Wild Animals in Travelling Circuses (Scotland) Act 2018: guidance

Enforcement Powers

41. Enforcement powers are introduced in section 5 of the Act and are detailed in schedule 1. Although constables are provided powers for enforcement, it is expected that it will primarily be Local Authorities that will enforce the Act as part of other responsibilities relevant to travelling circuses. These include under the Animal Health and Welfare (Scotland) Act 2006 and the Performing Animals Act 1925 (where for example, it is known that there are domesticated animals performing), public entertainment legislation, and section 41 of the Civic Government (Scotland) Act 1982. Given that travelling circuses with wild animals have visited Scotland only twice in the last 8 years at the time of writing, breaches are expected to be infrequent.

Key definitions

42. These are outlined in paragraph 1 of schedule 1:

• Inspector - as appointed by the Scottish Ministers or a local authority.
• Constable - as defined in section 99(1) of the Police and Fire Reform (Scotland) Act 2012.
• Premises - includes land and any other place, including a vehicle or vessel, a tent or other moveable structure. Hence "premises" would include the vehicles and other moveable structures (for example caravans and mobile homes) commonly associated with a travelling circus.
• Domestic premises – means premises or a part of premises used (or used for the time being) exclusively as a dwelling house and includes any land or structure belonging to or usually enjoyed with, or adjacent to and for the time being enjoyed with, the dwelling house. Hence domestic premises would include gardens, garages, sheds, greenhouses etc.

Powers of entry

Non Domestic Premises

43. An inspector may enter any non-domestic premises for the purpose of ascertaining whether or not an offence under section 1 of the Act has been or is being committed at the premises and if there are reasonable grounds for believing that this is the case. (Paragraph 2 of schedule 1)

44. A sheriff or justice of the peace may grant a warrant if there are reasonable grounds for believing that a section 1 offence has been committed or is being committed at any premises, or that evidence of the commission of (or participation in) a section 1 offence is to be found at any premises. A sheriff or justice of the peace will also need to be satisfied that either:

A. admission to the premises has been refused, or such refusal may be expected, and that a notice of the intention to seek a warrant has been given to the occupier, or the giving of that notice would frustrate the purpose of the warrant; or
B. the premises are unoccupied or the occupier is temporarily absent.
(Paragraph 3 of schedule 1)

45. A warrant authorises an inspector or constable to enter the premises, search for and examine animals, and search for, examine and seize equipment, document or other thing that tends to provide evidence of the commission of (or participation in) a section 1 offence. (Paragraph 4 of schedule 1)

46. If it appears that any delay would frustrate the purpose of a search, the inspector or a constable may, without a warrant: enter the premises to search for and examine any animal; and to search for, examine and seize any equipment, document or other thing that tends to provide evidence of an offence. For example, if an inspector suspects that a wild animal is being exhibited to the public, he or she may, without a warrant, enter circus premises to search for the animal, and then look for and seize any further evidence ( e.g. posters, tickets relating to a performance) of the offence if it is known that the circus is moving to its next destination the following day and it would not be possible to get a warrant in time. (Paragraph 5 of schedule 1)

Domestic Premises

47. Entry into domestic premises by an inspector or a constable always requires a warrant from a sheriff or justice of the peace. A warrant may be granted where there are reasonable grounds for believing that a section 1 offence has been or is being committed at that premises, or that evidence of the commission of or participation in a section 1 offence is to be found at any premises, and that the conditions described at A and B above met. The warrant will authorise the inspector or constable to search for and examine any animal, and to search for, examine and seize any equipment, document or other thing tending to provide evidence of a section 1 offence. (Paragraph 3 and Paragraph 4 of schedule 1)

Other relevant powers and requirements

48. These are laid out in detail; in Paragraphs 7-13 of schedule 1.

• A warrant remains in force for 28 days starting with the day it was granted. (Paragraph 7)
• Inspectors/constables are able to take onto the premises any persons needed to help (such as a vet) or equipment required to carry out tests on/take samples from an animal, any equipment, substance or other thing; to identify any animal by marking, microchipping or any other method. (Paragraph 11)
• Inspectors/constables may use reasonable force when exercising most of their powers, including the power to search premises. This means that inspectors/constables may force their way into locked cabinets if required. However, they may not use force to gain entry without a warrant under paragraph 2. (Paragraph 9)
• Inspectors/constables must exercise their powers at a reasonable time unless this would frustrate the purpose of exercise them. (Paragraph 8)
• Inspectors/constables entering unoccupied premises for enforcement purposes under the Act must leave the premises as effectively secured against entry as they found them. (Paragraph 13)
• The circus operator and/or the occupier of a premises being entered for a purpose under the Act, and/or a person appearing to be under their direction or control, must comply with any reasonable request by an inspector or constable in connection with the exercise of their enforcement powers, and in particular give them any information and assistance required. (Paragraph 12)

Stopping and detaining vehicles

49. The Act provides a constable in uniform, or an inspector accompanied by a constable in uniform, powers to stop and detain a vehicle or vessel for the purpose of the exercise of a relevant power ( i.e. a power under schedule 1). This may be used if the powers of entry, search and seizure need to be used while a travelling circus is moving. (Paragraph 6 of schedule 1)

50. Any entry, search and seizure may be undertaken where the vehicle or vessel was first detained or somewhere nearby if that is safer or more convenient. A vehicle or vessel may be detained for so long as is reasonably required to enable the constable or inspector to undertake any entry, search and, where relevant, seizure.

51. Paragraph 6(5) of schedule 1 provides a definition of "vehicle" that specifically includes a "caravan". In addition to the usual range of land and air vehicles, this makes it clear that the power to stop and detain vehicles also applies to the types of vehicles, e.g. caravans and mobile homes, which are commonly associated with a travelling circus.

Offence of obstruction

52. Breach of the requirement set out in paragraph 12(1), without a reasonable excuse, is an offence (paragraph 14(1) of schedule 1). It is also an offence to intentionally obstruct an inspector or constable who is exercising a power under the schedule or under a warrant granted under the schedule (paragraph 14(2)). Both these offences can be prosecuted in summary courts and carry a maximum fine of level 5 on the standard scale (£5,000). (Paragraph 14(3) of schedule 1)

Verbal and written warnings

53. Enforcement Authorities may wish to consider following their own standard procedures in relation providing written or verbal warnings.

Appeals and review

54. There are no appeals or review provisions contained within the Act. However as the offences in the Act are summary offences, certain general powers of appeal would apply. Most relevantly, under section 175 of Criminal Procedure (Scotland) Act 1995 there is a general right of appeal for those convicted of offences in summary proceedings.