‘We have a deserved reputation in this country as a nation of animal lovers.’ So said Margaret Beckett, Secretary of State for the Environment, Food and Rural Affairs, when she presented the draft Animal Welfare Bill to Parliament earlier this year.
However, recent figures show that violent crimes against animals are on the rise. Between June 2003 and May 2004, 108,000 complaints were made to the Royal Society for the Prevention of Cruelty to Animals (RSPCA), involving 650,489 animals.
Ms Beckett admitted that much of the current animal legislation was drafted more than 100 years ago and, despite several amendments, ‘it fails to provide animals with standards of welfare appropriate for our time’. Hence the draft Bill.
The biggest crackdown on animal cruelty for a century, the Bill aims to amalgamate and modernise all welfare legislation relating to animals. Measures proposed include the introduction of a duty on owners and keepers of all vertebrate animals – not just farmed animals – to promote the welfare of animals in their care.
It will allow RSPCA inspectors to intervene earlier when there is a risk of cruelty, and raise maximum sentences for such offences. Fun-fairs will no longer be able to give away animals, children under 16 will be banned from buying a pet, and the docking of dogs’ tails will be outlawed.
Canon Professor Barry Peachey, chairman of the Equine & Animal Lawyers Association and an expert witness and consultant legal adviser on animal matters, maintains that the justice system needs to reassess its priorities. He says: ‘There is an old saying in the animal law world: “If you beat your spouse up and down the street, you will get a community punishment order. If you do it to a dog, you will immediately be sent to jail.” The justice system has got its priorities badly wrong.’
However, animal law specialist Trevor Cooper, of Canterbury-based Cooper & Co, says: ‘Animals in the UK have a very low status, especially when compared to the US, where pets are valued much more. The Animal Welfare Bill, if implemented, will impose requirements on pet owners to ensure their animals’ welfare, which has got to be a good thing.’
Mr Cooper specialises in all types of law – criminal and civil – affecting dogs and was instrumental in winning a reprieve for Dino, the Alsatian who was condemned to death under the Dangerous Dogs Act 1991 (DDA) after biting another dog owner’s hand.
In a case spanning three years, Mr Cooper pursued unsuccessful appeals from the magistrates’ court to the Crown Court, High Court, House of Lords and even the European Court of Human Rights. The reprieve came only after he successfully persuaded the Criminal Cases Review Commission to refer the case back to the Crown Court.
He says: ‘We argued that the dog did not constitute a danger to public safety. The courts disagreed with us but the dog proved it eventually itself by not re-offending.’
Mr Cooper contends that although harsh destruction orders are rarer since the DDA was amended in 1997, the legislation remains unsound.
‘The DDA is flawed and should be abolished but instead it and other breed-specific offences seem to have been picked up and implemented by the rest of the world. It is curious that one can become a criminal for the actions of your pet.’
Another piece of legislation – and the House of Lords’ interpretation of it in Mirvahedy v Henley and another [2003] UKHL 16 – which has caused controversy is the Animal Act 1971.
A majority of the Lords held that, even though the defendants were not negligent, they were still liable if their animals exhibited characteristics not normal for that species or characteristics normal for that species in particular circumstances.
Brenda Gilligan, a solicitor at home counties firm Park Woodfine and the author of Practical Horse Law, says: ‘Riding schools are now terrified of litigation. Even if they have done nothing wrong they can still be found liable. One of the Law Lords said he couldn’t believe that this was what Parliament intended, which I think is fair comment.
‘Now anyone making a claim in an animal context will throw in the Animal Act. The cost of insurance is going to be astronomical because it’s impossible to avoid risk. The law needs to be tested so people know where they stand. I don’t advocate taking on pointless cases but I think the law needs clarifying.’
However, Caroline Berens, a partner at City firm Kennedys, says the case of David Livingstone v C H Armstrong (2004) LTL, 24 February, in which the claimant failed to establish liability on the part of a livestock owner for damage sustained in a motor vehicle collision with a stray cow, was a welcome clarification of the extent of liability under the Act.
She says: ‘Since Mirvahedy, there had been a widespread view that strict liability would have applied in most injury accidents involving an animal. This case demonstrated that such a view was misplaced and that there remains significant hurdles in establishing liability under the Act.’
Ms Berens, who acts for insurers of horse-riding establishments and stud farms, continues: ‘It was contended that the cow must have been frightened into jumping out of the field, in the same way the horses in Mirvahedy had been frightened into breaking out of their field. However, the court accepted it was not normal for cows, even when frightened, to climb over fences.
‘The court found that even if a “relevant characteristic” had caused the cow to escape from the field, it could not be said that characteristic had caused the accident half a mile away and some time later when the cow was no longer behaving in a frightened manner. At the time of this accident, the cow was displaying no particular characteristic. Hence there was no liability.
‘The case suggests that even where a “relevant characteristic” has resulted in an escape, it is still necessary to demonstrate a close causative relationship between the characteristic and the circumstances of the accident itself.’
Further clarification, says Ms Berens, was provided by Burrow v Commissioner of Police for the Metropolis (2004) LTL, 13 May, in which it was held that if the claimant had been injured due to his own negligence, he had no cause of action against the defendant – even if the animal in question has problems.
In the US, perhaps unsurprisingly, animal law is an accepted area of practice, with several bodies dedicated to the area. It may be less so in the UK, but the Equine & Animal Lawyers Association – which from its Web site (www.animallawyers.co.uk) appears to have plenty of members – makes clear what a busy area this is. It publishes Horse law – the animal law & litigation reports, runs a telephone technical advice service, refers clients, and organises the national equine law conference.
Canon Prof Peachey says that although competition for animal law work is fierce, few solicitors have the experience required to properly handle such cases.
‘There are far too many lawyers willing to take on things they know little or nothing about, to the detriment of their clients,’ he says.
‘You would not believe the number of horse-riding accident claims that I have seen pleaded out of the motor accident precedent books. “Failed to brake”, “failed to stop” and so on. It would be laughable if it weren’t so disgraceful. Sadly, their clients are the victims.’
Ms Gilligan agrees. She says: ‘A lot of the stuff I get in is solicitors, who don’t know anything about horses, trying it on.’
She adds, though, that their lack of knowledge can work to her advantage. ‘A carefully worded letter sent early on highlighting their mistakes can make them back off. That’s where specialist knowledge can be helpful. Clients like it when you’re on their wavelength too.’
Mr Cooper says: ‘I accept that I am quirky and I work in a quirky area of law but it is a valid area of law – animal lovers have the right to be represented. Clients often come to me because their own solicitors don’t understand sufficiently the bond they have with their pets and that they would go to the nth degree to defend proceedings against them.’
He says that although he has plenty of work – much coming in through referrals from animal welfare bodies – he is unlikely to get rich practising animal law.
‘It’s a standing joke that I’m the country’s second biggest dog charity. I get people ringing up who expect an answer then and there, and I don’t charge for that. I don’t do legal aid cases any more because I was losing money on every one I touched.
‘I would rather have the choice and do something pro bono if necessary and charge clients who can afford to pay. I’m never going to be rich doing this but I have such nice clients who are just so grateful if you win.’
Lucy Trevelyan is a freelance journalist
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