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
		21st March 2006

Tuesday, 21st March 2006

1. MR JUSTICE NEWMAN: The respondent in this appeal was charged with causing unnecessary suffering to a domestic cat called Phoenix between 20th July 2004 and 3rd August 2004 by unreasonably omitting to provide the cat with proper necessary care and attention contrary to section 1(a) of the Protection of Animals Act 1911.
2. The Case Stated is noteworthy for the clarity with which the findings of the fact reached by the Justices are set out, but it can be observed that it does not disclose much of the details of the evidence which led to those findings being reached. As it happens, that, in my judgment, does not matter much on this appeal. The section of the Act merits citing in full, the Protection of Animals Act 1911. Section (1)(a) provides under the heading "Offences of cruelty":

"(1)If any person -

(a) shall cruelly beat, kick, ill-treat, over-ride, over-drive, over-load, torture, infuriate, or terrify any animal, or shall cause or procure, or, being the owner, permit any animal to be so used, or shall, by wantonly or unreasonably doing or omitting to do any act, or causing or procuring the commission or omission of any act, cause any unnecessary suffering, or, being the owner, permit any unnecessary suffering to be so caused to any animal ... such person shall be guilty of an offence."

3. One can say at the outset, as it appears from the Case Stated and is reflected in the argument that we have heard, that Phoenix, this cat, was said to be a cat belonging to a 15-year-old girl, namely the respondent. This was the domestic pet of a teenager who was living at home with her father. It was the household pet of the teenager. The Magistrates concluded that she was the owner but also accepted that she was not the sole owner. She was living in a household with her father, who was in charge of the household and he had joint responsibility in his capacity as father and head of the household in respect of the cat, which was a pet in the household. That may well explain why she was not charged as owner. Had she been charged as owner the charge would have been a charge of permitting unnecessary suffering to be so caused to an animal unreasonably.
4. The prosecution set out to establish the following to the criminal standard of proof:

(1) that the cat suffered unnecessarily in the period between 20th July 2004 and 3rd August 2004, and

(2) that such unnecessary suffering was caused by the respondent unreasonably omitting to provide the cat with proper necessary care and attention.

5. The cat had at a date unknown, but prior to 3rd August 2004, sustained an injury to its tail. The nature of the injury when sustained, its course of deterioration in the period from injury to the intervention of the appellant Society, the Royal Society for the Protection of Animals, does not, as I have already observed, appear for the Case Stated. Thus, although charged with committing the offence between 20th July and 30th August, the period of two weeks, it is not clear from the evidence for how long the cat was left without treatment and precisely what its condition was. In other cases those sort of considerations may, of course, be highly pertinent to the evidential issues in connection with a charge such as this.
6. The Justices concluded that the cat was caused unnecessary suffering as a result of not receiving timely veterinary treatment. When they considered the treatment should have been made available is not clear. The respondent's father, the head of the household, was charged with an offence in identical terms to that which the respondent had to meet, but he pleaded guilty about a month before the respondent's trial. According to the Case Stated, the father decided that the cat should not receive veterinary attention unless he perceived its condition to worsen. It is obvious from his plea he accepted that he caused unnecessary suffering by unreasonably omitting to provide the necessary care and attention by way of treatment and it can be observed that his conviction was disclosed to the Justices and it formed one of their findings of fact. It follows that on the facts of this case the prosecution's case against both the father and the daughter was that they had each caused unnecessary suffering by unreasonably failing to take action to alleviate the suffering of the cat. It follows that, in short, their case was that both were under a duty to act but unreasonably failed to do so.
7. As to the respondent's actions, the Justices found:

(1) that the respondent was aware of her father's decision,

(2) that she had concluded that the cat should have gone to the vet and that she had told her father of her view that the cat should go to the vet,

(3) that the father would have had to pay for such treatment as the vet provided.

8. The Justices also concluded, and it is not in dispute:

(1) that respondent was aged 15 and did not have sole responsibility for the cat,

(2) that the respondent acted on the position of the head of the household and that he had decided that it was not necessary to seek veterinary attention, and

(3) that it was reasonable for the respondent, being a young person in those circumstances, not to go against her father's decision and that this was so despite the fact that he later accepted that he had made the wrong decision.

9. For my part, insofar as the skeleton argument and argument generally has suggested that anything turns on the fact that the father later admitted that he was wrong, in my judgment, the suggestion is misconceived. It seems to me that the fact that the father ultimately accepted that he had been wrong is neither here nor there to the issues which were before the Magistrates.
10. In my judgment, on a proper analysis of the above position, although it is not actually expressed in these terms, the Justices acquitted the respondent because they accepted that the reason she had not taken the cat to the vet was because her father had decided that it was not necessary for the cat yet to receive treatment and that she, being 15 years old, not having sole responsibility for the cat, did not act unreasonably in accepting her father's decision. Although they did not say so specifically, they would also have been entitled to take into account that the respondent had considered the plight of the cat, formed a view about it and, having formed the view that the cat needed to go to the vet, had communicated her view to the father. One could infer she acted in an attempt to persuade her father to take the cat to the vet.
11. Those being, in my judgment, the essential facts and circumstances which arise from the Case Stated, I turn to the grounds of appeal as they have been argued in this court. Mr Rogers has attractively but, in my judgment, in the end unsuccessfully submitted that the position should be regarded as governed by statements in two cases. The two cases are the RSPCA v Hall & Hall 11/11/1993 CO/2876/92 and RSPCA v Isaacs 12/11/1993 CO 721/93, both being decisions of a Divisional Court comprising Mann LJ and Holland J, in each of those cases the judgment of court being given by Holland J.
12. The essence of the submission is as follows: that the test of reasonableness should be confined, so that it is applied objectively and that any subjective element should be resisted as being outside the relevant test. Taking, for example, Holland J's judgment in the case of Hall (page 7B):

"... I unhesitatingly uphold the Crown Court's construction of the word 'unreasonably' as connoting a purely objective test. Such is the obvious construction ..."

13. At that stage, Holland J was considering a submission which had been advanced to the court that an appropriate test should take into account the sort of considerations which arise in criminal cases when issues of dishonesty are before the court. Thus it was that counsel had drawn the court's attention by way of assistance to the well-known case of R v Ghosh [1982] QB 1053. The next stage in the argument proceeded by reference to the case of Isaacs. In that case Holland J was considering a case of an elderly owner of a dog, who had, despite the suffering of the dog, not taken the dog to the vet because she thought the dog would be put down. The matter was before the Divisional Court because a submission of no case had been advanced, which the Magistrates had accepted. The passages which, it would appear, have given rise to a measure of confusion appear in the judgment of Holland J, starting at page 8, picking it up between G and H:

"The first is the state of the dog, as described by the Justices, which state was plainly consistent with objectively reasonable care, and, second, there was the Respondent's own admission that by inference she would have taken the dog to a veterinary surgeon but for her fear that the dog would be put down.

The Justices appear to have introduced an essentially subjective factor into their assessment of this part of the evidence, that is the surmised standards of the Respondent herself. Essentially, at a stage in the proceedings when they were required to act as a Judge, they perhaps subconsciously started to act as a jury.

In those circumstances it is my view that the ruling made in response to this submission was based upon wrong legal principles, and that had the correct principles been applied to the facts, then it would have been manifested that the submission should have been rejected.

It is in those circumstances that I find the ruling to be so defective that this appeal should, in my judgment, be allowed."

14. But what is important to emphasise when considering that part of the judgment is that it is directed to the correct principle which should be applied when a submission of no case is made. When a submission of no case is made it is, of course, for the Justices to decide whether there is a case which, if not rebutted, would be sufficient to entitle the court to find the defendant guilty. It is not at that stage for the court to enter into considerations as to whether the anticipated line of defence will defeat the prosecution. I do not read Holland J's judgment as saying anything inconsistent with the approach which should be applied in this case. If there is an explanation, given in circumstances such as this, to explain why somebody has not taken an animal to the vet and objectively assessed the animal has suffered unnecessarily, then the Justices must hear that explanation from the defendant and when they have done so, they must decide whether or not they accept the explanation as reasonable or unreasonable.
15. I hope the above clarification will assist for it seems to me that it might have given rise to misunderstanding. But reverting to the facts of this case, as I have already endeavoured to summarise them, the issue which the Justices had to decide was whether or not this 15-year-old girl had acted reasonably or unreasonably in acceding to the opinion her father had expressed, that the cat need not yet go to the vet. That involved considering whether it was reasonable for her to go along with her father's view of the position, having regard to her age and position in the household, whether it was for her to take any other action, as she could have done, and whether it was reasonable or unreasonable for her to fail to take that other action. Such action could have included taking the cat to the vet or taking the cat to the Royal Society or some other charitable organisation, which she could have done without incurring financial expense. But all that was for the Justices. In my judgment, the Justices were entitled; indeed, in my judgment they were obliged, having regard to the nature of the defence that this young girl was putting forward, to have regard to all the circumstances in which she failed to act and they were entitled to pay regard to all those matters to which I have already drawn attention. There has been no submission that those matters are somehow or other outside those which the Magistrates could take into account, other than on the ground that they amounted to subjective considerations. Since I am wholly against that submission, and I am entirely satisfied that they do not fall within anything which would properly be called subjective considerations and were therefore within the test, it follows from what I have said that, in my judgment, this appeal must be dismissed.
16. So far as the questions are concerned, the questions are: "Were we entitled to rely on the fact that the respondent was a youth in coming to our decision that she did not act unreasonably in this matter?" The answer must be yes. "Were we entitled to rely on the fact that the respondent had relied on the decision and actions of her father in determining whether she did not unreasonably in this matter?" The answer is yes. "Is the correct test to establish whether the respondent did not act unreasonably a purely objective test, namely did she act as a reasonable caring and reasonably competent cat owner, as contended by the appellant?" I would answer that question by reference to the judgment which I have just given. The fourth question, "Were we wrong in law to distinguish the present case from the cases of Hall and Isaacs?" In my judgment, that question does not call for an answer in the light of the judgment that I have given.
17. MR JUSTICE STANLEY BURNTON: I agree. In using expressions such as "subjective test" and "objective test", considerable caution is required. It is necessary to define the issue to which the test goes and what it is said is included or excluded by the application of the objective or subjective test which would not be included or excluded, as the case may be, if a different test were applied.
18. In the case of Hall, Holland J rejected the submission that there should be a subjective test. The submission which he rejected was the following:

"[Counsel for the appellant] submits the Crown Court should have directed itself that the word 'unreasonably' raised two issues for resolution and not one, such issues being, first, whether that which the Appellant did or omitted to do was unreasonable by the standard stipulated and, second, whether the Appellants themselves must have realised that what they were doing or omitting to do was by that standard unreasonable."

19. Thus, Holland J was rejecting the submission that to be guilty of an offence there had to be a subjective appreciation that the defendant was acting unreasonably. That question does not arise in the present case. Here, what is suggested on the part of the RSPCA is that the court, in deciding whether conduct was reasonable or unreasonable, should ignore the youth of the defendant. Like my Lord, I unhesitatingly reject that submission. It follows, for the reasons my Lord has given, that the Justices came to the correct conclusion in this case.
20. MR JUSTICE NEWMAN: Are there any applications?
21. MR TUCKER: My Lord, there is. The respondent is legally aided. Might she have her costs?
22. MR JUSTICE NEWMAN: Indeed. I do not think you can resist that, can you?
23. MR ROGERS: No, my Lord. Only that it be subject to taxation.
24. MR JUSTICE NEWMAN: It is bound to be subject to taxation. We are not asked to do anything else? Thank you very much.