Legislation class — drafting assessment 2023
I have in previous years shared the drafting assessments we set in the Legislation (honours) class at Edinburgh University — where students are asked to prepare a bill based on instructions which are drawn from a real consultation paper making a proposal for a members bill in the scottish parliament. The consultation paper gives an indication of the policy, the background law, and draws on some comparative material, which can be useful for students in preparing the bill. The exercise set for this year was as follows:
Title: Drafting exercise
From: Scottish Parliament Non-Government Bills Unit
To: Parliamentary Counsel
Proposed Dog Abduction (Scotland) Bill
Friday 31st March 2023
BACKGROUND
1. Maurice Golden MSP has put a forward a proposal to introduce a new specific offence of dog abduction in Scotland. The page for his proposal is available online at https://www.parliament.scot/bills-and-laws/proposals-for-bills/proposed-dog-abduction-scotland-bill . This page contains links to a consultation paper produced by Mr Golden. Mr Golden has also prepared a little video explaining his proposals which is available at https://www.youtube.com/watch?v=spGCyBX4l7I .
2. These are instructions for the preparation of a Bill that Mr Golden can introduce in the Parliament during the next session.
3. His consultation paper sets out the background law and his proposals for reform. It is accessible here: https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/finaldogabduction-pd.pdf .
4. The Scottish government is under a duty under section 16 (2)(a) of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 to review “whether provision should be made for a specific offence of theft of a pet” and has to report as soon as practicable, and by the latest by 1st April 2025. The Scottish government has not reported on this topic as yet. There is no indication from the government as to when report is likely.
5. Other legal systems In England and Wales in 2021 a policy paper was published by the Pet Theft Taskforce https://www.gov.uk/government/publications/pet-theft-taskforce-report . This report recommended the introduction of a new offence of pet abduction, with ancillary provisions. The offence is being implemented by the Animal Welfare (Kept Animals) Bill which is currently being considered in the UK parliament. It is not clear how helpful this is in Scotland given the specific Scottish criminal law context which is not generally statutory in nature, but counsel may find it interesting to look at this provision.
6. Background law — Mr Golden’s paper Mr Golden’s consultation paper stresses that he views the potential offence of dog abduction as an animal welfare provision. The consultation paper sets out the background law on the nature of existing offences regarding dog abduction and sentencing at pages 9 and 10. Rather than repeat that we refer counsel to that outline although in relation to the bill some additional points need to be taken into account. In addition counsel should consider the terms of the Animal Health and Welfare (Scotland) Act 2006 (as amended) as there is a series of offences which are created there and which the proposed bill will supplement.
7. Dogs are corporeal moveable property, and as such can be subject to theft which is an offence in common law. In his definition of the common law of theft Mr Golden refers to a definition from Citizens Advice Scotland. This is clearly not satisfactory as a description of the criminal law. We suggest that counsel consult the leading textbook on criminal law in Scotland — Gerald H Gordon, The criminal law of Scotland Volume II (4th edn) (eds by J Chalmers and F Leverick) ch 21 and consider the leading decision of the High Court of Justiciary sitting as a court of criminal appeal, Carmichael v Black 1992 SLT 897. If violence or intimidation is involved in the act of theft then the common law crime is robbery. This is discussed in ch 23 of The Criminal law of Scotland.
8. In Gordon, The criminal law of Scotland there is discussion of the actus reus and mens rea of theft. It is noted there that theft does not require permanent taking of the thing stolen but can cover appropriation, provided that such appropriation is not with the consent of the owner. And as is noted in the discussion of the mens rea there are three lines of cases on the intention of the person appropriation of the property — either with the intention of appropriating it permanently, or temporarily, or indefinitely.
9. The offence of abduction is specific to humans. It is discussed in Gordon, The criminal law of Scotland at para 33.51. As noted by Gordon there is a relationship between abduction and theft.
10. The Animal Welfare (Sentience) Act 2022 gives legislative recognition to the idea of animal sentience in policy formulation. The legislation does not affect matters within devolved competence but indicates that sentience may be treated as relevant in the development of policy, and tends to support the approach proposed by Mr Golden. It may be useful to have this in mind when preparing the bill, particularly given the proposals that may extend the provisions relating to dogs to other animals.
Should there be legislation?
11. We are conscious that the behaviour that is discussed in Mr Golden’s consultation paper and on which instructions follow is already criminalised by the current law and arguably is not necessary. However, the introduction of a bill will allow tailored consideration of the issue relating to the abduction of dogs and to take into account the sentience of the animal. Although counsel may have doubts on the desirability of a new specific offence in this context we would like to stress that there is a political imperative to introduce a bill in implementation of this policy.
Provisions that are required
Data collection
12. One of the difficulties which underpins the area of dog abduction is that there is a lack of data to identify the extent of the problem, issues of sentencing, and the prevalence of dog abduction in certain areas, given differences in crime recording from distinct regional divisions of Police Scotland.
13. The problem of data collection is summarised at pp 12 to 14 of Mr Golden’s consultation paper. The bill needs a provision or provisions to ensure that data is gathered.
14. Commission of the offence It seems there are two issues that need to be covered by any provisions. First, there is the question of commission of what we call dog abduction and we would like to collect data in relation to that which can help determine the extent of the problem. We require provisions which allow Police Scotland to collate information about the extent of dog abduction, and whether there are regional differences. It is important that the provisions cover dog abduction however it is ultimately prosecuted. In addition information is required on the commission of the offence even if there is no prosecution (for example, because the person who committed the offence cannot be found or because the procurator fiscal chooses not to prosecute).
15. Data on prosecution, conviction, and sentencing The second issue relates to statistics on prosecution, conviction, and sentencing. This bill will create a new specific offence but it will not abolish the background common law. It is important to ensure there is data about the use of both the new offence and the common law, and the convictions and sentences regarding each. In considering sentencing we would like data collected considering whether sentencing takes account of the effect of the dog abduction on the wellbeing of the owner or on the wellbeing of the dog. Again identification of regional differences would be helpful, perhaps identifying whether there are differences in different sheriffdoms or more specifically in sheriff court districts.
16. Who can gather the data and consistency of data collection In both cases it is important to ensure that this information is gathered in a uniform way. To facilitate this it is desirable to provide for the gathering of this data by Police Scotland and the Scottish Courts and Tribunals Service or whoever the Scottish government think is most sensible to gather the information. Identifying the bodies which are required to gather data should be kept as flexible as possible as Scotland may ultimately have a body like the Animal Sentience Committee in the UK as a whole and we want to have the flexibility to give the data gathering responsibility to any new body such as that committee as and when established. If we have this wide power to identify who is responsible to gather data we would also want the ability to remove data gathering responsibilities from bodies previously charged with the duty.
17. Expansion of data collection to abduction of other animals We also think that it would be useful to have the power to gather data in relation not just to dog abduction but also other instances of abduction of pets or other animals or livestock. As noted in p 9 of Mr Golden’s consultation paper there are other instances of pet and animal abduction but there is a lack of information. There can be appreciable value in animals that are farmed, or in horses or in greyhounds or in homing pigeons which are used for racing, or in animals kept in stock farms or other locations which are used to breed animals for sale as pets. The provisions should cover each of these situations. Data on other animals will help inform the government whether any offences created by this bill should be extended to abduction of other animals. Counsel will have a sense as to how best to achieve that.
18. Publication of data Whoever ends up with the duty to collect information should be obliged to publish an annual report which gathers together and analyses the information we would like collected. This information should be capable of being used in reviewing the success of the bill. To that end it would be useful to make sure that it is possible that the collection of data begins before the specific criminal offence this bill introduces comes into force.
19. Regulations to give detail on data collection While we want to ensure that there are duties to collect data to allow all of the things set out in the preceding paragraphs to be carried out we are conscious that the detail of the requirements for data collection and publication and any powers that are required for this should be set out in regulations made by ministers. We would want to constrain what can be provided for in the regulations and so we would like the regulations to identify the areas that detail is required on. Counsel will have some ideas about the appropriate parliamentary procedure for approval of such regulations. Given this is about data collection it does not seem necessary to have too heavy a requirement but we will leave this to counsel.
Offence of dog abduction
20. Naming the offence The bill is to create a new offence of dog abduction. As noted in the consultation paper at p 19 the member is not wedded to the name of the offence and its name is left to counsel. We draw attention to the information on the current law of theft, of robbery, and of abduction above. We would like the name to convey a clear meaning to members of the public who own dogs, and to have a name that ensures that the offence is clear to help deter potential abductors.
21. What is to be covered by the offence of dog abduction The new offence of dog abduction is intended to replicate the current common law. The bill should be clear that an offence is committed where the dog is taken away from its owner permanently or where the dog is removed without the consent of the owner or it is kept from the owner without the owner’s permission. The bill should ensure that where the dog is removed from the owner for a substantial period of time without the owner’s permission and is then later returned to the owner an offence has been committed. This is discussed at p 20 of the consultation paper. Each of these situations is to be covered. Our understanding is that these are all situations that would be covered by the current common law, but if the common law does not cover them it is imperative that they are covered by the bill.
22. The offence is to be capable of being committed whether or not there is violence or the threat of violence by the person abducting the dog (as per p 19 of the consultation paper). It is important that situations where there is violence or the threat of violence and situations where there is no violence are covered.
23. The offence is to apply to the abduction of dogs whether the dogs are kept as pets or as working dogs such as sheepdogs. The offence should also apply to abduction of dogs which may have particular value as pedigree breeding or showing dogs or as racing dogs, such as greyhounds. We must make sure that each of these different types of dogs are covered by the offence.
Interaction with the common law
24. The new offence is not intended to replace the common law offences which are mentioned above in the discussion of the background law. Counsel is asked to make sure that the new dog abduction offence supplements and does not replace the common law offences.
Interaction with the existing offences on animal welfare
25. The Animal Health and Welfare (Scotland) Act 2006 has a series of provisions relating to animal welfare in ss 19 to 23. This offence is intended to supplement these offences.
Possible extension to other pets and animals
26. The offence which is created would be a good model for the abduction or theft of other animals once the government has data as to the prevalence of pet and animal abduction. The legislation should include a power for the government to make regulations to expand the new criminal offence to cover any other pets and animals. Any regulations made using this power should be subject to parliamentary approval in the usual way for expansion of offences.
Approach to prosecution
27. The new offence created under this bill should be an extra option for prosecutors, but one which the prosecutor should use as their default option for prosecution. This is discussed at pp 20 to 21 of the consultation paper where Mr Golden suggests it should be a default option or presumption that instances of dog abduction should be prosecuted under the new offence rather than under the common law. We are not sure that a presumption for prosecution policy should be set out in the bill as we are not clear if this is appropriate for legislation.
28. Prosecution of the offence of dog abduction should be capable of being by summary procedure or by indictment. The prosecutor should have a discretion to determine which to procedure to use based on the prosecutor’s assessment of the severity of the offence.
Sentencing and penalties
29. If convicted of the offence sentencing should mirror the maximum sentence introduced by section 1 in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 and found in section 46 of the Animal Health and Welfare (Scotland) Act 2006. This should apply for summary conviction or conviction on indictment.
30. As matters stand we have not determined whether we need to give the possibility of fixed penalty notices for the offence and we do not need an equivalent to section 46A of the Animal Health and Welfare (Scotland) Act 2006, but we may give counsel instructions on this at a later date.
31. In determining the sentence the court should have regard to the impact of the offence on the welfare of the dog, and on the owner. The offence is primarily focused on ensuring animal welfare and therefore sentencing should take into consideration factors that are taken into account in other offences on animal welfare.
32. In addition to the possible imposition of a maximum fine or imprisonment in accordance with section 46 of the 2006 Act the person who has abducted the dog should be prohibited from owning a dog for a period of time to be determined by the court if the dog has experienced pain or suffering during the period of abduction. There is a provision in section 40 of the Animal Welfare (Scotland) Act 2006 and it would be helpful to plug into this.
General points
33. We leave it to counsel to decide whether to draft this wholly as freestanding legislation, or to amend existing legislation.
34. We leave the choice of the Bill’s long title and short title to counsel.
35. As is customary, the provisions dealing with short title and commencement should come into force on the day after Royal Assent. Subject to the instructions above on the possibility for data collection to begin prior to the offence coming to the offence coming into force everything else is to be commenced by regulations made by the Scottish Ministers.
36. We are aware that counsel may identify some matters on which further instructions are required and it would be helpful if these instructions raise any questions.
EXERCISE
The student is to produce a draft bill in response to these instructions.
The draft bill is to be accompanied with a minute from the parliamentary counsel to the Scottish Parliament Non-Government Bills Unit explaining drafting decisions made in the draft and asking for clarification or further information on issues that are not clear in the instructions or which arise in implementing the instructions.
There is no set word limit for minimum words as there will be differences of approach that you can take in drafting (see para 33 of the instructions). The decisions you take will have an impact on your approach and as a result on the length of the draft you produce (and some of these decisions should be explained in your minute). Please note though that your draft bill and the minute attached should in no circumstances be longer than 4000 words in length (although please do not view this as a target word count — very good answers can be done in fewer words than that).
