All bark no bite: will a new offence reduce companion animal abduction?

 

“I read a learned article by some lawyer saying we should not bother about pet theft. Well I say to Cruella de Vil QC – if you can steal a dog or a cat then there is frankly no limit to your depravity.” – Boris Johnson

On 06 October 2021 in his keynote speech at the Conservative party conference, the Prime Minister hit out at an article (possibly Mathew Scott’s piece in the Telegraph) which was critical of proposals to create a new criminal offence aimed at tackling what has variously been described as the “theft”, “abduction” or “taking” of companion animals.

Animal abduction is abhorrent. As a practicing criminal barrister, I recently acted in a burglary case where three men forced their way into a residential home, assaulted a homeowner and made an unsuccessful bid to steal her prize American Bully XL dog, apparently worth seven thousand pounds. Sadly, for as long as there is money in breeding and selling designer breeds, they will draw attention from opportunistic thieves. These crimes are dangerous, distressing and disorientating for animal victims, and devastating for their human families.

The actual scale of pet theft in the UK uncertain, partly because many police forces have not recorded or provided the data on the topic. Data collected by The Kennel Club using Freedom of Information requests to those police forces that do, suggests there were an estimated 2,355 cases of dog theft in 2020, representing a 7% increase from 2019. This rise may have been fuelled by the large numbers of families who decided to adopt dogs during the 2020 lockdowns, and the consequential rise in prices of certain breeds. Unsurprisingly, this led to calls for “something to be done” about companion animal abduction

Enter s.43 of the Animal Welfare (Kept Animals) Bill (“the Bill”) and its proposal for a shiny a new criminal offence: “taking of pets”.  If passed, a person in England would commit an offence if, “without lawful authority or reasonable excuse” they took or detained a dog so as to remove or keep it from the “lawful control of any person who is entitled to have lawful control of it”.

The offence casts a marginally wider net than theft. To prove the theft of an animal, the prosecution must prove “dishonesty” on the part of the defendant, as well as an “intention to permanently deprive” the owner of the animal. Neither of these are express elements of the proposed offence, although one might expect that a defendant with a truly honest explanation will in many cases have a “reasonable excuse”.

The ambit is narrowed somewhat by its strangely drafted “connected person” defence, which excludes cases where the two specified parties are spouses, civil partners, parents or siblings (“whether of the full blood or the half-blood”).

S.44 provides a power for the Secretary of State to extend the offence above beyond dogs, to cover other commonly kept companion animals where there is evidence that they are “capable of forming bonds with the people who keep them” and removing such an animal “may adversely affect its wellbeing”.

Looking to government press releases about the proposal, the primary selling point of the offence is promise that the offence would “put people who steal these much-loved pets behind bars for up to five years” (see s.43(3)(b) of the Bill for sentencing powers). The argument that this move should be supported because it will lock people up should, in my view, be unattractive to animal protection advocates. Those who see animal protection as a progressive movement based on evidence, reason, and compassion for sentient beings, should hesitate before calling to put more people, generally those already at the bottom of society’s pecking order, into cages. This is particularly the case where carceral justice approaches fly in the face of the abundance of studies from across western societies which suggest sentence severity has little-to-no effect on crime levels. If proponents of the bill rely on any peer-reviewed evidence that increased sentences will actually reduce this type of offending, it is not something that features prominently in their press releases or policy documents.

If the suggestion is that these sentencing powers will act as a deterrent, it is hard to see how that could be the case where the chances of being charged and prosecuted are so low:  the percentage of companion animal theft cases across England and Wales resulting in a charge brought against a suspect dropped to 2% in 2020.

Even if longer periods of incarceration for the unlucky few who are caught were a laudable outcome, the five-year proposed sentence is two years less than the maximum sentence for theft, and nine years lower than the maximum sentence that applied in the aforementioned dog burglary case. Of course, the maximum sentences only apply in the most extreme cases and are rarely imposed in practice. Instead, courts follow sentencing guidelines set by the Sentencing Council. The theft guidelines are largely based on the value of the item stolen, which is clearly an inadequate indicator of the criminality inherent in abducting sentient family members. Under the law as it presently stands, custodial sentences would rarely be the starting point for theft of a “low value” companion animal.

In an interview with the UK Centre for Animal Law, John Cooper QC, an adviser to the pet theft campaign, explained that campaigners had already tried to see whether this could be addressed within the general structure of the theft act. Indeed, during the parliamentary debates around pet theft in October 2020, Conservative MP Gareth Johnson explained that in 2016 he wrote to the Sentencing Council, asking it to change the guidelines to properly reflect the inherent value of much loved, but financially worthless mutts and mongrels. He said the sentencing council’s reply was that the current guidelines were perfectly acceptable.

As a result, John Cooper QC criticises “eminent lawyers on the social media going on about ‘well you’ve got the Sentencing Council; you’ve got the Theft Act’”. He argues that the Sentencing Council’s refusal left the campaign with no choice but legislative reform. Whilst that might have been the case for a backbench campaign, this bill is supported by the Prime Minister, the Home Secretary and (then) Lord Chancellor, Robert Buckland QC MP. The latter is significant due to the power, under s.124 Coroners and Justice Act 2009, to propose to the Sentencing Council that guidelines for an offence be revised. It does not appear that this power, which might have provided a much faster solution, has been used in this context. If the Sentencing Council were truly opposed to increasing sentence regardless of support from the highest level of Government, then the campaign would face further barriers in any event: because the Sentencing Council would still have the power to set lenient guidelines for the new offence.

The more attractive argument, for animal protection advocates, was always the suggestion that this was an opportunity to place the sentience front and centre in abduction cases. I would welcome any law that eroded the outdated and unjust principle that sentient beings are mere “chattels”, whose value is limited to their market price. Early press releases made hopeful references to the creation of a “pet abduction” offence, and The Pet Theft Taskforce recommended in September 2021 that the offence “should prioritise the welfare of animals as sentient beings and recognise the emotional distress to the animal in addition to its owner”.

If this is accomplished in s.44, then it is not explicit. The name “taking of pets” omits any reference to “abduction”. Neither welfare nor suffering are key ingredients. Ironically then, it may not be until the Sentencing Council comes to prepare offence-specific sentencing guidelines that courts are given explicit instruction to consider animals’ inherent value any more than they would under existing theft laws.

The proposed offence does nothing explicit to increase sentences or and certainly nothing that could not first have been tried using s.124 Coroners and Justice Act 2009. When analysis is limited to the wording of the bill itself, the bill simply does for pet theft what vehicle taking (or “TWOC”) did for car theft: an offence with a lower maximum sentence but where intention to permanently deprive does not need to be proved.

As an anti-speciesist, vegan lawyer specialising in criminal and animal protection law, I hoped that this would be an opportunity for meaningful action that would protect animals from abduction and begin to shift their status from mere property to something more. The legislation as it currently stands feels like an empty sandwich…and that coming from someone who won’t eat most sandwich ingredients.

As a barrister who designed his own hemp wig rather than wear horsehair, I hope that I will escape the “Cruella de Vil” analogies. I am certainly not saying that we “should not bother” about companion animal abductions, but I am more interested in moving beyond cages and biting down on the problem rather than promoting vanity legislation whilst barking about locking people up.

 

By Samuel March, Barrister at 9 King’s Bench Walk

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