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There was a 50:50 chance of getting it right first time. We will also hear from a representative of the Metropolitan police. Will the witnesses please introduce themselves for the record?
Q Thank you both for coming. Mike, in the biography that you kindly provided to the Committee, you note that you have
“concerns about the impacts of a significant increase of potential sentences in one area of animal protection law, but not in other comparable areas.”
Is that about what happens with domestic animals versus wild animals? If that is the case, why do you have those concerns, and what might the implications be of increasing sentences in one area?
Yes, it is precisely that: the danger of disparities and distortions, and even confusion, caused by the ramping up—that is not a critical comment—of maximum sentencing in one area, which is the domesticated and under-control-of-man area, while leaving well behind the maximum sentence in other areas. As you know, the disparity is between six months in most other areas—in the Hunting Act 2004, it is even less—and five years under the Bill. That may cause problems when it comes to sentencing.
The root of the problems is the Criminal Justice Act 2003, which is about sentencing, and two provisions in particular. The first is section 143, which says that the essential issues when it comes to sentencing are the culpability of the offender—that is not so relevant to today—and the “harm…caused”. That term begs the question why harm, cruelty and suffering in one sector are sentenced at a more serious level than in another. That is one provision that sparks potential problems.
The other provision is in section 152 of the same Act, when the court is required to look at whether the threshold for custody is passed. It is not a helpful comment—it is rather circular—but the section asks whether custody is justified and whether a fine or a community sentence is not appropriate. That begs the question whether the sentencing and custody threshold should be passed in one area when similar activity in another that causes similar suffering and harm might not reach the threshold. I can develop that if you like, but you might want to ask another question. I am happy to continue with that.
You know as well as I do that the “unnecessary suffering” provision in the Animal Welfare Act 2006 is perhaps key to today’s discussion. As far as I can see, “unnecessary suffering” is not significantly different in terms of cruelty from the animal affected in all the other areas of animal welfare and wildlife law. One thinks of the Wildlife and Countryside Act, the Protection of Badgers Act and the Hunting Act. We are talking about the same sort of serious offence and the same cruelty, so there is nothing to distinguish between the activities and the suffering caused in those areas.
That brings us to the obvious point, which is that different sectors of the same activity—animal welfare, animal care, animal husbandry—are treated differently. I cannot think of an area, although I am happy to be corrected and I might be wrong, where there is that difference in sentencing when it comes to the same offence. I am not an expert in the area, but one thinks about health and safety law and the same principal offences that apply. Obviously, the sectors are regulated differently, but it would be unusual in that and similar areas for the sentences to be significantly different for the same offence and the same mischief in one area than another.
Q Thank you. I think the Committee has found that quite helpful in setting it out so clearly. If you were to dropkick—not that you would—a domesticated rabbit, it would be a potential sentence of five years, but the same act on a rabbit in a field could be only six months, even though the harm to the animal might be similar in both instances. Do you feel that the distinction between wild and domestic animals might be used as a legal defence by the people being prosecuted, or is your concern a moral one about the law treating those two scenarios differently?
Obviously, we are talking about sentencing here rather than defences. That is the starting point for now, but I agree entirely with your example about the rabbit, or the hare. If we think of a rabbit or a hare that is kept in a hutch by a child and that is being mistreated by the father, why should he be liable to such a significantly greater sentence than if he had just gone into a field to injure and be deliberately cruel to a wild hare? One can think of lots of other examples. You have heard the evidence already, but that encapsulates the problem of, why should things be treated differently? But it goes wider than that.
One disparity, which I am sure you are aware of, is that if one increases the sentence beyond six months—again, I am not saying that that should not happen; in fact, quite the opposite—that entitles a defendant to a Crown court trial. Therefore, a defendant—let us say the abuser of the rabbit in the hutch—would be entitled to a Crown court trial, whereas the abuser of the rabbit or hare in the field would not. That starts playing into the substance of the criminal justice process where one is entitled to a jury for apparently random reasons as a result of this perhaps artificial, though it appears inevitable, distinction that has been drawn.
One can think of other ways that the system is distorted, particularly for judges when they come to sentencing, or even for prosecutors when they decide whether to prosecute. For example, in the case of catching a badger or a fox for no other reason than for dogs to kill it, if one focuses on the impact on the fox, that is, arguably, in the wildlife area where there is a maximum sentence of six months. The fox dies. If one looks at the impact on the dogs that are controlled by a hunt or the abusers, they are “under the control of man”, as the Act says, and therefore if one focuses on the injury to the dogs, which invariably will survive, the maximum will be five years. That throws up another point, which is the question that was discussed earlier: what “under the control of man”, according to the terms of the Act, means.
For what it’s worth, and this has no legal weight as I don’t have any legal authority for saying it, my view is that just because a badger or a fox is caught, and if it is caught simply for the purpose of baiting and killing it, that does not make it not a wild animal, because that is part of the offence, otherwise every single offence would be caught by the protected species and domesticated animals provision. It might be different. If, for example, the fox or the badger was already in a domesticated or controlled setting and was then set upon, it might be different, but that plays into the point that because of the disparities in sentencing, any prosecutor in court, and particularly a judge sentencing, would need to bear in mind those considerations about what exactly is the definition of “under the control of man”.
Fantastic. I would like to come back to Inspector O’Hara later when other Members have put their questions.
Q As you know, there has been a recent change in the law to make it more straightforward to prosecute under the Animal Welfare Act, in the case of service animals. At the moment, the sentencing guidelines talk about taking account of the fact that an animal is in public service.
Do you think there is a case for making the situation of the service animal clearer in the sentencing guidelines, and making it absolutely clear that it is an aggravating feature to attack a service animal? Inspector O’Hara might like to start on that.
Obviously, the service animal provision is relatively new, and we have yet to see how that will play out in court. I take quite a pragmatic view that the courts will be able to read between the lines with what is specifically written in the guidelines, to come to a correct conclusion in that regard.
Q So, you do not think there is a need? There is a general view, expressed by earlier witnesses, that there is a case for reviewing the sentencing guidelines to make them clearer on a number of aspects. That is partly because with a sentence of five years there is more scope to make distinctions than there is with a very short sentence. Do you think that is worth while?
Clearly, it is a matter for the judiciary, and not necessarily the police, to put that forward. We have certainly called over the past couple of years for an increase in penalties. That is something that we put forward with the Environment, Food and Rural Affairs Committee on companion animals a couple of years ago. I just think that we have not got the evidence base at the moment, with the service animals notion particularly, to suggest that it is posing a particular problem that requires a review.
Q There was a problem with criminal damage, as you know. Finn, the famous police dog, was attacked and there was no separate penalty at court. The reason was that criminal damage is largely judged by the value of the animal. Of course, a seven or eight-year-old police dog is not really worth very much money, although it does a very valuable job.
The aim of the change in the law and, I hope, this increase in sentence is to have something that is more tailored to the situation. Is that something that you would recognise as worth while? Do you not think that the sentencing guidelines would need to be looked at in those new circumstances?
That was obviously an important piece of legislation and I know you are rolling it out. I think the sentencing guidelines—the 2017 ones—on the Animal Welfare Act do cover that point. They say that if the animal is being used in public service or as an assistance dog, there is an aggravating feature, but that might not have the priority that you and others might wish to accord it.
Q The Animal Welfare Act was devised by Mr Bradshaw when he was Secretary of State to cover a particular area. Obviously, as you have said, Mr Schwarz, there are many other similar areas that are covered by other Acts. There is a short period available to us before the end of the Session and the opportunity to pass this Bill. Do you accept that it is well worthwhile to do that, even though the Bill does not have the wider coverage that you had hoped for?
I would not come here either as an expert or a politician, but my personal answer is, “Yes, but.” The “but” may come in the proposed amendments, recommending a report or a review to see what disparities and distortions may be caused, with a view to that being the trigger to further analysis of the whole sector—or both sectors.
As I understand it, though others here will know better than I do, there was the existing wildlife law and then Labour passed the Animal Welfare Act to get domesticated animals on the same level. As you know, that makes things more advantageous for prosecutors in one sector, leaving another behind. That would be a reason for trying to build in some sort of process, such as a report or a review, to try to get the other sector back up to speed with the first.
I have a friend who lobbies on this Bill on behalf of Battersea Dogs and Cats Home. One thing we often discuss is the fact that people who are capable of committing unspeakable acts against animals are surely quite likely to display that lack of empathy and go on to harm people. If we get any sort of comeback, it is along the lines of, “It’s just animals. Why is it so important to sentence people?” I would like to know Paddy’s experience. Do such people go on to carry out acts of domestic violence or other acts against peopleQ ?
Some research from the US in particular tends to suggest a link between animal-related violence and human-related violence. I do not know that we are quite so far advanced in this country to have the dataset available to help us understand that, but the five-year penalty broadly brings causing suffering to an animal in line with actual bodily harm, which is the human equivalent. That is something we strongly suggested at the last EFRA Committee.
Thank you very much. I declare an interest: I am pretty sure I have prosecuted offences that were defended at the bar by Bindmans.Q
Mr Schwarz, can I ask briefly about your helpful point on an apparent inconsistency between domestic and wild animals and explore a little bit about how much that matters? I am conscious that, if a robbery takes place and there are two robbers, one of whom is 18 years and one day old at the time of the offence and the other is 17 years and 360 days, they will be sentenced under different regimes, even though, as far as they are concerned, they are two young men of effectively identical age. Equally, if there is a traffic offence and a prosecutor decides the driving fell far below the standard of a reasonably careful and competent driver, they get charged with dangerous driving. Equally, if another prosecutor says, “Well, I don’t think it quite crosses ‘far below’, but it was below the expected standard, so I’m going to charge it as careless driving,” that offending would be sentenced under different regimes. Have the courts not shown themselves to be well able to deal with such discrepancies without any real manifest injustice to anyone?
I can see I have struck a lawyer here. There is a difference, actually, and it is one of substance. There is a principle behind treating adults differently from juveniles, and a principle behind treating careless driving differently from dangerous driving. As we all know, the law has to draw a line because there is a reason for doing so. The distinction between the sectors of domesticated and wildlife animals, and treating them differently in terms of sentence, does not appear to have a principle, unless Parliament is saying that the animal suffers less in the wild as the result of unnecessary cruelty, or that it is more important to punish suffering in the domesticated area. For what it is worth, I think the suffering is the same, and it is for Parliament to decide whether the two should be distinguished from each other. That is where the distinction lies.
It begs the question of what the animal welfare legislation is generally about. It seems to be about protecting animals, punishing bad behaviour by humans and stopping it being propagated elsewhere. In the sentencing guidelines and the offences, however, there is no demarcation between sectors to say that one sector is more worthy of protection than the other is, which is why I go back to the point on the level playing field across the two areas.
Q It is an entirely fair and appropriate observation to make. Do you accept that the law has shown over time to be capable of growing organically? For example, the stalking legislation did not even exist—it was not even recognised by the law prior to 2012. Then the offence came in, the sentencing powers increased, and there were various other aspects on top of it. That would not in and of itself be a reason not to enact this legislation, even if, in the fullness of time, it may be that it has wider ramifications. Would you accept that?
Obviously I accept that the legislation can and should be passed, but with the health warning that it is creating a disparity. It is not an artificial, in-principle, lawyer’s type of disparity; it creates problems for judges to have a judge in the Crown court sentencing on one set of facts and in the magistrates court on another. If one looks at the guidelines, how is a judge going to sentence someone who has committed a very heinous act against a wildlife animal if his or her sentencing powers lead to the conclusion that the sentence should be lower than for a less heinous act in another area?
Defence lawyers, as you and others know, would have field day with that, saying that the principles of proportionality and fairness require examination. I heard that there was feedback from the judiciary about the existing law. One can only think about what the feedback might be, pending a formal review or report, or not, if this disparity were not only passed—and I am not saying it should not be—but passed without a commitment to reviewing and evening up the playing field.
Q One very last point, if I may. Surely if, for the sake of argument, the sentencing guideline is there in place and says that, where a dog has had its tail docked and it was a sustained act of degrading violence, the brackets should be one to three years, and the defence counsel turns around and says, “Oh, well, if this were a wild dog I wouldn’t get as much,” the judge will say, “I am not terribly interested in that. The sentencing guideline is clear for this offence. Parliament has indicated that it takes it extremely seriously. We have no difficulty with dismissing that rather ambitious submission,” and take him down? Is that not, in fact, what would happen?
Q Thank you very much for your evidence so far. Could you share from your experience on the degree of consistency or inconsistency in what you see from the sentencing so far in such cases under the existing legislation? As a second part of that, could you talk about how, when lawyers are defending their clients, they seek to convince the court that their client should face a lesser sentence? What mitigating factors, or even aggravating factors that work against them, have you seen so far? I will start with Inspector O’Hara.
The majority of offences that I have seen prosecuted by the police are probably not cases that would hit the higher end of the sentencing bracket. They are largely cases involving an animal hoarder—generally somebody who has some mental health problems or another underlying reason for amassing 20 animals in a property. It is that sort of offence that we typically see day in, day out. At the last count, when I ran the figures for the EFRA Committee inquiry report a couple of years ago, broadly speaking—this is from memory—around 85% of the prosecutions were done by the RSPCA and about 15% by police or local authorities, with the burden of that shared by the police.
That typically tends to be my experience. We have not had any tail-docking cases that I can think of in London, but we have ear-cropping mutilations and general animal cruelty rather than organised crime or that more serious end of it. All those cases have been dealt with in a magistrates court so far, but the sentencing in London is fairly consistent because all those cases go to one court, although elsewhere in the country it is probably not so. Most of those cases are dealt with by way of a fine or other ancillary orders rather than imprisonment.
I do not know whether I can add to that. The only point I would make, triggered by that thought, is about the position in Northern Ireland, where the unnecessary suffering provision in section 4 is not limited to domesticated animals but applies across the board. There would be a significant disparity of sentencing for exactly the same facts for a case in Northern Ireland compared with England and Wales if the Bill is passed. That is the only helpful contribution I can make, other than to refer to the existing sentencing guidelines, which are very helpful.
Q Mr Schwarz, we have heard about the need to get the Bill passed. We have also heard about the difficulties of making a distinction between wild animals and domestic animals. I asked the representative of the RSPCA about a review, which he thought was a sensible idea. How soon after passing the Bill would it be sensible to have a review?
I would like to think the points I make are sound in principle and therefore one does not need a great deal of evidence in order to have that review. I am not being vain about it, but there are flaws in the structure of the Bill which, if recognised, merit a review. Having said that, I would not dismiss evidence or views, particularly from the judiciary.
You mentioned how the judges might be grappling with this. Suppose the Bill were passed today, the first prosecutions might come about in the next six to 12 months, particularly they were Crown court cases. After 12 months, there might be some instances where problems—or lack of problems—emerge. I see that there were about 700 or 800 prosecutions in 2018 under the Animal Welfare Act. During that year, there was likely to be a significant proportion of helpful cases. Soundings could be taken of the judiciary and it could be advised after the Bill passes that Parliament would be assisted by view.
It would take perhaps a year, if one attaches importance to evidence, but sooner if it is accepted that, as a matter of principle, the absence of a level playing field needs to be addressed earlier.
Q Clearly, having a stricter sentence for that will also fit in with other criminal activities that surround dog fighting. I am sure that it is not a problem in London, but your fellow police officers in other parts of the country have terrible problems with hare coursing. Would you support the idea that it would be sensible to have a Bill of this sort that would help to prevent hare coursing as well as dog fighting?
It is not really my area of expertise. I generally stick to companion animals and the position on that should probably come from wildlife crime. I suspect it dovetails very much into Mike’s point around the disparity of the two genres, for want of a better phrase.
Q Thank you both for your support today and for your very useful evidence. The question of guidelines and how important they are came up in the previous session and has come up in this one. Can you give your thoughts on the role of sentencing guidelines in how you deal with animal welfare legislation? Inspector O’Hara, how do they help with the cases that you have to deal with? It would be helpful to have a perspective from both you. It is clear that other members of the Committee feel that the guidelines are going to play an important role.
The guidelines play a very important role for any offence because they are the starting point at which the court will look upon sentencing as to where the offence will sit along with any mitigating or aggravating factors. It is really key that those guidelines are there and that they are robust. Having them in place will ensure consistency across the board, depending on which courthouse the matter sits.
As you know, there are two sets of guidelines: one is the overarching principles for sentencing in all criminal cases, which I referred to earlier when I talked about harm and culpability; then, as has been mentioned a number of times, there are the specific guidelines of the Animal Welfare Act and animal welfare laws. I think they are very good, but nothing should escape review. It is important that it is reviewed with the passing of this legislation.
Earlier we heard that the point that when the threshold for custody is passed is now more important, bearing in mind the threshold goes up and the length of sentencing goes up. So far, the guidance is just in section 152 of the Criminal Justice Act 2003, but the sentencing guidelines for animal welfare would benefit from some guidance on when the custody threshold is reached and what sort of sentences should lead to what greater lengths of custody. That exercise may throw up the disparity between the two areas, which is why I think a review is important and probably quite urgent.
Q Inspector O’Hara, when the Bill is passed into law—hopefully very soon—how will it be implemented, and what about the deterrent effect that was spoken about earlier? From an outsider’s perspective, the idea that the cruelty sentencing could increase to such a large degree should have an effect. From your point of view, as someone who works in this area, how best will that be communicated to individuals who would consider abusing an animal? What is the best way of communicating the increased sentence to the general public and to those individuals, so that it has a deterrent effect?
Typically in this topic, media have been led and have focused on case results and outcomes, on the back of some successful prosecutions with high sentencing. I think there is a key prevention message that can go out before the legislation comes through. There is one thing that worries me slightly: I have not known many people charged with animal welfare offences to enter a guilty plea at the first hearing. I can see that there will be quite a lot of cases, particularly if sections 4 to 8 are charged, where somebody will elect to go to Crown court, so it will be some considerable time down the road before we get those sentences coming through, but you might find that the cases that go up to the Crown court get no more severe a penalty than they would have got in a magistrates court. We have to manage our expectations of what that will bring.
In my other area of work, dangerous dogs, following the legislation changes in 2014 and the 14-year penalty that came in for a dog dangerously out of control causing death, we have not seen significant sentencing increases as a result of that legislation. While the current provisions are very good, and we very much support them and hope they will come in quickly, expectations in the court outcomes will need to be managed.
Q Thank you, that is an important point. Do you get the sense that with greater sentencing there will be greater public awareness of animal cruelty, and therefore more people coming forward? In particular, I am thinking about cases that currently are not reported. Do you think there is a possibility that greater awareness and the higher penalties might encourage more people to step forward, or do you think the opposite will be true—that the greater penalty might make people more hesitant, because the consequences will be more extreme?
I certainly do not think it will cause people to be more hesitant; the British public are a nation of animal lovers, and nothing riles people more than animal cruelty. I do not see a negative effect as a result.
Q Brilliant. In all our postbags, animal welfare is by far the most important topic, beating Brexit hands down. Looking at your CV and your work in this area and on status dogs, I want to ask about individuals whose behaviour and control of an animal might be beyond what you and I would expect of a dog owner. Do you think that the idea of increased punishment will prevent people doing things in terms of using animals as a status symbol, or using animals as a sign of bravado and machismo?
It is a difficult question because we are starting to see, and have been seeing for a number of years, a reduction in the number of section 1 dogs in particular coming to notice as status-type symbols. However, people are moving on to non-prohibited breeds, and we see quite a lot of those. Simple possession is not an offence in any way, so whereas a pitbull terrier would have been a typical dog in the past, there are now people with, for example, dogs that are larger than a pitbull terrier. Typically, we do not see a lot of dog fighting, and we do not see a lot of mutilations and ear-croppings, although we do see them occasionally, and they do come to note. If I look at my animal welfare offences prosecuted alongside the Dangerous Dogs Act 1991 offences, I am not necessarily sure that there is a real strong parallel. If anyone is charged with a Dangerous Dogs Act 1991 offence, mostly there are not really cruelty offences on top of that, other than in the odd case.
I want to follow up some of the questions asked by Members. You may be aware of the wildlife law report from the Law Commission—There was a consultation, and recommendations were published in 2015. Among those recommendations was one that the patchwork of existing legislation be replaced by a single statute. This Bill does not cover wildlife, as we have said, but as mentioned by my hon. Friend the Member for Plymouth, Sutton and Devonport said, to our constituents that distinction would not be quite so understood. I do not see how our constituents who care greatly about animal cruelty will understand why there is a distinction, and why there is still effectively a patchwork. Whilst we welcome this Bill, it does seem to be doing that. Do you have any thoughts on the differences and the continued existence of what seems to me and to the Law Commission to be a patchwork?
It seems to me that we are pressed for time to put this Bill through. It would be a great shame, in my view, if we were to do that consolidation work now at the expense of this Bill. With the Animal Welfare (Service Animals) Act 2019 there has been a split into piecemeal chunks to get them through, essentially, and to get them in. There could perhaps be a review at a later date, as mentioned today in the Committee. A review could look at a consolidation piece of work, along with any other bits that needed tidying up.
I agree entirely with the thesis that there needs to be some systematic review. Animal cruelty has the same effect on animals regardless of where the animal lives, and whether it is husbanded. The impact on the humans involved is the same, and the culpability of the humans is the same. We all know that the way of inflicting injury, cruelty or death on animals varies according to the sector, but the disparity of sentences and the patchwork nature of the current legislation risks distortions, as I said earlier, and even risks bringing the law into disrepute when there is not a sense of fair prosecution and sentencing. It may help judges and the public understand the situation, as they may have difficulty piecing together the legislation as well.
Q Inspector, you referred to the lack of time. That puzzled me a bit. Where does this idea of the lack of time comes from? We have done virtually nothing legislatively since April. Where has this idea that there was a lack of time to pass a bigger Bill come from?
I am not sure that the issue is really within the scope of the witnesses to comment on, but you made the point. If there are no further questions from Members, I thank the witnesses for their evidence. That brings us to the end of our oral evidence session. The Committee will meet again this afternoon to begin a line by line scrutiny of the Bill.