Section 20 of the Animal Welfare Act 2006 “A License to Kill or Detain Indefinitely?” Section 18 of the Animal Welfare Act 2006 (AWA) in certain circumstances enables an “Inspector” or a “Constable” to enter land and seize animals belonging to another person. The RSPCA has no powers under the AWA No inspectorate has yet been created under the Act. Reference to an “inspector” under the Act is therefore meaningless. There are no “Inspectors” at all under the AWA. The remainder of this article will therefore refer to “Constables”. Constables are generally police officers, although constables do exist in other bodies – perhaps most notably in HM Revenue and Customs. The very limited powers which were given to private agencies designated as “approved prosecutors” under the Protection of Animals (Amendment) Act 2000 (PAAA) have been repealed. Despite the police-style uniforms, which they are allowed to wear, employees and agents of the RSPCA are not “Inspectors” under the AWA - they have no more powers than you or me. Unaccountable private charities, such as the RSPCA, have no constables. They are also, to all intents and purposes, ordinary persons. As ordinary members of the public the RSPCA and its staff have no power to enter land or seize property. There is concern, particularly among the RSPCA’s traditional targets (small farms outside the RSPCA’s Freedom Food assurance scheme, pet shops, dog and cat breeders, non-RSPCA rescue centres and kennels etc) that some employees and agents of the RSPCA may, at some future date, be classified as “Inspectors” for the purpose of the AWA. Such a move would be, at best, a very unpopular move in some quarters. Ordinary members of the public may accompany the Police onto land only if they are invited in by the occupier, personally named in a warrant for entry, or otherwise legitimately invited in, by the police or another person, to assist them (for example in an extreme emergency). Circumstances in which Constables may enter and seize the circumstances in which a Constable may exercise the AWA’s powers of entry and seizure under section 20 normally relate to an animal which is suffering or, that if its circumstances don’t change, is likely to suffer. The Constable should only exercise this power if a veterinary surgeon certifies that those conditions exist. In circumstances where a veterinary surgeon is not available, a Constable can “self-certify” that those circumstances exist. This power of seizure is normally exercised by a Constable once entry to the premises has been effected either by way of a properly-obtained warrant under section 19(4) AWA. However, this can also be “self-certified” section 19 (1) AWA provided that the Constable reasonably believes there is a protected animal on the premises and that the animal is suffering or, if the circumstances of the animal do not change, it is likely to suffer. The “self-certified” route of entry does not allow the Constable access to land which is used as part of a private dwelling. Once animals are seized, what happens then? It is the Police who seize the animals under Section 18 if, and only if, it proves necessary. They, for convenience, will normally then hand them over to the custody of another – sometimes the RSPCA - for safe-keeping. The RSPCA will generally arrange commercial accommodation for those animals at boarding establishments of which they approve. If a prosecution then follows, it can sometimes months (or even years, if there is an appeal) for the case to conclude. Their animals are kept in the boarding establishments at very considerable cost to the RSPCA. There is also emotional detriment to the wellbeing of the animal and the owner to consider. Where very large numbers of commercial animals are seized - a phenomenon which is becoming increasingly common – this can result in bills for hundreds of thousands of pounds being run up by the police or the RSPCA with the boarding establishment very quickly. Arrangements which are made have frequently been criticised as improvident. Complaint is made about the retention of the animals for pointlessly long periods of time. Where, for example, very large numbers of sheep are seized, everyone would be financially better off if the animals were sold to the highest bidder and slaughtered – or even “euthanized”. What is there an alternative to retention pending trial? Applications can be made to the Magistrates Court under section 20 AWA. This allows a Magistrates Court to order any of the following in relation to an animal taken under section 18(5): (a) That specified treatment be administered to the animal; ( That possession of the animal be given up to a specified person; © That the animal be sold; (d) That the animal may be disposed of otherwise than by way of sale; or (e) That the animal may be destroyed. This is not a new power – a prosecutor could apply for a similar order under section 2 (1) of PAAA. However, it was only a Prosecutor who could apply to the Court. The Court had to be satisfied on the evidence of a veterinary surgeon that the welfare of the animals would be compromised if the order were not made. Furthermore, Section 2 was not a stand-alone provision, which the RSPCA claims that section 20 AWA is. The preamble to the 2000 Act describes “an Act to enable provision to be made for the care, disposal or slaughter of animals to which proceedings under Section 1 of the Protection of Animals Act 1911 relate and for connected purposes”. So, effectively, orders were only applied under section 2 PAAA once criminal proceedings had begun under the Act and when it became apparent to the Prosecutor on the evidence of a veterinary surgeon that the welfare of the animals in their care was being compromised by prolonged boarding. There is no such specific provision in section 20 AWA – this has not, of course, been missed by the RSPCA’s legal department and the lawyers that it instructs. However, no Legal Aid is available to make or oppose such an application. This can now make it very expensive where, for example, the RSPCA make an application to “rehome” a dog pending trial of a “duty of care” offence. The RSPCA always use specialist Animal Welfare solicitors, and often one of their specialist barristers, to act on their behalf. This puts them at a very considerable advantage over a defendant in person opposing the Application – or even one who has instructed a local solicitor who had no knowledge of the complex laws relating to animal welfare. If it appears to the Court from evidence given by a veterinary surgeon, on one of these applications, that it is necessary in the interests of the welfare of the animals in question, for the Prosecutor to do one or more of the things mentioned in subsection (2) the Court may make an order authorising the following: (a) Taking charge of the animals and caring for them ( Selling the animals at a fair price © Disposing of the animals otherwise than by way of sale (d) Slaughtering the animals or causing or procuring them to be slaughtered. The Court in determining whether to exercise these powers has to have regard to all the circumstances including the desirability of protecting the owners’ interest, the value of the animals and also avoiding increasing costs. It seems that, under section 20 veterinary evidence no longer has to be called, and the court no longer has to be satisfied that the welfare of the animals is being compromised. Section 20(6) now states that when a court is considering making an order under section 20 AWA “shall have regard amongst other things to the desirability of protecting the animal’s value and avoid increasing any expenses which a person might be ordered to reimburse”. At first blush it would now appear that the Court must consider primarily the issue of boarding costs as a primary factor in deciding whether to make an order. However, by analogy to the 2000 Act provisions (which have now unfortunately been repealed), it must still be possible to argue that the welfare of the animals is paramount because it was under the 2000 Act and section 20(6) states that the Court “shall have regard to amongst other things” - therefore allowing appropriate welfare arguments to be introduced. The writer is experiencing many cases where - as soon as animals are seized on the pretext of section 4 or section 9 AWA investigations, applications are being made to the Court by the RSPCA for orders under section 20 AWA for the animals to be disposed of. What can you do if your animals are seized? Section 20(3) AWA states that the power conferred by section 20(1) shall be exercisable on application by (a) the owner of the animal or ( any other person appearing to the Court having sufficient interest in the animal. Under the 2000 Act, as observed above, it was only the prosecutor who could make such an application. Now, as the owner of the animal, you have an equal right to apply to the Court for an order for the animal to be returned to you if you believe that the animals have either been unlawfully seized and/or that the RSPCA simply don't have a case under section 4 or section 9 AWA to seize the animals in the first place. You might also apply for the animals to be disposed of to a third party, or through an auction or other sale. It will assist your application if you have veterinary evidence to support it, together with any other relevant evidence relating to the animals welfare or to possible unlawful entry and/or seizure. My advice to anybody who finds himself or herself on the wrong end of a section 20 application bought by the RSPCA, or any other prosecutor, is to decide what outcome is best for the owner-animal entity, and issue an application seeking that relief. This is actually a very straightforward process. A notice to the Court should specify what jurisdiction is requested (ideally by reference to section 20 (1)(a-e)), the animals concerned and exactly what order is asked for – together with any alternatives (“I would like the animals returned or, failing, that sold at X auction on [date]”). It will often be in a similar form to the order that has been served by the prosecutor. The general grounds of the application must be stated. These will make reference to the veterinary evidence, and any other evidence which there may be. The Magistrates Court staff will be helpful, although alleged animal abusers do report difficulties dealing with some court staff in a few places. An application can be issued by the Court to be heard at the same time as that issued by the RSPCA. There is also no fee payable – but you the RSPCA will often instruct Counsel, and sometimes Leading Counsel, for these applications and seek to recover the costs if they win their application, or another applicant for a section 20 order loses theirs against the RSPCA. There is also nothing to stop you the owner of an animal in appropriate cases issuing their own application under section 20 AWA before the RSPCA get a chance to issue theirs. There are cost implications – the RSPCA, as observed above, alleges that these are pure civil proceedings and that costs therefore go with cause. This means the loser can be ordered to pay the other side’s costs or a contribution to them. Therefore, it is strongly advisable, before you make an order to the Court under s 20 AWA that advice is taken. Do the RSPCA have any locus to make a S 20 application? The writer has doubts whether in fact the RSPCA have the right to make an application under section 20 of the Animal Welfare Act in any event. Section 20(3) AWA states that the class of person who can make an application under this section are either the ‘owners’, or ‘another class of person with a sufficient interest in the animal’. The RSPCA and the Police are seldom the owners of the animals seized. They must therefore argue that the have a ‘sufficient interest’ in the animals seized enabling them to make an application. Sadly, “sufficient interest” is one the things which is not defined in the Act. The question has to be asked what relationship in law do the RSPCA have with seized animals seized under the AWA? We know from Section 18 that the RSPCA do not have the power under the Act to actually seize the animal - the Police will have done this. The Police may then, by way of convenience, hand the animals over to the RSPCA for safekeeping. There is no bailee/bailor relationship either between the owner of the animal and the police and/or the RSPCA. Nor is there such a relationship between the police and the RSPCA because that relationship has to be by consent normally in writing and be for reward because certain duties and liabilities flow from such a relationship. Therefore at its highest the RSPCA’s interest in the animal is as a “gratuitous bailee” which hardly equates with ownership or a “sufficient interest”. Therefore, before any section 20 AWA application can be brought by the RSPCA, the Court’s jurisdiction to hear the Application should be examined, and challenged if necessary. The argument is not yet settled as to whether the RSPCA, or other person to whom the animals are bailed, has a ‘sufficient interest’ in the animal, entitling them to make such an application. What if there is an unlawful entry and unlawful seizure? In these cases, it is queried whether the Police and/or the RSPCA can argue that they have a ‘sufficient interest’ in the animal when they have come by the same unlawfully? The position is close to that of a thief claiming title to goods which he has taken. Of course, the thief can seldom get any title in his goods or have any recognisable proprietary interest in the same – but “all title is relative” and a person with possession can recover goods from a recover against a thief. Sinister developments, abuse of process? We do not know whether or not Parliament’s intention was that section 20 AWA should be akin to Section 2 of PAAA and that these applications should not be made until a criminal prosecution had been issued and served by the prosecuting authority. Indeed, the drafting of AWA is so poor and ill-conceived in places – a hallmark of the very political nature of the issues - that this will perhaps never be known. However there has been a sinister trend, where Section 20 AWA applications are being used on a stand-alone basis. Certain owners are being targeted, their animals are being seized whether lawfully or unlawfully and the RSPCA are using the Police to use their powers under Section 18 and 19 for this purpose. Once the animals are in the RSPCA’s possession, applications are being immediately made to the Court under section 20 AWA in the total absence of any criminal prosecution or contemplated prosecution. In the view of the writer, it could never have been Parliament’s intention to allow members of the public, which the RSPCA are, to seize another person’s animals possibly lawfully or unlawfully and then make an application to the Court for the sale of, or to kill, those animals in the total absence of any criminal proceedings. In cases where criminal proceedings are successfully defended, and a s 20 order has been made before the outcome was known, the animals are more likely to have been killed or disposed of. This frustrates the return of those animals to their rightful, and often loving, owner who has been found by the Court to be innocent of any wrongdoing. Section 20 AWA unfortunately is proving to be not only a “licence to take” but also a “license to kill”. It is causing untold emotional misery to animal owners who fall foul of such an application and don't have the means to oppose the same. The law has to change. A start would be to make Legal Aid available to oppose this part of the draconian legislation. Courts are currently making these orders, normally unopposed, and animals are being killed or otherwise disposed of. Owners - particularly the ones who are inexperienced court users, and most in need of protection - are sometimes unaware of what is happening, and even when, or whether, they ought to appear.