Animal Health and Welfare (Scotland) Act 2006 - sections 32A – 32L: guidance for authorised persons

2. Legislative background

2.1 Section 32 (taking possession of animals)

The functions conferred on authorised persons by sections 32A – 32L of the 2006 Act relate to animals that have been taken into possession under section 32 of the 2006 Act.

Section 32(1) of the 2006 Act allows an inspector or constable to take action where such a person finds a protected animal which appears to be suffering or is likely to suffer if its circumstances do not change. Where a protected animal appears to be suffering, an inspector or constable may take steps which they consider need to be immediately taken to alleviate the suffering of the animal. Section 32(1) was not amended by the 2020 Act.

Section 32(2) allows an inspector or constable to take possession of a protected animal if a veterinary surgeon certifies that the animal is suffering or is likely to suffer if its circumstances do not change. However, where it is reasonable not to seek the assistance of, or wait for, a veterinary surgeon an inspector or constable can take possession of an animal under section 32(4) without veterinary certification if it appears that the animal is suffering or likely to suffer. This would apply to circumstances when the action required is urgent, such as discovering an animal in danger of dehydration in a vehicle in direct sunshine. Section 32(5) allows an inspector or constable to take into possession any dependent offspring of an animal taken into possession under section 32(2) or (4). For example if it appears that a bitch with a litter of young puppies is suffering, then the bitch and the puppies could be taken into possession to ensure that the puppies' welfare needs are met.

Where an inspector or constable has taken possession of an animal, that person may take it, or arrange for it to be taken, to a place of safety (such as an animal welfare centre). Alternatively, the inspector or constable may care for the animal at the place where it was found.

Section 32(6)(c) expressly allows an inspector or constable to administer treatment (or arrange for the administration of treatment) to an animal that has been taken into possession under section 32 but only where the treatment is, in the opinion of the inspector or constable, unlikely to reduce the value of the animal or otherwise affect the character of the animal. The treatment must be, in the opinion of the inspector or constable, consistent with the long-term welfare of the animal. "Treatment" is defined in section 32A (10) and means any treatment or procedure which has any of the following purposes:

• preventing, reducing or alleviating an animal's illness, disease, pain or discomfort,
• the better management of the animal,
• the health, safety or well-being of any other animal or person.

In practice the power in section 32(6)(c) regarding administration of treatment will allow most normal veterinary treatments or routine husbandry procedures that may be appropriate. This does not however allow for procedures which, although they may be desirable to make the animal easier to manage, could affect the character of or reduce the value of the animal, such as neutering an animal that would otherwise have been used for breeding. Section 32(6)(c) was inserted by the 2020 Act, and comes into force at the same time as sections 32A – 32L.

Section 32(7) allows an inspector or constable that has taken possession of an animal to use (or arrange to have used) a mark, microchip, or another method for identifying the animal.

Any reasonable expenses incurred by an inspector or constable in taking steps to alleviate suffering or taking possession of an animal under section 32 can be recovered from the owner or other person responsible for that animal as a civil debt. Such reasonable expenses must be deducted from compensation due to the owner of the animal following exercise of any powers to deal with the animal in section 32A, to the extent that—

• they were incurred in relation to an animal after it was taken into possession,
• they have been incurred by the authorised person who exercised the power in section 32A (or that person's employer), and
• they have not been reimbursed by or on behalf of the owner.

The calculation of any compensation amount is commented on in greater detail in paragraph 4.14 below.

2.2 Section 33 (release orders where animals taken)

Section 33 (release orders where animals taken) sets out a court process that is available to the owner of an animal taken into possession, or any other person appearing to the court to have sufficient concern for the animal, for seeking an order for release of the animal.

2.3 Section 34 (disposal orders where animals taken)

Section 34 (disposal orders where animals taken) sets out a court process whereby certain persons may seek an order for an animal taken into possession to be destroyed, sold or disposed of in another manner.

2.4 Section 35 (resort to destruction of animals)

Section 35(1) confers authority on an inspector or constable to destroy, or make arrangements for the destruction of, a protected animal where a veterinary surgeon certifies that the condition of the animal is such that destruction is appropriate. Section 35(2) confers authority on an inspector or constable to destroy, or take steps for the destruction of, a protected animal without veterinary certification if it appears to the inspector or the constable that the condition of the animal is such that there is no reasonable alternative to destroying it and if it is reasonable in the circumstances not to seek or wait for veterinary advice. This provides for emergency situations such as mercy killing of severely injured animals.