Animal Welfare Bill

As noble Lords are aware, the clause to which Amendment No. 34 refers was subject to fairly substantial redraft on Report in another place in order to ensure that this most important offence catches all those people we want to catch for their involvement with this abhorrent activity. Ensuring we get this clause right remains a priority for the Government and, I know, Members of the Committee. However, we cannot agree with the drafting that the noble Baroness has suggested in Amendment No. 33. It seeks to remove the qualification that information about a fight must be provided,"““with the intention of enabling or encouraging attendance at a fight””," before it will be an offence. It is crucial that this element not be deleted; otherwise it would catch a person who simply tells a friend that he has heard that there was a fight in a public house on the previous night and that he thinks that it is disgusting. The offence would be far too wide if it caught such people. The act of providing information is entirely neutral to whether the person providing it is promoting, publicising or otherwise supporting the fighting. We appreciate the noble Baroness’s concern that there may be situations, such as reporting a fight to the police, where the provision of information could have the arguable intention technically of encouraging attendance at a fight. That gives too literal an interpretation to the phrase ““intending to encourage attendance””. In reality, the person reporting the fight is intending to prevent it from happening. We cannot envisage a situation in which such a person would be prosecuted. Amendment No. 34 seeks to widen the offence of possessing equipment for use in connection with an animal fight by removing the requirement that it must be possessed with intent to use it as such. With respect to the noble Baroness, we do not agree that such an extension would be appropriate. There may be situations in which it is entirely lawful to keep an item designed or adapted for use in an animal fight. For example, a pub landlord may have cockfighting spurs on his wall as a curiosity or a country museum may have them in a display cabinet. If there is no intent to use those items in connection with an animal fight, we see no reason for criminalising the act of simply possessing them. As the law stands, an intent to use the items for animal fighting must be proved. The Cockfighting Act 1952 explicitly requires that,"““the court be satisfied that he had it in his possession for the purpose of using it or permitting it to be used as aforesaid””." I am not aware that there has been any difficulty in securing convictions under this Act, such that there is a need to widen the offence when we bring it under the Bill. I am slightly surprised by Amendment No. 35, which seeks to remove the offence of keeping premises for use in an animal fight. I noted the examples given by the noble Baroness, but the act of keeping premises for use in animal fighting has been an offence since the Town Police Clauses Act 1847, Section 36, which Section 1 of the 1911 Act reflected. We believe that it has served us well. We have heard no arguments that it should be removed: in fact quite the contrary. An explicit offence was added to Clause 8 on Report in another place. It is there on the basis that a person who keeps a fighting pit in his garage might not have caused a fight to take place yet, and there may be insufficient evidence of an attempt to do so. However, unlike the noble Baroness’s garage, the very act of keeping a fighting pit indicates some level of involvement in animal fighting. Unlike keeping equipment, there can be no other lawful purpose for keeping premises in such a condition. On that basis, the act of simply keeping premises for use in animal fighting is an offence under this clause. I turn to the other amendments in this group to which the noble Baroness spoke. We appreciate that the new offences relating to recordings of animal fighting were passed without the opportunity for debate in another place, so I understand that there may be residual concerns about this clause. I emphasise at the outset that the Government are strongly of the view that recordings of criminal activities are, in general, adequately addressed by existing provisions, including the Video Recordings Act 1984, the Obscene Publications Act 1959 and the Sentencing Guidelines Council’s recommendations that recording be considered an aggravating factor in existing offences. We do not wish to undermine the general schemes provided for in existing legislation by introducing piecemeal recordings offences across the statute book. However, we were persuaded during discussion in another place that animal fighting is an isolated subculture of which recordings are an integral part, and that to stamp out animal fights, we need also to address specifically and separately the problem of their being recorded. As a general rule, we as a society do not criminalise recordings simply because they record an illegal activity—noble Lords have referred to this. However, the particular circumstances surrounding the subculture of animal fighting justify exceptional treatment. Given this position, we accepted also that such recordings may not always be covered under the present law or the Bill as introduced. In an increasingly technological society, the person doing the recording might not always be present at the fight, although they are likely to be. The recordings might not meet the obscenity threshold for the purposes of the Obscene Publications Act and may generally not constitute a commercial activity for the purposes of the Video Recordings Act. However, I must stress that this is an exceptional offence which is intended to address this very specific, narrow issue. When agreeing to consider this specific issue, my honourable friend the Member for Exeter made it very clear that the Government do not consider a simple possession offence, of the kind suggested by Amendment No. 36, to be justified in the case of animal fighting. There is only one other area where simple possession is an offence and that is child pornography. There is no justification for putting animal fighting on the same footing as child pornography, which is treated in a wholly exceptional way in this respect. We agree that it is repugnant to watch such material. However, there is plenty of repugnant material in existence the mere possession of which is not criminalised. The creation of a possession offence is a very serious step which we would be prepared to consider only if there were absolutely no other means to deal with the evil. In this case, we are confident that targeting the supply, publication and showing of such recordings should effectively disrupt the production and distribution of this material. We are therefore not persuaded that extending the criminal law to cover those who nevertheless possess it is justified. The amended fighting offence criminalises possession where an intention to supply, and thereby feed, the subculture of animal fighting can be established. We understand that organisations such as the RSPCA have expressed concern about whether it would be possible to prove an intention to supply, but I would ask noble Lords to note that the offence in the Bill does not require that the intended supply be for commercial purposes. It is therefore wider than the current offence in the Video Recordings Act and should not therefore cause the same evidential difficulties. We are content that this is sufficient to address the evil that was of particular concern in another place—I know that that concern is shared by your Lordships—namely, the non-commercial supply of recordings in whatever form and their publication via the internet. Amendment No. 37 seeks to remove the restriction on this offence which confines it to recordings made in Great Britain after the Bill enters force. The restriction to Great Britain has been included because of the difficulties inherent in taking the kind of universal jurisdiction proposed by this amendment. There are problems with animal fights being legal in other countries; for example, bullfights in Spain, dogfights in Pakistan or cockfights in certain Pas de Calais villages. This Bill is about the welfare of animals in this country, not the welfare of animals in other countries. We cannot presume to criminalise recordings of activities that are perfectly legal in the place where they were filmed. There is also European law to consider; in particular, the television without frontiers directive restricts our ability to prevent television broadcasts into the UK unless they meet the threshold of causing harm to minors. Our offence exempts broadcasting to ensure full compliance with this directive, but there is a risk that if we were to include scenes that do not meet the tests in the directive within the scope of the offence, thereby preventing recordings made abroad from being distributed in the UK while letting the same material be broadcast from abroad, we could be accused of acting in a discriminatory manner under EU and ECHR law. The restriction to recordings made after the Bill enters force has been included to ensure that, where people have recordings of historical interest—for example, a country museum might have such a recording—it will be outside the scope of the offence. We appreciate that this might be an initial hindrance to prosecutors, as, in the first few years after the Bill enters force, it could be a reasonably onerous evidential burden to discharge. We thought about it, but consider it more important to ensure that historical material has protection in the longer term. Removing this provision would only make a difference in the first few years after the Bill enters force. In speaking to the last amendment in this group, I apologise for the length of the reply. I am trying to be as comprehensive as possible, particularly given the circumstances in which the matter was considered—or not—in the other place. Amendment No. 38, which the noble Baroness said was a probing amendment, seeks to delete Clause 8(6). We understand why an explanation of this subsection is being sought, but apologise in advance because that explanation is going to be fairly technical. We have made it clear in subsection (7) that the definition of a ““recording”” covers the transfer of electronic files, to ensure that the internet is covered by the offence. In regulating the internet, we are obliged to comply with the requirements of directive 2000/31/EC, the e-commerce directive, which is aimed at ensuring the free movement of ““information society services”” in the EEA. I foresee a debate on Report in the House of Lords, with certain quarters raising the European dimension. This directive, and its implementation, is complex and technical, and it is likely to be reviewed by the European Commission in 2007. We therefore concluded, after careful consideration, that it would be more appropriate to deal with its implementation under the European Communities Act 1972 than in the Bill. Clause 8(6) has been included because one of the directive’s requirements is that we extend the offence to cover information society service providers who are established in the UK, but who operate—for example, by publishing—in another EEA state. Subsection (6) will ensure that where we do this, we can apply the same penalties to them as to anyone else committing the offence. Without this subsection, such providers could evade the more serious penalties of the Bill by operating in other EEA states. The clause would not catch BBC journalists making a documentary about animal fighting. For the information of the noble Baroness, Lady Byford, there is no need to prove that the premises have been used for fighting. Showing that the premises exist for that purpose is sufficient for a prosecution. I apologise for the length of my reply, but it is important to be as comprehensive as possible before we go on to later stages of the Bill because we all share the same objectives. Should Members of the Committee require any further information between now and Report, I will be happy to arrange for them to get it. On the basis of this reply, I hope the noble Baroness will withdraw her amendment.