England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		28th June 2005

1. MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from the decision of Plymouth Crown Court of 13th September 2004 rejecting the appeal from the appellant's conviction by Plymouth Magistrates' Court of an offence under the Agriculture (Miscellaneous Provisions) Act 1968 and the regulations made thereunder, namely the Welfare of Farmed Animals (England) Regulations 2000.
2. The case concerned a cow kept by the appellant. It was found on inspection to be lame and on that inspection it was ascertained that the lameness had lasted for about a week.
3. The relevant statutory provisions are helpfully set out in Miss Pinto's skeleton argument. The power to make regulations with respect to the welfare of livestock on agricultural land is contained in section 2(1) of the 1968 Act. Section 2(2)(a) provides for the creation of offences within those regulations. Penalties are the subject of section 7(1) of the 1968 Act. Regulation 3(2) of the Welfare of Farmed Animals (England) Regulations 2000 provides that:

"Owners and keepers of animals (other than fish, reptiles and amphibians) shall take all reasonable steps to ensure that the conditions under which the animals are bred or kept comply with the requirements set out in Schedule 1."

Regulation 13 provides that an offence is committed by a person who contravenes or fails to comply with any provision of the Regulations. Schedule 1, paragraph 5 provides that:

"Any animals which appear to be ill or injured --

(a) shall be cared for appropriately without delay, and

(b) where they do not respond to such care, veterinary advice shall be obtained as soon as possible."

4. The prosecution allegation against the appellant, therefore, was that he had failed to take all reasonable steps to ensure an animal, namely a cow, which appeared to be ill or injured, was cared for appropriately without delay and, where it did not respond to such care, that veterinary advice was obtained as soon as possible. The crucial words the focus of this appeal are "shall take all reasonable steps to ensure".
5. It was common ground before the Crown Court that the appellant was a keeper of animals within the meaning of Regulation 3, and the cow which was found to be lame was manifestly an animal to which the Regulation applied. The crucial question therefore was whether the appellant had taken all reasonable steps to ensure that the conditions referred to in paragraph 5 of Schedule 1 complied with the requirements set out in that paragraph.
6. The case stated summarises the prosecution case, although it does not set out the applicable statutory provisions, or those of the Regulations, and states that the following facts were found:

"(3) The animal in question was one of several hundred that -- during the winter of 2002/3 -- were kept at buildings on Mr Keam's farm at Woodland Barton in Cornwall, by a cattle trader named Piers Brendon.

(4) Mr Keam received payment for each animal kept on his farm, and in return was to provide accommodation and feed for the animals. If there were any sick animals, Mr Brendon would be contacted and his vet would be expected to treat the animals.

(5) Mr Keam had been seriously ill during the previous year and on doctor's advice never actually went to the buildings where the animals were kept.

(6) Mr Keam employed a local farmer called Paul Hoskins to make the required daily visits to the animals. Hoskins would visit the animals on a daily basis for about three hours per day, during which he would clean out the buildings and provide feed and water for the animals.

(7) The arrangements between the parties was that if Hoskins saw any sick animals he would contact Brendon's vet for him to treat them.

(8) On may 2003, DEFRA vets carried out an inspection at Woodland Barton as part of a series of inspections of animals owned by Brendon. The animal covered by the charge against Mr Keam was found to be lame, the lameness having lasted for around a week.

(9) If Mr Hoskins had been prosecuted for the identical offence he would have been convicted."

The case stated then has a heading "Submissions of the parties" and in paragraph 10 states:

"On behalf of Mr Keam it was submitted that by appointing a capable independent contractor to look after the animals day by day he had taken all reasonable steps to ensure the welfare of the animal."

7. Unfortunately, the case stated does not set out the submissions of the prosecution, notwithstanding the heading "Submissions of the parties" to which I have referred. Given that the substance of the prosecution case was that Mr Keam had not taken all reasonable steps to ensure the welfare of the animal, one would have expected the steps which were alleged to be encompassed within "all reasonable steps" which he had failed to take to be identified in the contentions or submissions of the prosecution.
8. The decision of the Crown Court is set out as follows:

"(11) The court stated that: 'Mr Vaitilingam [Mr Keam's counsel] says that Mr Keam's responsibility is limited to taking reasonable steps and that he employed an independent contractor who was competent. We disagree. Mr Keam was the keeper under the Act and whatever his contractual agreements, his liability under the statute cannot be passed off or delegated."

The last heading in the case stated is "The ground on which the opinion of the High Court is sought". That, of course, should read "The question on which the opinion of the High Court is sought". It is as follows:

"(12) The ground on which the opinion of the High Court is sought is whether it is open to a Court to find, as the Plymouth Crown Court did, that the liability of a keeper under the Act cannot be passed off or delegated (effectively importing the doctrine of strict liability to the offence), even though the Regulations themselves only require him to take all reasonable steps to ensure the animals' welfare."

9. The question raised by the case stated is: what is meant by the obligation to take all reasonable steps to ensure? Without the benefit of authority, I should have thought that the phrase has a clear meaning. A person takes all reasonable steps in circumstances where he personally does all that is reasonable for him to do to ensure, in this case, that the animals of which he is a keeper are in a condition which complies with the provisions of the Regulations. In a case in which the keeper defendant employs an independent contractor to take care of his animals and does nothing more, whether in those circumstances he has taken all reasonable steps is a matter for the trial court.
10. In many cases, if not most, one would expect the keeper (a) to have ensured that his independent contractor was indeed competent, and (b) to take steps to ensure that his independent contractor was doing that which ought to be done in caring for the animals. In many, if not most, and possibly all, cases, simply to appoint an independent contractor -- that is to say, in the present case, a farmer such as Mr Hoskins -- to care for his animals may well not amount to the taking of all reasonable steps. Conversely, the fact that an independent contractor fails to take all reasonable steps does not, of itself, involve criminal liability on the part of the person who is the keeper of the animal and who has employed that independent contractor, if that keeper has taken all reasonable steps to ensure that the animals do comply with the conditions specified in the regulations. That is to say there is no vicarious liability for the default of an independent contract in circumstances in which the keeper can show that he himself did take all reasonable steps. On the other hand, clearly there will be cases in which both the independent contractor has defaulted and the keeper has failed to take all reasonable steps.
11. Those are matters which must be considered by the trial court and it will normally be necessary for the prosecution to specify what steps it contends the keeper should have taken which he failed to take. Those steps may involve a failure to ensure that the independent contractor was indeed competent and qualified, a failure to ensure that he was doing that which he had undertaken to do, a failure to demand of him compliance with contractual or other requirements which were sufficient in the circumstances.
12. That that is the correct approach to the interpretation of the expression found in Regulation 3(2) of the Regulations in this case is confirmed by the decision of the House of Lords in Seaboard Offshore Limited v Secretary of State for Transport [1994] 1 WLR 1025. That case concerned the same expression in a different context. In the only substantial speech in the House of Lords, Lord Keith of Kinkel summarised the position in terms consistent with what I have said and finally stated:

"In the judgment of the Divisional Court there was some discussion as to whether or not the offence provided for by section 31 was one of strict liability involving no necessary element of mens rea. It is not, however, helpful to seek to categorise the offence as either being or not being one of strict liability. It consists simply in failure to take steps which by an objective standard are held to be reasonable steps to take in the interests of the safe operation of a ship, and the duty which it places on the owner, charterer or manager is a personal one. The owner, charterer or manager is liable if he fails personally in the duty but is not criminally liable for the acts or omissions of subordinate employees if he has himself taken all such steps."

Those observations apply equally to the present case, substituting "keeper" for "owner, charterer or manager", and "the animal" for "the ship" and its condition for the safe operation of that ship.

13. The question then arises whether that was the interpretation of the statute and the regulations applied by the Crown Court in the present case. I have to say that I cannot determine from paragraphs 11 and 12 of the case stated whether or not that was the interpretation adopted and applied by the Crown Court. Indeed, paragraph 11 would indicate that it was not. Mr Keam's counsel submitted that his responsibility was limited to taking reasonable steps and that he employed an independent contractor who was competent. The Crown Court said "We disagree". It is unclear from that whether the Crown Court disagreed with the contention that Mr Keam had taken reasonable steps or not. In the following sentence the Crown Court says:

"Mr Keam was the keeper under the Act and whatever his contractual agreements, his liability under the statute cannot be passed off or delegated."

14. That does not inform this court what test is applied to the conduct of Mr Keam. The position is not clarified by the question in paragraph 12 because the passage in parenthesis: "effectively imparting the doctrine of strict liability to the offence", would suggest that the Crown Court considered that Mr Keam had committed the offence by reason of the default of his independent contractor Mr Hoskins, rather than by reason of his own failure to take all reasonable steps. The last phrase in paragraph 12, "even though the regulations themselves only require [the keeper] to take all reasonable steps to ensure the animals' welfare", points in the same direction.
15. In circumstances where the Crown Court has not found what steps should have been taken by Mr Keam which would have been reasonable for him to take in the circumstances and which he failed to take, and has not in terms stated that merely to employ Mr Hoskins did not amount to the taking of all reasonable steps, I have no assurance that this conviction was properly found. I add that all reasonable steps seem to me, as was said by Lord Keith, to be an objective question. The fact that Mr Keam was ill and therefore unable to care for the animals himself did not absolve him from the duty to take all reasonable steps that it was proper for him to take. A person in his condition might have to take different steps from someone who was not ill, but he had to take all reasonable steps to ensure that the animals' condition complied with the requirements of the Regulations. In the circumstances it is appropriate to quash the conviction.
16. The sentence passed by the Crown Court was a conditional discharge for 12 months. That sentence has long since been spent. Clearly, the court did not regard this as a serious offence. Miss Pinto has helpfully informed me that if this conviction were to be quashed, DEFRA would not wish to pursue the prosecution once more before the Magistrates' Court or have the appeal reheard in the Crown Court. It seems to me that that is a most sensible decision by DEFRA in the circumstances of this case.
17. Accordingly, the determination of this court is that the conviction be quashed. The appeal is therefore allowed. The answer to the question posed in paragraph 12 of the case stated is "No" for the reasons I have given. No criminal offence is committed by someone who takes all reasonable steps to ensure an animal's welfare, that is to say that its condition complies with the Regulations even though, notwithstanding that he has taken all reasonable steps, someone who he has given authority to deal with the animals has failed to do so.
18. MR VAITILINGHAM: My Lord, the appellant is publicly funded. Would you order a Legal Aid assessment?
19. MR JUSTICE STANLEY BURNTON: Certainly. That is the only order you are seeking?
20. MR VAITILINGHAM: Yes, my Lord. My Lord, technically we have a Magistrates' Court conviction. We have a Crown Court decision affirming that conviction which has now been quashed. Technically the appeal of the Crown Court remains outstanding unless your Lordship says that the appeal in the Crown Court should be allowed. Is your Lordship saying that the appeal from the Magistrates' Court should be allowed?
21. MR JUSTICE STANLEY BURNTON: I do not think I can do that, can I? Miss Pinto, what do you say is the appropriate order?
22. MISS PINTO: My Lord, it seems to me your Lordship can quash the conviction as your Lordship has done. In those circumstances the matter is discontinued. Your Lordship has quashed the conviction.
23. MR VAITILINGHAM: But your Lordship is not quashing the Magistrates' Court conviction.
24. MR JUSTICE STANLEY BURNTON: I have no jurisdiction over the Magistrates' Court conviction.
25. MR VAITILINGHAM: What your Lordship could do is substitute a decision from the Crown Court to allow the appeal from the Magistrates' Court. Technically that is the only way we can resolve it.
26. MR JUSTICE STANLEY BURNTON: There is not the material before me on which I could conclude that Mr Keam is not guilty. All I can say is that the Crown Court does not seem to have applied the correct test. It does not seem to me that I can substitute a finding of not guilty. I can quash the decision of the Crown Court. If you want a formal quashing of the Magistrates' Court conviction the only way to do that, I suspect, is to go through the procedure of DEFRA offering no evidence, which seems unfortunate.
27. MR VAITILINGHAM: I suspect they could probably do that today. The costs order from the Magistrates' Court is £1,000. That decision has not yet been quashed but on DEFRA offering no evidence it will be.
28. MISS PINTO: I do not know what the technicalities are but your Lordship and my learned friend has heard me say that DEFRA will not go again. In those circumstances, it would be quite wrong to take advantage of this. The appropriate course is for us to deal with it administratively.
29. MR VAITILINGHAM: I am perfectly happy. Sorry to be petty but I just want to make sure that the costs order from the Magistrates' Court will disappear as a result of DEFRA's decision not to pursue the matter in the Crown Court.
30. MISS PINTO: I am sure that must be right.
31. MR JUSTICE STANLEY BURNTON: If either of you decides the formal order should be different from the one I announced feel free to send a fax.