From 1 January 2024, local authorities, the Food Standards Agency and other competent authorities will be able to serve Fixed Penalty Notices on individuals and businesses who contravene animal welfare law. This is a new type of enforcement available to the authorities in addition to advice and guidance, warning letters, enforcement notices and prosecution. Rebecca Ironmonger of our Regulatory Team takes a look at the new rules and what you need to know about them.
Parliament passed the Animals (Penalty Notices) Act in 2022, which set down the powers and rules for issuing Fixed Penalty Notices for animal welfare offences, but the provisions of the Act which allowed the power to be utilised did not come into force until now. This gave the Government time to complete a consultation into how the law should work and issue guidance. On 11 December 2023, the Regulations bringing the Act into force were laid in Parliament and DEFRA issued guidance on the issuing of the Fixed Penalty Notices.
Essentially, where a Regulator discovers an animal welfare offence and concludes that a person has committed that offence beyond reasonable doubt, they can issue a Fixed Penalty Notice of up to £5,000 on the person.
If the penalty is paid within 28 days (or 50% within 14 days) of issue, then you cannot be later prosecuted for the offence to which the notice relates.
The amount of the penalty is decided on by the inspector issuing the notice and they must have reference to the guidance issued by DEFRA. Penalties under this guidance are determined in a similar way to how a Court would determine fine on prosecution – but crucially without reference to the person’s means (which are the first and an essential element of sentence in the Criminal Courts).
First, when deciding whether to issue a fixed penalty notice and the amount of any penalty, the inspector must consider the statutory factors set out in the Act, which are:
“(a)the seriousness of the conduct to which the proposed notice relates (the “relevant conduct”);
(b)the duration of the relevant conduct;
(c)any evidence of intention behind the relevant conduct;
(d)any evidence of previous acts or omissions by the person similar to the relevant conduct;
(e)any action taken by the person to eliminate or reduce any risk of harm resulting from the relevant conduct;
(f)any action taken by the person to remedy or mitigate any harm resulting from the relevant conduct;
(g)whether the person reported the relevant conduct to the enforcement authority or constable;
(h)the conduct of the person after the relevant conduct is drawn to their attention by the enforcement authority or constable.”
The guidance sets out how the inspector should consider those factors and also refers to matters which are usually seen in sentencing guidelines which are used by the Courts to determine fines. For example, harm and culpability, mitigating and aggravating factors, starting points and ranges.
The maximum of £5,000 for a Fixed Penalty Notice means that many people issued with a notice would have to pay much less than they would if prosecuted and convicted, and they will avoid a conviction altogether.
The new regime is aimed at providing a middle ground for regulators where the options for less serious breaches of animal welfare law, such as technical or administrative offences or where animal health or welfare has not been seriously compromised, previously were from enforcement notices straight to cautions and prosecution, with no in-between. The most serious breaches of animal welfare rules would still be prosecuted.
Fixed Penalty Notices are in many ways a good thing, as it should reduce the number of unnecessary prosecutions. But we would caution against blindly accepting a Fixed Penalty Notice as the new powers do not address the endemic incompetence and overzealous enforcement actions we see taken by regulators every day.
If you have any questions about the new Fixed Penalty Notices or animal welfare issues generally, please contact our regulatory team who will be happy to help.