England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		18th February 2005

1. MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated by the appellant Elsie Nash against the dismissal on 6th February 2004 of her appeal to Birmingham Crown Court from her conviction by District Judge Jellamy on 24th February 2003 of the following offence set out in the summons, dated 6th August 2002. That document, headed "Information/summons" stated:

"Alleged offence: 'That she/you did cause unnecessary suffering to certain animals namely seventy-five domestic cats by unreasonably omitting to provide the said animals with proper and necessary care and attention, contrary to section 1, Sub Section (1)(a) of the Protection of Animals Act 1911."

2. The appellant's conviction arises out of an involvement in an organisation known as the Sutton and Erdington Cat Rescue. She takes in cats with a view to re-homing them. On 18th April 2002 police officers, accompanied by inspectors of the RSPCA, attended at her home, entered and searched it. A video film and still photographs were taken. Seventy-four live cats living in the house were examined and removed. In addition, the mummified remains of a seventy-fifth cat were found, bagged and removed. The general allegation made against the appellant was that the conditions in which the cats were living at the premises caused them distress and unnecessary suffering.
3. At her trial before the district judge, both the RSPCA and the appellant were represented by solicitors. The prosecution case was opened. The video film and the still photographs were used in evidence, and evidence was given by the RSPCA inspector and by the veterinary surgeon that had visited the appellant's premises. No complaint was made at that stage of any lack of particularity in the summons or of any duplicity.
4. The notice of appeal to the Crown Court stated that the grounds of her appeal were "generally that the conviction was against the weight of the evidence produced at court". It was not then suggested that the appellant had not been able fairly to meet the prosecution case.
5. A complaint as to the content of the summons was first made at the first hearing of the appellant's appeal to the Crown Court, which took place on 3rd September 2003 before Ms Recorder Bush. As a result of the points being taken, the appeal was adjourned to enable the prosecution to consider how to deal with the points. The Recorder gave directions for the further conduct of the appeal. Skeleton arguments were served. Among the documents served by the prosecution for the purposes of the appeal was a schedule, specifying the condition of each of the cats in question.
6. The appeal came for a substantive hearing before Mr Recorder Readhead and two justices on 2nd February 2004. The appellant was represented by Mr Edwards, who has appeared on her behalf today. He took two preliminary points. He submitted that the information and the summons were duplicitous and therefore defective in that more than one offence was charged. Secondly, he submitted that the summons was defective for lack of particularity as to the conduct alleged to constitute an infringement of the statute. Mr Edwards' complaints of duplicity arose from his concern that some of the allegations made by the RSPCA concerned the alleged conduct of the appellant relating to some only of the cats who lived on the premises, whereas others concerned her conduct relating to all the cats generally. He submitted that allegations relating to specific cats, as distinguished from the generality, gave rise to separate offences and required to be the subject of a separate information and a separate summons.
7. Mr Meikle, who appeared for the RSPCA, submitted that the summons was adequate and that there was no duplicity. He also submitted that, in the event, the appellant had been given sufficient particulars of the allegations against her contained in the evidence served by the RSPCA, including the schedule summarising the veterinary findings, and in his opening to enable her fairly to meet the case against her.
8. Sensibly, both counsel before the Crown Court and the Crown Court itself avoided wrestling with the difficult and abstruse issue of duplicity. Mr Meikle elected to confine his case for the RSPCA to the inappropriateness of the conditions in which the cats were kept in the appellant's premises. That concession seemed to the Crown Court to be sufficient to meet the objection of duplicity made by Mr Edwards, and ultimately Mr Edwards did not invite the court to rule on that point.
9. It was accepted before the Crown Court by both sides that that court had no power to amend the information or the summons. Having regard to the trial that had taken place before the district judge, the lack of any complaint at that stage of any lack of particularity in the information, the evidence served, and the opening of the prosecution case made by Mr Meikle, the court held:

"16. In our judgment, when the history of this case to date is taken into account, both Mrs Nash and her legal advisers have had reasonable information of the nature of the charge to enable them to deal fairly and justly with this appeal and accordingly we reject Mr Edwards's alternative submission as well."

10. The alternative submission referred to was the contention that the summons and information lacked particularity as to the allegation which was the subject of the charge.
11. The Crown Court proceeded to hear the appeal. It summarised the evidence before it as follows:

"16(1) We heard oral evidence from

"(a) Mr Jellie a veterinary surgeon and Ms Boal an RSPCA Inspector on behalf of the Respondent;

"(b) The Appellant, her partner Mrs Woodhall and Mr Bogel a veterinary expert witness on behalf of the Appellant;

"(2) We also saw and considered a video film together with a large number of still photographs.

"(3) We had read to us written statements from PC Clough a police constable and Mr Dixon and Mr Cooper, 2 RSPCA Inspectors on behalf of the Respondent."

12. The Crown Court rejected a number of the allegations made by the RSPCA. In the case stated, they summarised their findings, as far as that is concerned, as follows:

"18(1) We were not satisfied that

"(a) The lack of proper and adequate bedding as opposed to flat sheets of newspaper on which the cats could rest and sleep amounted to unnecessary suffering;

"(b) That there were no safe areas to which weaker cats could retreat;

"(c) That the overall density of the cat population at the premises gave rise to distress and unnecessary suffering."

13. The Crown Court did, however, find a number of allegations proved. They are set out in 18(2) of the case as follows:

"(2) We were satisfied that

"(a) Distress and unnecessary suffering was caused to all the cats at the premises by reason of the lack of separate areas in which to eat, sleep and defecate;

"(b) The presence of ammonia at the premises as a result of large amounts of cat's urine

"(i) Acted as an irritant to the eyes and lungs of the 30 cats already suffering from respiratory disease; and

"(ii) Led to secondary problems in those cats such as conjunctivitis and an exacerbation of the inflammation already present in the respiratory lining

"and that accordingly distress and unnecessary suffering was caused to the cats suffering from respiratory disease.

"(c) The regime of cat traps and rabbit hutches used to house the small number of unneutered female cats which were in season caused distress and unnecessary suffering to those cats."

14. In consequence the Crown Court stated that they were satisfied that, in the respects set out in paragraph 18(2), the information had been proved, and they accordingly dismissed the appellant's appeal.
15. The questions for the opinion of the High Court as set out in the case stated are as follows:

"(1) Were we correct in holding that the information afforded the appellant reasonable information as to the nature of the charge that she faced?

"(2) Were we correct in holding that if the information did lack particularity this did not render the information defective but gave rise to a right to require that further reasonable information of the nature of the charge should be given to the Appellant?

"(3) Were we correct in holding that having regard to the stage in the case when the application for further particulars was made, the Appellant had reasonable information as to the nature of the charge to enable her to deal fairly and justly with the appeal?

"(4) Did the reference to '75 domestic cats' in the information preclude us from finding the information proved when we were satisfied on the evidence that the presence of ammonia at the premises as a result of large amounts of cat's urine caused distress and unnecessary suffering to the cats suffering from respiratory disease?"

16. The last question, incorrectly numbered 6, is:

"Did the reference '75 domestic cats' in the information preclude us from finding the information proved when we were satisfied on the evidence that the regime of cat traps and rabbit hutches used to house the small number of unneutered female cats which were in season caused distress and unnecessary suffering to those particular cats?"

17. Before us, Mr Edwards has sensibly narrowed the focus of his submissions. He submitted that the decision of the Crown Court fell to be quashed and the appeal allowed because the information contained the summons was defective as being duplicitous; that the summons itself did not contain adequate information; and that, in any event, the prosecution case went beyond the commitment given by Mr Meikle, to which I have referred, in that it included allegations of conduct affecting and causing unnecessary suffering to particular animals, rather than the generality of cats living on the premises.
18. This appeal must, of course, be decided upon the basis of the case stated before us. In my judgment, since the Crown Court was not required to determine the question of duplicity and, doubtless, in consequence of that, that point is not raised specifically by the case, the point cannot now be taken before this court. Whether, having regard to the fact that the point was not raised before the district judge, it was a point that was open to the appellant on appeal to the Crown Court is not a question that falls for consideration.
19. I turn to the questions posed by the case for the opinion of the High Court. I have considered question (1) with some care, having regard to the fact that, as we were told, the RSPCA commonly applies for summonses in the form of the summons in the present case. I would add that the Crown Court in the case referred to the "information" as clearly meaning equally the summons, which, as I have stated, is headed both "information" and "summons".
20. However, I have no doubt that the information and summons were defective. Rule 100 of the Magistrates' Court's Rules 1981 is as follows:

"(1) Every information, summons, warrant or other document laid, issued or made for the purposes of, or in connection with, any proceedings before a magistrates' court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and gives such particulars as may be necessary for giving reasonable information of the nature of the charge."

21. It is the last requirement, namely that the summons or information should give "such particulars as may be necessary for giving reasonable information of the nature of the charge" that falls for particular consideration. In my judgment, a person charged with an offence under section 1 of the Protection of Animals Act 1911 is entitled to know what act or omission is alleged to have caused the unnecessary suffering alleged to an animal or animals.
22. By way of example, in the present case, the summons could have charged that distress and unnecessary suffering were caused to all the cats at the premises by reason of a lack of separate areas in which the cats could eat, sleep and defecate. Similarly, the failure to keep the premises reasonably clean, resulting in an accumulation of urine and production of ammonia, which acted as an irritant to the eyes and lungs of those cats with respiratory disease, could and should have been specified. There was no difficulty, as far as the RSPCA was concerned, it seems to me, in requiring such specifics. The information on which that specification of the charge could be based was readily available in the witness statements, photographs, video and the report of the veterinary surgeon.
23. If the charge or charges are specified in this way I suspect that any problems of duplicity would often fall away, since it would be obvious whether separate acts or omissions constituting separate offences were charged. A general failure to keep premises clean, having a number of consequences such as the production of ammonia and, say, the lack of clean areas for cats, would probably constitute a single offence. A failure to provide a specified facility, on the other hand, would constitute a separate offence, as would cruel conduct aimed at specific animals.
24. But I unhesitatingly reject the submission that it is incumbent on, or necessary for, the RSPCA to apply for a separate summons for each animal alleged to have been caused unnecessary suffering. Identified conduct causing such suffering to a number of animals may be the subject of a single charge and a single summons.
25. So I would answer question (1), no. I would add that it is right to say that Lord Thomas, who appears for the RSPCA today, did not really dispute this conclusion.
26. I turn to question (2). In my judgment, as I have already indicated, the information in this case was defective in failing to give sufficient information to the appellant as to the nature of the charge she faced. Wording such as "unreasonably omitting to provide the said animals with proper and necessary care and attention" is wide and vague and insufficient for the purpose of a summons, since it does not identify either the failure in question, or what proper and necessary care and attention was required. However, that of itself did not render the proceedings a nullity or any resulting conviction unsafe, provided that the requisite information was given to the appellant in good time for her to be able fairly to meet the case against her. She was entitled to that information and its provision was capable of curing the defect in the summons.
27. The Crown Court found that the information that the appellant had was sufficient to enable her to deal justly and fairly with her appeal and, subject to one point, Mr Edwards does not, as I understand it, dispute that finding. In any event, I have considered the material to which the Crown Court referred in holding that the appellant was able so to deal with her appeal, and I have no doubt that it was sufficient. Mr Edwards, with fairness and candour, expressly accepted that he was not taken by surprise by the prosecution case. Indeed, he was able to call his own expert evidence, apart from his client and her partner, to seek to rebut that case. The answer to question (3), therefore, is yes.
28. I turn to the last two questions. Mr Edwards' submission is not clearly reflected in those questions. Clearly a charge under section 1 of the 1911 Act, that the conduct of the appellant led to the accumulation of large amounts of ammonia which caused unnecessary suffering to 75 cats, would be proved, even if the suffering in question on the evidence was found to be limited to a smaller number. Mr Edwards' real complaint is that the charges pressed by the RSPCA went beyond the limitation undertaken by Mr Meikle, when the question of duplicity was disposed of at the beginning of the hearing of the appeal before the Crown Court.
29. That limitation was recorded by the Crown Court as "confining his case to the inappropriateness of the conditions under which cats were kept at the premises". That limitation excluded, for example, any alleged act of cruelty directed at a particular animal or animals unconnected with the conditions under which they were kept. In my judgment, all of the findings of the court set out in paragraph 18(2) of the case do arise from the inappropriateness of the conditions under which the animals were kept. In my judgment, therefore, Mr Edwards has not established any justifiable complaint on this point. I would therefore answer the last two questions contained in the case in the negative.
30. That is not to say that the allegation to which the last question, and to which paragraph 18(2)(c) of the case referred should not have been the subject of a separate charge and summons. My view is that it should have been. But, in the particular circumstances of the present case, and on the basis of the terms of the case stated before us, that question does not fall for decision.
31. For the above reasons, therefore, I would dismiss this appeal. It is right, however, that I should mention that it was not suggested, and certainly not found by the district judge, or as I understand it the Crown Court, that the appellant had been guilty of any deliberate cruelty to cats. The substance of the complaints, as far as her conduct generally was concerned, is that the care for that number of cats in her premises had become too much for her. That concern was reflected in the fact that she was given a conditional discharge, one of the conditions being that she could not thereafter look after more than two cats at any one time.
32. For the reasons I have already given, however, I would dismiss this appeal.
33. MR JUSTICE MOSES: So would I.
34. LORD THOMAS: My Lord, I am instructed to apply for costs but, obviously, subject to the usual terms.
35. MR JUSTICE MOSES: Is she in receipt of legal assistance?
36. MR EDWARDS: Yes, my Lord.
37. MR JUSTICE MOSES: So what is the order that we should make?
38. LORD THOMAS: My Lord, an order for costs not to be enforced without further leave of the court.
39. MR JUSTICE MOSES: What used to be called a football pools order. What is the wording now? Nobody ever knows. Everybody always forgets. Do you have it there?
40. LORD THOMAS: I am afraid I am with that majority that always forgets.
41. MR JUSTICE MOSES: Anyway, once the order is discovered, then we will make it. Very well. Thank you.