Tuesday, 15 January 2008

Oh, ye cannae fling hamsters oot
the third floor o' a flat [UPDATED]

According to the BBC News website yesterday, a man by the name of Andrew Thompson is standing trial in Dumfries Sheriff Court, the case against him being that he "went "berserk" in a third floor flat and recklessly threw a hamster in a cage and other items out of the window".

The precise charges against Mr Thompson are not clear from the report, but it does not seem that any specific charge has been laid in respect of the hamster. Instead, the charge presumably relates to the risk to the public caused by throwing the cage out of the window (the hamster's presence being, strictly speaking, irrelevant). This is an oddity of animal protection legislation. The relevant offence criminalises causing "unnecessary suffering" to animals (Animal Health and Welfare (Scotland) Act 2006, s19, replacing s1 of the Protection of Animals (Scotland) Act 1912).

Hamsters are notoriously recalcitrant when interviewed by police officers, and it is not obvious how one would assess whether the hamster had "suffered" - even, it seems, if it had not survived the fall. In Patchett v MacDougall 1983 JC 63, a man shot and killed a collie dog. The appeal court quashed his conviction for an offence under the 1912 Act, noting that although there was no doubt that he had acted "wantonly and unreasonably", it could not be established that the dog had suffered.

Lord Wheatley suggested that the accused might have been charged with malicious mischief instead. If that is correct, then vandalism - under s52 of the Criminal Law (Consolidation) (Scotland) Act 1995 - would have been an equally valid charge, but presumably his Lordship recoiled from endorsing a charge as absurd as vandalising a dog by shooting it dead.

Regardless of such questions of terminology, protecting animal welfare through property offences is an unsatisfactory solution, because such offences would be inapplicable where the accused himself owns the animal in question.

If Patchett v MacDougall suggested a defect in the 1912 legislation, it has not been remedied by the 2006 Act. Although that Act says that the offence of causing unnecessary suffering "does not apply to the destruction of an animal in an appropriate and humane manner" (s19(5)), it does not follow from this that destroying an animal in an inappropriate and inhumane manner is necessarily an offence. Nor, it seems, is throwing hamsters out of third-floor windows any different.

Update (3.25pm): The BBC News website now reports that Mr Thompson has been found guilty of a number of the charges against him (including recklessly throwing items from the flat window), but acquitted of some others. It is noted in this report that the hamster subsequently died.


FS said...

The BBC report also doesn't say if it was his hamster. Presumably not, as then he would be "responsible" (s18(3) AHW(S)A 2006). (He may, whilst carrying the hamster (in its cage) to the window, have been "in charge" of it as well (s18(2)).

So why does this matter? Well, under s24 of the Act, "A person commits an offence if [they do] not take such steps as are reasonable in the circumstances to ensure that the needs of an animal for which the person is responsible are met to the extent required by good practice."

This was, during consultation, to meet, "the needs of all animals for which people are responsible" (Text accompanying Q7 on the consultation document). Some, in responding to the consultation, felt that this section would go a long way to meaning action could be taken where unnecessary suffering could not be shown under s19(see, in particular, the views of the Dogs Trust, who were presumably very concerned about Patchett).

Admittedly, without information regarding who the hamster belonged to, this is mere conjecture... Nevertheless, if it was his hamster, it seems this section has gone to waste in this particular instance.

James Chalmers said...

Agreed. I don't think s24 solves the Patchett problem, as the accused there couldn't have been said to be "responsible" for the dog.

If Mr Thompson were responsible for the hamster, it might be a relevant charge, but still a peculiar one. The s24 offence is committed by a failure to take reasonable steps to ensure that the animal's needs are met, rather than by actually doing something adverse to the animal's interests - so in this context, would the charge be something like "you did fail to refrain from throwing your hamster out of the window"?

FS said...

Well, presumably the charge would have to relate to the animal's "need for a suitable environment". If the charge had been particularly inventive, it could be liability for his failure to not ensure that was, "plummetting to the ground at some speed from a third floor window" or, alternatively, "the middle of the pavement"...

"You [name] did, at [locus] on [date], fail to provide a suitable environment for your hamster/a hamster under your charge, in contravention of s24 of the Animal Health and Welfare (Scotland) Act, by recklessly ejecting its living accommodation from a window at the locus onto the pavement below."


Highland Free Press said...

I once saw a guy [a prison officer] throw a cat out a 3 story window.
The cat appeared at the door the next morning.

I have a cat and have not yet thrown it out the window.