by Carrie Jane Canniffe B.L., David Burke B.L., Barra Faughnan B.L.

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Obviously like most animals horses are protected by the general cruelty provisions contained in the Protection of Animals Act 1911 as amended by the 1965 Act. (See Cruelty Section)

In addition to the general cruelty provisions an additional and specific category Section was added to section 1 of the 1911 Act in relation to the docking and nicking of horses. Section 5 of the 1965 Act creates an offence of cruelty under Section 1 of the 1911 Act to dock or nick a horse unless according to subsection 2 the vet thinks that the operation would be for the health of the horse.

Docking means the severing of any tendon or muscle in the tail of a horse.

Nicking means the removing of any bone or any part of a bone from the tail of a horse.

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The penalties are those as set down by Section 1 of the 1911 Act as amended by the Control of Horses Act, 1996. The portion of Section 1 of 1911 Act dealing with the penalties for cruelty has been amended most recently by the Control of Horses Act, 1996, Section 48. On summary conviction of the offence of cruelty, a maximum fine of £1,500 may be imposed and a term of imprisonment not exceeding 6 months, or both. On conviction on indictment the maximum fine is £10,000 and the maximum term of imprisonment is 2 years and again both may be imposed.

Under Section 3 of the 1911 Act upon conviction of the owner for an offence within the meaning of the Act the court may, in addition imposing any of the aforesaid punishments, deprive that person of his ownership of the animal. An order for the destruction of the animal may also be made by the courts under this section if required. It appears that to make an order under this section it would be necessary to show:

that there is evidence as to a previous conviction of the owner for cruelty, or

evidence of the character of the owner, or;

that if the animal is left with the owner it is likely to be exposed to danger.

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Yes, there is new legislation in the form of the Control of Horses Act, 1996 which was introduced to address the recent problems experienced with horses wandering in urban areas. These horses are often found to have been mistreated as they many are kept by children who are incapable of undertaking the task. Not only do the horses themselves suffer but they pose a danger to the general public as they are permitted to wander onto the public highway. There have been a number of serious accidents as a result of such straying horses. As a result of this and the recent case of Flannery v. Dean the 1996 Control of Horses Act was enacted.

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The Act represents the realisation by the legislature of the additional care required in the maintenance of horses. Further it takes cognisance of the resulting and considerable problems which have recently been brought to the publicžs attention especially in urban areas and more particularly in connection with the under-aged owner.

In the main the Act sets out certain requirements in relation to the licensing of horses in an attempt to place controls on the ownership of these animals. There are also provisions laid down in relation to stray, neglected and suffering animals, together with restrictions in relation to the sale of these animals. It is hoped that this will prevent the widespread problems with strays and under-aged ownership as detailed above.

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The "head of the household" is deemed to own the horse for the purposes of the Act according to Section 2(2). This is useful as it requires that parents be responsible for their childrenžs pets.

Part II of the 1996 Act regulates the law in relation to the licensing of horses. The local authorities are responsible for the control of this licensing and they are required to exercise their functions in "control areas" which are designated in bye-laws where the need arises. That need would arise where it was necessary to control the keeping of horses in a certain area and in order to prevent nuisance, annoyance or injury to members of the public (Section 17).

There are a number of provisions in relation to adjoining local authorities and the co-operation which may take place between them. The Minister may require a local authority to make bye-laws where he is requested by another local authority so to do and where he is satisfied that the same is necessary (section 17(3)) .
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Subject to the exceptions contained in Section 19, according to Section 18(1)

"a person who owns a horse which is kept by him or her or on his or her behalf in a control area shall, unless he or she holds a horse licence in respect of the horse entitling that owner to keep the horse in the control area, be guilty of an offence.

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Yes, Section 19 provides that a horse licence is not required in respect of a horse in the control area which -

is kept by a local authority in respect of any of its functions;

is kept by the Garda Siochána and used by a Member of the

Garda Siochána in the execution of the members duties;

is kept by the Minister for Defence and used by a member of the

Defence Forces in the execution of the members duties;

is in the possession of an authorised person (within the meaning of

section 25 of the Diseases of Animals Act, 1966) for the purposes of that Act;

is imported into the State for a period not exceeding 90 days or for such other period as may be prescribed;

is brought into or kept in the area in such circumstances or for such purposes or periods as may be-

i) prescribed generally or in relation to any particular control area, or

ii) specified in bye-laws made by -

the local authority in whose functional area the control area is situated, or

a local authority which has entered into arrangements under section 20(10) on behalf of another local authority in respect of that control area or part thereof, with the consent of that other authority regarding the making of bye-laws;

g) is brought into the area for the purposes of participating in a specified event on a specified day or days as may be permitted in bye-laws made by a local authority

is receiving from a veterinary surgeon veterinary treatment at a premises other than the premises where the horse is kept;

is a foal

has recently been purchased or has come into the possession of the owner or keeper for the first time, for a period of one week from the date of the purchase or the coming into possession or such other period as may be permitted in bye-laws made by-

the local authority in whose functional area the control area is situated, or

a local authority which has entered into arrangements under section 20(10) on behalf of another local authority in respect of that control area or part thereof, with the consent of that other authority regarding the making of the bye-laws;

(i) is being transported form outside the area directly through the control area for the sole purpose of export from or leaving the State from a harbour, port or airport, or

(ii) is being transported through the control area, having landed form outside the State at a harbour, port or airport, directly to a destination outside the area;

is kept by such other class or classes of persons and for such purposes as may be prescribed or specified in bye-laws made by -

a local authority in whose functional area the control area is situated, or

a local authority which has entered into arrangements under section 20(10) on behalf of another local authority in respect of that control area or part thereof, with the consent of that other authority regarding the making of bye-laws."

Note:

For the purposes of proof the onus lies with the persons charged with the offence to show that they come within Section 19(1).

The specifics of the requirements of a horse licence and to whom they may be issued are contained in Section 20. The procedure is set down in Section 22. There are also requirements laid down for the identification of horses, Section 28.

Note there is an appeals process provided for in Section 23 of the Act.

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Yes, if a horse is kept in a control area without the owner's permission subsection 6 provides the owner with a defence, Section 18(6). In other words if a horse is stolen and kept in a control area for which he is unlicenced the owner will not be liable.

Also under Section 18(8) if an application for a licence was pending at the time this would be a full defence provided that person was not already refused a licence or disqualified from keeping a horse under Section 7.

Persons seeking to prosecute owners under subsection 1 should be aware of these defences in order to answer them should they be raised. i.e. Show that where a horse is kept not by the owner, this is done with the owner's permission or at his request. Ensure that no licence is pending and ascertain whether the person is disqualified from keeping a horse or has been previously refused a licence.

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Yes, in accordance with section 18(2) a person other than the owner who-

"a) keeps a horse in a control area or

has under his or her charge or control a horse which is kept in a control area,"

shall also be guilty of an offence where the owner does not hold a licence.

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Yes, Section 18(3) allows exceptions to this category of offender

"an authorised person or a member of the Gardaí Siochána acting in the course of his or her duty,

a pound keeper who keeps a horse in a pound,

a veterinary surgeon providing veterinary services for a horse,

any person who keeps or has charge or control of a horse for the purpose of preventing it causing injury to persons or damage to property, and restoring the horse to its owner or keeper, or handing it over to an authorised person or a member of the Garda Siochána.

any person with whom the local authority or a Superintendent has entered into arrangements under section 39(4), or

such other class or classes of persons and for such purposes as may be prescribed."

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Section 18(5) provides that an occupier who is not the owner of the horses will be taken to be the person in charge or control for the purposes of subsection 2 unless:-

the horse is kept without his knowledge or permission, or

the horse was kept there by some other person and that at the time that horse was licenced for that control area.

Note: therefore for the purposes of prosecuting under this section it must be shown that the occupier had knowledge of the horses being on his premises or gave permission and that the horses are not licenced by another person who holds a licence for them.

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Yes, Section 18(7) states that it shall be a defence for a person to show that at the time he "had no reason to believe" that the horse was not licenced for that control area. Again note should be taken of this offence.

Also under Section 18(8) if an application for a licence was pending at the time this would be a full defence provided that person was not already refused a licence or disqualified from keeping a horse under section 7.

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Section 24 requires that a register of horse licences be kept by each local authority. Section 11 details the specifics in relation to the publics access to and the contents of the register.

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Yes, it is an offence to forge or fraudulently alter or use a horse licence, Section 21. Also if a licenced horse dies or is disposed of there is a requirement to inform the local authority of this within 14 days, Section 25.

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Yes , it was felt that given the aforementioned problems, the prohibition on the sale of horses to underage persons contained in the Protection of Animals (Amendment) Act, 1965 should be extended. While in accordance with Section 24 of the 1965 Act it is an offence to sell animals to children under the age of 12, this provision has been amended by Section 44 to exclude horses with the prohibition being extended by Section 43 to an age limit of 16 in relation to horses.

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If an individual witnesses such treatment he should contact the Local Authority or Gardaí who have wide powers under the Act.

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The local authorities, the persons they appoint as authorised persons, and the Garda Siochána are the enforcers of the provisions of the Act.

Authorised Persons:

Section 3 of the 1996 Act permits the local authority to appoint authorised persons for the purposes of this Act as they see fit. These persons may exercise the functions under the Act within the functional area of the local authority which appointed them or within another functional area if agreements exist between local authorities. These persons are to be furnished with warrants. In addition an authorised person may be assisted in the exercise of his functions by such person as the authorised person considers necessary.

This provision while useful to the local authority in allowing them to delegate their considerable functions under the Act, may cause problems in its implementation. Freelance persons paid a set price per seized horse may not be sufficiently thorough in their attempt to find the licenced owner. Therefore some care must be taken in the implementation of the same.
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The Garda Siochána and authorised persons have a number of functions and powers in relation to keeping the control of horses.

Directions: Any failure to comply with the directions of the authorised person or the Gardaí where there is no reasonable excuse is an offence under the Act (See each section as stated below for specific offences.).

Obstruction: Also under Section 36 it is an offence to obstruct or impede an authorised person or a member of the Gardaí from the exercise of their duties.

Licences: Section 26 allows an authorised person or the Gardaí to request the production of a horse licence where he reasonably suspects the person to be the owner of the horse. Non compliance with this section or the giving of false or misleading information to the Gardaí in relation to the horse is an offence.

Under Section 26 the Gardaí or authorised person may also request the holder of the licence to produce the said licence and failure to comply within ten days will be an offence.

Inspection: The Gardaí or an authorised person may inspect and examine the horse and obtain reasonable assistance from the person having control of the horse as they require for the purposes of the examination, Section 26.

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The Garda or authorised person where he reasonably suspects the horse to be unlicenced or not within the Section 19 exemptions may require the person having charge or control of the horse to remove it from the public place, Section 27.

Seizure

In accordance with Section 37, the Gardaí or authorised person may seize and detain a horse where they have reason to suspect that it is "

a stray horse, or

causing a nuisance, or

not under adequate control, or

posing a danger to persons or property, or

posing a threat to the health and welfare of persons or other animals, or

being kept in a control area, without a horse licence in respect of it being entitling the horse to be kept in that area, or

not identifiable or capable of identification as may be required by section 28, or

in or being kept or ridden or driven in an area contrary to any bye-laws made under section 47."

Further if the requirements under section 33 are unlikely to be met the horse may be seized and brought to a vet, section 37(2)." (See pain and suffering below)

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The horse may be kept in a pound or in any other place as specified by the Superintendent or the local authority.

Identification: While in the possession of the Gardaí or an authorised person the horses may be lawfully identified with a mark or device in accordance with section 38.

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Bye - laws may be made by the local authorities in relation to details regarding the detention of horses, Section 39(2).

Section 17 allows for the making of bye-laws in relation to the designation of functional areas as control areas.

Bye-laws may also be made in relation to the control and welfare of horses, Section 46.

They may also specifically exclude horses from certain areas, Section 47.

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The individual should contact their Local Authority or the Gardaí who have powers under the 1996 Act to deal with such animals.

If the authorised person or the Gardaí have reasonable cause to suspect that a horse is suffering from distress they may require the owner or person in control to take the horse to a vet, Section 33.

NB if they have reasonable cause to suspect that this requirement will not be met the Gardaí or authorised person may seize and detain the horse under Section 37.

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Information:

The Gardaí or an authorised person are entitled to receive certain information when they ask for the same: from any person having charge or control of a horse they may request the name and address of the owner of the horse, Section 30.
From a person reasonably suspected of committing an offence under the Act, they may request their name and address, Section 31.

Desist
If the Gardaí or an authorised person has reasonable cause to suspect that a person is committing an offence under Section 45 or under any bye-laws made under Section 46 or 47 or Section 1 of the Protection of Animals Act, 1911 as amended in relation to a horse, they may direct the person to desist from so offending.

Power of Entry
In accordance with Section 34, both the Gardaí and the authorised person have wide powers of entry onto any premises or vehicles where they have reasonable cause to suspect that either a person is causing harm to or mistreating a horse or that a breach of the Act is being committed therein. Not only are they entitled to search for the horse but they may search for and take extracts and copies from documents. Obviously they may also carry out any other function they have under the Act in the course of their search.

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Yes, both equipment and additional persons may be brought onto the premises to assist, Section 34(2).

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Yes, where the premises is a "dwelling" the Gardaí or authorised person may not enter before firstly obtaining either

The consent of the occupier

search warrant from the District Court under section 35.

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Section 2 states that a dwelling does not include: "any stable, out office, yard, garden or other land appurtenant to the dwelling or usually enjoyed therewith." i.e. a vehicle would not require a search warrant.

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Section 34(4) provides for such an event in allowing the Gardaí or authorised person to apply to court for a search warrant allowing entry under Section 35.

Note: Search warrants are granted in accordance with the provisions of Section 35.

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The Gardaí must have reasonable grounds for suspecting that

"there is evidence on any premises in relation to an offence under the Act, or

a person is causing harm to or mistreating a horse on any premises".

The warrant must obviously be obtained from the District Court in the correct District Court area.

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Yes, the Gardaí have wide powers under the 1996 Act (Section 4) in that they may arrest without warrant any person reasonably suspected of committing an offence under the following section of the Act [ Ss. 21, 27, 28(3), 32, 36, 37, 45, 46, 47].

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The local authorities or the Gardaí, Section 9.

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Any officer, director manager, secretary who personally carries out an offence under the Act will be guilty of an offence also, Section 5.

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Section 6 sets out the penalties

Summary conviction (except for Section 45 offence) - £1,500 maximum fine or to imprisonment for a maximum period of 6 months or both.

Section 45 offence: Summary - £1,500 maximum and 6 months or both. Indictment - £10,000 maximum and 2 years or both.

Disqualification:
In addition to the penalties which the court may impose in accordance with S Section 6 of the Act, the court may under Section 7 disqualify persons guilty of an offence under the Act from keeping, dealing in, or having charge or control, directly or indirectly of a horse for such a period as the court deems fit. This period can be anything up to a maximum of the life of the person .

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Yes, there is a procedure whereby after three months a person may apply to have a disqualification in excess of 6 months lifted, Section 7.

Forfeiture:
On conviction under the Act a person may be required by the court to forfeit the horse/s the subject of the prosecution to the local authority or to an authorised person, Section 8.

Performing Animals
For further detail see Performing Animals Section

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Yes, given the particular problems with horses (and bulls), the Act contains some specific protective provisions in relation to them. The relevant section is Section 15 and it provides as follows:-
No person shall promote or cause or knowingly permit to take place any public performance which includes any episode consisting of or involving: -

Throwing or casting with ropes or other appliances any unbroken horse or untrained bull, or

wrestling fighting or struggling with any untrained bull, or

riding or attempting to ride any horse or bull which by the use of any appliance or treatment involving cruelty is or has been stimulated with the intention of making it buck during the performance.

and no such person shall in any public performance take part in any such episode as aforesaid.

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Yes. Section 15(4) makes the contravention of Section 15 an offence under the cruelty provisions of the 1911 Act

Disposal of Horses
There are situations where the Act provides for the humane destruction of horses in the care of the local authority; where a horse has been seized on more than two occasions within a twelve month period under section 37, section 40 allows for the destruction of that animal where either a "Superintendent or an authorised person is of the opinion that -

the owner or keeper of the horse is not exercising adequate control over the horse so as to prevent it straying, causing nuisance, or posing a danger to persons or property, or
such horse is likely to be in a public place whilst not-
I)under adequate control, or
ii) identifiable or capable of identification as may be required by section 28."

Illness

Also under Section 41 where a horse is in pain or suffering or is a health risk to other animals or persons the authorities may order that he be humanely destroyed. This would only occur where the animal was first examined by a veterinary surgeon under the provisions of Section 37.

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Yes, in relation to Section 37 destructions, five days are allowed within which to make representations from the date upon which the notice of the authorities intention to destroy the horse is posted on the place of detention and sent to the owner, Section 40(3).

If the representations made do not succeed in altering the decision to destroy the horse, the owner or person in charge has the right to appeal to the District Court within 7 days of the decision of the authority to this effect, Section 40(4). If such an appeal is taken obviously the decision to destroy the horse will remain suspended, Section 40(6). The decision of the District Court on this matter is the final decision, however the High Court has jurisdiction to hear any appeal on a point of law which might arise, Section 40(8).

Example of a possible representation - That the present owner was not the owner on the first occasion of the horsežs seizure.

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Yes, the Control of Horses Act, 1996 amends as follows:-
Section 46 updates the penalties for the offence of cruelty contained in the 1911 Protection of Animals Act, Section 1. (See Cruelty Section)
Section 49 updates and increases the penalties for the purposes of the Pounds (Provision and Maintenance) Act, 1935.(NB insert above)
Section 50 updates and increases the penalties for the purposes of Section 5 of the Animals Act, 1985. (NB insert above)

In addition the prohibition on the sale of a horse to a child under the age of 12 contained in Section 24 of the Protection of Animals (Amendment) Act, 1965 has been increased to the age of 16, section 43, 44. (see above - Sale/Pet Shops)

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