[In 2006 the U.K. adopted a new Animal Welfare Law, therefore the following analysis may not apply to existing law and should be considered for historical purposes.]
The main offences of cruelty to captive and domestic animals are set out in section 1(1) of the Protection of Animals Act 1911 as respects England and Wales. Similar legislation covers Scotland and slightly less similar legislation is in force in Northern Ireland. For further information about this topic, please see the detailed discussion.
The animals protected by the legislation
Section 15 of the 1911 Act defines “animal” to mean “any domestic or captive animal”. The offences of cruelty therefore protect any animal that is either domestic or captive.
As to the type of animals that, if domestic or captive, are protected, section 15 states that “any animal … of whatsoever kind or species, and whether a quadruped or not, including any bird, fish or reptile,” is included.
The common law generally regards the question of whether an animal is domestic or wild as primarily a question of law to be determined by whether animals of its species are generally regarded as wild or domestic, rather than by the history and tameness of the individual animal.
It therefore appears that if an animal is of a genus or class that is ordinarily tame in the sense of being accustomed to association with humans and kept for its uses to them, it will automatically be regarded as a domestic animal and as protected by the 1911 and 1960 Acts.
For an animal to be regarded as having been in captivity or confinement, something more than mere captivity, some period of time during which acts of dominion are exercised over the animal, is necessary. What amounts to “acts of dominion” is unclear, but it appears from decided cases that acts incidental to the capture and killing of the animal are insufficient.
The offences of cruelty under section 1(1) of the 1911 Act
Section 1(1) of the Protection of Animals Act 1911 makes it an offence of cruelty to:
(1) Cruelly beat, kick, ill-treat, override, over-drive, overload, torture, infuriate, or terrify any animal; or cause, procure, or, being the owner, permit any animal to be so used;
(2) Wantonly or unreasonably do or omit to do any act causing unnecessary suffering to any animal; or cause, procure, or, being the owner, permit any such act;
(3) Convey or carry any animal in such a manner or position as to cause it any unnecessary suffering; or cause, procure, or, being the owner, permit any animal to be so conveyed or carried;
(4) Cause, procure, or assist at the fighting or baiting of any animal; or keep, use, manage, or act or assist in the management of, any premises or place for the purpose, or partly for the purpose, of fighting or baiting any animal, or permit any premise or place to be so kept, managed, or used, or receive, or cause or procure any person to receive, money for the admission to such premises or place;
(5) Willfully, without any reasonable cause or excuse, administer any poisonous or injurious drug or substance to any animal; or cause, procure, or, being the owner, permit such administration; or willfully, without any reasonable cause or excuse, cause any such substance to be taken by any animal;
(6) Subject any animal to any operation which is performed without due care and humanity; or cause, procure, or, being the owner, permit any animal to be subjected to such an operation;
(7) Tether any horse, ass, or mule under such conditions or in such manner as to cause the animal unnecessary suffering.
Three of the seven above categories of conduct expressly relate to conduct the result of which is to cause an animal unnecessary suffering. The actual number that do so is four, because the courts have held that the word “cruelly” (used in the first category) means ‘causing unnecessary suffering’.
All four of these categories of conduct could, in fact, be charged under the second, since all would involve causing unnecessary suffering to an animal “by wantonly or unreasonably doing or omitting to do …, or causing or procuring the commission or omission of, any act”.
What constitutes the causing of “unnecessary suffering”?
Whether an animal has suffered is a plainly a question of fact. Where it is not unquestionably possible to infer from the circumstances of the case that an animal suffered, the prosecution will usually call expert testimony from a veterinary surgeon or animal behaviorist.
The leading case on what constitutes “unnecessary suffering” is Ford v. Wiley. Hawkins J, who adopted an established definition of “cruelly” as meaning “the unnecessary abuse of an animal”, stated:
‘To support a conviction then, two things must be proved - first, that pain or suffering has been inflicted in fact. Secondly, that it was inflicted cruelly, that is, without necessity, or, in other words, without good reason.’
Where no legitimate object exists in pursuit of which the suffering was inflicted, the suffering is clearly not necessary. Where, however, the suffering was inflicted in the pursuit of a legitimate object, there must be proportionality between the suffering caused and the benefit sought. The necessity of the defendant’s conduct is judged objectively, by the standards of a reasonably humane and caring person.
Offences not requiring proof of unnecessary suffering
Three of the seven categories of conduct do not involve the result of causing unnecessary suffering to an animal. These offences are therefore independently useful in that persons can be convicted of offences connected with animal baiting and fighting, the administration of poisonous substances, and operations performed without due care, without any need for the prosecution to prove that an animal actually suffered as a result.
The offences of cruelty under the Abandonment of Animals Act 1960
Section 1 of the Abandonment of Animals Act 1960 makes it an offence for any person being the owner or having charge of control of any animal to without reasonable cause or excuse abandon it, whether permanently or not, in circumstances likely to cause the animal any unnecessary suffering, or cause or procure or, being the owner, permit it to be so abandoned.
What constitutes abandonment?
To obtain a conviction for the offence of abandonment, the prosecution must prove that the defendant had relinquished, or wholly disregarded, or given up his duty to care for the animal. Where a person responsible for an animal leaves it by the side of the road and drives away, or is absent temporarily and makes no arrangements for the animal’s welfare, it may be relatively easy to say that he has abandoned it. Where a person leaves the animal for a period and makes some, albeit inadequate, arrangements, however, it will probably not be possible to obtain a conviction for abandonment, because the defendant has not totally disregarded his duty of care.
‘… in circumstances likely to cause the animal any unnecessary suffering’
Unlike the offences of cruelty of which actual unnecessary suffering is an element, the offence under the 1960 Act requires the prosecution to prove only that the animal was likely to be caused unnecessary suffering.
Who can be convicted of an offence of cruelty?
All of the offences of cruelty, except for those concerned with animal fighting and baiting, expressly state that they can be committed not only by any person who does the cruel act himself, or who causes or procures it, but also by the owner of the animal if that owner permits the cruel act to be done. Owners are therefore under a legal duty to exercise reasonable care to protect their animals from cruelty.
Section 1(3) of the 1911 Act expressly protects three activities that might otherwise be considered to constitute offences of cruelty:
(a) scientific procedures performed on animals,
(b) the killing of animals for food (unless accompanied by the causing of unnecessary suffering), and
(c) the hunting and coursing of captive animals.
The maximum sentence for an offence of cruelty is six months’ imprisonment and/or a fine not exceeding £5000. The court may also make an order disqualifying the defendant from having custody of any animal, or of an animal of a specified kind.
Detailed Discussion of the Offences of Cruelty to Domestic and Captive Animals (UK)
Protection of Animals Act 1911
Abandonment of Animals Act 1960