Offences Involving Domestic and Captive Animals

• Introduction
• Evidential Considerations
  • Section 4 Animal Welfare Act 2006 – Unnecessary Suffering
  • Section 8 – Animal Fight
  • Section 9 – Welfare
  • Animal Welfare (Electronic Collars) (Wales) Regulations 2010
• Public Interest
• Time Limits
• Sentencing
• Relations with the RSPCA

Introduction

Separate legal guidance exists on wild offences. This guidance relates to offending against domestic and captive animals and applies to pet owners, breeders, those with working animals or farm animals.

Evidential considerations

The primary legislation is the Animal Welfare Act 2006. This Act creates offences where:

• unnecessary suffering is caused (section 4)
• animals are mutilated (a prohibited procedure is carried out upon them) (section 5)
• dogs’ tails are docked (section 6)
• poisons are administered (section 7)
• animal fights are caused (section 8)

Each section makes provision for the liability not only of those who do the relevant acts, but those who have responsibility for the animal and permit this to happen. Further offences apply for other culpable acts in respect of animal fights.

The Animal Welfare (Sentencing) Act 2021 increased the maximum sentence for all of these offences, making them triable either-way and upon indictment carrying a maximum penalty of five years’ imprisonment and/or an unlimited fine.

When selecting charges prosecutors should apply part 6 of the Code for Crown Prosecutors. It may be that presenting the case in a simple way and providing the court with adequate sentencing powers is achieved with a section 4 charge, given the breadth of conduct this covers and the maximum sentence available, unless there is a particular reason to mark the offending with a section 5, 6, 7 to 8 charge. See below as to charging section 9 in the alternative to section 4.

Section 4 Animal Welfare Act 2006 – Unnecessary Suffering 

To prove an offence under section 4, there must be sufficient evidence that:  the animal is protected (see section 2), the suspect’s act or failure to act caused unnecessary suffering, the suspect knew or ought to have known that their act or failure to act would cause such suffering or be likely to do so; the suffering was unnecessary. Section 62 states ‘suffering’ means physical or mental suffering.   

In R (on the application of Gray) v Aylesbury Crown Court [2013] EWHC 500 (Admin) the court held that:

• the expression “knew or ought reasonably to have known” is a common expression in English law and does not require any gloss
• the prosecution had to establish that the defendant knew or ought reasonably to have known both (1) that his or her act or failure would cause an animal to suffer and (2) that the suffering was unnecessary
• the plain effect of section 4 is to impose criminal liability for unnecessary suffering caused to an animal either by an act or omission which the person responsible knew would, or was likely to, cause unnecessary suffering, or by a negligent act or omission
• this offence may therefore be committed by negligence, provided the prosecution is clear about how the mental element is to be proved

The prosecution should be clear as to the nature of the suffering alleged, whether in the charge or in the provision of information at the outset of the case about what is alleged. A generic reference to “causing suffering” without further particularisation should be avoided: see Nash v Birmingham Crown Court [2005] EWHC 338 (Admin). This case makes clear that a separate charge is not required where suffering is caused to a number of animals. See also Criminal Procedure Rule 10.2(2): “More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.”

However, where different acts or omissions are alleged, these should be reflected in separate charges.

Section 8 - Animal Fight 

Section 8 defines ‘animal fight’ as an occasion on which a protected animal is placed with an animal, or with a human, for the purpose of fighting, wrestling or baiting. For an offence of animal fighting to be committed contrary to section 8, the animal with which the protected animal was placed had to be the subject of some control or restraint by some person(s) connected with that activity, or some other artificial constraint so that its ability to escape was prevented.  

Taking a protected animal into land or woods where there might or would be wild animals, and then letting the dogs go in the hope that they would hunt and then attack those wild animals, leading to a fight, could not amount to a "placing" for the purposes of fighting under section 8. A fight could not be the by-product of a chance meeting, but had to be a contrived or artificial creation specifically for the purpose of fight, and during which the other animal had no natural means of escape: RSPCA v McCormick [2016] EWHC 928 (Admin). This case also confirms that, whilst section 8 was aimed at organised and controlled animal fights, such as dog fights, the involvement of money is an aggravating factor, not a necessary ingredient for the offending.

Section 9 – Welfare  

Under section 9 of the Act, those responsible for animals have a duty to ensure their welfare. A person commits an offence under section 9 if they do not take reasonable steps to meet the needs of an animal, which include: a suitable diet and environment; appropriate housing depending upon the requirements of the animal and to be protected from pain suffering, injury or disease. This does not prohibit the destruction of an animal in an appropriate and humane manner.  

To prove an offence under section 9, the prosecutor has to prove: 

• that the appellant has a responsibility for the animal under section 3 of the Act
• the steps that would have been taken by a reasonably competent and humane person in all the circumstances to meet that animal's needs to the extent required by good practice
• that the appellant had failed to undertake some or all of those steps. 

In R (on the application of Gray) v Aylesbury Crown Court [2013] EWHC 500 (Admin) the Court held that:

• section 9(1) sets a purely objective standard of care which a person responsible for an animal is required to provide
• section 9 may be charged as well as section 4. The latter requires proof that unnecessary suffering occurred, the former does not. “There can be no objection to a person being prosecuted for both offences in relation to the same animal” (paragraph 43 of Gray)
• the defendant can be convicted on both if the conduct proved in relation to the welfare offence is wider than the conduct which can be proved to have caused actual suffering to the animal
• the court should not record a separate conviction for the section 9 offence if the conduct is the same. It therefore operates as an alternative charge, with no verdict being necessary in the event of conviction for the section 4 offence

It is important to note that the section 9 offence remains summary only and therefore is limited to the maximum sentence which may be imposed by the magistrates’ court.

Animal Welfare (Electronic Collars) (Wales) Regulations 2010 

These regulations are made under Section 12 of the Animal Welfare Act 2006 and prohibit the use of electronic collars designed to administer an electric shock on cats and dogs. These regulations only apply to Wales.  

A person guilty of an offence under Regulation 2 is liable to the maximum sentence which a magistrates’ court may impose.  

Criminal Damage Act 1971

Where specific animal welfare offences are not available, prosecutors should consider whether damage to property (a pet belonging to its owner) may be charged. In the case of pets which are stolen, the Theft Act 1968 should be considered.

Public interest considerations

The public interest factors in the Code for Crown Prosecutors apply. The circumstances of, and harm to, the animal or animals is a relevant consideration not just at the evidential stage but at the public interest stage.

In addition to the public interest factors set out in the Code, prosecutors may have regard to whether there has been previous engagement with the police or the RSPCA. The latter may have given guidance to animal owners or indeed issued a warning. Previous interventions and the suspect’s response to them should be considered when assessing the public interest.

Time Limits

Section 31 of the Animal Welfare Act 2006 provides that notwithstanding anything that is in Section 127(1) of the Magistrates’ Courts Act 1980, a Magistrates’ court may try an information if it is laid:

• before the end of the period of three years beginning with the date of the offence; and
• before the end of the period of six months, beginning with the date on which the evidence which the Prosecutor thinks is sufficient to justify the proceedings comes to his knowledge

The ‘prosecutor’ in Section 31 applies to anyone initiating a prosecution under the Act, including the RSPCA: Lamont-Perkins v RSPCA [2012] EWHC 1002 (Admin).

A certificate signed by, or on behalf of the Prosecutor with the date that sufficient evidence came to their knowledge is conclusive evidence of that date. A template is available for prosecutors to use. In DPP v Cook and Snowden [2022] EWHC 2963 (Admin) the court made clear that a certificate may only be impugned on three grounds:

1. if it is not in the proper form: it must be signed by or on behalf of the appropriate prosecutor and must state what it is required to state. A "certificate which fails to do so is a nullity"
2. if it contains an "error on its face", something that is patently wrong
3. if it can be shown that the certificate is fraudulent

Sentencing

The Sentencing Council has updated the sentencing guidelines to reflect the increase in maximum sentence from 6 months’ imprisonment to 5 years for offences contrary to sections 4-8 inclusive of the Animal Welfare Act 2006 (AWA 2006) Animal cruelty, and for  sentencing animal welfare offences contrary to section 9 of the AWA 2006 Failure to ensure animal welfare , both effective from 1 July 2023.

Prosecutors must also consider whether to apply for an order depriving the offender of ownership of an animal or animals, or disqualifying them from owning, keeping and other involvement with animals, pursuant to sections 33 and 34 of the 2006 Act respectively.

Relations with the RSPCA

The Royal Society for the Protection of Cruelty to Animals (RSPCA) has expertise in both the investigation and prosecution of cases involving animal welfare. In appropriate cases their assistance may be sought when prosecuting animal welfare cases. The RSPCA also brings private prosecutions in animal welfare cases. The guidance on Private Prosecutions must be followed in any case which the CPS is asked to take over.