QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
Wednesday 14th June2006
B e f o r e :
| The Queen on the application of
|- and -
|STAFFORD BOROUGH COUNCIL
|- and -
|(1) THE PARROT SOCIETY U.K.
(2) STAFFORD SHOWGROUND LTD
(3) SHAUN SMITH
(4) THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Eric Owen instructed by the Head of Law and Administration, Stafford Borough Council for the Defendant.
Ms Carine Patry instructed by Knights Solicitors for the First and Second Interested Parties.
The Third Interested Party did not take part in the hearing.
Mr Paul Harris instructed by the Head of Litigation and Prosecution Division, Department for Environment, Food and Rural Affairs, for the Fourth Interested Party.
Crown Copyright ©
Mr Justice Walker :
History of the proceedings
"The judicial review application should take its ordinary course (with any necessary amendments) and can be resolved so as to give guidance in respect of any future such events."
"Member states shall ensure that the collection of poultry and other birds on markets, shows, exhibitions and cultural events is prohibited; however the competent authority may authorise the collection of poultry and other captive birds on such premises subject to the favourable outcome of a risk assessment."
"(1) No person shall permit birds to be collected together at any fair, market, show, exhibition or other gathering except under the authority of a licence issued by the Secretary of State.
(2) The Secretary of State shall only grant a licence if a veterinary risk assessment has been carried out and she is satisfied that the gathering and the transit of birds to and from the gathering would not significantly increase the risk of the transmission of avian influenza virus (in particular of virus of the sub-type H5N1)."
The Criminal Liability Question
(i) The Council submitted that no bar on private prosecutions arose from anything in the 1951 Act or the law concerning the prosecution of offences.
(ii) The Claimant advanced two submissions. The first was that what was challenged was not a decision of criminal procedure but a decision to grant a licence, and accordingly concerns about the dividing line between civil and criminal courts were simply not applicable. The second was that the second and third propositions above, when applied to this case, led to the conclusion that declaratory relief was appropriate. The facts as to what occurred at the October 2005 event were agreed. No question of fact arose as regards the AIV General Licence. As to private prosecution, this was not barred by statute, but inquiries of the RSPCA had revealed a separate problem. This was that in a case where a licence had been granted by a local authority the public interest test in the Code for Crown Prosecutors would not be met. Accordingly the RSPCA, although it considered that sales in the course of business at bird fairs contravened s 2 of the 1951 Act, had not prosecuted those involved as it believed that the Director of Public Prosecutions would take over the prosecution (under section 6 of the Prosecution of Offences Act 1985) and discontinue it. The result was that the civil court was the only court which in practice could resolve important questions of animal welfare law.
(iii) The Secretary of State accepted that both local authorities and private individuals could prosecute a breach of Regulation 5 of the Avian Flu Regulations. However under Regulation 13 the Secretary of State had power to take over any prosecution by a local authority. If a local authority prosecutor contended that the AIV General Licence was invalid, the Secretary of State would take over the prosecution and discontinue it. For similar reasons to those identified by the RSPCA, if a private prosecutor advanced such a contention the DPP would take over the prosecution and discontinue it, a course which the Secretary of State would support.
(iv) The Secretary of State added that the Animal Welfare Bill would, if enacted in its current form, allow the repeal of relevant provisions in the 1951 Act.
(v) The Parrot Society and the Showground Operator pointed out that the Section 2 Declaration would in effect stigmatise as criminal a number of bird fairs, for some of which the 6 month time limit had not yet expired. They said that criminal proceedings were "entirely realistic and possible." In particular, a private prosecution remained available and it mattered not whether the RSPCA chose to take action: the claimant could not rely upon his own failure to bring a private prosecution. The question the claimant wished to be determined was "not a crucial issue" it had remained unresolved for 25 years, since the advent of bird shows. These proceedings were a proxy for criminal proceedings and presented no features of 'exceptionality.' There was no evidence that any local authority desired clarity on these issues. Moreover the Animal Welfare Bill would soon provide clarity.
(vi) The claimant replied that the court could not assume that the Bill would be enacted as presently drafted, nor could it assume that a power to repeal relevant provisions of the 1951 Act would inevitably be exercised.
(i) In my view the Criminal Liability Question arises for consideration in relation to all three declarations. The mere fact that what is challenged is not a decision of criminal procedure cannot of itself relieve the civil court of the need to consider possible criminal consequences of the relief sought. I mention in passing in relation to the AIV General Licence Declaration that the parties did not seek to argue a more general proposition which might also have engaged the Criminal Liability Question. This is that in the ordinary course, in the absence of fraud or other similar conduct on the part of a licence-holder or predecessor in title, a licence is to be treated as valid unless and until it is quashed. As a matter of construction it might well be that a conclusion by this court that the AIV General Licence was invalid would not entail criminal liability for anyone. As the point was not argued I say no more about it. As regards both the Section 2 Declaration and the Different Traders Declaration it seems to me that on any view they require the court to consider questions which as a matter of construction are relevant to the potential criminal liability of a large number of persons. These proceedings involve as parties only a small selection of those persons. In particular, those who have in the course of a business sold birds at bird fairs are not parties. They would in relation to any criminal proceedings be directly affected by these two declarations, for the court would have pronounced on questions relevant to any prosecution. Concern about usurping the functions of the criminal court is not removed by the mere fact that these are proceedings for judicial review of a licensing decision. All other things being equal the issues in question are best decided in the criminal court between a prosecutor and a person who is alleged to have committed a relevant offence. I should only pronounce upon these issues if the circumstances are truly exceptional.
(ii) Both the Section 2 Declaration and the Different Traders Declaration require the court to determine the law and apply it to the facts of the October 2005 Event. While certain facts relevant to that event have been agreed between the claimant and the Council, the Parrot Society and the Showground Operator, those who in the course of a business sold birds at that event have played no part in this process, and as mentioned above are not party to these proceedings. For those reasons alone I would refuse to grant those declarations in the form drafted by the claimant. It remains for consideration whether declarations as to the true construction of the 1951 Act could be granted without trespassing into fact sensitive areas. By contrast, the AIV General Licence Declaration is not fact sensitive.
(iii) There is a strong public interest in resolving the issues of pure law which arise on all declarations sought. This is common ground in relation to the AIV General Licence Declaration. In relation to the 1951 Act, it is said that the points which arise have gone unresolved for 25 years. That in my view does not lessen their importance. Certain local authorities accept the view of the RSPCA that under the 1951 Act sales in the course of a business cannot lawfully take place at bird fairs. Others disagree and have licensed bird fairs accordingly. The effect is that people in different areas of the country are in practice governed by different views as to what the law of the country as a whole requires. That is in principle offensive to the rule of law and the fact that it has continued for some years makes it more offensive. It calls for remedy. The matter may be remedied if the Animal Welfare Bill is enacted in its present form and if the power to repeal relevant sections of the 1951 Act is exercised. I cannot, however, assume that either of these events will in fact occur.
(iv) For the reasons given at (ii) above, I would refuse to grant the Section 2 Declaration and the Different Traders Declaration in the form drafted by the claimant. When considering whether to grant declarations as to the true construction of the 1951 Act, and whether to grant the AIV General Licence Declaration, I must be satisfied that those declarations would not treat conduct as criminal which is not clearly in contravention of the criminal law.
(v) The same considerations as at (iv) above apply.
(vi) The fact that these proceedings are not brought by the Attorney General means that I must proceed with particular caution.
(vii) These proceedings involve existing conduct and this means I must proceed with particular caution.
(viii) It is common ground in relation to the AIV General Licence Declaration that there is no alternative remedy. In relation to the 1951 Act, those opposing declaratory relief recognised that a local authority which granted a licence could hardly turn round and prosecute traders on the basis that activities contemplated with equanimity by the local authority when granting the licence were nevertheless unlawful. It was said, however, that a private prosecution could be brought. In theory that is true. In practice it is not true. I see no reason to doubt the conclusions of the RSPCA as reported in the claimant's written submissions. It would on its face be unjust and a substantial abuse of power to allow a person who had relied upon an apparently valid licence to be prosecuted for committing an offence when the licence had plainly been granted in order to authorise the activity in question. There would thus be every reason for the DPP to intervene. Subsequent written submissions from other parties did not contest this specific reason given by the RSPCA for the absence of any private prosecutions. I conclude that in practice there is no alternative remedy in relation to any of the declarations sought.
The Section 2 Declaration
The Different Traders Declaration
"STAFFORD BOROUGH COUNCIL HEREBY LICENCE THE PARROT SOCIETY UK being the [proposed] occupier of premises known as SIX HALLS AT THE STAFFORDSHIRE COUNTY SHOWGROUND to KEEP A PET SHOP at those premises This licence shall remain in force until and including SUNDAY 9 OCTOBER 2005."
"References in this Act to the keeping of a pet shop shall be construed as references to the carrying on at premises of any nature (including a private dwelling) of a business of selling animals as pets, and as including references to the keeping of animals in any such premises as aforesaid with a view to their being sold in the course of such a business, whether by the keeper thereof or by any other person:
The Avian Flu General Licence
"The measures of the Decision should be risk-based and not limited to short term action "
"2. Member states shall ensure that the bringing-together of poultry and other birds at markets, shows, exhibitions and cultural events, including point-to-point races of birds, is prohibited. However, the competent authority may authorise such gatherings of poultry and other captive birds, provided that the result of a risk assessment is favourable."
"(1) No person shall permit birds to be collected together at any fairs, markets, shows, exhibitions or other gatherings except under the authority of a licence issued by the Secretary of State.
(2) The Secretary of State shall only grant a licence if a veterinary risk assessment has been carried out and she is satisfied that the gatherings and the transit of birds to and from the gatherings would not significantly increase the risk of transmission of avian influenza virus (in particular of virus of the sub-type H5N1)."
MR JUSTICE WALKER: For the reasons given in my written judgment I allow this application for judicial review to the extent that I will make declarations as to the true construction of the Pet Animals Act 1951. In all other respects this claim is dismissed. I invite submissions as to consequential orders.
MR BATES: My Lord, Miss Patry has another engagement and would therefore be grateful if we could deal with the declarations point first.
MR JUSTICE WALKER: Yes.
MR BATES: I received your Lordship's e-mail of last night. I want to apologise to the court for any difficulty or confusion by the form in which I drafted the second declaration.
MR JUSTICE WALKER: No need to apologise. Let us deal with the first declaration first. Is everyone content that we substitute "refers to" for "means"?
MR OWEN: Yes, my Lord.
MR BATES: Yes, my Lord.
MR JUSTICE WALKER: Thank you. So we turn to the second declaration.
MR BATES: On the second declaration, my Lord, as I understand it all parties are content with the second declaration in the way that your Lordship has drafted it.
MR JUSTICE WALKER: Excellent. In that case it may assist if I ask one of the parties to draw up the terms of an order, given that there has been a bit of to-ing and fro-ing. Will one of you take that on?
MR BATES: We are happy to do that, my Lord.
MR JUSTICE WALKER: That is very kind. What other matters arise?
MR BATES: That deals with matters so far as declarations are concerned. The only remaining matter, my Lord, is costs. Now, I accept straightaway, first of all, that the claimant did not succeed on all points. In particular, the claimant did not succeed on the DEFRA point and also that the declarations had differed materially from the original declarations that the claimant proposed. Just dealing with the second aspect of that, the declaration, first of all, when the claimant began these proceedings, clearly there was no criminal risk to anyone (if I can put it that way) because at that time of course the October event had not yet been held. So the claimant was simply establishing that the proposed events fell within a particular criminal offence that was set out in the statute.
MR JUSTICE WALKER: What happened about your application for expedition?
MR BATES: The original application for expedition was refused.
MR JUSTICE WALKER: Yes, and was anything said about costs?
MR BATES: Nothing was said about costs at that stage, my Lord, no.
MR JUSTICE WALKER: Are you making an application for costs now?
MR BATES: I am, my Lord, yes.
MR JUSTICE WALKER: Against?
MR BATES: Against the local authority.
MR JUSTICE WALKER: Against Mr Owen?
MR BATES: Yes. I apologise for not making that clear.
MR JUSTICE WALKER: Do you seek costs in full?
MR BATES: We do seek costs in full, my Lord, yes. But on the construction of the Pet Animals Act it is clear, in my submission, that the claimant has succeeded on the substance of the matter and that if this claimant had been heard prior to the October event being held, on the basis of the findings of law that your Lordship has made, the licence which the local authority had granted at that stage would have been quashed. Moving on to the DEFRA point --
MR JUSTICE WALKER: That is by no means clear.
MR BATES: Well, at any rate, my Lord, the licence should not have been granted, given that, on your Lordship's findings in respect of the law, that event, as conceded by the organiser, would have involved the commission of offences eventually.
MR JUSTICE WALKER: On the way that you have put it, questions would have arisen as to the commission of criminal offences. I would not have quashed the granting of the licence for the reasons that you gave, namely that as envisaged by the organiser it involved the commission of a criminal offence. That would not have happened because the court would not inquire into that. What the court would do would be to look at the construction of the Act and make declarations, whether we were before or after 9 October, as it seems to me.
MR BATES: My Lord, I do not wish to transgress into the issue of when the court can and cannot make declarations in respect of criminal matters, if I can put it that way, because my Lord dealt with that very fully in his judgment. My point is that in effect the parties throughout these proceedings have conducted themselves on the basis that the correct construction of section 2 would depend upon whether or not the licence should have been granted. The approach which the local authority took to the grant of that licence was originally, as my Lord is aware, that because the defendant was not a franchise market --
MR JUSTICE WALKER: Let me try to help you. So far as the oral argument was concerned, once we had disposed of the criminal liability question, there were three areas of law that were debated. Area one concerned section 2 of the 1951 Act. Area two concerned by and large section 1, but also section 7 of that Act. Area three concerned the European Commission decision and the consequent regulations. You succeeded as regards construction effectively on areas one and two; but you failed so far as the criminal liability question was concerned, and you failed on area three, the Avian Flu Regulations.
MR BATES: Yes.
MR JUSTICE WALKER: So this is not a case where at the hearing you succeeded on all points.
MR BATES: No, my Lord.
MR JUSTICE WALKER: You succeeded on half.
MR BATES: It is not my submission at all that we succeeded on all points. I accepted that right at the outset. All that I am saying in respect of the declarations is that clearly when the declarations were granted, they were granted on the basis that section 2 created a criminal offence. That is why reference is made to a criminal offence in the declaration as originally drafted. Of course at that stage the risk to any particular party of criminal proceedings was not live because the event had not taken place.
So far as the DEFRA point is concerned, my Lord, of course originally there were a number of points which were made regarding the DEFRA licensing regime. Only one of them was ultimately pursued at the final hearing essentially because DEFRA recognised the force of the other points and amended the basis accordingly. I do not suggest for a moment that your Lordship should make any finding with respect to the force of those. My submission is that it was necessary for the validity of the licensing regime to be considered as part of the context of these proceedings, given the first licences had been issued in March. Now, if my Lord were of the view that therefore the claimant should not be entitled to recover all of his costs, then it would be necessary to consider the amount of costs that were attributable to that point.
MR JUSTICE WALKER: Wait a minute. At the moment you are making submissions in support of an application that a hundred per cent of your costs should be paid by the defendant, Stafford Borough Council?
MR BATES: Yes, my Lord.
MR JUSTICE WALKER: And I have your point that you succeeded on the substance of the matter as regards the 1951 Act.
MR BATES: Yes, my Lord.
MR JUSTICE WALKER: Now, on the Avian Flu Regulations are you saying that Stafford Borough Council ought to pay your costs on the proceedings in relation to and argument about the Avian Flu Regulations?
MR BATES: My Lord, the point which I make about that is of course the arguments which were made on the Avian Flue Regulations were not simply with respect to the point which was ultimately decided by the court because when this point was originally advanced the Avian Flu Regulation regime was very different from the regime as it was at the time when the hearing took place, and of course it was the old regime (if I can put it that way) that was in force at the time when the March 2006 licence was granted.
MR JUSTICE WALKER: You have reached an agreement though, have you not, with DEFRA as to DEFRA's costs of appearing in these proceedings?
MR BATES: My Lord, as DEFRA is an interested party, we have not sought any costs against them and they have not sought any costs against us.
MR JUSTICE WALKER: But, nonetheless, you say that the costs of the avian flu argument have to be borne by the Borough Council, even though they were not responsible for the Avian Flu Regulations or the general licence in any way?
MR BATES: All I say on the point, my Lord, is that there were a number of different grounds of challenge to the licences which the local authority had issued. Now, the claimant has succeeded on certain of those grounds and I cannot say any more than that. It is a matter for my Lord --
MR JUSTICE WALKER: Yes.
MR BATES: -- as to what my Lord thinks is the fair outcome. Also I will say, my Lord, that if the court is not with me on the position which I have advanced on the first position, that the council should bear all of the costs, then it is necessary to look at what proportion of the costs were attributable to the DEFRA argument. My submission on that is that the DEFRA arguments were not introduced into these proceedings at all until a fairly late stage -- as late as 1 March of this year -- these proceedings having been started last September. Secondly, as my Lord will recall from the substantive hearing, the DEFRA arguments occupied a very small amount of time -- something like half an hour -- and, as I recall, in fact Mr Harris left at the conclusion of that argument and the proceedings carried on for some considerable time after that. Therefore I would suggest that if the claimant is not to have all of his costs, the deduction should be somewhere in the region of ten or fifteen per cent.
MR JUSTICE WALKER: There has been no previous costs order in relation to any aspect of the case, has there?
MR BATES: There was a previous costs order, my Lord, in relation to the seeking of interim relief on March 1.
MR JUSTICE WALKER: Before McCombe J?
MR BATES: Miss Patry who is here actually represented Mr Shaun Smith, who was the organiser of the March 2006 events, and as part of those proceedings on that day the claimant sought interim relief. That application was refused and McCombe J made an order for costs in favour of Mr Smith with respect to the interim relief issue.
MR JUSTICE WALKER: Yes.
MR BATES: And of course that order was subject to the usual proviso in the case of a legally aided claimant.
MR JUSTICE WALKER: Yes, I follow. Thank you. Miss Patry, there is no application against you for costs and you make none?
MISS PATRY: That is correct, my Lord.
MR JUSTICE WALKER: Thank you. Mr Owen?
MR OWEN: My Lord, I resist the order sought, the order for the council to pay 100 per cent costs. I accept that the council must pay some of the costs. It is plain in the first place that the claimant failed on the third declaration -- the DEFRA point. It would appear that agreement has been made between the claimant and DEFRA that no orders as to costs will be sought as between themselves, and now the claimant seeks to obtain an order for costs embracing that element against Stafford Borough Council. In terms of the quantum, Mr Bates says that this issue --
MR JUSTICE WALKER: I can cut you short on the DEFRA point. At the moment it seems to me that that was an issue which, in truth, arose between the claimant and DEFRA and that you were forced to appear and to play some part in it, but the part that you played in it was very minor and I can see no basis whatever upon which the claimant could seek costs against you.
MR OWEN: I am very grateful for that, my Lord. I accept that the claimant has succeeded in relation to the section 2 declaration. In relation to the section 1 and the section 7 declaration on the Pet Animals Act, it is the case, my Lord, that until this morning the claimant was still seeking a different form of declaration from the words and findings represented by those words in paragraph 52 of your Lordship's judgment. It is now accepted by the claimant that what your Lordship sought to achieve and did achieve in paragraph 52, and the preceding paragraphs containing the reasoning, was to ensure that fact-sensitive situations could be addressed if necessary.
MR JUSTICE WALKER: Yes.
MR OWEN: Because your Lordship was obviously concerned about criminalising those whose conduct might be so characterised, even though they are not before this court. So I would respectfully suggest that, so far as the second declaration is concerned, the claimant has not, in fact, achieved the declaration as sought.
MR JUSTICE WALKER: That is true of both of them. What was sought in relation to the first was a declaration of criminal liability.
MR OWEN: I was coming on to that further point, my Lord, because trespassing on the issue of quantum of court time involved here, your Lordship made the point in argument with Mr Bates a few moments ago that much time was indeed spent on the criminal liability issue and the claimant has failed on that also. It follows, therefore, my Lord, that when one looks at the declarations as made by your Lordship in your Lordship's judgment, and compares it with the claim as advanced, there is an obvious difference and the claimant has not succeeded in relation to either. But, nonetheless, I accept, my Lord, trying to be realistic, that Stafford Borough Council will have to pay some of the costs. What I do submit is that that should be a small portion in the circumstances, especially bearing in mind the criminal liability issue; secondly, the terms of the declarations as sought; and thirdly, the DEFRA issue, which was effectively between the claimant and the Department.
My Lord, in addition, of course, whilst there has been one order for costs made in these proceedings, as your Lordship knows, on 1 March, no other order for costs has been made, and the claimant has also failed, first of all, in relation to seeking to stop the October 2005 event, which he sought to do before Burton J on paper; and secondly, the claimant failed to stop the March event, which he sought to do before McCombe J. So, my Lord, in my respectful submission, the claimant should not recover costs in respect of any of those matters or argument incidental to those matters, and I would respectfully submit that justice in this case would be reflected by a very small order for costs -- perhaps 25 or 33 per cent.
MR JUSTICE WALKER: Yes. Mr Bates?
MR BATES: My Lord, I will be extremely short. So far as the points made by my learned friend about the drafting of the declarations last night --
MR JUSTICE WALKER: No, you need not trouble about that. The substantial point is that you sought two particular declarations. On any view you have not been granted those declarations.
MR BATES: My Lord, I have already made my point on that. One has to look at what was put forward in the context of the time when it was put forward.
MR JUSTICE WALKER: Yes.
MR BATES: As far as the discussion of the criminal liability -- the substantive hearing in respect of that -- this was of course an important point, but a point that was made by your Lordship on the day of the hearing, which none of the parties had considered, and in my submission it is a point that does need to be considered anyway in a case where we were concerned with the interpretation of section 2 against the background of a challenge to a licence which had then been overtaken by events in terms of the events already being held.
Finally, insofar as the 1st March hearing is concerned and the seeking of the interim relief, as I stated earlier, my Lord, McCombe J did make an order in favour of the true object of the interim relief which was Mr Smith, and the hearing on 1 March would have had to take place anyway because, as my Lord will recall, there were a substantial number of orders made on that day, not least in respect of the expansion of ground A.
MR JUSTICE WALKER: On which you lost.
MR BATES: I accept that, my Lord. The point that I was making was in relation to the interim relief, that there was no additional cost caused to the local authority in respect of that application and therefore, in my submission, that aspect has already been dealt with by an order for costs made by McCombe J.
MR JUSTICE WALKER: Yes.
MR BATES: Thank you, my Lord.
J U D G M E N T:
MR JUSTICE WALKER:
MR OWEN: May that be subject to a detailed assessment, my Lord?
MR JUSTICE WALKER: Yes, subject to a detailed assessment if not agreed.
MR OWEN: Thank you, my Lord.
MR BATES: My Lord, may I also ask for the usual detailed assessment of the claimant's costs?
MR JUSTICE WALKER: Yes, detailed assessment of the claimant's publicly funded costs.
MR BATES: I am grateful, my Lord.
MR JUSTICE WALKER: Anything else arising? Thank you all.