Detailed discussion of the offences of cruelty to domestic and captive animals. These offences are contained in section 1(1) of the Protection of Animals Act 1911 and section 1 of the Abandonment of Animals Act 1960.
[Editor's Note: 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 historical.]
Introduction
The main and most important 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.
Although the 1911 Act has been amended on a number of occasions since it was passed, its most significant language and features have remained untouched. Even though the 1911 Act is now over 90 years old and was itself considered a consolidating statute that drew on a number of nineteenth century statutes, it remains an imperfect but nevertheless reasonably simple and effective statute for the prosecution of persons who inflict unnecessary suffering on captive and domestic animals.
The offences of cruelty can be generally be distinguished from other offences relating to animal welfare by the following characteristics:
(a) The majority of the offences established by section 1(1) are only committed where it can be proved that an animal has been caused unnecessary suffering, and those that are not relate to conduct, such as the poisoning and baiting of animals, that will inevitably cause unnecessary suffering; and
(b) Offences of cruelty carry more severe maximum penalties (including orders to confiscate animals and to disqualify the offender from keeping animals in the future) than other animal welfare offences, many of which punish failures to adhere to prescribed welfare standards, such as minimum accommodation standards for farm animals, such failures not necessarily causing suffering to any animal.
This discussion, which relates only to the law applicable in England and Wales, covers the offences of cruelty established by the Protection of Animals Act 1911 . It also covers the offences of abandonment of an animal that are provided for by the Abandonment of Animals Act 1960 . The 1960 Act performs the role of an amendment to section 1 of the 1911 Act, even though it does not in fact amend that Act. The 1960 Act expressly provides for the same maximum penalties as for offences of cruelty contained in the 1911 Act, and also states that the provisions of the Protection of Animals Acts shall apply to 1960 Act offences as they apply to the 1911 Act offences of cruelty. The discussion therefore regards the “offences of cruelty” as those established by section 1 of the Protection of Animals Act 1911 and by the Abandonment of Animals Act 1960 .
The writer of this discussion found great assistance, as any writer on this subject must, from Mike Radford’s recent book Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press, 2001). This must now be regarded as the leading textbook and researchers searching for a comprehensive overview of animal welfare law in Britain are advised to consult it.
1. The animals protected by the legislation
Section 15 of the 1911 Act defines “animal” to mean “any domestic or captive animal”. This definition also applies to the 1960 Act. The offences of cruelty therefore protect any animal that is either domestic or captive. [1] The two categories do not have exactly the same meaning and both therefore need to be considered. One must first consider whether an animal falls within the category of “domestic animal”. If it does not, one must consider whether it is a “captive animal”.
Although both domestic and captive animals are protected by the offences of cruelty, the distinction can occasionally be significant. Sub-section (3)(b) of section 1 of the 1911 Act exempts from the section “the coursing or hunting of any captive animal, unless such animal is liberated in an injured, mutilated, or exhausted condition.” Thus, the legality of the hunting and coursing of captive animals is maintained, but the hunting or coursing of a domestic animal would almost certainly constitute an offence of cruelty.
As to the type of animals that, if domestic or captive, are protected by the 1911 and 1960 Acts, it is states in subsections (b) and (c) of section 15 that “any animal … of whatsoever kind or species, and whether a quadruped or not, including any bird, fish or reptile,” is included. Since most of the offences of cruelty require that the prosecution prove that the animal was caused unnecessary suffering, however, it would appear that the offences protect any animal that scientific knowledge informs us is capable of being caused unnecessary suffering. (The phrase “unnecessary suffering” is discussed further below.)
1.1. Domestic animals
Section 15(b) states:
the expression “domestic animal” means any horse, ass, mule, bull, sheep, pig, goat, dog, cat, or fowl, or any other animal of whatsoever kind or species, and whether a quadruped or not which is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man.
A careful examination of this provision reveals that it is not particularly well drafted. It is unclear whether the words of the provision from “which is tame” onwards relate only to “any other animal of whatsoever kind or species” or also relate to the species of animals that are expressly enumerated.
Radford has pointed out that, following the normal rules of statutory construction, the first of these possible interpretations should be adopted so that “any horse, ass, mule, bull, sheep, pig, goat, dog, cat, or fowl” is automatically regarded as a domestic animal. Radford himself admits that this interpretation would lead to the somewhat surprising result that the ‘wild cat’ ( Felis sylvestris ) would automatically be regarded as a domestic animal for the purposes of the Act. It is submitted that an even more surprising result would be reached in the application of the provision to “any … fowl”. Section 15(d) defines “fowl” to include “any cock, hen, chicken, capon, turkey, goose, gander, duck, drake, guineafowl, peacock, peahen, swan, or pigeon.” It does not exclude any type of fowl. It seems highly unlikely that Parliament intended that wild pigeons, or even non-specifically enumerated fowl, such as common garden birds, should be regarded as domestic animals.
The alternative interpretation, which regards a “domestic animal” as being an animal “which is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man,” has the consequence of rendering the words “any horse, ass, mule, bull, sheep, pig, goat, dog, cat, or fowl,” surplusage. Nevertheless, this interpretation is to be preferred for the reasons already given. The inclusion of the enumerated categories may be explicable by a combination of effusive draftsmanship and the codification of pre-1911 case law that and statutes, some of which may have referred or applied to particular species of animals.
This issue of statutory construction is not as important as it may at first appear. 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. Radford cites Blackstone, who stated:
… our law apprehends the most obvious distinction to be, between such animals as we generally see tame … and such creatures as are usually found at liberty. [2]
Nye v. Niblett [3] concerned three boys who had killed two farm cats, for which conduct they had been tried for the offence of unlawfully and maliciously killing an animal that was “being ordinarily kept in a state of confinement, or for any domestic purpose.” Local justices had acquitted the boys, partly because there was no evidence before them that the particular cats killed had been kept for a domestic purpose. The Divisional Court held that the justices had been wrong. Avory J stated:
I base my judgment on this, that cats belong to a genus or class of animals that are ordinarily kept for domestic purposes. There is no doubt that that is the usual description of cats. "Domestic cats" is a well-known expression. That being so, it was not necessary to prove that the particular cats in question were at the time being kept for domestic purposes …
A similar approach was adopted by the Court of Appeal in McQuaker v Goddard , which held that, for the purposes of the law of negligence, a camel should be regarded as a domestic animal because a camel is regarded ‘in all countries [as] a domestic animal, an animal that has become trained to the uses of man, and a fortiori accustomed to association with man’. [4]
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, it will automatically be regarded as a domestic animal and as protected by the 1911 and 1960 Acts. Thus, sheep, cows, pigs, goats and other animals that, in the UK at least, are always kept for domestic purposes, are undoubtedly “domestic animals”. Other types of animal, such as ponies, rats, mice and rabbits, which are frequently kept as pets or farmed or otherwise kept in tame forms, but which also commonly exist in the wild, present more difficulty. In many cases such an animal will be of a scientifically distinguished species, or recognized variety or breed, that it can clearly be said that the animal is of a genus or class that is ordinarily domestic.
Where this is not the case, or where the animal is of a genus or class that is ordinarily wild, it is submitted that it will be for the court to decide as a question of fact whether the animal should be regarded as domestic for the purposes of the 1911 Act. It may be misleading to state that the question of whether an animal is regarded as a domestic animal is simply a question of law, even though, with the guidance from the case law of the courts of precedent provided only by the McQuaker v. Goddard and Nye v. Niblett , magistrates may well be likely to take that approach.
McQuaker simply decided whether a camel was wild or domestic for the purposes of the law of negligence. Nye v. Niblett , which interpreted section 41 of the Malicious Damage Act 1861, which made it an offence to “unlawfully and maliciously kill, maim, or wound any … animal, not being cattle, but being ordinarily kept in a state of confinement, or for any domestic purpose”, therefore seems a more relevant, if older, precedent for present purposes. The view of the Divisional Court in that case appears to have been, not that whether an animal was “ordinarily kept for any domestic purpose” was always to be determined by the genus to which it belonged, but that an animal of a genus or class that are normally regarded as domestic should, as a matter of law, be treated as domestic by the courts. That, however, is only the first stage of a two-stage test. Where an animal was not of such a genus or class, the courts should then determine whether it was in fact kept for a domestic purpose. As Darling J clearly explained, the cats that the defendants killed
… were cats which were haunting farm premises, and belonged to the class of cats which are ordinarily kept for domestic purposes. That being so, they were within the protection of the section. I may add that I think the section goes further, and not only protects animals of a class which are ordinarily kept in a state of confinement or for domestic purposes, but also protects a particular animal which, though not belonging to such a class, is in fact kept in confinement or for a domestic purpose.
Although the last of these sentences is, strictly speaking, obiter dicta , it does illustrate that, to regard the court’s view as being that domesticity is merely a question of law is to misread its holding.
Darling J’s approach, if applied to the 1911 Act, would be very much in line with the language of section 15(b), which, as set out above, defines “domestic animal” as any animal “which is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man”. It is arguable that whether the animal is one “which is tame” should be regarded only as a question of law, though it is submitted that, based on the dicta of Darling J, his two-stage approach is to be preferred. There can surely be little doubt, however, that the question whether an animal “has been or is being sufficiently tamed to serve some purpose for the use of man” is manifestly a question of fact, particularly since this phrase has clearly been fashioned so as to protect animals that were originally wild but are in the process of being tamed. Thus, when prosecuting for cruelty to animals of a genus or class that are generally regarded as domestic, there is no need for the prosecution to introduce evidence that the animal was tame. If, however, there is no such evidence, the animal may still be regarded as a domestic animal if the prosecution can prove that the animal had been or was in the process of being tamed.
The two-stage approach not only benefits the interests of animals, but also accords with common sensibilities. Most people in England would be unsurprised to find that dogs that have never been kept by humans but which were descended from family pets that had been abandoned or had strayed were protected by the same anti-cruelty legislation that protected dogs that had lived with people. They would be equally unsurprised to find that a person who has captured a wild animal and is in the process of taming it should be equally prohibited from causing that animal unnecessary suffering as he would be one of his animals that was ordinarily domesticated. Anti-cruelty legislation has always been motivated partly by human sentiment and partly by a desire to prevent cruel conduct that violates popular notions of morality. A prohibition on cruelty to animals that are of a type that are generally kept by humans, and those that actually are so kept, is entirely in line with such motivations, and many people who are not opposed to the hunting of wild animals would nevertheless regard the hunting of animals that have been tamed as morally opprobrious.
As we shall now see, whether an animal is regarded as domestic will often be irrelevant if, at the time of its cruel treatment, it was kept in confinement or captivity. The issue is of importance in some cases though. If a person captures a wild hare and keeps it for a period of time as a family pet and thereby tames it, then, unless the hare is regarded by the law as a domestic animal, there will be nothing to stop the person from releasing it and immediately setting dogs after it. [5] Furthermore, if the hare ceased to be kept in captivity, it would not be an offence of cruelty under the 1911 Act for any person to cause it unnecessary suffering, bait it or poison it.
1.2. Captive animals
Section 15(c) of the 1911 Act states:
the expression “captive animal” means any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any bird, fish, or reptile, which is in captivity, or confinement, or which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement
On its ordinary language, this provision appears to provide a wide scope of circumstances in which an animal is regarded as a “captive animal”. By the ordinary meaning of the words, an animal which cannot be said to be “in captivity”, since that expression may perhaps connote a state in which an animal is kept for a period of time, might still be regarded as in a state of “confinement” when it is temporarily confined in a space or enclosure from which it is unable to escape. If such an interpretation were adopted, if a wild animal was caught in a net, then it would benefit from the protection of the 1911 Act against being subjected to unnecessary cruelty, such as by having stones thrown at it.
One can understand why judges might be cautious about adopting this interpretation. Were it adopted, section 1(1)(d), which makes it an offence to administer a poisonous drug or substance to an animal, would apply to animals caught in traps. This would not, however, cause as many problems as one might at first imagine. The offence is only committed if the poisonous substance is done “without any reasonable cause or excuse”. If the substance administered was the most humane but effective poison available and the poison was administered either to bring the animal’s suffering to a rapid conclusion or in pursuance of recognized pest control practices, there is little doubt that a court would view the act as done with reasonable cause.
Alas, the judiciary has not chosen to adopt the most obvious interpretation of the words “captivity” and “confinement”. Instead, in the leading case of Rowley v. Murphy [6] the Divisional Court construed section 15(c) very restrictively. The facts of the case highlight the cruelty and dangerousness involved in the continuing activity of stag hunting. A wild stag was being chased by a pack of dogs and hunt participants on horseback. In an effort to escape, it jumped over a fence onto a main road, whereupon it fell under a stationery vehicle. The stag was dragged from under the vehicle by a number of men before being partly dragged and partly carried to a nearby enclosure belonging to the village hall where the master of the hunt cut the stag’s throat and killed it. The chairman of the League Against Cruel Sports brought a prosecution against the master of the hunt for cruelly terrifying the stag contrary to section 1(1) of the 1911 Act. Local justices dismissed the case, and the chairman of the League appealed. The three-member Divisional Court unanimously rejected the appeal, holding that the justices had been correct because the stag was not a captive animal for the purposes of the 1911 Act and was therefore outside of its protection.
Lord Parker CJ admitted that careful examination of the language of section 15(c) tended to support the view that an animal should be regarded as in captivity once it had been captured. Nevertheless, influenced by previous legislation that the 1911 Act consolidated, he held that:
… something more than mere captivity, some period of time during which acts of dominion are exercised over the animal, is necessary before the animal can be said to be in a state of captivity.
He also saw little relevance in the provision’s reference to both captivity and confinement:
What the difference between captivity and confinement is no one has been able to say. Confinement, no doubt, contemplates some outside barrier confining the animal, while captivity may or may not mean much the same.
In the 38 years since Rowley the Divisional Court has continued to follow its holding. In 1993 the Divisional Court held that a rabbit that was covered on the ground with a coat and then kicked and beaten, was not a captive animal under section 15(c). The Divisional Court did so again in 1997 in the case of Barrington v. Colbert . A hunted fox had gone to ground and remained trapped in a land drain while preparations were made to send down a terrier dog to drive the fox out so that it could be shot. A net was placed at the top of the land drain in order to restrain the fox as soon as it had been driven out. Pill LJ held that these circumstances did not amount to the fox being in confinement or captivity:
The continuing restraint in this case was incidental to the attempt at capture and the capture itself. The fox was temporarily restrained with a view to it being killed. In my judgment, it never passed into the state of captivity contemplated by the 1911 Act as construed in Rowley v Murphy . [7]
Thus, whether an animal is regarded as in captivity or confinement so as to be a captive animal and come within the protection of the offences of cruelty does not depend on how completely it is enclosed, nor on its ability to escape, but whether it passed into a state of captivity evidenced by acts of dominion by humans. What amounts to “acts of dominion” is unclear, but it appears from the cases considered above that acts incidental to the capture and killing of the animal are insufficient.
Furthermore, an animal may still be regarded as captive even when it is not confined in an enclosure at all, since the last limb of section 15(c) includes within the definition of “captive animal” any animal “which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement”. This does not mean, however, that a wild animal that has been captured will be regarded as a captive animal simply because it has been maimed, pinioned or prevented from escaping. That part of the provision expressly refers only to animals maimed or restrained to hinder their “ escape from captivity or confinement ”. Only if a wild animal can be said to have had already passed into a state of captivity within the meaning of Rowley may it be said to have continued to be a captive animal because it was maimed or subjected to an appliance to prevent it from escaping. [8]
2. 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 (first limb of section 1(1)(a));
(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 (second limb of section 1(1)(a));
(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 (section 1(1)(b));
(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 (section 1(1)(c));
(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 (section 1(1)(d));
(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 (section 1(1)(e));
(7) Tether any horse, ass, or mule under such conditions or in such manner as to cause the animal unnecessary suffering (section 1(1)(f)).
At first glance it may seem that the above long list of prohibited conduct would prove troublesome in that the police, animal welfare inspectors, and courts would experience difficulties in deciding under exactly which part of section 1(1) cruel conduct fell and should be charged. A more careful examination of the list reveals that the difficulty is not as great as it might at first appear.
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’. [9]
All four of these categories of conduct could, in fact, be charged under the second, since all would involve the commission of the offence of 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”. As Simon Brown LJ once observed of the of the two limbs of section 1(1)(a), “the selfsame conduct could generally be charged … in more than one way.” [10]
Prosecutors therefore normally choose to prosecute any conduct causing unnecessary suffering under the second limb of section 1(1)(a). One important advantage of so doing is that the offences contained in that limb expressly cover the causing of unnecessary suffering by omissions as well as by acts. Offences in the other three categories that involve the causing of unnecessary suffering are therefore unnecessary and appear to have been enumerated in section 1(1) because similar offences appeared in earlier legislation that was among that which the 1911 Act sought to consolidate.
2.1. What constitutes the causing of “unnecessary suffering”?
What constitutes “unnecessary suffering” is obviously crucial to the scope of those offences of cruelty of which the causing of such suffering is an element. Clearly there must be suffering. Whether an animal has suffered is a plainly a question of fact to be established by the magistrates’ court, and a higher court will not interfere with the magistrates’ findings of fact in the absence of a showing that some error of law was made or that the finding was perverse or unsupported by any evidence. [11] 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, and scientific knowledge of animal physiology may be significant.
Suffering may consist of mental distress as well as physical pain; a point illustrated by the offences of cruelly infuriating and cruelly terrifying an animal, contained in the first limb of section 1(1)(a) of the 1911 Act. [12] Where an animal is killed outright and instantaneously, that alone clearly does not indicate that it experienced suffering. [13]
2.1.2. When is suffering “unnecessary suffering”?
Unfortunately, the answer to this question is complicated by the fact that what the courts regard as unnecessary suffering appears not to be the same for all of these offences.
2.1.2.1. “Unnecessary suffering” under the second limb of section 1(1)(a) of the 1911 Act
Let us first consider the meaning of “unnecessary suffering” as the phrase is used in the second limb of section 1(1)(a) of the Protection of Animals Act 1911. That limb makes it an offence of cruelty to cause any unnecessary suffering ‘by wantonly or unreasonably doing or omitting to do any act, or causing or procuring the commission of any act’. As noted above, the offences of cruelty contained in that limb are the most important in that their general terms result in them being the offences of cruelty most frequently utilized by prosecutors.
The words “wantonly or unreasonably” do not appear in the other offences of cruelty. In the 1993 cases of Hall v. RSPCA [14] and RSPCA v. Isaacs , [15] which were decided on consecutive days, the Divisional Court held that, based on a close reading of the wording of the second limb of section 1(1)(a), an offence under that limb is committed only where the suffering of an animal:
(a) was unnecessary, in the sense of its not being inevitable despite proper husbandry, and
(b) resulted from the unreasonable acts or omissions of the defendant.
In assessing whether the suffering was unnecessary, in the sense of its not being inevitable despite proper husbandry, it appears that suffering will be considered necessary if it would inevitably be caused by the keeping of the animal within the system of husbandry in which it was being kept, provided that that system of husbandry is a commonly recognized one that has not been specifically prohibited by legislation. In the earlier case of Roberts v. Ruggiero , for example, the Divisional Court upheld a decision to dismiss a prosecution for an offence under section 1(1)(a) in respect of the raising of calves in ‘veal crates’ in order to produce white veal. Under that system of husbandry, which has now been banned, calves were individually kept in narrow stalls in which they were unable to exercise or even turn around. The Divisional Court refused to consider evidence that alternative systems of husbandry were available that would cause less suffering. Stoker J stated that a magistrates’ court was ‘not the appropriate forum in which, nor [was] a criminal prosecution the appropriate method by which, the legality of the system of husbandry should be established’. [16]
Although the word “husbandry” is most frequently used in relation to farm animals, there is presumably no reason why the same principle should not also lead to common methods of keeping animals in other settings being protected. It may be, for example, that the stress caused to birds kept in indoor cages would not constitute unnecessary suffering since it is an inevitable part of the common practice of keeping birds in cages, even though the suffering is clearly not unavoidable since birds may alternatively be kept in outdoor aviaries.
It is possible that the same principle might also protect common activities, such as steeple-chasing, where horses are raced over courses that involve a number of treacherous jumps, since some risk of injury to the horses is a inevitable consequence of the activity, and courts would be likely to be very shy to decide that a common activity, when practiced in a manner that is no more likely to cause suffering than usual, constitutes the causing of unnecessary suffering, even though Parliament has not chosen to directly prohibit it. [17]
Where acts or omissions have caused an animal to experience suffering that was not an inevitable part of its husbandry according to a common system, however, that will be regarded as supplying the element of unnecessary suffering needed for the offence. Attention the shifts to whether the act or omission was unreasonable.
The word “unreasonable” connotes an objective test. The mere fact that the defendant considered that his conduct was appropriate, justified, or even humane, is insufficient to show that it was not unreasonable. The Hall and Isaacs cases make it plain that the reasonableness of the defendant’s conduct is to be judged by the standards of a reasonably humane and caring person. That hypothetical person will be regarded as having any special knowledge that the defendant had by virtue of his status. Thus, the pig farmers who had failed to seek veterinary attention for their arthritic pigs in Hall had their convictions upheld by the Divisional Court because there was insufficient evidence to show that a reasonably competent, reasonably humane modern pig farmer would have acted in the same way. The Divisional Court’s approach in that case may even be read as suggesting that, once the prosecution has shown that unnecessary suffering was caused, in the sense that the suffering was not inevitable in the system of husbandry being practised, there is an evidential or perhaps even a persuasive burden on the prosecution to show that reasonable people would have done the same thing. It is submitted that the decision should be read to impose, at most, an evidential burden since it appears to be out of line with the other offences of cruelty to place the burden on the defendant to show that the animal’s suffering was not legally justified in the sense of not having been disproportionate to the goal in pursuit of which the act was done. The imposition of a persuasive burden on the defendant, enabling the prosecution to prove no more than that the act caused suffering to an animal that was not inevitable in the system of animal husbandry, might also be incompatible with the Human Rights Act by violating the presumption of innocence guaranteed by article 6 of the European Convention on Human Rights.
The reasonably humane and caring person does not do or omit to do acts, thereby causing suffering to an animal, unless he or she regards the suffering caused to the animal as not being disproportionate to the benefits to be gained overall. Obviously, different reasonable people will ascribe different value to animal welfare as compared to human benefits. The question for the court is whether the act or omission of the defendant resulted in a balance outside of the range which reasonably humane people would find acceptable. This is essentially the same question which, as we shall go on to discuss, a court must ask itself in deciding whether or not an animal was caused “unnecessary suffering” when considering conduct prosecuted under one of the other offences of cruelty of which unnecessary suffering is an element. Thus, although Hall gives the word “unreasonably” much of the work would otherwise be carried by the word “unnecessary”, the inclusion of the word “unreasonably” in the second limb of section 1(1)(a) makes little practical difference.
2.1.2.2. “Unnecessary suffering” for other offences under section 1(1) of the 1911 Act
Unlike the offences under the second limb of section 1(1)(a), the offences under the first limb, such as that of cruelly beating an animal (cruelly having been judicially defined as synonymous with “causing unnecessary suffering”), as well as the offences under section 1(1)(b) and (f), do not expressly state that the act of the defendant must be done “unreasonably”. Thus, whereas under the second limb of section 1(1)(a) the word “unreasonably” exempts the causing of suffering which is regarded as justifiable, the same function must be performed by the word “unnecessary” in the other offences.
The leading case on what constitutes “unnecessary suffering” is the pre-1911 case of Ford v. Wiley . The case concerned a farmer who had arranged for his oxen to be dehorned with a saw. He was prosecuted for under a Victorian statute, section 2 of which made it an offence for any person to ‘cruelly beat, ill-treat, over-drive, abuse, or torture … any animal’. (This wording is now replicated by the first limb of section 1(1)(a) of the 1911 Act.) Local justices dismissed the case despite scientific evidence that considerable pain would have been caused to the oxen and that goring could be effectively prevented by alternative means. The prosecutor appealed. In the Divisional Court, Hawkins J, who adopted an established definition of “cruelly” as meaning “the unnecessary abuse of an animal”, [18] 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. [19]
With respect to the second of these things, that of the suffering having been inflicted without necessity, Hawkins J continued:
What amounts to a necessity or good reason for inflicting suffering upon animals protected by the statute is hardly capable of satisfactory definition - each case in which the question arises must depend upon a variety of circumstances; the amount of pain caused, the intensity and duration of the suffering, and the object sought to be attained, must, however, always be essential elements for consideration. To attain one object the infliction of more pain may be justified than would be ever tolerated to secure another. [20]
Thus, 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. As Hawkins J put it:
In each case, however, the beneficial or useful end sought to be attained must be reasonably proportionate to the extent of the suffering caused, and in no case can substantial suffering be inflicted, unless necessity for its infliction can reasonably be said to exist. [21]
He also stated that:
the legality of a painful operation must be governed by the necessity for it, and even where a desirable and legitimate object is sought to be attained, the magnitude of the operation and the pain caused thereby must not so far outbalance the importance of the end as to make it clear to any reasonable person that it is preferable the object should be abandoned rather than that disproportionate suffering should be inflicted. [22]
Hawkin’s J’s reference to what would be clear ‘to any reasonable person’ makes it plain that whether suffering was necessary is to be judged objectively and not by the standards of the defendant.
Since goring could be effectively prevented by other means, such as removing the tips of the horns or placing knobs over them, the farmer was left to rely on supposed justifications for his conduct that were essentially economic in character. The Divisional Court unanimously concluded that such economic efficiencies could not justify the very great suffering caused by dehorning. As Lord Coleridge CJ stated:
There is no necessity and it is not necessary to sell beasts for 40 [shillings] more than could otherwise be obtained for them, nor to pack away a few more beasts in a farm yard …. These things may be convenient or profitable to the owners of cattle, but they cannot with any show of reason be called necessary. [23]
While Ford v. Wiley remains good law, its effectiveness in enabling successful prosecutions to be brought in respect pf painful procedures performed on animals to enable them to be farmed intensively has been greatly circumscribed by the Divisional Court’s decision in Roberts v. Ruggiero . [24] In that case, which has already been referred to above, the Court upheld a decision by magistrates to dismiss a prosecution brought for an offence under section 1(1)(a) of the 1911 Act in respect of the keeping of calves in veal crates. Stephen Brown LJ and Stocker J refused to find that the practice caused unnecessary suffering simply because more humane systems of rearing were available, and criticized the attempt to use an offence of cruelty to attack a common system of intensive farming that Parliament had not at that time chosen to ban. Thus, it appears that, where suffering is caused which is an inevitable part of a recognized and common system of husbandry that Parliament has not chosen to directly prohibit, the suffering caused will not be regarded as unnecessary. Such a situation is not the same as that in Ford v. Wiley , in which the Court attacked a practice which had resurfaced in one locality after a 30-year absence, and which had been roundly condemned by the veterinary profession. [25]
2.2. 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. These offences will therefore now be briefly discussed.
2.2.1. Fighting and baiting an animal
In DPP v. Barry the Divisional Court has held that the offence of causing, procuring, or assisting “at the fighting or baiting of any animal” is only committed when each and every combatant is a captive or domestic animal, and therefore within the definition of an “animal” under section 15(a) of the 1911 Act. It is submitted that the decision should be regarded with great suspicion since it pays little heed to the statutory language, which refers to the fighting or baiting of any animal. There ought to be no need for more than one captive or domestic animal to be involved at all. It is submitted that the word “fighting” should be interpreted simply as a violent struggle, and it should not matter whether the captive or domestic animal is being fought by another captive or domestic animal, a wild animal, or, indeed, a human. Where a captive or domestic animal is set upon a wild animal that cannot fight back, however, that would not appear to constitute the fighting or baiting of an animal within the definition of the Act. Relying on the ordinary meaning of the word “baiting”, however, it is further argued that, if a wild animal is induced to attack a captive or domestic animal, the latter animal is being baited and the persons bringing this about are committing the section 1(1)(c) offence.
Where a fight has actually taken place between a wild and domestic animal, however, it would be wise for the prosecutor, bearing in mind the difficulty posed by DPP v. Barry , to consider charging those involved with doing an act causing unnecessary suffering contrary to the second limb of section 1(1)(a), or, as appropriate, with assisting or encouraging that offence. In Bandeira and Brannigan v. RSPCA the Divisional Court upheld a conviction for cruel ill-treatment to a dog contrary to the first limb of section 1(1)(a), where the defendants had pushed a dog into a confined space to catch a badger or fox, and the dog had sustained serious injuries in the confrontation with the wild animal. [26]
2.2.2. Willfully administering a poisonous substance to an animal
In order to secure a conviction under section 1(1)(d), the prosecution has not only to show that the defendant had no “reasonable cause or excuse”, but also that the defendant acted “willfully”, which has been defined as “deliberately and intentionally”. [27] It is therefore necessary to show that the defendant knew that the substance was poisonous and intended it to be taken by the animal.
Where it is not possible to prove that the defendant had that level of intention, it may still be possible for a conviction to be obtained for doing an act causing unnecessary suffering contrary to section 1(1)(a), provided that it can be shown that the administration of the substance caused the animal to suffer.
2.2.3. Subjecting an animal to an operation which is performed without due care and humanity
This offence has been strengthened by the Protection of Animals (Anaesthetics) Act 1954 , section 1 of which provides that any operation which involves interference with the sensitive tissues or the bone structure of a mammal [28] shall be deemed for the purposes of the 1911 Act to be an operation which is performed without due care and humanity if it:
(a) is performed ‘without the use of an anaesthetic so administered as to prevent any pain during the operation’, [29] and
(b) is not one of the operations which is expressly exempted from this rule by section 1(2) of the 1954 Act.
The exempted procedures, which are set out in section 1(2) of the 1954 Act read in conjunction with Schedule 1, and are as follows:
(a) The making of injections or extractions by means of a hollow needle;
(b) Any procedure duly authorized under the Animals (Scientific Procedures) Act 1986;
(c) The rendering of first aid in an emergency for the purpose of saving life or relieving pain;
(d) The docking of the tail of a dog before its eyes are open; [30]
(e) The amputation of the dew claws of a dog before its eyes are open;
(f) The castration of a pig before the age of four weeks, a bull or goat before the age of 2 months, or a sheep before the age of 3 months, provided that, if a rubber ring or other device is used to constrict the flow of blood to the scrotum, it must be applied within the first week of life;
(g) Any minor operation performed by a veterinary surgeon or veterinary practitioner, being an operation which, by reason of its quickness or painlessness, is customarily so performed without the use of an anaesthetic; and
(h) Any minor operation, whether performed by a veterinary surgeon or veterinary practitioner or by some other person, being an operation which is not customarily performed only by such a surgeon or practitioner. [31]
Thus, if an operation which involves interference with the sensitive tissues or the bone structure is performed on a mammal, and that operation is not within the eight above exceptions, it will be deemed to have been performed without due care and humanity and will therefore amount to an offence under section 1(1)(e) of the 1911 Act.
The Protection of Animals (Anaesthetics) Act 1964 and other legislation [32] limits the procedures which are permitted by exceptions (g) and (h) (i.e. the exceptions for procedures that are not customarily performed by a veterinary surgeon and procedures that are customarily performed without the use of anaesthetic) by providing that these exceptions ‘shall not in any circumstances permit’: [33]
(a) the castration of a male animal (except as permitted by exception (f));
(b) the de-horning of cattle;
(c) the dis-budding of calves, except by means of chemical cauterization applied within the first week of life; or
(d) the docking of lambs’ tails by using a rubber ring or other device to constrict the flow of blood to the tail, unless the device is applied within the first week of life;
(e) the docking of the tail of a pig which is more than seven days old; [34]
(f) the removal of any part of the antlers of a deer while those antlers are in velvet; [35]
(g) collect or transfer any bovine embryo per vaginam unless a general or an epidural anaesthetic has first been administered to the cow. [36]
Where, of course, an operation is carried out on a domestic or captive animal that is not a mammal, or the operation does not involve interference with sensitive tissues or the bone structure, or it falls within one of the exceptions, an offence under section 1(1)(e) may still have been committed. In such cases, however, the prosecution would have to prove that the procedure was performed without due care and humanity. Where unnecessary suffering was caused to the animal, an offence will also have been committed under section 1(1)(a).
3. The offences of cruelty under the Abandonment of Animals Act 1960
Section 1 of the Abandonment of Animals Act 1960 makes it an offence of cruelty for any person being the owner or having charge or control of any animal to abandon it without reasonable cause or excuse, 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.
3.1. What constitutes abandonment?
In Hunt v. Duckering the Divisional Court reached an interpretation of the words “to abandon” that has substantially limited the usefulness of the offence for the protection of animals whose needs have been neglected by their owners. Evans LJ took the view that, 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, it is obvious that the person has given up his duty to care for the animal. Where the person leaves the animal and is absent temporarily, then if the person has made no arrangements for the animal’s welfare, ‘it may be relatively easy to say that he has abandoned [it] in the sense of disregarding totally his duty of care’. The difficulty arises where a person leaves the animal for a period and makes some, albeit inadequate, arrangements. Evans LJ was of the view that, in such a situation, although the person may have neglected his duty to make arrangements for the animal, ‘it would be difficult … to say that that duty had been totally disregarded’. [37] Thus, the Court appears to have interpreted the words of the 1960 Act so that abandonment is regarded, not from the point of view of whether the animal was left without adequate arrangements having been made for its welfare, but from the state of mind of the defendant. Did the defendant totally disregard his duty to care for the animal? To adopt this test is to regard abandonment as a state of mind, albeit one that can be proved by the defendant’s total failure to provide for his animal’s needs.
Radford has strongly criticised the decision in Hunt v. Duckering , noting that ‘the apparent defense of having made some, albeit inadequate, arrangements undermines the purpose of the legislation, which is to protect animals left in circumstances where they suffer in fact or are likely to suffer’. Unlike the other offences of cruelty, under which the reasonableness or necessity of the defendant’s conduct is judged objectively, the offence of abandonment is now regarded as not having been committed by a person who acts in accordance with his own unreasonable views as to the animal’s needs and the provision that ought to be made for those needs. Radford cites RSPCA statistics that show that the number of defendants convicted of an offence under the 1960 Act following an RSPCA prosecution fell from 172 in 1992 (the year before the case was decided) to just 32 two years later. He sensibly proposes that the word “abandon” should be interpreted so that an offence is committed where the defendant ‘has disregarded his duty to care for an animal by leaving it unattended without any reasonable cause or excuse in circumstances where it is likely to be caused any unnecessary suffering’. [38]
3.2. ‘… in circumstances likely to cause the animal any unnecessary suffering’
Unlike the offences of cruelty set out in section 1(1) (a), (b) and (f) of the 1911 Act, all of which are committed only where an animal has actually been caused unnecessary suffering, the offence under the 1960 Act requires the prosecution only to prove that the animal was likely to be caused unnecessary suffering. This difference is obviously of great practical importance in situations where little evidence is available that the animal was actually caused to suffer.
Indeed, where an animal has been left without adequate arrangements having been made for its welfare and has, as a result, been caused unnecessary suffering, it would make sense to avoid the difficulties posed by the case of Hunt v. Duckering (discussed above) by prosecuting the person responsible for the animal for an offence under the second limb of section 1(1)(a) of the 1911 Act instead. As discussed above, an offence under that limb can be committed by unreasonably doing or, significantly in the present context, omitting to do, any act, thereby causing unnecessary suffering. Only where there is little evidence that the animal actually suffered would there by any advantage in pursuing a conviction under the 1960 Act.
3.2.1. “Unnecessary suffering” for offences of abandonment
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 … in circumstances likely to cause the animal any unnecessary suffering ’ (italics supplied).
On one view, “unnecessary suffering” should be given the same meaning as it is for the other offences of cruelty, other than those under the second limb of section 1(1)(a) of the 1911 Act, of which “unnecessary suffering” is an element. Under such an interpretation, the balancing test between legitimate objective and likely suffering would be conducted as an aspect of whether or not “unnecessary suffering” was likely to be caused. The words “without reasonable cause or excuse” would then serve only to provide an exculpatory defense to persons who left an animal without making arrangements for it, not because the suffering likely to be caused thereby was proportionate to the convenience of not making the arrangements, but because of an unforeseen occurrence that prevented the owner returning home at a particular time or an emergency situation which resulted in the needs of the animal being overlooked.
The alternative view is that, as with the word “unreasonably” in the second limb of section 1(1)(a) of the 1911 Act, “reasonable cause” should be interpreted so as to permit an animal to be abandoned when the legitimate objectives, in terms of benefits to humans or animals, sought by so doing are in proportion to the suffering that the abandonment was likely to cause.
Whichever view is adopted makes little practical difference to the scope of the 1960 Act offences.
4. 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.
To be deemed to have permitted the cruel act, the owner does not actually have to have known that it was to occur, much less to have consented to it. Section 1(3) states that:
… an owner shall be deemed to have permitted cruelty within the meaning of this Act if he shall have failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom.
Owners are therefore under a legal duty to exercise reasonable care to protect their animals from cruelty. The word “reasonable” indicates that the test is an objective one, i.e. the question whether or not the owner exercised an adequate level of care and supervision to protect the animal from cruelty is judged by the standard of a hypothetical reasonable man. Thus, an owner should not be acquitted simply because he thought that the care he exercised was adequate.
Section 1(3) provides that owners who are convicted of cruelty by reason only of having failed to exercise reasonable care and supervision shall not be liable to imprisonment without the option of a fine instead, thereby recognizing that such owners are less culpable than owners who were complicit in cruelty to their animals.
5. Exempt activities
Sub-section 3 of section 1 states that nothing in that section (which establishes the offences of cruelty)
… shall render illegal any act lawfully done under the Animals (Scientific Procedures) Act 1986, or shall apply—
(a) to the commission or omission of any act in the course of the destruction, or the preparation for destruction, of any animal as food for mankind, unless such destruction or such preparation was accompanied by the infliction of unnecessary suffering; or
(b) to the coursing or hunting of any captive animal, unless such animal is liberated in an injured, mutilated, or exhausted condition; but a captive animal shall not, for the purposes of this section, be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or hunted, or after it has been recaptured, or if it is under control, and a captive animal shall not be deemed to be coursed or hunted within the meaning of this subsection if it is coursed or hunted in an enclosed space from which it has no reasonable chance of escape.
Thus, section 1(3) expressly protects three activities that might otherwise be considered to constitute offences of cruelty:
(a) scientific procedures performed on animals,
(b) killing animals for food, and
(c) hunting and coursing.
Each of these will be briefly considered in turn.
5.1. Scientific procedures
Section 1(3) states that nothing in section 1 “shall render illegal any act lawfully done under the Animals (Scientific Procedures) Act 1986” (italics supplied).
The 1986 Act establishes a licensing regime for both particular research projects and individual researchers. Scientific procedures performed on animals that are carried out by a researcher with a valid personal license and in accordance with a project license are lawful even if they would otherwise constitute offences of cruelty. Where these conditions are not satisfied, the scientific procedure will not be “lawfully done” under the 1986 Act and thus, if the procedure causes unnecessary suffering, an offence of cruelty under section 1 of the 1911 Act will have been committed.
5.2. Killing animals for food
The requirement that the killing of animals for food should not be accompanied by the infliction of unnecessary suffering has been effectively superseded by the Welfare of Animals (Slaughter or Killing) Regulations 1995 (SI 1995/731).
Despite opposition from animal welfare campaigners and the majority of Members of Parliament, the hunting of wild animals with dogs continues to be lawful in England. Both foxes and stags are hunted by packs of hounds accompanied by riders on horseback. In the case of foxes, where they run to ground in an effort to escape their pursuers, terrier dogs are frequently sent underground to flush the fox out. Indeed, terriermen (terrier handlers) are considered an integral part of the activity of foxhunting. In order to train young foxhounds, they are sometimes provided with fox cubs to attack.
Hare coursing also continues to be lawful. This activity consists of setting dogs after hares. Bets are taken on which dog will be first to cease the hare and kill it.
The offences of cruelty are of no application whatsoever to wild animals that have not been reduced to a state of captivity. As discussed above, an animal that is not a domestic animal is not considered to be a “captive” animal for the purposes of the 1911 Act unless and until unspecified “acts of dominion” have been performed with respect to it. The mere capture of an animal will not, without more, be sufficient. Thus, if a wild animal which is being pursued is then caught, it will not immediately come under the protection of the offences of cruelty. If, for example, a fox runs to ground and is driven out by a hound into a cage, it will not be an offence to release the fox so that the pursuit can resume even if the fox is “liberated in an injured, mutilated, or exhausted condition”.
Section 1(3)(b) refers only to captive, and not to domestic, animals. (The meaning of the terms “captive” and “domestic” is discussed above.) The hunting or coursing of domestic animals therefore remains fully subject to the offences of cruelty and would almost certainly constitute the commission of such an offence. The provision therefore seems to relate only to instances where wild animals are held in captivity for a period of time, or non-domesticated animals are bred, before being liberated and hunted. An example might be a hare which was not only captured, but kept in a cage for a period of time and fed and watered, before being taken to a field at a later date to be released for coursing. On the language of the provision, once sufficient acts of dominion had been done with respect to the hare that it had been reduced to a state of captivity, it would be protected by the offences of cruelty up until the moment when it was liberated for the purpose of being coursed or hunted. Even after the moment of liberation, the hare would remain protected unless it was liberated for such a purpose:
(a) in an uninjured and unexhausted condition, and
(b) in an unenclosed space from which it had a reasonable chance of escape.
If these conditions have been satisfied, however, then, while the animal is being hunted or coursed, it is outside of the protection of the offences of cruelty. The conditions apply only at the moment of liberation. If the animal becomes injured or exhausted, or becomes trapped in an enclosed space, during the course of being hunted, it remains outside of that protection. In Rodgers v. Pickersgill Channell J noted that the exemption applies to any sort of hunting:
It does not say to sportsmanlike hunting; it does not say to hunting which is not cruel, or anything of that sort. [39]
Indeed, the provision does not define hunting or coursing at all, though one assumes that fishing may be regarded as a form of hunting.
On the language of the provision it would appear that, as soon as the animal being hunted or coursed is recaptured or brought under control, it again comes under the protection of the offences of cruelty even if new acts of dominion have not been performed. The provision states that
… a captive animal shall not, for the purposes of this section, be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or hunted, or after it has been recaptured, or if it is under control …
Thus, a strict reading of the provision suggests that the animal remains a captive animal for the purposes of the 1911 Act even after it has been liberated for the purpose of being coursed or hunted. (Presumably if the animal were simply liberated to return to nature, then the animal would cease to be a captive animal immediately.) It is therefore submitted that, from the moment that the captive animal is liberated, its protection under the offences of cruelty is suspended. Once the animal is recaptured or brought under control, presumably by a human, the animal’s protection resumes. If this is so, then there is a potential for a very difficult legal problem to arise if, for example, a human seizes and strikes an animal after it has been liberated. If this can be regarded as part of the activity of hunting, then no offence of cruelty has been committed. If, however, the animal can be said to have been recaptured or brought under control, then, depending on the circumstances, the striking may constitute an offence under section 1(1).
6. Penalties
Section 1(1) of the 1911 Act provides that the maximum sentence for an offence of cruelty is six months’ imprisonment and/or a fine not exceeding level 5 on the standard scale (currently £5000). Section 1(2) qualifies this by stating that, where the owner of an animal is convicted of permitting cruelty by reason only of his failing to exercise reasonable care and supervision in respect of the protection of animals therefrom, he shall not be sentenced to a term of imprisonment without the option of a fine.
In addition, section 12(2) provides that the court may order the convicted person to pay the prosecution’s costs, including those arising from the care and treatment of the animal which was the subject of the prosecution.
Section 1 of the Protection of Animals (Amendment) Act 1954 provides that the court may also make an order disqualifying the defendant from having custody of any animal, or of an animal of a specified kind, for such a period of time as the court thinks fit.
With respect to an animal whose owner has been convicted of cruelty to it, section 2 of the 1911 Act provides that the court may order its destruction if it is satisfied, on the evidence of a veterinary surgeon or with the consent of the owner, that it would be cruel to keep the animal alive. Furthermore, section 3 provides that the court may deprive the convicted defendant of ownership of the animal if there is evidence that not to do so is likely to expose it to further cruelty.
7. Future reform
In January 2002 the Department for Environment, Food and Rural Affairs (DEFRA), the government ministry now responsible for most animal welfare legislation, launched a consultation exercise on the consolidation of some 12 Acts of Parliament, including the 1911 and 1960 Acts, into a single animal welfare statute. Consolidation would likely be accompanied by simplification and reform, and the idea has been mooted of creating an offence of doing, or omitting to do, an act likely to cause unnecessary suffering, so that it would not be necessary to prove that an animal actually suffered. By the time the consultation period came to an end at the end of April 2002, some 1,600 letters had been received from members of the public.
The Animal Welfare Minister, Elliot Morley, stated:
There has been a ground swell of support for a radical overhaul of our outdated animal welfare laws in relation to companion animals. In its day, the Protection of Animals Act 1911 was state of the art but it was written before anyone had begun to consider the need for viewing good animal welfare in the round. We need practical laws that underpin the principles of responsible pet ownership. The question for pet owners and law enforcers alike has moved on from “Is the animal being treated cruelly?” to “Is the animal being properly looked after?” [40]
DEFRA’s legislative proposals are keenly awaited.
Footnotes:
[1] Wild animals receive some protection from cruel treatment under other legislation, the most important statutes being the Wildlife and Countryside Act 1981, the Protection of Badgers Act 1992, and, most significantly, the Wild Mammals (Protection) Act 1996.
[2] Commentaries on the Laws of England (1765-1769), Book II, Ch 25, p 392 (italics in the original), cited in Radford, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press, 2001), p 210.
[3] [1918] 1 KB 23.
[4] [1940] 1 KB 687.
[5] Protection of Animals Act 1911 , s 1(3), discussed below under the subheading, “Captive animals”.
[6] [1964] 2 QB 43.
[7] QBD, 10 November 1997 (unreported).
[8] See Hudnott v. Campbell, The Times, 27 June 1986.
[9] Barnard v. Evans , [1925] 2 KB 794. Per Shearman J at 798: ‘I do not think it can be better defined than as "causing unnecessary suffering." This was in line with pre-1911 authorities, e.g. Budge v. Parsons , (1863) 129 RR 367.
[10] Hopson v. DPP , QBD, 11 March 1997.
[11] See Bowyer v. Morgan (1906) 70 JP 253, 255.
[12] In a Scottish case, Lord Hunter stated that suffering ‘imports the idea of the animal undergoing, for however brief a period, unnecessary pain, distress or tribulation’: Patchett v. Macdougall 1984 SLT 152 (Note), 154. Sometimes the distress and fear that an animal suffers may cause both mental and physical suffering. A report by the eminent professor Patrick Bateson into the physiological, biochemical and pathological effects on stags that were hunted with dogs, an activity which remains legal in England and Wales, concluded that the effects of both the fear and the physical exhaustion that stags experienced while being chased was so great that, even if the stag was not caught, death might nevertheless result: Bateson P., The behavioural and physiological effects of culling red deer , Report to The National Trust, London (1997); Bateson P. and Harris R., Report of contract 7 on welfare to the Committee of Inquiry into hunting with dogs , Home Office, London (2000).
[13] See Isted v. CPS [1998] Crim LR 194; the Scottish case Patchett v. Macdougall 1984 SLT 152 (Note), 154.
[14] QBD, 11 November 1993.
[15] [1994] Crim LR 517.
[16] QBD, 3 April 1985.
[17] It is clear, however, that, although courts are understandably reluctant to allow the focus of attempts to prohibit common systems of husbandry and common uses of animals to shift from elected legislatures to the courts, the mere fact that a particular act is a traditional practice will not justify conduct that would otherwise be considered unnecessary suffering. See Waters v. Braithwaite (1914) 78 JP 124, 125 (discussed further below).
[18] The definition was established in Budge v. Parsons 3 B. & S. 382, at p. 385.
[19] (1889) 23 QBD 203, 218.
[20] At 218.
[21] At 219.
[22] At 220.
[23] At 209.
[24] QBD, 3 April 1985.
[25] The fact that suffering is caused in pursuit of a local tradition or custom will not protect it from being classified as unnecessary: see Waters v. Braithwaite (1914) 78 JP 124.
[26] (2000) 164 JP 307.
[27] R v. Senior , [1899] 1 QB 283, 290-291 (Lord Russell of Killowen CJ).
[28] Although section 1 of the 1954 Act refers to an “animal” rather than a “mammal”, the word “animal” is not given the same broad meaning as under section 15(a) of the 1911 Act. Section 1(4) of the 1954 Act expressly adopts the meanings given to words by the 1911 Act (which defines “animal” to mean ‘any domestic or captive animal’), but with the caveat that the word “animal”, when used in the 1954 Act, ‘shall not include a fowl or other bird, fish or reptile.’ The 1954 Act therefore applies to operations performed on domestic or captive mammals.
[29] Protection of Animals Act 1911 , s 1(1).
[30] For a person other than a veterinary surgeon or veterinary practitioner to dock a puppy’s tail now amounts to an offence of practicing veterinary surgery without registration as a veterinary surgeon (Veterinary Surgeons Act 1966, s 19). The prohibition on persons other than veterinary surgeons docking puppies’ tails came into force in July 1993, having been legislated for by the Veterinary Surgeons Act 1966 (Schedule 3 Amendment) Order 1991, SI 1991/1412, which removed the procedure from the list of procedures which may be carried out by unqualified persons that is contained in Part I of Schedule 3.
[31] The practice of veterinary medicine is regulated by the Veterinary Surgeons Act 1966, s 19 of which provides that “no individual shall practise, or hold himself out as practising or as being prepared to practise, veterinary surgery unless he is registered in the register of veterinary surgeons or the supplementary veterinary register” (the latter of which is for the registration of “veterinary practitioners”). Part I of Schedule 3 of the Act provides a list titled ‘Treatment and Operations which may be given or Carried Out by Unqualified Persons’. Part II of the Schedule contains a list of exceptions to the list, thereby making it clear that certain procedures, such as the castration of a cat or dog, must be carried out by a veterinary surgeon. Where an operation is listed in Part II, there can be no doubt that it should not be regarded as one that is not customarily performed by a veterinary surgeon.
[32] The Agriculture (Miscellaneous Provisions) Act 1968, s 5, provides that the Minister of Agriculture (or, in Wales, the Welsh Assembly) ‘may, after consultation with the Royal College of Veterinary Surgeons and with such persons appearing to the Ministers to represent any other interests concerned as the Ministers consider appropriate, by order provide that paragraphs 7 and 8 of Schedule 1 to the Protection of Animals (Anaesthetics) Act 1954 (which exempt certain minor operations from the requirement to use anaesthetics imposed by that Act) shall not permit the performance, either in any circumstances or in such circumstances as may be specified in the order, of such operations as may be so specified.’
[33] Protection of Animals (Anaesthetics) Act 1964 , s 1(4).
[34] Docking of Pigs (Use of Anaesthetics) Order 1974, SI 1974/798. Note: ‘Neither tail docking nor tooth clipping shall be carried out routinely but only when there is evidence, on the farm, that injuries to sows’ teats or to other pigs’ ears or tails have occurred as a result of not carrying out these procedures’ (Welfare of Farmed Animals (England) Regulations 2000, SI 2000/1870, Sch 6, para 27).
[35] Removal of Antlers in Velvet (Anaesthetics) Order 1980, SI 1980/685.
[36] Bovine Embryo (Collection, Production and Transfer) Regulations 1995, SI 1995/2478, reg 22.
[37] [1993] Crim LR 678, quoted in Radford, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press, 2001), p 207.
[38] Radford, Animal Welfare Law in Britain: Regulation and Responsibility (Oxford University Press, 2001), pp 206-209.
[39] (1910) 74 JP 324, 326; approved by Avory J in White v. Fox and Dawes (1932) 48 TLR 641, 643. A similar view was taken in Waters v. Meakin [1916] 2 KB 111. In that case the Divisional Court held that the placing of rabbits in a fenced enclosure before dogs were set after them still constituted “coursing” because, even though the rabbits had no realistic chance of escape, the event still allowed distinctions in the quality of the participating dogs to be observed. (Such an event would now not be considered hunting or coursing. The Protection of Animals (Amendment) Act 1921 amended section 1(3)(b) of the 1911 Act by the addition of the words: “… and a captive animal shall not be deemed to be coursed or hunted within the meaning of this subsection if it is coursed or hunted in an enclosed space from which it has no reasonable chance of escape.”)
[40] News release, Department for Environment, Food and Rural Affairs, 30 April 2002, available at http://www.defra.gov.uk/news/2002/020430a.htm