by the legislator.

Clearly there are shortcomings in this regard but they may be remedied in the future. A possible step towards this can be found in the Act itself in the form of the newly established Council for Animal Welfare. Section 4 informs us that the Council consists of the Director for Veterinary Services, a representative from the Ministry responsible for veterinary services, a veterinary surgeon employed in the public service with experience in animal health medicine and another with experience in farm animals’ matters, two persons representing the interests of breeders and animal sports groups and last but by no means least two persons representing the interests of Animal Welfare groups. The Council has the duty to advise the Minister on any matter related to the making of any regulations under the Act[8] and has the power to ‘recommend the adoption or the implementation of any measures’[9] for the well-being of animals. This combined with the fact that section 5(e) obliges the Minister responsible for Veterinary Services to consult the Council in issuing regulations, orders or rules under the Act means that the Council can play a constructive role and is indeed in the position to plant the necessary seed and if need be also put pressure on the Minister to undertake the task of seeing to any lacunas in the law.

The legislator is not infallible and it is normal for any piece of legislation to exhibit deficiencies, more so when there are such great expectations and so many diverse interests at stake. But at the end of the day legislation can always be amended and new measures taken so there is hope yet.

1.4              AGGRESSIVE ANIMALS

There are animals which are of a naturally aggressive disposition and there are others which are not innately so but are rendered aggressive as a result of the manner in which they are brought up by their owners, be it because they have been subjected to repetitive episodes of violence so that they end up becoming aggressive in order to defend themselves from further attacks or because they have been trained to be so. While the aggression exhibited by the latter is potentially controllable by the owner, the temperament that can be produced in an animal that has suffered cruelty will be much less predictable and in both cases the animal can present a potential danger to other animals and to persons around them.

Such animals are in fact contemplated in Part XII of the Animal Welfare Act.   Section 43 declares that, save as may otherwise be prescribed, aggressive animals which may present a danger to the safety of man or other animals and which are classified as such by the Minister responsible for Veterinary Services shall not be bred, imported or sold in Malta. Furthermore they shall not be kept in stock and may be slaughtered if this is deemed to be necessary or expedient by the Director of Veterinary Services.

The Importation of Cats and Dogs Regulations[10] which preceded the Animal Welfare Act name four breeds of dog which are not to be imported into Malta. Though this prohibition is not specifically laid down in any of the regulations therein, the first schedule to this subsidiary legislation reproduces a veterinary certificate which is to accompany the imported animal and it is this certificate which declares that the Pit Bull Terrier, Japanese Tosa, Dogo Argentino and Fila Braziliero are ineligible for import. These are breeds that have been specifically bred for dog fights or have been used as fighting dogs on account of their exceptional strength so that they are intimately associated with aggressive behaviour in people’s minds and have gained a reputation for being aggressive. Alas this reputation is not necessarily deserved, and despite the terror instilled in people by journalists who have a field day each time an incident involving one of these dogs occurs, if brought up in a loving and disciplined home these dogs too can be good companion animals.

While the Animal Welfare Act deals with aggressive animals, the Dogs Act provides for dangerous dogs, in most cases dangerous being synonymous with aggressive.

To begin with, section 11 allows any police officer to seize a dog that has assaulted a person, a horse or other animal while being ridden or driven in a vehicle, or that runs foul of a vehicle in motion thereby causing annoyance or danger. According to section 10 the police officer shall detain the animal until its owner or keeper claims it, produces its licence and pays any expenses incurred. If it is not claimed or the licence not produced or the expenses not paid the dog shall be destroyed or otherwise disposed of by the police.

Section 14 deals specifically with dangerous dogs and what the Court of Magistrates is required to do with such dogs. Subsection (1) requires an owner or keeper of a dog which is dangerous to persons to keep it under control, if he fails to do so he shall be guilty of a criminal offence and liable to a fine (ammenda) of five liri. Though this sounds like a minimal sentence there is a further penalty of greater consequence: upon conviction the Court shall also order the police to destroy the dog at the expense of its owner or keeper. Thus it is the dog that pays the ultimate price for the owner’s inability to control it. The Court will also order the dog’s destruction where it has found a new owner or keeper. This errs on the side of caution in an effort to avoid further incidents but may be unfair because a new owner may be perfectly capable of taking care of and more importantly controlling the animal, thereby avoiding the need to kill it.

The prosecution need not prove that the owner or keeper was aware of the fact that the dog was dangerous in order for the Court to order its destruction[11]. The fact that the dog acted in a manner considered dangerous is sufficient to warrant its destruction. Indeed, the Court will issue the order all the same where the person charged with not controlling his dog has been acquitted, provided it is satisfied the dog is dangerous of course[12].

Given the outcome where a dog is deemed to be dangerous by the Court the definition of the same acquires a lot of weight. Under section 14(4) a dog which has bitten or assaulted a person shall be considered dangerous, unless the contrary is proved. This provides an indication of what behaviour would earn a dog the label of dangerous but whilst biting is clear enough assault is less so. Assault implies a physical attack by the dog during which the victim could suffer bites but not necessarily. What is important is that the defendant is allowed to prove that despite the aggressive incident the animal is not in fact dangerous.

Notwithstanding the provisions of the Criminal Code, section 15 of the Dogs Act always grants the Attorney General a right of appeal to the Court of Criminal Appeal from any judgment given by the Court of Magistrates in respect of proceedings arising out of the above section. This may result in a dangerous dog being destroyed or may save a dog from being wrongly destroyed where the Attorney General is not of the same opinion as the Court of Magistrates with regards to the nature of the animal.



[For a full copy of the Animal Welfare Law and Dog Law see Table of Statutes]

[1] Chapter 312 of the Laws of Malta

[2] Dogs Act, section 4(1)(2)

[3] Dogs Act, section 3(4)

[4] Dogs Act, section 6

[5] Dogs Act, section 17

[6] Code of Police Laws, section 319(1)

[7] Criminal Code, sections 7(2), 12(2), 13(1) and 15

[8] Animal Welfare Act, section 5(a)(i)

[9] Animal Welfare Act, section 5(b)

[10] Legal Notice 59 of 1998

[11] Dogs Act, section 14(2)

[12] Dogs Act, section 14(3)

 

[Chapter 2]

 

 

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