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
		17 May 2006

1. LORD JUSTICE SEDLEY: Mr and Mrs Foster were convicted by the Crewe Justices of causing unnecessary suffering to two horses by omitting to provide proper care and attention for them contrary to section 1(1)(a) of the Protection of Animals Act 1911.
2. The two horses, which had been found by RSPCA inspectors (one recovered but one had to be put down), were part of a population of about 60 horses kept by the Fosters on their farm. The account given by the defendants, and not disputed by the prosecutor, was that they were mountain ponies which Mrs Foster would buy from dealers who were taking them, often in an emaciated condition, to be slaughtered, and would rehabilitate them and then sell them on hopefully to good homes. But no appeal was pursued against the convictions in relation to the two animals which were the subject of the charges.
3. The justices fined Mrs Foster £500 on each charge, together with £2,500 as compensation to the RSPCA for attending to the animals, and £500 towards the prosecution's costs. Mr Foster was fined £250 for each offence, with £1,086.79 compensation and £250 costs. Under section 1(1) of the Protection of Animals (Amendment) Act 1954, both defendants were disqualified for life from having the custody of any equine.
4. On appeal against sentence to Chester Crown Court, HHJ Halbert, sitting with lay justices, left the fines and costs orders in place and modified the orders for compensation. Nothing now turns on these elements of the decision. But the Crown Court also, following submissions, altered the disqualification orders so that they prevented each defendant from a date in the near future from keeping more than 25 horses at a time. The RSPCA seeks in these judicial review proceedings, for which Black J has granted permission, a quashing order in relation to this element of the Crown Court's decision, or alternatively in relation to the entirety of the Crown Court's decision, together with remission, on the ground that it had no jurisdiction to make such an order.
5. This means that we are not concerned with the reasons why the Crown Court took the course it did. But it is fair to them and to the Fosters to explain that it was because there was no evidence of chronic or general neglect of their horses, and there was evidence that they spent a fair amount of money on veterinary bills. The problem, as the Crown Court found, was that the defendants simply had more horses than they could cope with, with the result that some were neglected. The Crown Court did not embark upon the more difficult question whether reducing the numbers would reduce the farm's commercial margins still further and so increase the risk of neglect of those horses that remained. Nor is it clear whether the effect of the orders would be to allow the defendants to keep 50 horses between them.
6. The application for judicial review is made by Mr Ian O'Donnell on the RSPCA's behalf. The Crown Court, as is normal, takes no part in the proceedings. Mr and Mrs Foster, who have been correctly served as interested parties but whom I will continue to call the defendants, have not been able to afford representation. But their solicitors, Charltons, have submitted a written argument on their behalf for which the court is most grateful. We have of course taken it into account.
7. Section 1(1) of the 1954 Act provides:

"Where a person has been convicted under the Protection of Animals Act 1911 ... of an offence of cruelty to any animal the court by which he is convicted may, if it thinks fit, in addition to or in substitution for any other punishment, order him to be disqualified, for such period as it thinks fit, for having custody of any animal or any animal of a kind specified in the order."

8. This power is, in my judgment, precise and exhaustive. It gives the court a choice as to (a) the duration of any disqualification it imposes and (b) what kinds of animal the disqualification is to relate to. But that is all. There is no way of reading into it a discretion of the sort for which the defendants have contended. A court considering disqualification therefore needs to have in mind that an order is flexible only in these two respects.
9. In my respectful view, the Crown Court, although acting from the best possible motive, exceeded its jurisdiction in building into the order a modification relating to numbers of animals which the law does not, at least at present, allow.
10. This, however, is not quite the end of the case. We have to decide what follows. It was submitted on the defendants' behalf below that a conditional discharge can be used for this purpose. If this were so, and if this court thought it a legitimate way of accomplishing what the Crown Court wished to accomplish, it would be open to us either to vary the sentence or to remit the case for that specific purpose. The basis for the submission about the availability of a conditional discharge was, however, shaky.
11. It derived from the decision of this court in Nash v Birmingham Crown Court [2005] EWHC 338 (Admin), upholding the conviction of a woman who had had 75 cats in her home with the predictable consequences. It was only at the very end that the court noted in passing that Mrs Nash had been "given a conditional discharge", one of the conditions being that she could not thereafter look after more than two cats at any one time.
12. Had the power to grant such a conditional discharge been put in issue before the Chester Crown Court -- or, I venture to think, before this court in Mrs Nash's case -- the court would have had to look at section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which provides:

"Where a court by or before which a person is convicted of an offence ... is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either-

(a) discharging him absolutely; or

(b) if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order."

13. It can be seen that the power to grant a conditional discharge is dependent on its being inexpedient to inflict punishment, and that the power to annex conditions is not at large but is confined to a condition of committing no offence during a specified period. In the present case, there was thus no way in which the course desired by the Crown Court could be taken by way of a conditional discharge. Fines had been imposed and were upheld, and the desired condition was in any case outwith the statutory power.
14. I would therefore allow this appeal by quashing the two disqualification orders made by the Crown Court and, as Mr O'Donnell accepts would be appropriate in the present case, by remitting the appeal to the Chester Crown Court for determination in relation to sentence in accordance with the judgments of this court.
15. It may also be that Parliament will want to consider whether the kind of order at which the Crown Court was aiming in the present case should not be authorised by the animal protection legislation.
16. MR JUSTICE BEATSON: I agree with the judgment of my Lord on this matter.
17. LORD JUSTICE SEDLEY: We were conferring, Mr O'Donnell, about what looks like a solecism in section 1(1) of the 1954 Act, where it speaks of disqualification "for" having custody. But the books we have looked at appear to be unanimous about it. No doubt, therefore, since it is an Act of Parliament, it can do no wrong. It is Beatson J and I who are in error.
18. MR O'DONNELL: I am certainly not going to take a point on whether it is "for" or "from". My Lords, that leaves the position in respect of costs.
19. LORD JUSTICE SEDLEY: You came here really to establish the principle for now and any other cases that may arise. You have had really quite large compensation orders already, although they were reduced on appeal, and the fines, I have to say, are very substantial. We have only this morning looked at a drunk driver who paid a lot less in fines. I think we are disinclined to give you your costs unless you want to press from them.
20. MR O'DONNELL: The application for costs would not be against the interested party, in any event. It would be for costs to be paid out of central funds by virtue of the fact that we are not a public authority, nor are we acting for a public authority.
21. LORD JUSTICE SEDLEY: You are in a curious position. You are not a public authority in constitution; you are a charity. But, of course, you do have a statutory position as a prosecutor, which others do not have.
22. MR JUSTICE BEATSON: You are like the NSPCC in relation to children.
23. LORD JUSTICE SEDLEY: Yes. Are you a nominated prosecutor?
24. MR O'DONNELL: Not formally, but notwithstanding that, the RSPCA does comply with all of the statutes that are required --
25. LORD JUSTICE SEDLEY: If you did not do it, nobody would.
26. MR O'DONNELL: Indeed.
27. LORD JUSTICE SEDLEY: Central funds.
28. MR O'DONNELL: My Lord, I am grateful.