Hong Kong Animal Law & Protection Organisation

View Original

UK Government Announces Support for the Animal Welfare (Sentencing) Bill

Alexandra Aird

Introduction

On 5 February 2020, the UK government announced in a press release their support for the Animal Welfare (Sentencing) Bill, a bill which proposes to increase the maximum term of imprisonment for specified offences under the Animal Welfare Act (AWA) 2006.

 The bill was published in parliament by MP for West Dorset, Chris Loder and the second reading of the bill is set to take place on 12 June 2020. If passed, the bill will come into effect two months after Royal Assent.

Development of the Animal Welfare (Sentencing) Bill

The House of Commons Environment, Food and Rural Affairs (EFRA) Select Committee initially made a recommendation to increase the maximum penalty for animal cruelty offences in November 2016, noting that concern had been raised that a maximum sentence of six months:

  • Was not a significant deterrent; and

  • Failed to recognise the seriousness of the offences.

 The December 2017, the Consultation on the Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill incorporated this recommendation with the proposal to increase the maximum sentences for particular cruelty offences in England and Wales from six months to five years, in addition to reflecting the principle of animal sentience in domestic law.

 The consultation closed on 31 January 2018 and a summary of responses were published on 7 August 2018, with 70% of respondents indicating agreement with the proposed new maximum sentence length.

 Of those that agreed with the proposal:

  • 54% suggested longer sentences should be available in extreme cases of animal cruelty, or instances of reoffending

  • 34% urged that the increased maximum sentence length should not only apply to specified offences, but other non-specified offences such as starvation and conscious failure to provide necessary veterinary care; and

  • 6% suggested that those convicted under the Bill should also receive a lifelong ban on keeping or working with animals.

 The EFRA Committee, in their January 2018 Pre-Legislative Scrutiny Report on the bill, then recommended that the sentencing clauses be taken forward in a separate bill and the government agreed.

 The Animal Welfare (Sentencing) Bill 2017-2020 was published on 26 June 2019 and the Second Reading took place on 9 July 2019. The Committee Stage of the Bill took place on 23 July 2019 and was passed unamended. The Report Stage was scheduled for 4 September 2019 however this was cancelled.

 The bill was then reintroduced and published on 15 October 2019 however a General Election was called, and the bill failed to complete its passage through parliament before dissolution.

 The bill was then reintroduced as a Private Members’ Bill and presented to Parliament on 5 February 2020 and a Second Reading is set to take place on 12 June 2020.

 

Proposals

The bill is divided into two sections, the first of which outlines the amendment to AWA, and the second, which outlines the extent and commencement of the bill.

 As noted, the bill proposes to increase the maximum term of imprisonment for specified offences, and this is to be facilitated through amendment to section 32 (post-conviction powers) of AWA.

 Section 1(2) of the bill states that s.32(1) should be amended to read:

 “A person guilty of an offence under any of sections 4,5,6(1) and (2), 7 and 8 shall be liable –

 (a)   On summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both;

(b)   On conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both.”

 Notably, the increased maximum imprisonment term will only apply to the following prevention of harm offences:

  • Causing unnecessary suffering (section 4);

  • Mutilation (section 5);

  • Docking of dogs’ tails, where not permitted (section 6);

  • Poisoning (section 7); and

  • Animal fighting (section 8).

 Therefore, the increased maximum imprisonment term will not apply to:

  • Failure to ensure the welfare of an animal (section 9);

  • Breach of licensing conditions (section 13(6); and

  • Breach of a disqualification order (section 34(9).

 There have been calls for widening the offences to which the increased maximum imprisonment term will apply to.

 However, it is also worth bearing in mind that for the above mention offences (section 9, section 13(6) and section 34(9)), the level of fines increased with the Legal Aid, Sentencing and Punishment of Offenders Act 2012, with fines now being unlimited.

Concerns with the Proposals

 (i) Limited Applicability

A number of concerns were raised as to the narrowness of the July 2019 Bill:

  •  Adrian Bailey, MP of West Bromwich West, noted that the bill may differentiate harm to domestic animals from harm to wild animals;

  • Sue Hayman, MP for Workington, emphasised that the proposals would create a two-tier system and suggested that the same sentences should be available to judges for similar or identical crimes, regardless of whether the animal is domesticated or wild; and

  • Luke Pollard, MP for Plytmouth Sutton and Devenport, drew attention to such acts being cruel regardless of whether the animal is wild or domesticated.

 David Rutley, Parliamentary Under-Secretary of State for Food and Animal Welfare, however explained that the Bill would apply to situations where the wild animal was under the control of man, in line with AWA, which protects animals that are considered ‘protected animals”, thereby including wild animals where they are under the control of man.

 Further, Michael Flower, Deputy Head of Prosecutions at RSCPA, agreed with the concerns as to the narrowness of the Bill, however emphasised that this was an important first step.

 Moreover, concerns have been raised as to the limited applicability in terms of the sections to which the increased maximum sentence is to apply and some have called to expand the proposals to section 9, section 13(6) and section 34(9).

(ii) Costs to the Criminal Justice System

A concern raised is that the increased maximum term of imprisonment will have financial implications on the criminal justice system, with more offenders spending increased lengths of time in prison.

 Reassurances have however been given that the proposal will:

  • Have limited impact on costs to the criminal justice system, with estimated extra costs set to be no more than GBP 500,000; and

  • Will reduce the number of people committing such crimes.

 

Comparison to Other Jurisdictions

 (i) Northern Ireland

On 31 March 2014, the Northern Ireland Assembly debated a Motion calling for a review of the implementation of the Welfare of Animals Act (Northern Ireland) 2011, particularly  in regards to the sentencing guidelines and practices.

 Subsequently, Minister Michelle O’Neill initiated the Review of the Implementation of the Act, which was published on 29 February 2016, and recommended the maximum sentence for animal cruelty offences under the Act be increased to five years.

 Following the report, the recommendations were implemented by virtue of the Justice Act (Northern Ireland) 2016 and s.31(1A)(b) of the Welfare of Animals Act (Northern Ireland) 2011 now provides for a maximum imprisonment term of five years for offences under section 4 (unnecessary suffering), section 8(1) and 8(2) (animal fighting).[1]

(ii) Scotland

In Scotland, the maximum penalties for animal cruelty offences are 12 months’ imprisonment or a fine not exceeding GBP 20,000.[2] While this compares favourably to the maximum of six months under AWA, the scope is much more limited, applying only to:

  • Unnecessary suffering offences (section 19); and

  • Animal fights (section 23).

Accordingly, for any other offences under the Act (including, mutilation, cruel operations and administration of poison), the maximum sentence available is six months.[3]

On 1 February 2019, the Scottish Government published a Consultation on Proposed Amendments to the Animal Health and Welfare (Scotland) Act 2006, seeking views on, among other things, strengthening animal welfare legislation by increasing the maximum available penalties for specified animal cruelty offences.

 The Consultation proposed to:

  •  Increase the maximum prison sentence available to courts to five years;

  • Remove the upper limit on fines (GBP 20,000); and

  • Remove the statutory time limits for brining prosecutions entirely from the Act.

The proposal however only applies to section 19 (unnecessary suffering) and section 23 (animal fights) of the Act. 

The Consultation closed on 26 April 2019 and the Analysis of Consultation Responses was published on 17 July 2019, with 99.4% of respondents agreeing with the proposed increased of the maximum penalties.

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill was then introduced in Parliament on 30 September 2019 to implement the proposals and the deadline to publish the report is 17 February 2020.

 

(iii) Hong Kong

Currently, under the Prevention of Cruelty to Animals Ordinance Cap.169, the maximum penalty is three years imprisonment or a fine of HKD 2 million.[4] Previously, the maximum penalty was HKD 5000 and six months imprisonment, which was increased in 2006.

On 26 April 2019, the Government launched a public consultation on Proposals to Enhance Animal Welfare in Hong Kong. The Consultation proposed to:

  •  Introduce a positive duty of care on persons responsible for animals to provide for their welfare needs;

  • Enhance the provisions for the prevention of cruelty by increasing the maximum penalty; and

  • Enhance the enforcement powers for safeguarding animal welfare.

 As regards the increase of the maximum penalty, this consultation paper invited views on what level of the maximum penalty (amount of fine and length of imprisonment) would be appropriate, having regard to penalties in overseas jurisdictions and penalties for other selected criminal offences in Hong Kong.

 The consultation paper gave the following options for the increased maximum imprisonment term for indictable offences of cruelty:

  • 4 – 5 years;

  • 6 – 8 years; or

  • 9 – 10 years.

 Further, the consultation gave the following options for the increased maximum imprisonment term for contravention of the duty of care:

  • Less than 1 year;

  • 1 year;

  • 2 years; or

  • 3 years.

The consultation closed on 31 July 2019 and the proposed amendments were set to be implemented in 2021.

——————

Footnotes.

[1] The maximum term is available only for conviction on indictment. On summary conviction, the maximum imprisonment term is 12 months.

[2] See: section 46(1) Animal Health and Welfare (Scotland) Act 2006.

[3] See: section 46(2) of the Animal Health and Welfare (Scotland) Act 2006.

[4] See section 3: Any person who cruelly beats, kicks, ill-treats, over-rides, over-drives, overloads, tortures, infuriates or terrifies any animal, or by wantonly or unreasonably doing or omitting to do any act, causes any unnecessary suffering to any animal commits an offence and shall be liable on conviction to a fine of HKD 200,000 and imprisonment for three years.