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The person responsible, who may be the owner or the person temporarily in charge of the animal,
commits a criminal offence (under section 4 of the act) if he or she causes an animal to suffer
unnecessarily, by an act, or a failure to act, and they knew, or ought to have known, that the act, or
failure to act, would have that effect, or be likely to have that effect. There are exceptions from
liability where such actions are for the purpose of benefiting the animal, or to protect a person,
property or another animal. For example, a surgical operation upon an animal will undoubtedly
cause some element of suffering, but that suffering would be caused for the purpose of the
animal’s benefit.
The act defines “suffering” as “physical or mental suffering”, but the term has been the subject of
repeated legal argument throughout the court system. As yet, no court has provided a clear
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definition of “unnecessary suffering” and there is still legal argument as to whether the test in
deciding if a person knew the animal in question was suffering is subjective or objective. At their
annual meeting in 2013, members of the British Veterinary Forensic Law Association discussed the
term and agreed: “An animal is suffering if there are observable symptoms in response to an
adverse stimulus to which it has not been able to adapt. Suffering is more than discomfort.”
An act of violence against a dog, that causes an injury, or pain and suffering, would very clearly be
held to be an act causing unnecessary suffering. However, many RSPCA prosecutions involve
allegations of failing to act in relation to a protected animal, such as failing to take the animal for
veterinary attention.
The questions the court will need to consider are: Was the dog suffering? Was that suffering
unnecessary? And, ought the owner/person in charge have known his or her omission to act (take
the dog to the vet) would have that effect? There is also the factual issue of considering whether
the act of taking the dog to the veterinary surgeon would have prevented the suffering. If that is not
proved, the court may decide the failure to act did not, in fact, cause unnecessary suffering and find
the offence is not proved.