Criminal liability of the dog owner under the Animal Welfare Act 2006
In this article Alison addresses the owner’s legal duties in relation to their dog’s welfare. Vets in practice will recognise their role in ensuring the welfare of animals under their care, and in this article Alison discusses the legal responsibilities of the dog owner or keeper.
The Animal Welfare Act provides for the welfare of a “protected animal” which is defined as an animal commonly domesticated in the British Isles that is under the control of man, and is not living in a wild state. The person legally responsible for that animal is not always the owner but, can be a person temporarily responsible, ie. any person taking care of the animal for someone else.
Prosecutions under the Act are often instigated by the RSPCA as a private prosecution but, the Police/Crown Prosecution Service (CPS) can also bring such proceedings.
The person responsible, which may be the owner, or the person temporarily in charge of the animal, commits a criminal offence (under section 4 of the Act) if they cause an animal to suffer unnecessarily, by an act, or a failure to act, and they knew, or ought to have known, that the act, or failure to act, would have that effect, or be likely to have that effect. There are exceptions from liability where such actions are for the purpose of benefiting the animal, or to protect a person, property or another animal. For example, a surgical operation upon an animal will undoubtedly cause some element of suffering but, that suffering would be caused for the purpose of the animal’s benefit.
The Act defines “suffering” as “physical or mental suffering” but the term has been the subject of repeated legal argument throughout the court system. As yet no Court has provided a clear definition of “unnecessary suffering” and there is still legal argument as to whether or not the test in deciding whether or not a person knew that the animal in question was suffering is subjective or objective. At their annual meeting in 2013, members of the British Veterinary Forensic Law Association (BVFLA) discussed the term and agreed that “An animal is suffering if there are observable symptoms in response to an adverse stimulus to which it has not been able to adapt. Suffering is more than discomfort”.
An act of violence against a dog, that causes an injury, or pain and suffering, would very clearly be held to be an act causing unnecessary suffering. However, many RSPCA prosecutions involve allegations of failing to act in relation to a protected animal, such as failing to take the animal for veterinary attention.
The question the Court will need to consider is – Was the dog suffering? Was that suffering unnecessary ? And, ought the owner/person in charge have known that their omission to act (take the dog to the vet) would have that effect? There is also the factual issue of considering whether or not the act of taking the dog to the veterinary surgeon would have prevented the suffering. If that is not proved, the Court may decide that the failure to act did not in fact cause unnecessary suffering and find that the offence is not proved.
This is where the issue of proving unnecessary suffering becomes problematic. The prosecution would need to prove suffering, by providing evidence from a veterinary surgeon who had examined/treated the animal in question. Such evidence will be treated as factual evidence provided by a professional witness. In these types of cases it may become relevant whether or not the accused person had in fact taken any veterinary advice in relation to the dog’s condition. To rebut such allegations, the accused may request evidence from their veterinary surgeon to prove that they did consult with them, or attend at the surgery with the dog in question, in relation to that condition. The associated records may also be required in order to prove this to the Court. To this end, even those veterinary practitioners who do not choose to work as expert witnesses may end up in the Court arena and may be summonsed to attend, or ordered to disclose relevant records, if the Court feel that this is necessary.
The defence can attempt to rebut the factual evidence provided by the prosecution by the provision of expert witness opinion evidence. Such expert evidence will have a higher weight attributed to it than the factual evidence. The Royal College of Veterinary Surgeons (RCVS) define an “expert” as “anyone with knowledge of a particular field or discipline beyond what is expected of a layman” and an expert witness as “a person qualified by their knowledge, experience or formal qualifications, to give an opinion to a Court on a particular issue to assist the Court in deciding the matter or case before it”. Expert evidence is governed by various codes of practice laid down by governing bodies such as the RCVS, the CPS, the Society of Expert Witnesses, and the Academy of Experts. Case law provides that an expert witness must be independent and unbiased and that their opinion should be confined to matters on which the Court will be assisted and are within their area of expertise (Anglo Group plc v Winther Brown & Co. Ltd. (2000)). However, it should be borne in mind that expert witnesses no longer enjoy immunity from negligence actions in relation to a breach of their duty whilst giving such evidence (Jones v Kaney (2011)). In more simple terms, the expert witness can be sued for professional negligence.
Does the veterinary surgeon treating a dog have any legal duty in relation to that dog’s welfare?
The RCVS Code of Professional Conduct for Veterinary Surgeons Supporting Guidance directs a course of action which should be followed under the veterinary surgeon’s ethical duty. When presented with an injured animal, and the physical signs do not appear to be attributable to the client’s version of events, then the veterinary surgeon is advised to record this as a “non-accidental injury”. The advice is then to either discuss the matter with the client or report it to the relevant authorities (police or RSPCA). The guidance provided states, at paragraph 14.8-14.11, that: ”such action should only be taken when the veterinary surgeon considers on reasonable grounds that either, animals show signs of abuse or, are at real and immediate risk of abuse”. In effect, the duty to maintain client confidentiality can be overridden by public interest in these circumstances.
A practitioner may be reported to the RCVS Professional Conduct Department by others (known as whistleblowing), for example staff, colleagues or clients, if it is felt that they should have reported something which was obvious.
However, this is only an ethical duty and not a legal obligation, or statutory duty to report, and only applies to those registered with the RCVS. Consequently, there is no legal liability for not reporting such concerns.
Procedures such as tail docking are an offence (under section 6 of the Act) unless the animal is a certified working dog and not more than 5 days old. A veterinary surgeon must certify that the dog is likely to be used for work in connection with – law enforcement, armed forces activities, emergency rescue, lawful pest control or the lawful shooting of animals, and that the dog is a type specified by the appropriate authorities in relation to such activities. It is an offence to show a dog that has had its tail docked at a show to which members of the public are admitted upon payment of a fee. It is also an offence to knowingly provide a veterinary surgeon with false information in relation to certification of such a procedure.
The Act creates a criminal offence (under section 8 of the Act) where a person causes an animal fight to take place, or attempts to do so, publicises such an event, knowingly receives money for admission to an animal fight, takes part in such a fight, allows their premises to be used for an animal fight, trains or keeps animals for use in fighting, or makes or accepts a bet upon that fight. The video recording of such activities is also prohibited. A police constable may seize an animal if it appears to have been involved in fighting offences.
The person responsible for a protected animal has a legal duty (under section 9 of the Act) to ensure that the welfare needs of that animal are met, and commits an offence if they do not take reasonable steps to ensure that the needs required by good practice are provided for. The Act defines necessary needs as including – its need for a suitable environment, suitable diet, need to exhibit normal behaviour patterns, to be housed with or apart from other animals and its need to be protected from pain, suffering, injury and disease. Circumstances such as the lawful purpose for which the animal is kept and any lawful activity undertaken in relation to that animal are relevant in deciding whether or not those needs are met. For example, working dogs may not be expected to be provided with the same level of comfort and housing as household dogs, but – all animals must have the above basic needs met. Bitches in season, or nursing puppies, should be housed separately from other dogs and dogs should be allowed to behave normally which includes the provision of exercise and freedom to move around. This legal duty to provide for an animal’s welfare needs will render liable those who abandon their animals as their needs would clearly not be met.
Powers of enforcement
The RSPCA inspector can serve a person with a notice for failing to comply with the requirements in relation to the animal’s welfare and require that person to take steps in order to comply. This notice is referred to as an “improvement notice” and provides a “compliance period” in which the person should take those steps. During that compliance period no proceedings may be commenced.
Where a protected animal is reported to be in distress, an inspector appointed by the Local or National Authority or a police constable, if they reasonably believe that an animal is suffering, can take such steps as appear immediately necessary to alleviate that animal’s suffering. They also have the power to enter premises to search for that animal if they reasonably believe that it is suffering, or is likely to suffer, if the circumstances do not change.
However, this power does not extend to a private dwelling, although a warrant may be issued by a Magistrate, authorising entry if there are reasonable grounds for believing that there is a protected animal on the premises. The warrant also requires that the animal is suffering, or is likely to suffer, if it’s circumstances do not change. A police constable has a power to enter private premises to arrest a person for an offence under the Animal Welfare Act and may use such force as is necessary in order to do so. The animal can be removed, if a veterinary surgeon certifies that it is suffering, or likely to suffer, if its circumstances do not change. An inspector or constable may act to destroy the animal, or remove it to be destroyed elsewhere, if it appears that there is no reasonable alternative and it is not reasonably practical to wait for a veterinary surgeon.
Powers of the Court
The powers available to the Court upon conviction in the Magistrates’ Court include imprisonment for a term up to 51 weeks, a fine not exceeding £20,000, or both. The Court can order that the owner/person in charge is disqualified from keeping that type of animal for a specified period of time, and may issue a lifetime disqualification where appropriate. The Court may also make a deprivation order (permanent removal) in relation to that dog, or any other animals owned by that person. In relation to the dog itself, the Court can order that specified treatment be administered (ie. neutering), or the sale, disposal or destruction of the animal. Further, the Court can order the owner/person in charge pay the costs of the proceedings.
The owner of a dog, or the person in charge of that animal, even on a temporary basis, is liable to face prosecution for acts of cruelty, acts of neglect and/or failing to provide a basic standard of care for that dog. Acts of cruelty or violence against a dog can result in imprisonment and a significant financial penalty. Neglect of a dog can lead to similar penalties.
As an animal owner, if your dog appears to be unwell and you think that it may be suffering then you have a legal duty to alleviate that suffering. Veterinary costs and the costs of providing basic care should be taken into account when considering the care that your dog will require. If you cannot afford pet insurance or the veterinary costs then it is possible to take that dog to a provider of free, or reduced cost, veterinary care such as the PDSA, Blue Cross or Dogs Trust. Allowing a dog to suffer due to a lack of finances is unlikely to be viewed as mitigating circumstances by a Court.
Alison Howey LLB (Hons) Barrister at Law, Senior Lecturer in Law at Northumbria University at Newcastle
Originally published in the Vet Times