Animal welfare offences: penalties
Section 1 – Prevention of harm to animals: penalties for offences
4.This section amends section 46 (penalties for offences) of the 2006 Act, and repeals section 44 (proceedings for animal fighting offences) of the same Act in consequence of this amendment.
5.Section 46(1) of the 2006 Act previously provided that a person who commits an offence under section 19 (unnecessary suffering) or 23 (animal fighting) was liable, on summary conviction only, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £20,000 or to both. The amendment made by section 1(2)(a) of the Act means that, for these offences, any such person may alternatively be liable, on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).
6.Section 46(3) of the 2006 Act previously provided that a person who commits an offence under regulations made under Part 2 of the 2006 Act was liable to such penalties, not exceeding imprisonment for a term of 6 months or a fine of level 5 on the standard scale (or both), as provided for in the regulations. The amendment made by section 1(2)(b) and (c) of the Act means that regulations made under Part 2 of the 2006 Act (with the exception of regulations made under new section 46A for fixed penalty notices) may specify maximum penalties, for offences in such regulations, not exceeding imprisonment for a term 12 months or a fine of £40,000 (or both).
7.The time limits for bringing proceedings for an offence under section 19 were previously governed by section 136 (time limit for certain offences) of the Criminal Procedure (Scotland) Act 1995, which applies to statutory offences which are triable only summarily. As a result of the amendment to section 46 those time limits no longer apply because a section 19 offence is also triable on indictment. The time limits for bringing proceedings for an offence under section 23 were previously governed by section 44 (proceedings for animal fighting offences) of the 2006 Act, which displaced section 136 of the Criminal Procedure (Scotland) Act 1995. As a result of the amendment to section 46 the time limits in section 136 would no longer apply because a section 23 offence is also triable on indictment. Section 44 is therefore no longer necessary and is repealed.
Section 2 – Fixed penalty notices for certain animal welfare offences
8.This section inserts a new section 46A (fixed penalty notices for certain offences) into the 2006 Act.
9.The new section confers a power on the Scottish Ministers to make provision by regulations for, or in connection with, the issuing of fixed penalty notices (FPNs) in relation to certain offences (subsection (1)). For the purposes of this new section, an FPN is a notice specifying a sum of money that may or must be paid as an alternative to prosecution for an offence.
10.The offences in relation to which FPNs may be issued must be specified in or by virtue of the regulations (subsection (2)). The offences which may be specified are offences under Part 2 of the 2006 Act, under regulations made under section 26, 27 or 28 of that Part, or under another enactment that the Scottish Ministers consider relates to animal welfare. The offences that may be specified include offences under any such future regulations or enactments which are made or passed after section 2 of the Act comes into force (subsection (3)(a)). But the power may only be used to make provision for FPNs in relation to any such offence if the maximum penalty on conviction does not exceed imprisonment for a term of 6 months or a fine of level 5 of the standard scale, or both (subsection (3)(b)).
11.The new section makes it clear that the regulations may include provision for certain things (subsection (4)). In particular, the power may be used to create offences relating to obstruction of a person who is exercising functions in relation to FPNs, or to a failure to provide information requested in relation to FPNs. But for any such offence, the maximum penalty that may be provided for is, on summary conviction, a fine not exceeding level 5 on the standard scale (subsections (4)(t) and (5)).
12.Although the power cannot be used to create new animal welfare offences (except insofar as it may create offences relating to obstruction of a person or a failure to provide information), it may be used in combination with other powers such as section 26 (provision for securing welfare) of the 2006 Act. For example, regulations under section 26 could create a new offence and, if used in combination with the new power, the same regulations could provide for FPNs in relation to that new offence.
13.Where the new power is used to make regulations for the issuing of FPNs in relation to an offence, any FPN to be issued in pursuance of those regulations must identify the offence to which it relates and specify the reasonable particulars of the circumstances alleged to constitute the offence (subsection (6)). Any such FPN must also state: the date on which it is issued, the amount of the fixed penalty, the person to whom payment may be made, the payment period, the method of payment, the effect of paying the fixed penalty within the payment period and the consequences of not doing so, and details of any procedure for challenging or appealing the fixed penalty notice (subsection (7)).
14.By virtue of section 51(3) of the 2006 Act, regulations under new section 46A are subject to the affirmative procedure. Accordingly, any such regulations cannot be made unless a draft of the instrument containing them is laid before, and approved by resolution of, the Scottish Parliament.
