In certain circumstances, powers of arrest are exercisable not just by police officers but by ordinary citizens, similarly conduct that might otherwise be unlawful can become lawful. Samuel March, a Barrister at 9 King’s Bench Walk and a volunteer paralegal at Advocates for Animals, examines what powers ordinary people have to intervene in animal abuse cases, and in particular a perhaps unforeseen consequence of the recent Animal Welfare (Sentencing) Act 2021. For animal advocates, seeing an animal suffering or being abused is likely to foster a powerful urge to intervene. Seeing any crime in progress sparks fight or flight reflexes, events can play out in a matter of seconds, and witnesses don’t always have time to call the police, still less seek legal advice or research their powers. This makes knowing what to do difficult, because citizens’ powers to arrest or otherwise intervene are incredibly fact specific and involve striking delicate balances in these split-second decisions. This article is not intended as legal advice or a comprehensive guide, but as a top-level overview of some of the key powers ordinary people may have, in certain limited circumstances, to step into a situation and stand up for animals Citizen's arrest There is no definitive legal definition for what constitutes an 'arrest'. It is not defined by the Police and Criminal Evidence Act 1984 or indeed any other legislation, and the caselaw is not entirely consistent. Nevertheless, a broad definition was given in the case of Spicer v. Holt [1977] A.C. 987 at p1000: ' "Arrest" is an ordinary English word … Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases.' Adding to this, it was held in Mohammed-Holgate v. Duke [1984] A.C. 437 at p441 that 'arrest is a continuing act; it starts with the arrester taking a person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate's judicial act.' The vast majority of arrests are executed by trained police officers, using specific powers of arrest that apply only to them. However, neither a warrant nor rank are always prerequisites for arresting a suspect. As of the 29 June 2021, a bystander who witnesses someone mistreating their dog in the park may, in some circumstances, have the power to perform a citizen’s arrest. The conditions in which 'a person other than a constable' may arrest without a warrant are set out at s.24A Police and Criminal Evidence Act 1984 . Essentially, there must be 'grounds' for the arrest and the arrest, the arrest must be 'necessary' for one of a limited number of reasons. Furthermore, the arrest will only be lawful if it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead. Grounds for arrest in animal welfare cases The first condition is that there must be grounds for the arrest. In this context, that means at the time of the arrest the suspect must have committed or must be committing an indictable offence; or the person arresting must have reasonable grounds to suspect that the suspect has committed or is committing an offence. A couple of important takeaways about grounds for arrest: the first is that, unlike police officers’ powers, the citizen’s arrest powers do NOT cover situations in which a suspect is (or is reasonably believed) to be about to commit an offence. It applies only to offences that have already or are currently being committed. The second takeaway, and one that is easily lost on the non-lawyer, is that unlike a police officer who can arrest a suspect for any type of offence, citizens can only perform an arrest on suspicion of an 'indictable' offence. Under the law of England and Wales, offences can be grouped into two categories depending on their 'mode of trial': summary offences (which are tried in the magistrates’ courts) and indictable offences (which can be tried in the Crown Court). If an offence is a summary only offence (such as speeding), then the citizen’s arrest powers do not apply. This makes the decision to attempt a citizen’s arrest tricky. Even lawyers sometimes have to double check their textbooks to see whether a particular offence can be tried on indictment in the Crown Court or not. Citizen’s arrest powers therefore need to be exercised with great caution and are particularly risky unless confident of mode of trial of the offence in question. Given that citizen’s arrest powers are really intended to cover situations where a crime is ongoing, playing out second by second or just concluded, an ordinary citizen may struggle to check such procedural technicalities. Get the mode of trial wrong, and the arrester risks themselves being guilty of a criminal offence against the person, or liable for damages for trespass against the person (although see the broader powers below). What is particularly interesting in the context of animal welfare is that, until recently, the main animal welfare offences were all summary only offences. This would mean that if you were in the park and witnessed someone causing unnecessary suffering to an animal contrary to s.4 Animal Welfare Act 2006 ('the 2006 Act'), only a police officer would have the power to arrest them. That position changed last year with the introduction of the Animal Welfare (Sentencing) Act 2021 ('the 2021 Act'). The primary intention of the 2021 Act was to increase the maximum penalty for a small number of animal offences (causing unnecessary suffering, mutilation, docking of dogs’ tails, administration of poisons etc and fighting etc) from 6 months to 5 years. In order to do this, the 2021 Act had to turn these offences from summary only offences to indictable offences, because only the Crown Court can impose such lengthy custodial sentences. This means that, as a potentially unintended consequence, some of the main animal welfare offences can now give rise to lawful grounds for a citizen’s arrest. A word of warning: even with the introduction of the 2021 Act, some animal welfare offences remain summary only offences. So whilst causing unnecessary suffering contrary to s.4 of the 2006 Act could give rise to grounds for a citizen’s arrest, a breach of s.9 (duty of person responsible for animal to ensure welfare) would not be sufficient. It is beyond the scope of this article to try and detail each of the elements of each of these offences or provide a comprehensive list of animal offences by mode of trial. It is stressed again that citizens’ arrests engage a multitude of legal technicalities, and a great deal of caution is required to avoid criminal and/or civil liability. Necessity for arrest Grounds alone do not empower any person on the street to arrest a suspect. The person making the arrest must also have reasonable grounds for believing that the arrest is 'necessary' for one of four reasons specified in s.24A(4). According to that subsection, a citizen’s arrest must be necessary to prevent the suspect from '(a)causing physical injury to himself or any other person; (b)suffering physical injury; (c)causing loss of or damage to property; or (d)making off before a constable can assume responsibility for him.' These reasons are exhaustive. They curtail in important ways the situations in which it might be legal to perform a citizen’s arrest in an animal welfare case. There will be some animal abuse cases concerning animals capable of responding aggressively; in which subsections (a) or (b) may be engaged. However, it is important to note that - unlike in some more progressive jurisdictions - no court in England and Wales has yet held that a non-human animal is a legal 'person'. So unlike cases in which an indictable offence against a child is witnessed, the limb concerning preventing 'physical injury to […] any […] person' does not apply when stepping in to safeguard an animal. Whilst animals are not legal 'persons', they can be legal 'property', and so subsection (c) is more likely to be relevant in cases where companion or farmed animals are abused. Interestingly, the statute does not explicitly specify that the property must belong to someone other than the suspect, and it may raise an interesting (and to the author’s knowledge as of yet undecided) question of law if an animal advocate were to perform a citizen’s arrest on a suspect to prevent the suspect damaging his or her own companion or farmed animal. In many cases, the most appropriate limb will be subsection (d). If a suspect is challenged and informed that the police are being called, and then goes to make off, it may be appropriate to detain them if there is no other way of obtaining their identity or address for the police. Subsection 4(d) ties in closely with subsection 3(b) which species that citizen’s arrest powers are exercisable ONLY if '(b)it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead' The lesson here is that if it is practicable to call the police, then that must be the first port of call. It will generally only be appropriate for a citizen to make the arrest if there is a degree of urgency that renders this impracticable, because of risk to people or property detailed above, or to prevent escape. It is a limited and technical power; not a broad-brush permission for vigilante justice. Reasonable force in the prevention of crime This article has focussed primarily on citizens’ arrests, due to the interesting technical change that the 2021 Act appears to have brought about. However, given how narrow and technical the power to execute a citizen’s arrest is, it bears mentioning that there is a broader power under s.3 of the Criminal Law Act which provides that a person (any person) 'may use such force as is reasonable in the circumstances in the prevention of crime'. Unlike the citizen’s arrest powers, this power may apply where a person honestly believes that a crime is about to be committed, so long as they use no more force than is reasonable to prevent it. This is a much less technical power, and what is considered 'reasonable in the circumstances' will always hang on the specific facts of a given case. What is 'reasonable' is an 'objective' test, meaning it is not about whether the person themselves believed that what they were doing was reasonable, but whether a hypothetical ordinary and fair-minded person would consider the degree of force used was reasonable in the circumstances. This is, therefore, also a power to be exercised with great caution and restraint, because different tribunals (different judges, magistrates or juries) may take very different views about what is reasonable in a given situation. It may be that a passionate animal advocate would honestly believe that it was acceptable to use a great deal of force to save a suffering animal from unlawful harm, but a tribunal might take the view that it would rarely be appropriate to lay a finger on a human in order to save a factory farmed chicken, even if they were being mistreated. Sadly, lawyers working on animal cases will all have experienced cases in which courts have given human interests exponentially more weight than animal interests. Offence-specific defences Whilst some powers to intervene are broad, others apply only as defences to specific offences. To discuss all offence-specific offences is beyond the scope of this article, but one example frequently raised in animal cases is the question of when preventing animal suffering can render lawful behaviour that would otherwise constitute criminal damage. The basic offence of destroying or damaging property is set out at s.1(1) Criminal Damage Act 1971 . It is a crime for a person 'without lawful excuse' to destroy or damage any property belonging to another intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged. In ordinary circumstances this would include breaking the window to someone else’s car, but a possible exception to this might be if, on a hot day, all the car doors and windows were closed, and the car owner had left a dog inside. According to the RSPCA , even when it's only a pleasant 22 degrees Celsius outside, the car could reach an unbearable 47 degrees within an hour. It is not uncommon to hear of dogs dying in such conditions. The question then arises of whether it is lawful to break the window to rescue the dog. Again, this will always be case specific and there is no general right answer. The first step clearly is to assess the dog’s condition. Even if the dog is showing signs of heatstroke, the safest course of action legally is generally to call the police and see how long it would take officers to attend. However, it may not always be possible for officers to get there in time. There may be limited circumstances in which it would be appropriate to break a window. The term 'without lawful excuse' is expanded on in s.5 of the Criminal Damage Act 1971 and includes some non-exhaustive examples of lawful excuses that could potentially serve as a defence to a person accused of criminal damage in this scenario. The first is if the accused believed the owner of the car would consent if they knew about the circumstances. Depending on the state of the dog, one might well believe that a car owner would rather have their window smashed than allow their dog to die. The second is if the accused breaks the window in order to protect property (as explained above dogs are legally property) belonging to himself or another (which could include the car owner) and he believed that the property was in immediate need of protection and the means adopted were reasonable having regard to all the circumstances. Seizure The instinct of many an animal advocate, on seeing an animal being mistreated, may be to seek to take the law into their own hands, intervene and take the animal away from the person mistreating it, even if the abuser is the legal owner of the animal. There is no clear statutory power of 'citizen’s seizure' equivalent to the power to effect an arrest. So, whilst it may be lawful to intervene in some circumstances, for the average citizen to attempt to do so is potentially to stray into a legal minefield. Because companion and farmed animals are property, ordinary citizens attempting to seize an animal on welfare grounds could potentially lead to them finding themselves facing criminal proceedings for theft or, in the future if the Animal Welfare (Kept Animals) Bill is enacted, the new proposed 'taking of pets' offence. The offence of theft has, in the past, been used to prosecute animal activists involved in appropriating (generally with the intention of freeing or re-homing) animals from laboratories or farms. That being said, s.1 of the Theft Act 1968 makes it clear that taking someone else’s property is not theft unless the prosecution proves beyond reasonable doubt that the accused was both 'dishonest' and had the 'intention to permanently deprive' another of their property. If the court believed that a defendant was (or may be) only temporarily removing the animal, then theft would not be made out. Similarly, depending on the nature of the abuse witnessed, the court might take the view that there was no dishonesty involved. Unlike theft, the new 'taking of pets' offence set out at s.43 Animal Welfare (Kept Animals) Bill , if enacted, would require neither dishonesty nor intention to permanently deprive. Subject to a few quite technical exceptions, a person would commit an offence if, without lawful authority or reasonable excuse, that person took or detained a dog (the proposed bill applies only to dogs) in England so as to remove it from the lawful control of any person, or so as to keep it from the lawful control of a person who is entitled to have lawful control of it. The key issue in this case would be 'reasonable excuse'. Once more, each case would turn heavily on its own facts, the quality of the evidence, and different tribunals’ assessments of what is 'reasonable' in the circumstances. Even if criminal liability can be escaped, the intervener runs the risk of being sued in a civil court for the tort (civil wrong) of 'conversion' (which is broadly concerned with excluding the legal owner from access to their own property), or 'trespass to goods' (which is generally concerned with more minor interference with goods). Because animals are considered 'chattels', 'goods' or 'property', they fall within the ambit of 'wrongful interference with goods' for the purpose of the Torts (Interference with Goods) Act 1977 . That being said, there is a general principle in tort law that claimants cannot recover where their loss occurred while they were engaged in serious wrongdoing. This is often referred to by the Latin maxim ex turpi causa non oritur action: no cause of action arises from illegal or flagrantly immoral acts. This maxim does not, it should be stressed, mean that the mere fact that a claimant was involved in immoral or criminal conduct will be an absolute barrier to any claim. Whether or not an animal abuser has an action against someone who remove the animal from him would come down to the court’s assessment of various factors including how reprehensible the treatment of the animal was and whether it is proportionate to deprive the owner of a civil remedy (see cases such as Joyce v O’Brien [2012] EWHC 1324 (QB) and Cross v Kirkby [2000] EWCA Civ 426.) As ever, before taking the law into one’s own hands the safest course is always ask first whether it is practicable to call the authorities instead. Under the S.18 of the Animal Welfare Act , constables or inspectors who reasonably believe that an animal is suffering have certain powers to take, or arrange the taking of, such steps as appear to be immediately necessary to alleviate the animal's suffering. This can involve, if certain criteria are met, taking the animal into a place of safety, arranging care for it or if necessary, putting the animal down to end its suffering. These authorities only apply to officers or inspectors, not ordinary citizens, and many of the powers under the 2006 Act require a certificate from a veterinary surgeon. Given the express powers bestowed on constables and inspectors, it will seldom be appropriate for a citizen to intervene unless the urgencies of the situation make it impracticable to call the police. Conclusion In appropriate cases, it may be perfectly legal for ordinary people to step in and stand up for an animal in distress, even if this means using force, but it is not something to be undertaken lightly. Every case turns closely on its own facts and questions of 'necessity' and 'reasonableness', although supposedly 'objective' tests, can mean different things to different people. As a result, it is generally risky to use force against people or property, because even slightly misjudging the circumstances can lead to someone with good intentions having to justify, and potentially be punished for, their actions in court. This piece has focussed on the legal risks and has not touched on the general safety risk that suspects very often fight back. There are many reasons that the use of force is, where possible, safer to leave to officers with appropriate training and the authority and resources of the state to fall back on. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

The recent Animal Welfare (Sentencing) Act 2021 increased the maximum custodial sentence for several key animal welfare offences from six months to five years, but will it result in more prison sentences for animal welfare offences? Samuel March, a Barrister at 9 King’s Bench Walk and a volunteer paralegal at Advocates for Animals, considers this question in light of the Sentencing Council’s new draft sentencing guidelines for animal welfare offences. The 2021 Act In 2021, the Animal Welfare (Sentencing) Act 2021 ('the 2021 Act') came into force. The 2021 Act increased the maximum sentence for specific offences under the Animal Welfare Act 2006 ('the 2006 Act') from six months’ to five years’ custody. A predecessor of the Bill proposing substantially the same changes was first introduced by Environment Secretary (as he was then) Michael Gove in 2017 and supported by Government press releases enthusiastically promising that 'animal abusers could face up to five years in prison'. The 2021 Act was many years in the making and followed years of campaigning from some of the UK’s leading animal protection groups, who voiced a sense of distress shared by many voters that prison sentences were rarely imposed in animal protection cases. The release noted that, at the time, while on average about 1,150 people per year are convicted for animal cruelty, fewer than five of them received the (then) maximum sentence of six months in custody. The move itself is not without controversy. There are a broad range of well-intentioned philosophies across the animal protection movement, from the tireless and committed organisations who campaigned in favour of the legislation, to thought leaders who argue that carceral approaches can do more harm than good and the interests of people and animals alike is better served by moving ' beyond cages '. However, such a debate is beyond the scope of this article, which instead will focus only on whether the 2021 Act will actually result in more people actually going to prison for longer, as the press releases and news stories around it will have led many to expect. The draft guidelines The reason I ask this question now is in light of the Sentencing Council’s ongoing consultation on its new draft sentencing guidelines for animal offences. At any sentencing hearing the court will hear about the facts of an offence that has been admitted or proved and then consider the question of how to deal with the offender. In order to assist sentencing courts and ensure a degree of consistency between courts, the Sentencing Council publishes sentencing guidelines for some offences. These generally encourage the court to determine the level of 'culpability' of the offender and the 'harm' caused by the offence. These two factors are then plotted against each other to determine the appropriate starting point, which can then be increased or decreased to account for aggravating factors (such as previous similar convictions) or mitigating factors (such as previous good character or genuine remorse). The guidelines can be departed from, but courts will do so only in rare cases. Taking a look at the new draft guidelines for animal welfare offences, the point to note is that, notwithstanding the five year statutory maximum, the guidelines suggest that in practice the 'offence range' would be between a Band A fine (50% of relevant weekly income) and 3 years custody. It is not uncommon for sentencing guidelines to suggest a range that stops well below the statutory maximum, but what it means - if implemented – is that even under the 2021 Act, it would take an exceptional case for a court to impose a sentence anywhere near the five years that was widely announced in the press. An offence can be expected to be classed as 'high culpability' if it demonstrates one of more of the following: 'Prolonged and/or repeated incidents of serious cruelty and/or sadistic behaviour Use of very significant force Leading role in illegal activity' And an offence can be expected to be classed in the highest category for harm ('Category 1') if it demonstrates one or more of the following 'Death (including injury necessitating euthanasia) Particularly grave or life-threatening injury or condition caused Very high level of pain and/or suffering caused' 'Category 1A' is therefore concerned with truly reprehensible behaviour. Not merely deliberate, but repeated or sadistic behaviour resulting in the most serious outcomes imaginable for the animal in question. Nevertheless, the draft offence matrix suggests a 'starting point' for a Category 1A offence would be a custodial sentence of 18 months. The 'category range' would be 26 months to three years. It is important at this stage to note that not all custodial sentences involve actually going to prison. Two factors give reason to doubt whether the guidelines (if implemented) will result in more animal offenders actually spending time behind bars: Firstly, sentencing courts have the power to 'suspend' any sentence of two years or less, meaning that the defendant stays in the community so long as they commit no further offences and comply with conditions similar to those attached to a community order; and Secondly, any defendant who pleads guilty at the first appearance is automatically entitled to a reduction by 1/3 of any custodial sentence imposed. The operation of the suggested offence range and these two points of sentencing law, means that so long as a defendant enters an early guilty plea, all but the most exceptional cases will still fall below that critical two-year mark. . So, the most important question at most sentencing hearings will remain much the same as it was before the 2021 Act, namely 'can the sentence be suspended?' The court is given clear guidelines on answering this question. It does not particularly matter whether the underlying sentence is measured in weeks, months or years, the determinative factors will be whether the offender presents a risk/danger to the public, whether appropriate punishment can only be achieved by immediate custody, compliance with previous orders, prospects of rehabilitation, personal mitigation and whether custody would result in significant harmful impact on others. Courts will very often impose suspended sentences where they are available; unless there are strong reasons not to (such as multiple previous convictions or breaches of current or previous community-based orders). There are very often good and compelling reasons to impose community-based sentences, and in many cases, they are very effective. Merits of suspended sentences aside, their availability gives reason to doubt that 2021 Act and new guidelines will result in a significant increase in custodial sentences for animal welfare offences. Move animal cases to the Crown Court More prison sentences occur as a function not just of the maximum sentence and relevant guidelines, but of the number of cases prosecuted and the percentage of those resulting in convictions. One possible effect of the 2021 Act may be to reduce both the number of prosecutions brought, and the conviction rate when they are. Under the law of England and Wales, offences can be grouped into two categories depending on their 'mode of trial': summary offences (which are tried in the magistrates’ courts) and indictable offences (which can be tried in the Crown Court). The maximum custodial sentence that can be imposed in the magistrates’ courts is six months for a single offence (or up to twelve months on summary conviction for multiple indictable offences). So, in order to increase the maximum sentence to five years, the 2021 Act had to turn the main animal welfare offences from summary only offences to indictable offences, because only the Crown Court can impose such lengthy custodial sentences. This change could impact the number of animal welfare convictions for three reasons. The first reason is that the conviction rates in the magistrates’ court are consistently significantly higher than in the Crown Court. Between 2015 and 2018 the overall conviction rate in the magistrates’ courts was 84.8%, compared to 79.9% in the Crown Court. Part of this is because people are more likely to plead guilty when the likely sentence is lower, but there is also a significant difference in conviction rate after trial. According to CPS statistics from 2018, 16.8% of prosecutions at the Crown Court resulted in a trial, with a conviction after contest rate of 54.0%; compared to 9.1% of magistrates’ courts prosecutions with a conviction after contest rate of 62.1%. Possible explanations may be that magistrates are a self-selecting group with certain socio-economic groups disproportionately over or under represented; or that because they hear similar defences day-in-day-out they become cynical and less likely to believe defendants. Contrast this to jurors who are randomly selected and very often have never been involved in a criminal trial before and, in light of the higher stakes, may be more likely to give defendants the benefit of the doubt. Whether juries or magistrates produce more just outcomes is again beyond the scope of this article, but the statistics suggest that moving animal welfare offences to the Crown Court is likely to result in a lower conviction rate. The second reason is that Crown Court prosecutions require more time, more money, and often more expensive lawyers to prosecute them. Crown Court trials can easily be four or five times more expensive than a magistrates’ court trial. This pressure on resources is likely to lead to fewer prosecutions being brought, because the sums involved may mean that the state feels it needs to prioritise crimes against human beings, and private prosecutors feel they can no longer afford the up-front costs. The third reason is the coincidence of the 2021 Act with the decision of the RSPCA to step back as the prosecutor of first resort in animal welfare cases. Prior to the 2021 Act, the vast majority of animal welfare prosecutions were not brought by the state, but were private prosecutions brought by the RSPCA and other charities. For information on how animal protection groups can bring private prosecutions for animal welfare and wildlife crime, see our previous blog post . The RSPCA’s teams were trained and resourced to bring magistrates’ court cases effectively. In 2019 the RSPCA secured 1,432 convictions relating to animal welfare offences, with a 93.7% success rate. The RSPCA’s past successes illustrate some of the advantages of private prosecutions by specialist organisations. As well as high success rates, private players are able to instruct specialist lawyers, investigators and forensic experts. However, since the introduction of the 2021 Act, the 2021 RSPCA Strategy sets out the charity’s plan for the coming decade. The RSPCA has now set out to 'review [its] role as a prosecutor and look at the potential to transfer this responsibility to the Crown Prosecution Service (CPS).' One of the reasons for this was set out by Chris Sherwood (chief executive of the RSPCA) for this was the movement of animal welfare offences moving from the magistrates’ courts to the Crown Court. Sherwood acknowledged the responsibility involved in trials on indictment and suggested that the RSPCA believed that that responsibility should sit with the CPS. The various advantages and disadvantages of the CPS taking over from the RPSCA as the animal welfare prosecutor of first resort raises a number of other delicate issues and are the subject of a previous article ; but in summary, there are reasons to believe that it will result in fewer animal welfare prosecutions and to doubt whether the CPS is suitably trained and resourced to take on the RSPCA’s workload and bring the same number of convictions with the same success rate. Will the 2021 Act and guidelines result in more custodial sentences? The pros and cons of carceral approaches are beyond the scope of this article; however, there are reasons to doubt that the effect of the 2021 Act and the proposed sentencing guidelines will be to put significantly more people in prison for animal welfare offences. For the reasons set out above, it is entirely possible that there will be fewer prosecutions, with lower conviction rates and with suspended sentences still being passed in all but the most exceptional cases. The consultation runs until 1 August 2022: https://www.sentencingcouncil.org.uk/publications/item/animal-cruelty-consultation/ Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

The recent Beavers (England) Order 2022 granted the Eurasian beavers increased legal protection against persecution and habitat destruction, however will this result in a key part of British wildlife being adequately protected? Rob Espin, Co-chair of the Wildlife Working Group at the UK Centre for Animal Law (' A-LAW '), considers this question within the scope of England’s wider wildlife welfare regime. Beavers – a very british (re)introduction Once a widespread and key part of British ecosystems, the Eurasian Beaver (castor fibre) was unfortunately made extinct in the wild in Great Britain over 400 years ago primarily caused by human persecution through hunting. The loss of such an emblematic species represented a national shame given the beaver’s key role in forming natural habitats throughout the UK. Scientific evidence has established that beavers are ecosystem engineers , creating a mosaic of habitats though damning rivers to create wetlands rich in biodiversity. Beavers are also masters of helping managing our waterways during extreme weather conditions, with research showing their activities can reduce water flows by 73% during flooding whilst keeping 60% more open water pools during droughts. Despite such localised extinction, following the discovery of wild beavers living in the River Tay catchment area in Scotland, a beaver reintroduction trial was licensed for 5 years in 2009. This trial was widely considered a success when it concluded in 2014 and was followed by a trial in the River Otter area in Devon, England. This trial concerned a population of wild beavers of unconfirmed origins which was managed by a group of organisations led by the Devon Wildlife Trust. The scientific report at the end of the trial concluded that the reintroduction had been a success with beaver populations increasing nearly seven-fold and the families benefiting from increased public perception. After the conclusion of the successful River Otter trial, the Department for Environment, Food & Rural Affairs (' DEFRA ') announced that the beavers in Devonshire could stay and launched a public consultation concerning how best to facilitate beaver reintroductions as part of the UK Government’s 25 year environmental plan . Beavers still however occupy a precarious status in the UK as the International Union for the Conservation of Nature’s (' IUCN' ) red list classifies beaves as critically endangered in England. The old position Before the enactment of the Beavers (England) Order 2022 (the ' Beavers Order' ), beavers received similar protections to other wild mammals under the English wildlife welfare regime. There is no single piece of legislation containing all the welfare protections for wildlife in England meaning the protections are piecemeal and stem from various different laws. For beavers in the wild, it is an offence under the Wild Mammals (Protection) Act 1996 (' WMPA ') for any person to (amongst other things) beat, stab or mutilate a beaver if they intend to cause unnecessary suffering. Anyone convicted of causing cruelty to beavers in contravention of WMPA is liable for up to 6 months imprisonment in England. WMPA alone did not prevent persons from shooting beavers however, nor did it prevent persons setting using dogs to hunt the species. Beavers also draw some protection pursuant to the Wildlife and Countryside Act 1981 (the ' WCA '), which provides different levels of protection against persecution for different types of wildlife. As beavers are listed as a Schedule 6ZA WCA species, it is illegal to place traps or snares with the intention of capturing, killing or injuring beavers. In addition to the WCA, beavers also draw protection from the Conservation of Habitats and Species Regulations 2017 (the ' Habitat Regulations '). Under the Habitat Regulations it is a criminal offence for someone to be in possession of a beaver, whether live or not, or to offer them for sale. The Habitat Regulations also outlaw the use of certain methods of killing or capturing beavers, including poisons, explosives, crossbows and automatic weapons. Anyone convicted of contravening either the WCA or the Habitat Regulations faces up to 6 months in prison. The above paragraphs discuss the protections for wild beavers, however beavers which find themselves 'under the control of man' (for example in a licensed zoo or wildlife collection) are subject to much more comprehensive protection under the Animal Welfare Act 2006 (the ' AWA '). Beavers kept by humans are protected against unnecessary suffering caused intentionally or negligently and their keepers have to actively promote their welfare. On the basis that most beavers in England are not kept by humans this article will focus on the law relating to wild specimens. Why were beavers vulnerable? Even with the protections discussed above, prior to the Beavers Order there were significant holes in the English legal regime protecting beavers. It was not illegal for anyone to shoot or kill beavers generally as long as they did not use a prohibited method. This meant that beavers were at the mercy of the local populations and landowners they interacted with as they could easily be killed by self-interested individuals or groups. Another key risk was that beavers’ habitats were not protected. Beavers form a complex array of damns across water, burrows dug into riverbanks, larger bank lodges accessed by underwater tunnels and food caches of branches to store food for winter. Allowing people to damage or destroy these carefully constructed habitats threatened the sustainability of beaver populations as beaver 'kits' (young beavers) are dependent on this natural infrastructure for survival. Protection following the Beavers Order The above position changed significantly on 1 October 2022 when the Beavers Order came into force in England as this expanded the scope of certain further protections available under the Habitat Regulations to beavers. This is on top of the existing protections explained above, which were complemented instead of replaced by the Beavers Order. The first protective change was to create an offence to deliberately capture, injure, kill or even disturb any wild beaver, unless done pursuant to a licence granted by the relevant authority (discussed further below). Secondly it is now an offence for anyone to damage or destroy beavers’ breeding and resting sites without authority pursuant to a licence. Anyone who is convicted of breaching these prohibitions faces a maximum punishment of 6 months imprisonment. The final protective change was to effectively exempt beavers from the potential scope of species control orders , which are special powers given to environmental authorities allowing them to enter land without consent to carry out 'species management' activities, which may include killing or removing wildlife. In addition to enhancing their welfare protections, the Beavers Order also amended the rules concerning reintroduction and management of beavers into the wild, by changing the beavers’ classification to ' Native Animals ' under the WCA. The impact of such change is that conservation groups will now need to seek consent from Natural England before conducting rewilding where beavers are released into the English countryside. Such consent will only be granted where reintroduction groups prepare plans which satisfactorily address certain issues including ecological impact, local community stakeholder support and resolution of conflicts with human interests. Are beavers adequately protected now? The enactment of the Beavers Order can be seen as a stride forward in ensuring that beavers are protected against meaningless persecution in the wildlife. Preventing beavers generally being killed or taken should stop persons who do not like the presence of beavers nearby from killing or removing the animal. Protection of their habitat is also a positive development and addresses a previous lacuna in wellbeing safeguards. The Beavers Order also has consequences for proposed development and construction which may impact the animal’s habitat. Whilst beavers largely currently occupy wildlife enclosures and certain areas on wetlands which developers would not target for construction in any case, this may not always be the case as beavers’ natural range expands over time. Ecologists supporting construction will need to consider the animal in their survey and, should the proposed development impact beaver habitats, special authority will need to be sought from either Natural England or DEFRA in addition to the usual local planning authority process. This could result in planning permission being refused, or conditioned upon development businesses taking certain action to avoid harm or disturbance to protected species and their habitats, mitigating for the effect on them if that is not possible and to compensate for harm as a last resort. Even with the positive steps forwards, how much difference these enhanced safeguards will make to the protection of beavers in the wild will depend on a number of more practical issues. Firstly, Natural England has the power to issue licences to persons to either kill or take Beavers or to break up their habitats under certain conditions where beavers clash with certain human interests. Provided that people take actions strictly under the auspices of such licences, any acts invasive towards beavers will not be punishable by criminal offence. The UK has already seen legal challenge in the form of a successful judicial review in Scotland (which this author was involved in with alongside the Lifescape Project ) determining that the Scottish regulator had been incorrectly issuing licences and therefore allowing persecution of the animal when this should not have been permitted. It is therefore critical that English authorities only licence action which might be invasive to beavers subject to strict conditions set out by law, including that there is no less harmful satisfactory alternative which could be taken to protect human interests. Secondly, as has been frequently previously highlighted by organisations including the Wildlife and Countryside Link , the success of any wildlife welfare legislation depends upon how it is enforced . Key to enforcement include reporting and detection mechanisms and the resourcing and training of enforcement authorities including the police. The Beavers Order therefore needs to be supported by proper prioritisation of wildlife crime as a national issue in order for beavers to be adequately protected in England. Finally the Beavers Order also contains some inconsistencies in the protections it bestows to beavers. The WCA usually makes it a criminal offence to recklessly disturb protected species which are listed in Schedule 5 to the WCA whilst such species occupy their habitat or for a person to obstruct access to natural structures such animals use for shelter or protection. This is beyond the prohibition within the Habitat Regulations which only outlaws deliberate disturbance of the species. Beavers were, for some reason, not added to Schedule 5 of the WCA despite being granted other protections. There is no clear rationale in the supporting documentation to the Beavers Order for this exception and this creates a risk that people, who have not specific qualifications or training, try to block beavers’ lodges and burrows, causing them distress through disturbance and negatively impacting their welfare. This lacuna is a shame, and this author encourages the Secretary of State to take action to address this. Conclusion It is undoubtedly positive to see the Government taking action to shore up the legal welfare protections concerning a critically endangered species which is increasingly forming the spearpoint of Britain’s rewilding efforts. Whether this will in reality result in beavers being shielded from persecution will depend upon a variety of factors including the degree the relevant authorities choose to licence action prejudicial to beavers for the purpose of furthering certain anthropocentric interests and the prioritisation given to the tackling of wildlife crime. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

Currently, there is no specific legislation covering companion animals in rental homes for assured shorthold tenancies. There is no specific mention of companion animals in the Housing Act1988 . There are, however, still some legal nuances when it comes to keeping animals in your home under a tenancy agreement. Tenancy agreements The tenancy agreement might say companion animals are not allowed. Under Section 62 of the Consumer Rights Act 2015 'unfair terms' in a contract are prohibited. It is unknown whether a blanket ban on keeping companion animals under a tenancy agreement would be deemed an unfair term. Alternatively, the tenancy agreement might say the landlord’s permission should be sought if the tenant intends to keep a companion animal. In this case, the landlord’s permission should not be unreasonably refused. What amounts to a reasonable refusal will vary with the circumstances. For example, it might be reasonable to refuse permission to keep a large dog in a small flat. Where a tenant feels that a landlord has unreasonably refused their request, they will be able to escalate their complaint to the Private Rented Sector Ombudsman or they could take the case to court. The Ombudsman or court will make the final decision based on the evidence provided by both parties. Private landlords have discretion to use a Model Tenancy Agreement drafted by the government. The latest version was published on 28 January 2021. Where this agreement is used the default position is for landlords not to unreasonably withhold consent where a tenant asks for permission to keep a companion animal. Paragraph 3.5 states: 'A Tenant must seek the prior written consent of the Landlord should they wish to keep pets or other animals at the Property. A Landlord must not unreasonably withhold or delay a written request from a Tenant without considering the request on its own merits. The Landlord should accept such a request where they are satisfied the Tenant is a responsible pet owner and the pet is of a kind that is suitable in relation to the nature of the premises at which it will be kept. Consent is deemed to be granted unless the written request is turned down by a Landlord with good reason in writing within 28 days of receiving the request.' The guidance on this clause says: Clause C3.5 prohibits a landlord from exercising a blanket ban on pets. A responsible pet owner will be aware of their responsibilities in making best efforts to ensure their pet does not cause a nuisance to neighbouring households or undue damage to the Property. A landlord should take steps to accommodate written requests from responsible tenants with pets. They should only turn down a request in writing within a 28 day period if there is good reason to do so, such as large pets in smaller properties or flats, or otherwise properties where having a pet could be impractical. Landlord consent is therefore the default position unless otherwise specified in writing by a landlord. If consent is given on the condition that additional deposit is paid by the tenant, the total deposit must not breach the deposit cap introduced under the Tenant Fees Act 2019 and must be protected in an authorised tenancy deposit scheme. The tenancy agreement (contract) might not mention companion animals, in which case it will likely be harder for landlords to argue that they are not allowed. A guide or assistance dog Under the Equality Act 2010 , service providers (including landlords) must not directly or indirectly discriminate against people with a disability. Section 20(3) says they must make reasonable adjustments where a provision, criterion or practice puts a disabled person at a substantial disadvantage compared to a non-disabled person. What amounts to a reasonable adjustment will depend on individual circumstances. The future – renters Reform Bill The Renters (Reform) Bill 2022-23 , introduced to parliament on 17 May 2023, contains measures to amend the Housing Act 1988 to make it an implied term of an assured tenancy (with some exceptions) that a tenant may keep a companion animal with the landlord’s consent unless the landlord reasonably refuses. There is useful information on the Bill here . Advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

The Competition Markets Authority has referred the supply of veterinary services for household pets in the United Kingdom for a market investigation  due to a concern that consumers are not getting a fair deal.  Our work at Advocates for Animals has led us to the conclusion that the veterinary industry is both unfair to consumers and animals alike.  Veterinary negligence  Veterinary negligence is a common complaint that we deal with. Members of the public have experienced their companion animals suffering and even dying at the hands of veterinary malpractice. We have also come across complaints involving falsifying records and denying a customer’s version of events. Meaningful accountability and establishing the scale of the issue are impossible due to the structure of accountability mechanisms currently in place.  Accountability mechanisms When people experience the loss or poor treatment towards an animal they would often consider a family member, they are provided with limited options to obtain any sense of justice or accountability.  The main options are:   A complaint to the Royal College of Veterinary Surgeons   A civil claim through the courts Settlements, which in our experience is rare due to the fear of admitting responsibility  RCVS A complaint to the Royal College of Veterinary Surgeons (RCVS) is the direction most are pointed in, it is free and it has the appeal of a less burdensome process than going to court. However, there are several reasons why a complaint to the RCVS is often unsatisfactory.  Firstly, the RCVS is a self-regulator, which, of course, runs the risk of conflicts of interest.  Secondly, the RCVS will only deal with serious professional misconduct. Where malpractice is concerned, the RCVS have described this as 'very poor professional performance where there are serious departures from the standards set out in the RCVS Code of Professional Conduct'.   This means that anything that is just standard poor practice will not be investigated.  Thirdly, when making a complaint about malpractice to the RCVS, the standard of proof is that of the criminal standard, when other regulators use the civil test of the balance of probabilities. This means a complainant must prove their case beyond all reasonable doubt, rather than the lower threshold of balance of probabilities. This has likely resulted in the number of disciplinary hearings being kept low. During 2023, only 12 out of more than 3,300 individual issues, including 620 which progressed to become formal complaints, were the subject of full disciplinary hearings during 2023. Finally, even in the event the RCVS did find against a professional, it has limited powers and cannot offer compensation. The RCVS has also stated it has no power to compel vets to hand over documents. Civil claim Another option available to the recipient of veterinary malpractice is a civil claim.  Veterinary services will need to ensure that they act in accordance with the contract of the supply of service and in accordance with their professional duty of care (and also with their obligations under the Consumer Rights Act 2015). The consequence of breaching these legal duties means a claim in the civil courts is an option. The cost consequences of pursuing a civil claim, however, make this option inaccessible to most. Pursuing any legal claim can be costly and requires serious thought before going into it; however, what makes pursuing a claim against a veterinary service provider unique is the status of animals under the law.  Animals are seen as property under the law, which means that in almost all veterinary negligence cases, due to the material value of the claim, including that of the animal and veterinary bills, it is likely the claim will end up in the small claims court.  The small claims court is designed to deal with straightforward issues involving relatively small sums. It is not intended to deal with complex legal and scientific questions that turn on expert opinion with huge emotional investment.   Claimants should be able to represent themselves through the small claims procedure; however, in a veterinary negligence case, this would require instructing an expert or experts and making complex arguments regarding questions such as specific cause of injury or death. All the while the defendant may have lawyers and experts funded by their insurers, as their professional credibility is on the line. As such, to have a real shot at success, the claimant would need to hire a lawyer, the fees of which are not recoverable, who in turn would need to instruct an expert or experts, the fees of which have limited recoverability.   It is a possibility that a small claims district judge may consider the matter too complex for a small claims hearing and refer it up to the fast-track county court procedure. In which case the risk of paying the other side's costs order if the claimant does not succeed is substantial due to the above costs involved in a claim of this nature.  We have also experienced real difficulty finding veterinary experts willing to speak out against the alleged malpractice of one of their peers, all the while the other side has access to a pool of experts willing to defend them. This is simply not a level playing field for any lay person.   Even in the event that the claimant was successful against these challenges, the claimant could not expect to receive any significant payout, which, where an animal is concerned, will likely mean their material value rather than their emotional value. This means a claimant could spend thousands, if not tens of thousands of pounds, pursuing a claim and receive a far smaller amount back if successful. Due to the poor viability of a civil claim, it is often advisable that a client complain to the RCVS, which, for the above reasons, is far from satisfactory.   Conclusion For the above reasons there is not adequate accountability for providing poor veterinary services. This not only means a consumer does not have any access to suitable redress, but also that the market itself is distorted by having unsuitable practitioners still allowed to practise, as a result of shielding poor service providers. Following a submission from Advocates for Animals and others, we are very pleased to note however that the CMA in its’ recently published (July 2024) statement of issues,  has noted that they will be looking into the regulatory framework for vets and whether in fact there are sufficient mechanisms in place for ensuring that the Code of Conduct is enforced.  We believe that both for the sake of consumers and for the welfare of animals, this needs to be closely and carefully scrutinised and the lack of enforcement addressed. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

19 May 2020, Samuel March Judgment: [Friends of Antique Cultural Treasures Ltd v DEFRA [2020] EWCA Civ 649] ( https://www.bailii.org/ew/cases/EWCA/Civ/2020/649.html ) On 18 May 2020 the Court of Appeal unanimously ruled that the restrictions imposed by the Ivory Act 2018 ('the Act') do not violate the EU rules on the free movement of goods, nor the fundamental rights to respect for property rights. The facts The Act, not yet in force, will introduce wide ranging prohibitions on the ivory trade. The Appellants, a company incorporated for the sole purpose of representing the interests of antique ivory dealers and collectors in this matter, sought to directly challenge the provisions of the Act, arguing that these prohibitions went too far and were disproportionate. At first instance, Mr Justice Jay in the High Court dismissed the challenge. The Appellants appealed, mounting a series of challenges to his reasoning. The issues In brief, the question on appeal was whether the judge at first instance had applied the proportionality test correctly. EU law continues to apply in the UK until 31 December 2020. Articles 34 and 35 of the Treaty on the Functioning of the European Union prohibit import and export restrictions on trade in goods between the EU Member States. However, these articles do not apply where the restrictions are a necessary and proportionate way to pursue one of the legitimate aims set out in Article 36, which includes safeguarding the welfare of animals. The Appellants argued that there was insufficient evidence supporting the Respondents’ justification, and further or alternatively that less restrictive and intrusive measures could have been adopted by Parliament to achieve their aim. The appellants further relied on the right to property enshrined in Article 17 of the EU Charter of Fundamental Rights and Protocol 1 Article 1 of the European Convention on Human Rights, as well as the right to freedom to conduct a business per Article 16 of the Charter. The decision Finding for the Respondents, the Court of Appeal could detect no errors in the approach adopted or in the findings made by the Judge about the evidence. At [56]-[57], they concluded that he was right to find that the Act was proportionate and lawful: 'In his considered and careful analysis the Judge applied the correct approach to the evidence. He concluded that he had to make an objective appraisal of the evidence before him, even where it included evidence not before Parliament. He reviewed that evidence individually and collectively and attached to each strand of evidence appropriate weight. He found that in some respects the evidence was lacking but, when viewed overall, there was sufficient evidence to support the justifications advanced for the trading bans. He applied a variegated approach to the margin of appreciation or discretion that the court should attach to the assessment conducted by the state and concluded that, where matters of international politics and diplomacy are in issue, a broader margin is appropriate. He considered that the Act was justified, taking into account the evidence and the margin that Parliament was entitled to in adopting legislation in this field. In arriving at his conclusion, he took account of the fact that the Act did intrude significantly into fundamental property rights and the right to conduct business, but this did not mean that the Act was disproportionate.' [56] Commentary The judgment is likely to be welcome news to animal and environmental campaigners, as well the 85% of the British public who supported the ban. Speaking prior to the appeal, Mary Rice, the Executive Director of the Environmental Investigation Agency had said : 'It would be a tragedy for endangered elephants in Africa and Asia if the UK Ivory Act were to be cut down at this final hurdle, not to mention a slap in the face for the vast majority of British citizens who quite clearly put elephant welfare far above the right to make money off blood ivory.' Unsurprisingly, the judgment was welcomed by DEFRA, a spokesperson for whom said : 'We welcome the Court of Appeal’s ruling, which upholds the High Court’s decision and dismisses the claim against the Ivory Act. We are committed to bringing the ivory ban into force as soon as practicable to help protect the world’s endangered species and halt biodiversity loss.' However, there have been suggestions of a possible appeal. Richard Pike, partner at Constantine Cannon, the law firm acting for the appellants, was reported in the Antiques Trade Gazette to have said 'We've got seven days to seek permission to appeal - and there is a possibility that this will happen.' Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

22 May 2020 ,Samuel March Judgment: Islamabad Wildlife Management Board v Metropolitan Corporation Islamabad W.P. No.1155/2019 On 21st May 2020, Chief Justice Athar Minallah sitting in the High Court in Islamabad, Pakistan, issued a landmark 67-page judgment which found, inter alia, that the animals in Marghazar Zoo had legal rights, and should be moved to appropriate sanctuaries. The facts The case concerned the Marghazar Zoo of the Federal Territory of Islamabad ('the Zoo'). The Zoo housed and exhibited 878 non-human living creatures, including 89 of 15 different species, 769 birds of 38 species and 20 of three species. Notably, the zoo was home to ' Kaavan ', the solitary elephant. The zoo was under the control of the respondent corporation, which had 'neither the resources nor the capacity and will to safeguard the wellbeing and welfare of the captive animals' [2]. A report submitted by the amicus appointed by this Court as well as the Board highlighted 'extremely disturbing conditions in which the non-human living beings have been kept in captivity and in complete disregard for their respective natural habitats. The animals, because of these conditions, are definitely suffering pain, distress and agony. The animals have been kept in small cages and enclosures without basic and necessary facilities required for the needs of this non-human living species. There can be no denial that these non-human living beings have been kept in conditions which cause distress and pain and thus amounts to cruel treatment.' The judgment at [4] deals with the specific conditions endured by the animals with a four to five-page emphasis on Kaavan’s three decades of 'unnecessary pain and suffering' [4(a)]. The issue At [2] the judge set out what he perceived to be seven issues before the court. The most pressing being whether the animals had independent rights, whether there was a duty on the part of humans, through the state, to protect, preserve and conserve them, or whether the cruel treatment of animals could amount to a breach of the right to life of the public at large. The decision Finding 'without any hesitation' for the claimants, the judge considered at [7] that the animals had legal rights. He held, 'After surveying the jurisprudence developed in various jurisdictions it has become obvious that there is consensus that an "animal" is not merely a "thing" or "property".' This conclusion came after a wide-ranging exploration at [6] of the jurisprudence, both domestically and internationally, pertaining to the rights of animals and the duties of humans and states towards them. The cases cited will be familiar to animal advocates around the world. These detail the varying successes and failures of animal advocates to raise the legal status of animals. Notable successes cited include, Sandra the Orangutan, who was declared a ‘non-human person’ by a Criminal Appeals Court in Argentina; Cecilia the Chimpanzee, who was declared a 'non-human legal person' by Judge Maria Alejandra Mauricio of Tercer Juzgado de Garantias in Mandoza; Sonu the Elephant, whose right to live in its natural habitat was recognised by the High Court of Chhattisgarh; A case from The Kerala High Court, which recognised a 'fundamental duty' to show compassion and 'recognise and protect' the rights of animals; and A case from The Indian Supreme Court, which held that 'every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity.' The court also cited concessions, allowances and sympathetic obiter from judges in cases where rights or personhood were not directly recognised; noting, for instance the 'regretful' tone of Judge Alison Tuitt’s judgment concerning the Bronx Zoo’s Happy the Elephant . Having reviewed the jurisprudence, the judge went on to consider the treatment of animals under various religions. The Judge cited several Quranic verses and Ahadith, and concluded at [6(c)] that 'It is inconceivable that, in a society where the majority follow the religion of Islam, that an animal could be harmed or treated in a cruel manner.' The judge also considered the relationship between the treatment of animals and the right to life of humans, noting the context and roots of the present pandemic, and concluding at [6(f)] that it was an obligation of the State and its authorities to 'jealously guard against cruel and illegal treatment of animals'. The various declarations and directions are then set out at [8], including at [8(iii)] that the Board would forthwith make arrangements, preferably in consultation with and the consent of the High Commissioner of Sri Lanka, to relocate Kaavan to a suitable sanctuary within thirty days, and per [8(iv)] all the remaining animals are to be relocated their respective sanctuaries within 60 days. Commentary The ruling has naturally been celebrated by those who have campaigned for the release of Kaavan and the other animals. One of the claimant advocates has called the judge 'an absolute legend and a symbol of hope'. American singer Cher, who had campaigned ardently for the animals, tweeted that the judgment was 'one of the greatest moments' of her life. For the time being, there has been no indication to the author’s knowledge that the ruling is to be appealed. Nevertheless, it is worth noting that the Supreme Court of Pakistan has the power to decide appeals arising out of cases decided by the High Courts of Pakistan, including the High Court in Islamabad which decided this case. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

1 July 2020, David Thomas This case was about Sylvie, a blind cross collie rescued from a ‘killing’ shelter in Romania and sent to a UK rescue charity. Advocates for Animals (AfA) represented the defendant, June Lane, in the appeal proceedings. AfA would not normally act against an animal charity. However, the case had unusual features and presented an opportunity to chip away at the legal principle that, as chattels, animals are subject to the same rules of property law as inanimate objects. The facts The charity fostered Sylvie to Ms Lane, an experienced fosterer, while they sought a suitable permanent home. The parties entered into a fostering agreement, which was silent about when the charity could demand Sylvie’s return, save if they thought she was not getting proper care (the charity acknowledged in fact that Ms Lane had given Sylvie ‘wonderful care’). One adoption had already failed, and Sylvie was in a distressed state before she came to Ms Lane. Her confidence improved, but unfortunately, in time her health deteriorated. A veterinary neurologist later suggested that she had a canine form of dementia and that it would be better not to move her. In June 2018, the charity asked for Sylvie back, but Ms Lane declined. She was concerned that, given Sylvie’s combination of conditions, moving her at this time would exacerbate the distress and disorientation she was exhibiting. She offered to adopt Sylvie, but the charity refused. The charity brought proceedings for Sylvie’s return and was successful before the district judge. The judge said that, in law, Sylvie was ‘essentially the same as a car or something else’ and that therefore she could not take her welfare into account. Ms Lane was eventually given permission to appeal. The issues There were really two issues on the appeal. First, although a fostering agreement is by its nature temporary, should a term be implied here that the charity could not demand Sylvie’s return if that would be significantly detrimental to her welfare? The whole point of the agreement was to safeguard her welfare. (Whether there would in fact be significant detriment would depend on all the evidence, including veterinary evidence, in the normal way). Second, if there was no such implied term and the charity was entitled to demand Sylvie’s return whenever they wanted, should the court in the exercise of its discretion instead order Ms Lane to pay damages to the charity? Whenever an owner brings proceedings for the return of their chattel, the court can order damages instead if that would compensate the owner adequately. The decision Judge Godsmark indicated that the fostering agreement was an example of what the law calls a bailment. This is where someone temporarily transfers possession but not ownership of a chattel to someone else. He said the agreement had some features of a bailment at will, which arises where there is no agreed endpoint for the arrangement. With such a bailment, the owner – the bailor – can demand return of the chattel at any time. Could an implied term save Ms Lane? There are a number of hurdles which must be overcome before a court will imply a term into a contract. The leading decision is now that of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2015] UKSC 72 . The crucial issue in the present case was whether the suggested implied term would have been obvious to a reasonable observer when the agreement was entered into. The test is a stringent one: the starting-point, and usually the finishing-point, is what the parties have expressly agreed. The judge decided that the implied term did not reach the obviousness threshold. The charity was entitled to call for Sylvie’s return without regard to her welfare. Indeed, the trustees would be within their rights to put her to sleep ‘at a whim’ (it was not suggested that they intended to do that). However, he found for Ms Lane on the second issue. The district judge had wrongly failed to exercise her discretion, and he could therefore exercise his under Section 3 of the Torts (Interference with Goods) Act 1977. He decided that Ms Lane should be ordered to pay damages rather than return Sylvie. He was influenced by the fact Sylvie was not the trustees’ pet – they simply wished to place her elsewhere. She therefore had no particular value to the charity. Damages could compensate. The most the charity could expect to get for Sylvie was their standard adoption fee of £255. However, Ms Lane had made an open offer of £2,500 – evidence of her commitment to Sylvie – and the judge decided that that should be the measure of damages. Commentary The judge recognised that, in law, Sylvie was a chattel, subject to the same incidences of ownership as, say, a book. That clearly influenced him in applying the obviousness test. That test is largely a matter of impression: it would not be surprising were people to disagree on what is obvious with any given contract. However, the judge made an interesting comment about animals’ status as property. He said that perhaps animals should not be regarded as such: ‘they play a large part in our emotions and our lives, they breathe, they feel pleasure and pain. Maybe the law should recognise this, but it does not’. In other words, perhaps it's time for reform of the law. Moreover, he recognised that Sylvie was both unique and sentient. Her market value was relatively small but she had ‘substantial emotional value’. Ms Lane was invested in her welfare. It would be surprising if Sylvie’s welfare needs did not influence the way the judge exercised his discretion. County Court judgments are not legal precedents, and this judgment does not represent revolution. But it is important in showing that what happens to an animal does not have to follow property rights. Sentiency and the animal’s best interests have an important role to play too. Legislative reform is always the gold standard. But cases can have an important, if incremental, role in moving the law in a more enlightened direction. It is hoped that future cases will build on Judge Godsmark’s approach in this case. Chesterfield County Court: 30 June 2020 Orton and others v Lane: E00HF536 Judge Godsmark QC Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

16 October 2020, Samuel March Judgment: [R (on the application of Highbury Poultry Farm Produce Ltd) (Appellant) v Crown Prosecution Service (Respondent) [2020] UKSC 39 On 16 October 2020 the UK Supreme Court unanimously ruled against Highbury Poultry Farm Produce Ltd ('the Appellants') in an appeal concerning the scope of the legal duties on business operators under Regulation 30(1)(g) the Welfare of Animals at the Time of Killing (England) Regulations 2015 ('the UK Regulation'). The effect of this may be to leave the appellants with no defence to criminal charges. The facts Highbury Poultry Farm Produce Ltd (the Appellants) operates a poultry slaughterhouse in Shropshire. The average daily throughput is 75 thousand chickens, equating to 19.5 million or so chickens every year. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On separate occasions in 2016, three chickens went into the scalding tank whilst still alive because their necks were not properly cut. The appellants were charged with two offences in respect of each incident, contrary to the UK Regulation. The UK Regulation is implementing legislation which gives domestic effect to Regulation (EC) No 1099/2009 (the EU Regulation). The offences concerned alleged breaches of Article 3 of the EU Regulation, which requires that animals 'shall be spared avoidable pain, distress or suffering' during their killing; and Article 15(1) of the EU Regulation, which sets out requirements for the bleeding of animals (including that 'in case of simple stunning[…] the two carotid [neck] arteries or the vessels from which they arise shall be systematically severed[…] Further dressing or scalding shall only be performed once the absence of signs of life of the animal has been verified'). The issues Two preliminary points of law were raised in the magistrates’ court. These two issues found their way to the Supreme Court after the appellants’ application for judicial review was dismissed by the High Court . The two questions raised were whether proof of an offence contrary to the UK Regulations requires the prosecution to prove mens rea on the part of the business operator; and whether the prosecution must prove a culpable act or omission on the part of the Appellants. Most criminal offences require not just an actus reus (guilty act) but also that a defendant has a mens rea (guilty mind). Depending on the offence, the mens rea could mean intention, recklessness, negligence or even just knowledge of the factual circumstances constituting the offence. There are, however, certain offences for which there is no need to show a 'mens rea'. These are called 'strict liability' offences. With strict liability offences, it does not matter what the defendant knew or intended, if the act is proved as a matter of fact, then the offence has been committed. The central question in this case was, therefore, whether the UK Regulation created offences of strict liability. The decision Giving the sole judgment, Lord Burrows ruled against the appellants, holding that both offences are offences of strict liability. Negligence by the business operator does not have to be proved. The Court considered that the UK Regulation is no more than the mechanism through which the EU Regulation is given effect in domestic law. It is solely the interpretation of the EU Regulation that matters. At [15] Lord Burrows held that 'if the EU Regulation imposes strict liability, the domestic regulation must (as a matter of EU law) do the same; and certainly, without a clear indication in the domestic regulation that the EU Regulation is being departed from, the best interpretation of the domestic legislation must be that it is merely the mechanism for implementing what has been laid down in the EU Regulation.' The court considered that both of the relevant sections of the EU Regulation were worded in such a way as to suggest strict liability. As regards the first offence, having considered that the use of the passive voice in providing that animals 'shall be spared' avoidable pain, distress or suffering 'leaves no obvious room for a requirement of intention or negligence' [39], the Court held at [53] that, 'Looking at the words used in the EU Regulation, in their context and especially in the light of the purpose of the regulation, it is therefore my view that, applying EU law principles of legislative interpretation and bearing in mind that imposing strict criminal liability is not contrary to EU law, the first offence […] is correctly interpreted as imposing strict liability.' Similarly, in respect of the second offence, the Court held at [33] that 'By article 15(1), business operators “shall ensure” that the operational rules are complied with. And the operational rules are specified in Annex III, point 3.2 in very clear and precise terms: “the two carotid arteries or the vessels […] shall be systematically severed”. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed. If strict liability were not being imposed, words importing culpability could have easily been included; but they have not been.' The Court ended with some final observations, agreeing at [54] with the conclusions of the Divisional Court that '[T]he EU Regulation […] should be seen as setting forth a comprehensive code or rule-book which must be complied with by the business operator at all material times. On the facts of the present case, there was a strict obligation to sever the main arteries systematically and a concomitant strict obligation to spare these birds avoidable pain.' Commentary These issues were raised as preliminary matters, but they are of critical importance to the case. As noted by Mr Justice Jay at [55] of the High Court judgment on the matter, 'The practical effect of his ruling, if upheld […], may be that [the Appellant] has no defence to these charges; or, if [the Appellant] is right and Regulation 30(1)(g) requires proof of mens rea, the prosecution will be discontinued. In that sense, therefore, the rulings on the preliminary issues may be dispositive.' The Crown Prosecution Service, which was the respondent in this matter, will now be able to proceed with the prosecution. It may well be that the appellants now have no defence to the charges and will be convicted of criminal offences. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

24 November 2020 ,Samuel March Judgment: McKiver v. Murphy-Brown, LLC, No. 19-1019 (4th Cir. 2020) On 21 November 2020, the US Court of Appeals for the Fourth Circuit affirmed a jury's verdict that a commercial hog 'producer' was liable for both compensatory and punitive damages. The facts Murphy-Brown, LLC ('the appellant') is a commercial hog producer who contracted with third-party 'grower' Kinlaw Farms LLC ('Kinlaw') to operate an industrial pig feeding facility in North Carolina. The operation at Kinlaw annually maintained nearly 15,000 of appellant’s pigs, who generated approximately 153,000 pounds of feces and urine daily. The appellant was sued by a group of Kinlaw’s neighbours ('the appellees'), almost all of modest means and minorities, who live in close proximity to Kinlaw. The appellees sought compensation in respect of odours, pests, and noises attributed to farming practices implemented by the appellant at Kinlaw. At first instance the appellees won, and the jury awarded damages of $75,000 in compensatory damages per plaintiff, along with a total of $5 million in punitive damages, which was subsequently reduced to $2.5 million due to North Carolina’s punitive damages cap. The issues The appellants appealed, raising a wide range of arguments, including points about joinder, limitation, admissibility of expert evidence, damages in private nuisance law and whether the issue of punitive damages should have been left to the jury. The decision The opinion was written by Judge Thacker. Finding for the appellees on all but one issue, the court affirmed the verdict of the jury in respect of liability for compensatory and punitive damages. However, the court vacated the jury's judgment as to the amount of punitive damages and remanded for rehearing on that issue alone without the potentially inflammatory or prejudicial evidence about parent company’s finances. Commentary On the face of it, this was an appeal on points of law pertaining to North Carolina law and civil procedure. It did not turn on laws that are explicitly animal protection laws, indeed the opinion is able to deal with the legal issues with no substantial thought given to the lived experiences of the 15,000 pigs per year at the centre of the claim. However, animal advocates internationally will be interested in the judgment of Judge Wilkinson who, as well as concurring with the opinion of the court, also wrote separately and in considerable depth analysing 'the full harms that the unreformed practices of hog farming are inflicting.' [p68] He prefaces this part of his judgment by acknowledging the centrality of hog farming to the state’s economy, but then goes on to deliver a judgment so scathing and impassioned that substantial passages of it bear reproducing in full. He writes at pp70-72: How did it come to this? What was missing from Kinlaw Farms—and from Murphy-Brown—was the recognition that treating animals better will benefit humans. What was neglected is that animal welfare and human welfare, far from advancing at cross-purposes, are actually integrally connected. The decades-long transition to concentrated animal feeding operations ('CAFOs') lays bare this connection and the consequences of its breach with startling clarity. Once, most hogs were raised on 'smaller, pasture-based hog farms.' […] Now, the paradigm has shifted: 'large numbers of hogs, often many thousands' crowd together in each of the many cramped 'confinement structures' that comprise the typical hog CAFO. […]. The following illustrates how Kinlaw, an endpoint of this pasture-to-CAFO transition, created serious ecological risks that, when imprudently managed, bred horrible outcomes for pigs and humans alike. The warp in the human-hog relationship, and the root of the nuisance in this suit, lay in the deplorable conditions of confinement prevailing at Kinlaw, conditions that there is no reason to suppose were unique to that facility. Confinement defined life for the over 14,000 hogs—all of which Murphy-Brown owned—that Kinlaw Farms had crammed into its twelve confinement sheds. […]. Consistent with Kinlaw’s role as a 'finishing' facility, hogs arrived at around forty pounds, to be fattened to over seven times their starting weight. […]. The one thing that never grew with the hogs, though, was the size of their indoor pens. Even though '[h]ogs grow bigger now,' id., the pens’ design has not changed a whit in twenty-five years. See […]. The sad fate of Kinlaw’s hogs was, therefore, to remain in these densely packed pens from the time they arrived to the time they were shipped for slaughter, straining in vain as their increasing girth slowly but surely reduced them to almost suffocating closeness.' Judge Wilkinson relies heavily on an amicus brief , filed by The Humane Society of the United States, along with several other organisations, highlighting how cruelty to animals and serious environmental harms and threats to human health are interconnected. He notes health risks to workers, the effect on air quality and water quality, and the risks of zoonoses and antibiotic resistance . He also recognises an 'uncomfortable truth', namely that 'these nuisance conditions were unlikely to have persisted for long—or even to have arisen at all—had the neighbors of Kinlaw Farms been wealthier or more politically powerful', noting that North Carolina’s ban on new systems implementing the same waste treatment methods arose after CAFOs threatened to expand into a General Assembly member’s home district of Moore County, a popular destination for golfers and tourists. [p79] Wilkinson’s judgment, although separate to the binding opinion of the court, can be cited by animal advocates as a persuasive and powerful reminder that 'The scale of industrial hog farming is no warrant to ride roughshod over the property rights of neighbors, the health of workers and community members, and the lives of the hogs themselves.' [p79] *In the UK, the 'appellees' would be called the 'respondents', and the 'plaintiffs' would be called 'claimants'. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

22 January 2021 Judgment: Federal Republic of Germany v Esso Raffinage and Others The facts Esso Raffinage (Esso) registered its chemical with the European Chemicals Agency (ECHA), an EU agency, as it was required to do before it could sell it in the EU. This was under Regulation (EC) No 1907/2006, known as REACH. Under REACH rules, given the volume at which it sold the chemical, Esso had to provide data about (amongst other things) its potential pre-natal toxicity. Normally, this would be done via an animal test - a pre-natal developmental toxicity (PNDT) study - but a non-animal approach method could be used instead if it gave the equivalent information. This is known as an ‘adaptation’. Esso argued that the weight of existing evidence, an alternative approach recognised by Annex XI to REACH, provided the equivalent information. However, ECHA disagreed and ordered the company to provide the animal data, using hundreds of rabbits. Esso nevertheless persisted and provided the available evidence instead. ECHA sent a ‘statement of non-compliance’ (SONC) to the French Government, which was responsible for issuing sanctions against Esso, since it is based in France. Under Article 5 of REACH, a company which has not provided required data is unable to sell its chemical in the EU. Esso applied to the General Court (the GC), the lower of the two EU courts, to annul the SONC. The case was against ECHA. A number of member states, including Germany, intervened. The GC ruled in Esso’s favour. ECHA accepted the decision, but Germany appealed to the Court of Justice of the European Union (CJEU). The European Coalition to End Animal Experiments (ECEAE) was given permission to intervene along with two companies. Other member states supported Germany, including France. The issues There were related procedural issues: was the SONC a justiciable decision under Article 263 of the Treaty of the Functioning of the European Union, and did Esso have the standing to bring the case? Only if both questions were answered in the affirmative should the GC have heard it. The substantive issue was whether the principle under Article 25(1) of REACH that animal tests should be a last resort continued to apply even after ECHA had made its initial decision. Linked to this, when considering whether a company had complied with that decision, should ECHA evaluate whether an alternative approach adopted by a company at that stage passed muster, and should it accord the company the same procedural rights (including the right of appeal to its Board of Appeal) as it had for the initial decision? The decision The CJEU held that the SONC was a justiciable decision. It had binding legal effect and changed Esso’s legal position. The company had standing to bring the case. On the substantive issue, the Court said that a registrant could propose an alternative approach even after ECHA had ordered it to carry out an animal test. Indeed, it was bound to do so, where it thought that such an approach was available. ECHA then had to consider whether information using that approach was equivalent to the animal data. Its role was not confined to considering whether a registrant had provided data in the form ECHA had required (as Esso clearly had not). As well as Article 25(1), the Court referred to Article 13(1) of REACH which says: ‘… information on intrinsic properties of substances may be generated by means other than [animal] tests, provided that the conditions set out in Annex XI are met’. Weight of evidence is one of the non-animal approaches recognised by Annex XI. The Court also cited recital (47) which says that ‘it is necessary to replace, reduce or refine testing on vertebrate animals’. The use of alternatives, the Court added, contributed to the attainment of the principal REACH objectives of the protection of human health and the environment. The GC had been right to hold that, save where a registrant was abusing the system in order to buy time, ECHA had to prepare a decision under Article 42(1) of REACH at this second stage with all the procedural safeguards for registrants contained in Articles 50 and 51. Commentary This is an important decision because it underlines the importance of the REACH principle that animal tests should only be carried out as a last resort. Companies and ECHA itself had to apply that principle at all stages, even after ECHA had decided that an animal test was needed. The last resort principle is no panacea for animals because, in many cases, companies are unable to show that there is an alternative approach. Millions of animal tests have taken place under REACH. Animal protection organisations complain that the principle is honoured more in its breach than the observance. But the CJEU’s decision puts the principle firmly at the centre of decision-making. The Advocate-General, who advises the Court, said that it would be a ‘devastating result’ if animal tests were carried out in these circumstances when there was an available adaptation. In fact, ECHA did eventually accept Esso’s weight of evidence approach, underlining just how important the company’s persistence was. Advocates for Animals acted for ECEAE. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .

17 March 2021, David Thomas The facts These were 14 joined appeals brought by companies manufacturing chemicals known as ZDDP, which are used in hydraulic fluids. The European Chemicals Agency (ECHA) is the principal regulator of chemical safety in the European Union under Regulation (EC) No 1907/2006 (known as ‘REACH’). Under REACH, companies wishing to manufacture in or import into the EU chemicals (‘substances’) in quantities over one tonne a year have to register them with ECHA. They must provide a significant amount of data relating to the potentially hazardous nature of the substances. The precise nature of the data depends on the tonnage at which a substance is marketed in the EU (there are bands between one and 10 tonnes, 10 and 100 tonnes, 100 and 1000 tonnes and over 1000 tonnes). At Annex IX and X levels, registrants have to make a testing proposal if they wish to use animals. That applied here. ECHA can run a compliance check at all tonnages. Many of the ‘endpoints’, as they are called, involve animal tests. However, there is a key principle under REACH that animal tests must only be carried out as a last resort, and registrants have a duty to provide equivalent data via non-animal approaches (or approaches which involve fewer animals or less suffering than the stipulated test). One of these approaches is known as read-across: where the registered substance has a similar chemical structure to another substance and is expected to have a similar toxicological profile, one can read across data from the other substance to the registered substance and thereby avoid having to carry out another animal test. Animal protection organisations believe that ECHA places the similarity bar too high. The animal tests in the present appeal were (i) a subchronic toxicity study (90 days) in rats; and (ii) a pre-natal developmental study in either rats or rabbits. The first study could involve around 1400 animals and the second around 11,200 (with a further 37,000 animals in additional tests which could be indicated by the initial studies). Considerable suffering was to be expected given the nature of the tests and the substances the animals would be forced to ingest over considerable periods. The history of the present appeals was long and complicated. In essence, however, the lead registrants in the ZDDP group argued that they should be allowed to carry out the animal tests on four of the substances and then read across the results to nine of the others (the final substance was in a special category). They made testing proposals accordingly. ECHA disagreed. Hence the appeal to the Board of Appeal which is attached to ECHA. The companies complained about the process ECHA had undertaken, its assessment of the read-across and the fact that ECHA had only addressed its decisions to the lead registrants, not also the other registrants of the substances who assented in the testing proposals. Advocates for Animals’ client Cruelty Free Europe was given permission to intervene in the appeal. The decision The Board of Appeal allowed all the appeals (save with regard to the final substance). The Board rejected most of the companies’ arguments. In particular, it said that ECHA had not followed an unfair process and had not prematurely moved from informal discussions to the formal parts of the process. ECHA had been entitled to reject the read-across based on its scientific assessment. However, the Board decided that the decisions should indeed have been addressed to all the registrants. The other registrants had been deprived of the benefit of Article 53, which sets out data and cost-sharing rules. Under Article 93(3) of REACH, the Board of Appeal, if it allows an appeal, can either remit the case to ECHA (with guidance about how it should approach its reassessment) or make a decision afresh. The Board will only remit a case if there is doubt about the eventual outcome. In the present case, the Board said that the outcome might have been different had the other registrants had a chance of contributing to the assessment of the substances. Commentary In one sense, this was a standard Board of Appeal decision, in that it accorded ECHA considerable deference in its assessment of the read-across and the testing strategy the ZDDP group had proposed. The decision to remit is interesting, however. Having ruled firmly that ECHA was entitled to reject the read-across, it might be thought unlikely that the other registrants could have achieved a different outcome. In addition, the Board only said that ECHA’s decision should have been addressed to all registrants, not its draft decision and it is therefore not obvious what the other registrants could have contributed. As it is, all the registrants now have another opportunity of improving the read-across argument, and thereby avoid at least some animal tests. The Board may have been influenced by the recent decision of the Court of Justice of the European Union in Federal Republic of Germany v Esso Raffinage and others C-471/18 P (21 January 2021) (Esso Raffinage) , in which Advocates for Animals also acted. The Court emphasised that the last resort principle had to be applied even after ECHA had made a decision that a registrant must carry out animal tests. The Board rejected CFE’s argument that Article 77(2)(j) of REACH, which requires ECHA to ‘provid[e] advice and assistance to manufacturers and importers registering a substance … ’, imposed a duty on the Agency to provide assistance at all stages, in particular so as to avoid unnecessary animal tests. The Board said that the wording indicated that the duty to assist was limited to providing technical assistance for the submission of registration dossiers. With respect, this is a misreading of Article 77(2)(j) and out of step with the CJEU’s ruling in Esso Raffinage. Registration is not simply a one-off process, and there seems to be no policy reason why ECHA’s duty should be limited in this way. Getting advice This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com .