House of COMMONS
MINUTES OF EVIDENCE
ENVIRONMENT, FOOD AND RURAL AFFAIRS COMMITTEE
Thursday 14 October 2004
MR TONY SUCKLING, MR MICHAEL FLOWER and MR DAVID BOWLES
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Taken before the Environment, Food and Rural Affairs Committee:
Sub-Committee on the Draft Animal Welfare Bill
on Thursday 14 October 2004
Mr Michael Jack, Chairman
Mr Colin Breed
Mr Mark Lazarowicz
Mr David Lepper
Mr Bill Wiggin
Memorandum submitted by the RSPCA
Examination of Witnesses
Witnesses: Mr Tony Suckling, Deputy Director General; Mr Michael Flower, Chief Superintendent, Prosecutions Department; and Mr David Bowles, Head, External Affairs; Royal Society for the Prevention of Cruelty to Animals, examined.
Q913 Chairman: Good morning, ladies and gentlemen. Welcome to the final evidence session of the Environment, Food and Rural Affairs Committee's inquiry into the draft Animal Welfare Bill. We have one witness session this morning with the RSPCA. Gentlemen, you are welcome. You made a request to the Committee that you should come back before us for a second time; we have a limited amount of time this morning for your contribution and what we would like you very much to cover are three things. Firstly, your response if you like to concerns and key issues that have been put to us by the witness evidence that we have received so far, because I know you have been assiduous in attending and taking notes about what everybody has been saying; secondly, not to go through every single amendment you might have in mind but any key areas you think should be drawn to the Committee's attention as we now try to pull together the many and various views that have been put to us, and, thirdly, I want to give you a short opportunity to respond to some verbal evidence which the Committee received yesterday from persons who, shall we say, took a different view about the activities of RSPCA and its inspectors, which may be relevant to some of the issues about prosecution which we have discussed to date. It may well be that colleagues want, after you have delivered your observations, to ask you some questions but this is your public opportunity to comment on things so far. Would you care for the record, gentlemen, to identify yourselves and your position in the RSPCA, please?
Mr Bowles: I am the head of External Affairs at the RSPCA.
Mr Suckling: I am Deputy Director General.
Mr Flower: I am deputy head of Prosecutions Department.
Q914 Chairman: Mr Suckling, are you going to open the batting?
Mr Suckling: Yes. Thank you, Chairman, and thank you for the opportunity to come again to the Committee. May I extend Jackie Ballard's apologies? She is unfortunately in America so cannot attend today. You have mentioned three issues. I think we have a fair idea of those concerns that were expressed earlier, and maybe one of those concerns would be, to start with, the issue of the independence of the prosecution process within the RSPCA. Can I start with that and then I will ask my colleagues to contribute on other matters. It has always been the case, and still is, that the investigating officer, the RSPCA inspector, does not make the decision as to whether or not a case is proceeded with. That decision is made by our Prosecutions Department, of which Mick Flower is the chief superintendent, and so there is independence in that respect. There is also independence between the campaigning side of the organisation and the investigating or prosecuting side of the organisation. We have never ever taken a prosecution just because we happened to have a campaign that is on that issue. Inspectors engage in investigations because they have reported to them or see themselves issues that concern them in animal welfare. Of course at a later stage, when we are reporting on the annual tally of prosecutions, if you like, then it is fair and right I think for us to comment on what has happened during a particular year. Can I also mention as well that the independence between the various issues that we deal with and the various work that we do is highlighted in the structure we have: I am responsible for the prosecutions function in the RSPCA; our director of Animal Welfare Services is responsible for the investigating function, and our director of Animal Welfare Promotion is responsible for campaigns. We do not have a single director that is responsible for more than one function. The co‑ordination if it is necessary, and the person who decides if there are any issues involved, is the Director General. I hope that has covered the independence issue to some extent. I do not know if Mick would like to add anything to that?
Mr Flower: Not at the moment but possibly later.
Q915 Chairman: Can I just say that there is one question which I think the Committee would be grateful for some further clarification on, because I think we gained the impression from the first evidence that you did not want to be seen as the role of prosecutor, and yet clearly the position of the RSPCA, for example, in being invited by a local authority to carry out a role of inspection puts you into a position where, I suppose in theory, more opportunities to observe welfare issues under the terms of the proposed Bill come before your inspectors and, therefore, inevitably decisions as to whether to proceed to a prosecution would present themselves. As I understand it, it might just be helpful for you to tease out for us the nature of your prosecuting activity at the present time, because I think it has been made clear to us - and again you might like to just help us so we understand what you do at the moment - that you are able under civil powers to take out prosecutions under the current arrangements, and that is exactly what you do. So perhaps you might like to compare and contrast the current situation with the prosecutory framework as outlined in the Bill, and in brackets are you satisfied with the prosecutory framework as presently defined?
Mr Flower: I will respond to that, if I may, Chairman. The present situation is that the RSPCA prosecutes as a private prosecutor. We do not claim and we do not have any authority from local or central government to act as a prosecutor. We act now as a private prosecutor; if the Bill becomes law we will continue to act as a private prosecutor.
Q916 Paddy Tipping: Under what Act?
Mr Flower: Do we act as a private prosecutor?
Q917 Paddy Tipping: No. Under the 1911 Act?
Mr Flower: Yes. All of the prosecutions launched by the RSPCA are as a private prosecutor. If the Bill becomes law that position will not change. We will still be a private prosecutor. You are probably aware that, although the Crown Prosecution Service was set up in 1985, the law specifically provided and allowed the preservation of the rights for private prosecutions to continue, and we are a private prosecutor. The way our inspectors work at the moment to bring about private prosecutions is this: generally we receive a large number of complaints alleging the cruel treatments of animals from the public - last year it was in the region of 105,000. Our inspectors investigate all of those complaints; they check on the welfare of the animals; they try and determine whether an offence may have been committed. In investigating complaints our inspectors require the co‑operation of animal owners because the RSPCA inspectors have no statutory powers, so if an inspector wants to see an animal he is invited into the premises by the owner. If the inspector believes that an offence may have been committed because he is confronted with an animal in a very poor condition, then he will strive to take the animal to a veterinary surgeon for examination because we rely on the veterinary surgeon to provide evidence that the animal has been caused to suffer. If an owner is not co‑operative and will not allow an inspector access or the removal of an animal, then we are obliged to enlist the assistance of the police, because the police do have certain powers under current law in relation to arrest and seizure of items of evidence, but we only need to call on the police in very limited circumstances. If the inspector then has evidence that there is a potential offence and the opinion of the veterinary surgeon is that the animal has suffered, the inspector will then proceed to investigate with a view to compiling a file of evidence. This will comprise witness statements, expert evidence, photographs, and the owner of the animal will be given the opportunity to be interviewed. The interview is conducted in accordance with the provisions of the Police and Criminal Evidence Act, so the accused is cautioned and advised that they have the opportunity to seek legal advice before speaking. They are also told that they have the opportunity to have their animal examined by a veterinary surgeon of their choice in order that they have the opportunity to have an alternative opinion on the state of the animal. This is all done partly to comply with statutory provision, and partly to be fair to the accused. Once the investigation is completed the file of evidence is sent to the Prosecutions Department. There are five staff there who assess all of the cases that arise in England and Wales. The Prosecutions Department adheres to the provisions of the code for crown prosecutors when assessing the file of evidence. There are two principal tests, as you probably know. One is that there must be sufficient evidence to make a conviction more likely than an acquittal if the case is prosecuted, and there must also be a public interest in prosecuting, and all of the decisions that the RSPCA makes with regard to prosecution are based on those criteria. Although we are probably one of the biggest private prosecutors, prosecution is a very small part of our inspectorate's work. I mentioned that last year inspectors investigated about 105,000 complaints. The number of cases submitted to Prosecutions Department was about 1400. Of that 1400 we prosecuted about 700‑800 ‑ about 50 per cent, so I think this demonstrates that we are not, as some people may suggest, just out to secure convictions at all cost. We assess cases carefully and we apply the appropriate tests before we prosecute. That is why our prosecution numbers are so low. Although we are careful with our prosecutions, we do have a very high success rate. Last year the number of convictions we secured from our prosecutions was about 96 per cent which is a significant success rate. I believe another criticism that may have been levelled is the fact that there is no form of accountability as far as our prosecutions are concerned. I think the example was cited that the police investigate offences but the Crown Prosecution Service decides whether to proceed and that is some sort of safeguard, but the position of the RSPCA is no different from any other non police prosecutor. There are plenty of them, from British Rail to British Waterways, TV licensing and local authorities will occasionally prosecute, but the CPS do not have responsibility for assessing cases brought by non police prosecutors. If a suggestion is made that RSPCA cases should go to the CPS to be assessed then that is a misleading suggestion because the CPS does not have the authority to prosecute for anyone other than the police. The position of private prosecutions was considered in 1998 by a Law Commission report and that concluded that there were adequate safeguards in place to ensure the right to bring private prosecution is not abused. Those sort of safeguards include the DPP having a right to intervene if a prosecution has been inappropriately -
Chairman: Can I just stop you at that point because I know that Mr Breed would like to raise with you a question about appeals. You mentioned the 96 per cent success rate but he would like to just follow that up with a quick point on appeals.
Q918 Mr Breed: I am grateful for the comparison between yourselves and the CPS, although I have to say the CPS is not a particular organisation I have a great deal of admiration for, but the evidence yesterday suggested that yes, you get 96 per cent convictions but you have a significantly higher number than the CPS overturned on appeal.
Mr Flower: I do not know where those figures come from; I am not aware that that is the case. Certainly we do have a number of cases that go to appeal but my anecdotal response is that we do not lose particularly many cases on appeal either.
Q919 Chairman: As it was an issue that was raised on the record yesterday by witnesses who did have some critical things to say, just so we can be reassured by your anecdotal thoughts, would you care to look back over what I might call a representative period, the last two or three years, and have a look at the success versus appeal rates and let the Committee have some hard, accurate data as to what the situation is so that we can see the facts from your side, in fairness to you?
Mr Flower: Yes, of course.
Chairman: Mr Taylor?
Q920 David Taylor: In his opening remarks, Chairman, Mr Suckling refuted the suggestion that prosecution patterns by the RSPCA reflected any particular campaigns you may have been running at the time and what Mr Flower has just apparently described to the Committee is a reactive approach that is linked heavily towards the level of complaints you get from members of the public, and not especially linked to the levels or the nature of inspections that you are carrying out in a routine way. But can you understand the concerns of individual people whom you have prosecuted where the prosecution is in the same area as a campaign that you are already involved with? It can look as if you are seeking, either by inspection or by prioritising a complaint, to pursue a policy campaign in the courts. Can you understand that that is how some people feel aggrieved by the actions of the RSPCA?
Mr Bowles: I can see how they can get confused. Obviously the RSPCA's objects are to promote kindness and reduce suffering and we do that through two main methods, one is through the enforcement of the legislation and one is to try and improve the legislation which we do through our campaigns. All of our campaigns are basically based on sound scientific information, we would not run a campaign if it was not, but we have to ensure there is complete separation from our prosecution work because otherwise the campaigns could be in jeopardy and also the prosecution work. If we look at the campaigns we have run over the past five or six years we have run an awful lot like, for instance, to get new zoo legislation, legislation on drift nets, legislation for instance on the Animal Welfare Bill, where on the zoos and the drift nets we have never done any prosecutions in those areas. We may use the information from the inspectorate work to show there is a need for better legislation and improvement in standards, but we do not go round it the other way by saying, "This is an issue, let us go out there and prosecute on this issue". There is no evidence that has happened and we have never taken a prosecution because we are running a campaign on that particular issue.
Q921 David Taylor: Finally, the reverse can also be the case, can it not, where you perhaps prioritise your inspecting resources or your prosecution decisions away from an area where you choose not to undertake any political campaigns, even though those that wish you well - and that includes me - regret that. I would cite the example and say pain shooting or something like that where there are lots of people who are concerned that the RSPCA does not take much interest in areas and activities which appear to involve significant cruelty to animals, and by the same token your prosecution efforts seem not to be focused on those areas either.
Mr Suckling: If I may, I can quite understand the concern that Mr Taylor advances on behalf of people who think that this happens within the RSPCA, but to my knowledge the inspector is not directed as to what he should or should not particularly concentrate on. The director reacts to a situation as presented to him by a member of the public or by his own observation in his day‑to‑day work.
Mr Flower: That is correct. Unfortunately we do not have enough inspectors on the ground to be proactive.
Q922 David Taylor: How many do you have, approximately?
Mr Flower: About 320 who are covering England and Wales. If you compare that to the number of police officers I guess that would be about 250,000, and we do get a very large number of complaints made to us which means that inspectors' time is really spent reacting to complaints that are made, primarily.
Q923 Paddy Tipping: You have told us how you prosecute and at the moment these are private prosecutions under the 1911 Act. Can we now turn to the current draft Bill? I think you told us in evidence when you came before that you were seeking no new powers and, in fact, the Bill gives you no new powers. That is the case, is it not?
Mr Bowles: That is absolutely right. There has been confusion over two terminologies in the Bill ‑‑
Q924 Paddy Tipping: Tell me about inspectors.
Mr Bowles: The first terminology is inspectors. If you look at Clause 44 of the draft Bill, the term "inspector" there is defined as a person appointed to be an inspector by the national authority or the local authority; it is not an RSPCA inspector. Where many people have gone awry is they have confused the terminology "RSPCA inspector" to what is in the draft Bill as to the powers of the inspector. That is not the case. Those two are completely separate.
Q925 Chairman: Can I just sneak in a little technical point? As I understand it, you have prosecutory powers under the Protection of Animals Amendment Act 2000 and Schedule 3 of the Bill amends or repeals the whole of that Act. Perhaps you could explain to us where you stand in relation to that development?
Mr Flower: I think there is confusion about this approved prosecutor status under the 2000 Act. All that the 2000 Act does is to give a right to certain prosecuting authorities to make an application to a court once proceedings have been instituted to order the disposal of commercial animals prior to the determination of proceedings. The Act itself restricts the ability to make that type of application to the State Veterinary Service or local authorities or approved prosecutors. We were invited to become an approved prosecutor because of the significant prosecution work we carry out, but the only real significance of it is that it does not give us an approval to prosecute because the prosecutions are private prosecutions. All it does is give us the opportunity to make an application to the court once we have commenced proceedings to have an order made regarding the disposal of the animals. Those orders are only made with the support of a veterinary surgeon, and made for the benefit of the welfare of the animals in the case.
Q926 Chairman: So it is a parallel activity?
Mr Flower: Yes.
Q927 Chairman: Prosecution and dealing with the animals?
Mr Flower: Yes.
Mr Bowles: Again, Chairman, the reason why there is confusion about that is because of the use of the words "approved prosecutor" where it does not really mean that and, secondly, because the announcement of the RSPCA getting these powers was made in the same week or very close to the announcements on the draft Animal Welfare Bill, and people put two and two together and should not have made five!
Q928 Paddy Tipping: So you do not see yourselves as inspectors under the terms of this draft Bill? You are going to continue to operate under the existing 1911 Act.
Mr Bowles: That is absolutely correct. We have not asked for any new powers nor have we received any. We are not the inspectors in the definitions under this Bill.
Q929 Paddy Tipping: Just describe to us who will be the inspectors under this new Bill?
Mr Bowles: Well, the inspectors under the Bill will be those that have been chosen or defined by the Secretary of State, so they will probably be local authority inspectors or State Veterinary Service inspectors.
Q930 Paddy Tipping: And I think you said there were two areas of confusion. We have talked about inspectors.
Mr Bowles: The second area of confusion we have already dealt with which is on the words "approved prosecutor".
Q931 Paddy Tipping: So, finally, you are happy with the structure of this Bill? The major change is new Clause 3, the welfare issue, and I think the issue I am asking you is a lot of the detailed work comes in regulations and schedules at a later date, but do you really think the Bill is practical, that it can be operated? Then there is a second issue: what resources are needed then to put it into practice successfully?
Mr Bowles: We are very happy with the way the Bill is phrased: you will see that most of our evidence is down to technical, legal corrections to the Bill to make it work better. We believe it could be operational from day 1, particularly the welfare offence. It does not need the codes of practice although, of course, they will be beneficial and we think it is a very big step forward, primarily because of the duty of care offence coming in as well.
Q932 Paddy Tipping: And the resource issue?
Mr Bowles: We have said that we think that there will probably be an extra 100 or so prosecutions to begin with because as the duty of care welfare offence comes into effect that will increase, but in the long term what we should see happen is that the number of cruelty case prosecutions decline because the duty of care will be a precautionary approach, and we should see through the duty of care a more educational outlook being enforced by this legislation, so people should understand what they are doing before they get a pet animal and that should improve the conditions they are kept in.
Q933 Mr Lepper: Can I make sure I have understood something about the structure of the RSPCA which may or may not affect your work? Am I right that the RSPCA consists of a national organisation and a series of local or regional organisations, and that those are largely self‑funding? Added to that, are RSPCA inspectors employed by the local or regional organisation, or are they employed at a national level?
Mr Suckling: Yes. The national Society is the body that employs all the staff who operate at our national headquarters. There are 170‑odd branches of the Society who are separately registered charities but who, under the 1932 Act, are to some extent regulated by virtue of the application of branch rules by the national Society. They are in many cases fiercely protective of their separateness but nevertheless operate to the same policies and to the same rules as the rest of the Society, and the same animal welfare standards - at least they should do - but they do not employ any of the inspectorate. They may employ their own staff to run their own animal homes but certainly they do not employ any staff nationally and they are self‑funding, except to the extent that the national Society may assist them sometimes with capital projects, or support or advice.
Q934 Mr Lepper: So the inspectors are employed by the national Society?
Mr Suckling: Yes.
Q935 Mr Lepper: You said there are 300 or so of them. How are they allocated across the country? Is it in relation to the number of complaints in particular areas for members of the public, or is there some other criterion?
Mr Suckling: There is an important issue here and I think we are concentrating quite rightly at this meeting on the investigatory function of the inspectorate. The inspectorate do a lot of other things as well and I think while they investigated a lot of complaints they also visit schools, for example, to give advice talks; they assist various groups of people; so they do things other than prosecute, but quite rightly we are concentrating on investigations here. They are organised into five regions and in each region there are some ten groups of inspectors?
Mr Flower: It varies. We deploy staff depending on area workloads and some areas of the country are higher workloads than others, but basically we have a five region structure: each region is subdivided into a group of inspectors who are led by a chief inspector who manages the workload of the group.
Q936 Mr Lepper: Finally, from me, you talked about all of those regional and local elements operating to the same standards in terms of pursuing animal welfare issues - not only prosecutions but your other work as well. Is there some form of monitoring within the organisation to ensure as far as possible that that does happen, so there are not local or regional variations?
Mr Suckling: Yes. I think it would be fair to say there probably are some variations but the basic premise is that all the animal welfare establishments that are run by the national Society are run to national standards, and all branch animal welfare establishments have the need to be licensed by the national Society to set standards and they have to have an operating licence in order to pursue their business.
Q937 Patrick Hall: What is the Society's position regarding how we deal with the fact that many people seem to perceive the current animal welfare regulatory framework as toothless, and obviously look to the Bill to rectify this, but one of the criticisms or observations is that one of the reasons that it is toothless is because most of it is dealt with in the Magistrates' Courts, and the magistrates are reluctant to, for example, follow a custodial route - or very rarely. Is your position one that apart from your views about the Bill which are broadly supported, these issues should continue to be dealt with primarily or solely in the Magistrates' Courts, except on appeal, or do you favour being able to go to trial straight to Crown Court in some cases?
Mr Flower: Our position here is that we did feel that there ought to be a tiering of offences and penalties and we did express the view that perhaps for the most serious type of offence, which we would probably regard as organised crime like dog‑fighting or cock‑fighting, perhaps the penalties for that type of offence should be more significant, and I believe we floated at one time a suggestion of a two‑year imprisonment which would make the offence tryable either way. For the offence of cruelty we were not unhappy to maintain the status quo and with the change to custody plus that is coming in in the future the penalty may be regarded as adequate, but we did think there was some merit in a higher penalty for the more serious type of offences, but we do recognise that that does create difficulties in other areas because it does create a new type of tryable either way offence.
Q938 Patrick Hall: Because we have had evidence, Chairman, have we not, that under the current situation there have been examples of repeated offences, including people who have been imprisoned for a short time nonetheless coming out and repeating the offences, and because there is a limit on the custodial sentence it is still dealt with in a Magistrates' Court. This seems to be associated with a lack of respect for the law and the suggestion that we have had put before us is that this would be addressed largely by being able to choose the route of the trial either to the Magistrates' or the Crown Court. But I leave that point; you have made your position clear - that you prefer the status quo?
Mr Flower: I think we would have preferred to see more significant penalties for the more serious types of offences.
Mr Bowles: One of the other loopholes which is closed up in the draft Bill is the disqualification issue, because at the moment, if a person is disqualified from owning an animal because they have been cruel to that animal, they could still have that animal in their flat and say it is owned by their wife. Now the Bill closes that loophole which we think is a very good thing because one of the frustrations we have is going back to cases which we have already dealt with and finding that the animal is still in the same place and even though ostensibly it is not being owned by that person it is still being cared for by that person, and that will close that loophole?
Q939 Alan Simpson: We had representations yesterday from people who felt that the fines and potential imprisonment was enough; they wanted us to remove the disqualification element in any penalty structure, and I take it from what you have said that you would be urging us to stick fairly firmly with this qualification and extend it so that it would close the loophole from passing the ownership to your partner, your sister, your mother - whoever, and we hold to that on the grounds of animal welfare.
Mr Bowles: That is correct, yes.
Mr Flower: I think it is one of the most galling aspects of prosecuting animal cruelty cases for the RSPCA and one that causes the public most concern, where you have an individual convicted of an offence of cruelty then being allowed to have their animal back and not being disqualified from having the custody of animals.
Q940 Mr Wiggin: I do not think that is going to change in this Bill.
Mr Flower: No, but I wanted to stress both the importance of both the disqualification order and the power of the courts to confiscate.
Q941 Chairman: Can I finally just raise one point under Clause 3, because Mr Flower I think made the point to us that the majority of activities of inspectors, inevitably because of numbers, is reactive to what information you get, and by and large the references that you receive are to acts of cruelty that have already taken place, but the Bill introduces an anticipatory element in that if you believe there are circumstances where cruelty or a failure on animal welfare could take place then intervention under the Bill is possible. Does that present you with any new challenges in terms (a) of the role of inspection and (b) the determination of when a prosecution might take place?
Mr Flower: In terms of role and inspection, no, I do not believe it does, because as I have mentioned we already receive a huge number of complaints each year, and it transpires that a very small percentage of those complaints actually result in an offence of cruelty being detected, so it therefore follows that in the remainder there may be a welfare or a perceived welfare issue as far as the complainant is concerned, and that gives our inspectors the ability to address an animal's welfare needs by way of advice and education which is how we achieve the majority of our direct animal welfare work at the moment. The significance of Clause 3 is that the advice and instructions an inspector may be able to give to an owner will now be backed up by, if you like, the threat of sanctions. Rather than our inspectors just acting in an advisory way and hoping that someone will follow that advice, there will be a positive incentive for someone to do so to avoid falling foul of the law.
Q942 Chairman: That is very clear. Now, in the remaining moments, would you like to highlight any further important points which have arisen from your listening to the evidence that has been given and by way of response that you wanted to give to the Committee?
Mr Bowles: If we can just cover a couple of things in the draft Bill, firstly we are very happy with Clause 1, the cruelty offence. We do not think that should really be altered. We believe the welfare offence is operational as it is and it also provides the flexibility through the terms "reasonable steps" and "appropriate means", so we think that the welfare offence as it stands is good and can operate from day 1. There has been discussion earlier on about licensing and we would concur with the local authorities that we believe that licensing should be every twelve months, not eighteen, and we would also believe that there should be some extra language in there on electric goads and use of electric collars which is not in there at the moment. But as you are aware, Chairman, a lot of the teeth of the legislation and the important bits will come in the secondary legislation, and we are not going to get into those until there is discussion on that secondary legislation and what it will mean. So in terms of the primary legislation we are, by and large, quite happy with the way it is phrased and the way it will operate.
Q943 Mr Wiggin: Can I just ask a quick clarifying question on electric collars because I think it would be helpful for the Committee to know the difference between electric fencing and electric collars perhaps used for training dogs, potentially quite cruelly, compared to electric wires hidden under the ground that prevent an animal escaping, or an electric fence used for keeping farm animals in. Do you separate those?
Mr Bowles: They are two different things but the RSPCA has concerns with both of those. We believe there are welfare concerns with either of those systems. We have more concerns with the actual electric goads rather than the fences, but we still think there are welfare concerns with both of those for the animal.
Q944 Mr Wiggin: With all electric fencing?
Mr Bowles: Yes.
Q945 Patrick Hall: Can I ask for a clearer statement? Are you saying you are opposed to these measures?
Mr Bowles: We are opposed to the use of electric goads and we are also opposed to electric shock collars for training purposes, for instance.
Q946 Patrick Hall: So what sort of wording do you want to see on the face of the Bill?
Mr Bowles: We would like to see something in there which states that the use of these mechanisms should not be allowed.
Q947 Mr Wiggin: You just said "all electric fencing", though, when I checked with you. Did you mean that?
Mr Bowles: No, not all electric fencing. What we are talking about is the use of electric implements for training purposes.
Mr Wiggin: That is clearer.
Q948 Chairman: I would be grateful for your observations by way of clarification. One of the main areas of concern and question has been the application of this Bill to animals which are not domesticated, and by that my personal definition is cats and dogs at home, farm animals and what‑have‑you, and, in that context for fishing, shooting, and animals that are involved in that kind of pursuit, there has been a fair amount of debate as to whether various acts performed by human beings in pursuit of country activities, for example, would be encapsulated by this particular measure, particularly at the time when human beings take over an element of control. We have had some very interesting evidence about the law of ownership of so‑called wild animals on pieces of land and it is becoming, in my view anyway, a little bit confusing to know whether, for example, a fisherman who has a fish in a keep net then becomes embroiled by this particular Bill, or if somebody was out on a shoot and winged and did not get a clean kill on a pheasant or a partridge and the animal was suffering, is that potentially enveloped by these measures? Clearly, coming back to this business of inspection and prosecution, either somebody officially assuming that the Bill may become involved or all kinds of people who have concern about these pursuits may decide to go down a legislative route, and those are hypothetical possibilities. What I would be grateful for is your thoughts as to whether you think the Bill covers those particular areas that concern has been put to us about?
Mr Flower: The Bill defines a protected animal in several ways but one of which is that it is an animal temporarily in custody or control of man, so it is arguable that a fish that is caught in a keep net may be temporarily in the custody or control of man but the fact that the fish is in a keep net does not render that as an act of cruelty. If someone then takes the fish and is cruel to it then they may well be caught by the Act and probably quite correctly so. As far as someone shooting birds is concerned, a wild bird is not within the temporary custody or control of man so I do not think the Act would apply.
Q949 Chairman: Some of the arguments, for example game birds, have centred on dependency relationships, so that from the point of view of man rearing birds there is a dependency and, indeed, a control relationship because game birds can start life in an enclosed environment, they can be restricted in terms of movement as they develop prior to release into the wild, then they cross a line when they are released and then fly about and do whatever things partridges, pheasants and other things, for the purposes of shooting, do. It is quite interesting because when does something that has been particularly bred for the purposes of country pursuits and shooting cross the line and become a wild animal? Some conject that the very nature of the breeding for shooting is not a natural process but an artificial process - my words not theirs - but it does make some quite interesting arguments as to where the measures in the Bill apply. For example, if you were cruel to animals at the point of breeding then I can see quite clearly that or other legislation dealing with farmed animals would apply, but if you then release those animals into the natural environment, does this legislation bite on those? I am, again, interested in your views on those lines of argument.
Mr Flower: I think perhaps the first point to make is that the current law would also apply in some of these circumstances because the 1911 Act protects both domestic and captive animals, so exactly the same arguments could be applied at present, but I think the issue with regard to game birds once they are released is that they are no longer kept by man.
Q950 Mr Wiggin: This is quite an important point because you also release birds into the wild that perhaps have been damaged by a road accident, and the issue of abandonment is perhaps a grey area in this Bill. At what point are you allowing a creature to fend for itself if you have been looking after it?
Mr Flower: I am not sure that "abandonment" is the appropriate term to use ‑‑
Q951 Mr Wiggin: Because that would be cruel technically, would it not?
Mr Flower: Yes, but if you are rehabilitating wildlife then it is appropriate for wildlife to be released back into the wild.
Q952 Mr Wiggin: You and I understand that but if you are releasing a hawk, for example, that does not know how to hunt that is abandonment. If it does know how to hunt that is fine.
Mr Flower: The difficulty in fending off this type of question is that every case will depend on its own merits, and if you release a hawk that is injured or unable to hunt that is in a different category to one that is fit and healthy. So it is difficult to generalise.
Q953 Chairman: I think the line Mr Wiggin and I are concerned about is that if you decide you are going to have a cat or a dog there is a clear established relationship between the human being and the animal. My cat does not ask me whether it wants to come or go, it just goes, but it does have a dependency because it comes home to be fed and there is the personal relationship between the animal and the person who looks after it. But, for example, it has been put to us that if a wild animal sanctuary has an animal - and the RSPCA is in the same situation - brought to it, you are not establishing a right of ownership at that point; you are doing something benevolent. You are trying to rehabilitate the animal and then you are going to release it, but I think the concern was whether those acts of benevolence would also be covered by abandonment, because abandonment is releasing back into the wild something you had control of, and in that context most of the concerns have been put to us over people who buy exotic animals, find they cannot cope, open the door and let them go. That seems to me, as a layman, to be what abandonment is about: the temporary custody for purposes of benevolence re‑releasing into the wild seems to be an intermediate process but not one which goes into the realms of abandonment. The concern is, to summarise, whether the Bill is clear enough to differentiate between the person who lets the exotic animal go and the person who may have a temporary relationship with an animal for the purposes of putting it back into the wild.
Mr Flower: I think it is, and the welfare offence does refer to keeping animals in an appropriate manner, and obviously with wild animals it is not really appropriate to keep them in captivity indefinitely so it is appropriate to release them as soon as they are fit to be released. I have not seen anything in the Bill that causes me a particular concern in relation to that issue.
Q954 Chairman: I think I draw from that that some of the concerns that have been expressed are but concerns in the hypothetical sense in understanding whether the legislation covers both country pursuits and the temporary containment of animals. If I have understood you, and I do not want to put words into your mouth but I think what you are saying is that you do not believe that the Bill should cause a problem in either of those respects?
Mr Flower: I do not think it should, no. It is correct that if someone captures an animal and has control over it then they could then be caught by the provisions of the Bill because the animal is clearly in the temporary custody of man, but there is no reason why that should impinge upon any countryside pursuits because we are advised that country pursuits do not cause cruelty to animals. I think if someone were to catch a fox and then cruelly treat it then the action is indefensible anyway.
Q955 Mr Wiggin: Would you accept that one of the things that is happening at the moment that gives me great concern is the capture of urban foxes where they are transported and then released in the countryside, where they rarely stand a chance? Would that fall within the remit of the Bill?
Mr Flower: I do not know. I would have to give that one some thought. I have to confess that the situation with urban foxes is not something that I am entirely au fait with.
Chairman: Come round to my garden! I can give you a little test bed to learn all that there is to know!
Q956 Mr Wiggin: The issue was the releasing of them into the countryside where they are not really in a position to cope. That is the problem.
Mr Flower: Certainly under the present law there is a very interesting argument to be raised by that scenario because it is theoretically possible that the animal has become a captive animal, and then one has to determine whether there is a likelihood of suffering if it is released.
Mr Wiggin: That seems to be my experience, yes.
Q957 Chairman: We have had a good session on some of what I call the fears and concerns of others. Are there any final comments that you would wish to put to the Committee, any final important points that you do not want us to forget?
Mr Flower: From my point of view I would just like to reiterate, if I may, that which I said when I was here last. Firstly, that we do regard the Bill as being extremely useful. We strongly support Clause 3 and believe that it is very important that it is maintained. Our other principal concern, which I hope you will recall, was in relation to the eight day ruling relating to the seizure of animals, and we would sincerely hope that that can be addressed.
Q958 Chairman: Just refresh our memory on what you would like that to be addressed about.
Mr Flower: We would like it removed, effectively. We feel that the current law enables an animal to be seized if an offence is suspected and held pending determination of proceedings so the court can make an order. The owner of the animal would have a right to apply for the return of the animal and we feel those provisions should be mirrored in the Bill.
Q959 Patrick Hall: Seized by ‑‑ ?
Mr Flower: The police or an inspector.
Q960 Chairman: Not by the RSPCA inspector?
Mr Flower: No.
Q961 Chairman: But maybe the RSPCA inspector assisted by the police?
Mr Flower: Yes.
Chairman: Thank you very much indeed. I hope you found that useful. I think we certainly found it useful in clarifying a number of points particularly in the areas of prosecution and we will now, as they say, close our public evidence sessions to go away and try and digest the very large amount of information that we have had. Can I just put on record my appreciation for the information which you have sent us over the period of our considerations; it has been very helpful. Thank you very much indeed.