The suffering we accept: the offence of ‘unnecessary suffering’ in UK animal protection law
The effort to safeguard animals in law has always been subject to a tension between the protection of animals, and the interests of those who view them as tools or resources to be capitalised on.
This tension is particularly clear when talking about the vast majority of domestic animals in the UK: farmed animals, who are subject to inherently harmful practices and environments in the name of increasing productivity and profitability.
The prohibition on unnecessary suffering
Throughout the past 200 years, UK law has sought to strike a balance between these interests by criminalising only suffering which is deemed to be ‘wanton’, ‘cruel’ or ‘unnecessary’. Although the wording has differed as the law has evolved, in substance, this offence has persisted. While now supplemented by a legal requirement to provide for animals’ needs, the offence of causing ‘unnecessary suffering’ remains a key part of our animal protection law.
Section 4 of the Animal Welfare Act 2006 provides:
A person commits an offence if—
an act of his, or a failure of his to act, causes an animal to suffer,
he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,
the animal is a protected animal, and
the suffering is unnecessary.
The framing of this offence then begs the question, what is necessary? What reasons are sufficient to justify harm?
The Courts’ approach
A central case in the evolution of our understanding of this offence is Ford v Wiley (1889) 23 QBD 303. This case concerned a farmer’s decision to saw off the horns of 2-year old cattle resulting in extreme and prolonged pain, with the rationale that the animals could be kept in a smaller space, and would fetch a better price at market.
The Court in Wiley was confronted with two possible ways of understanding the law, based on previous decisions of the Irish Courts. The first of these was to follow the model in Callaghan, which found that a ‘legitimate purpose’ could justify any amount of suffering. The second was the approach taken by the Court in Brady, wherein not all suffering could be justified by a ‘legitimate purpose’. Instead, the amount of suffering had to be proportionate to the reason it was being inflicted.
Brady’s proportional approach, which required the court to weigh the nature of the suffering against its purpose, was adopted in Wiley. This approach is now reflected in the law, which contains a list of factors the Court can consider when assessing whether suffering is unnecessary. The Court in Wiley also found that a practice being merely convenient or profitable did not make it necessary, thus it stands for the explicit rejection of the idea that the pursuit of commercial benefit alone can justify suffering.
In addition, although the Court in Wiley did not explicitly address the use of anaesthesia, the decision reflects the principle that reasonable steps to minimise suffering should be taken when carrying out a painful procedure.
The understanding of what is necessary was further developed in Waters v Braithwaite [1913] KBD. This case concerned a traditional regional practice of taking cows to market overstocked with milk in order to demonstrate their productivity, with a view to getting a better price. In this case, the Court found that the fact the practice was an old custom, and of commercial benefit, was not sufficient to justify suffering.
A limiting principle
However, while these principles - that profit and tradition cannot render suffering ‘necessary’, and suffering inflicted must be proportionate to its purpose - are important, they are undermined by a central limitation: that a practice will not be considered to cause ‘unnecessary suffering’ whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment.
Further, criminal courts have been reluctant to determine the legality of systemic husbandry practices, leaving some of these practices in a legal lacunae.
Current Practice
For a whole host of reasons, including legal limitations, a cautious judiciary and an absence of animal lawyers, present practices towards animals do not reflect that early principle enshrined in Ford v Wiley. Current practices often involve suffering where alternative higher welfare methods exist, casting doubt on whether they can really be considered ‘necessary’. This includes cages, mutilations and painful breeding practices.
What next?
What is considered ‘necessary’ can change, and profit and tradition should not be sufficient justification for suffering. Properly interpreted, we believe the prohibition of unnecessary suffering presents a significant opportunity to improve the lives of farmed animals using law already on the books.
We are calling on the government to press the reset button and ensure the law properly protects the interests of animals in the way Parliament intended and the way the public expects. It is time to put animals back into the Animal Welfare Act.
