CO/8482/2006 
Neutral Citation Number: [2007] EWHC 1083 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 5 March  2007
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE DAVIS 

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HUSSEY
(CLAIMANT) 
-v- 

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS 
(DEFENDANT) 
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MR D MARTIN (instructed by Cartwright & Clark of Milton Keynes) appeared on behalf of the CLAIMANT
MR P ROGERS (instructed by Gordons of Marlow) appeared on behalf of the DEFENDANT
 
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J U D G M E N T
1.	MR JUSTICE DAVIS:  This is an appeal by the appellant, Tracey Hussey, by way of case stated against her conviction on 3 July 2006 at the Milton Keynes Magistrates' Court.  The charge which Miss Hussey was facing before the magistrates was by reference to Section 1 (1) (a) of the Protection of Animals Act 1911, as amended.  Suitably edited to meet the circumstances of this case, the relevant words of the sub-section are as follows:
"If any person -
 (a) shall ..... by wantonly or unreasonably doing or omitting to do any act ..... cause any unnecessary suffering ..... to any animal such person shall be guilty of an offence of cruelty within the meaning of this Act ..... "
It should be mentioned that the phrase "unnecessary suffering" has been the subject of judicial decision in the past.  It has been held that suffering becomes unnecessary when it is not inevitable in that it could be alleviated by some reasonably practical measure (see Royal Society for the Prevention of Cruelty to Animals v Isaacs [1994] Crim LR 517).  
2.	The background facts can be taken from the case stated. The information in question was preferred on 22 September 2005.  It was alleged by that information that between Monday 9 May 2005 and Monday 6 June 2005 Miss Hussey did cause unnecessary suffering to a certain animal, namely a black and tan male German shepherd-type dog, known as Clyde, by unreasonably omitting to provide the said animal with adequate diet suitable for its breed, age and condition, contrary to Section 1 (1) (a) of the Protection of Animals Act 1911.  
3.	The justices found the following facts.  The dog was a two-year old German shepherd dog.  The appellant had sole responsibility for it.  It weighed 18.4 kilograms when it was seized on 6 June 2005.  It had weighed 28.5 kilograms on 7  September 2004 when it last visited the vet.  The dog was significantly underweight for a dog of its age and breed.  The dog, it was found, had been fed before it was seized.  Inspector Braybrooke of the Royal Society for the Prevention of Cruelty to Animals noticed a pack of six cans of dog food, two of which had been used when he seized the dog.  The dog put on weight in kennels without medical care.  It weighed 30.4 kilograms when it was weighed on 24 October 2005.  
4.	It was further found by the justices that German shepherd dogs are prone to small intestinal bacterial overgrowth (SIBO) that can lead to a loss of weight especially in younger dogs.  There was a possibility that the dog was suffering from SIBO during the relevant period between 9 May 2005 and 6 June 2005.  Blood tests taken on 26 July 2005 indicated the possibility of intestinal infection.  
5.	It was further found that the care given by the appellant to other animals in her care was satisfactory.  The appellant fed the dog a range of dog food and changed its diet, particularly when it had diarrhoea.  This was the response of a caring person.  The justices went on to find further that the appellant was aware that the dog had suffered a substantial loss of weight.  The appellant did not act on this loss of weight by taking professional advice from a veterinary surgeon about the dog's condition or its dietary requirements.  During the relevant period between 9 May 2005 and 6 June 2005 the appellant did not change the dog's diet.  
6.	The justices went on to make the following finding:
"The dog was caused unnecessary suffering in that the appellant unreasonably omitted, for want of professional advice which a responsible owner would have sought, to provide the dog with an adequate diet suitable for its breed, age and condition."
7.	The case stated went on at some considerable length to set out details of the evidence that was given before the justices.  This included evidence from an inspector of the Royal Society for the Prevention of Cruelty to Animals, a police constable and qualified veterinary surgeons as well as the appellant herself.  The case stated, having recited that evidence at considerable length, referred to the contentions advanced before the justices and stated:
"We were of opinion that the appellant should have taken professional advice because the dog had a  large weight loss of which she was aware.  She did not act on the loss of weight identified by her,  whereas a responsible person would have taken the dog to a veterinary surgeon for advice about the dog's condition and dietary requirements.  During the relevant period between 9 May 2005 and 6 June the appellant did not change the dog's diet.  This was for want of professional advice which, unreasonably, she failed to seek.  Accordingly we found her guilty of causing unnecessary suffering to the dog by unreasonably omitting to provide it with an adequate diet suitable for its breed, age and condition."
The appellant was fined £200, ordered to pay costs and was  disqualified from having custody of a dog for two years and a deprivation order was made in respect of the dog Clyde.  
8.	The question posed by the justices was in this form:
"The question for the opinion of the High Court is  whether the evidence was such that we were correct in convicting the appellant of the offence of causing unnecessary suffering to an animal, contrary to Section 1 (1) (a) of the Protection of Animals Act 1911, on the basis that she unreasonably omitted, for want of professional advice which a responsible dog owner would have sought, to provide the dog with an adequate diet suitable for its breed, age and condition."
9.	At first sight - indeed at second sight - the relevant  words of Section 1 (1) of the Protection of Animals Act 1911, as amended, would connote an objective test.  It has been expressly found by a Divisional Court, sitting on 11 November 1993 in Hall & Hall v Royal Society for the Prevention of Cruelty to Animals, that the word "unreasonably" connotes an objective test.  Further it was indicated in that case that the appropriate standard for applying that objective test, at all events in many cases, was "that of the ordinary reasonably competent, reasonably humane, modern" owner.  
10.	However there was cited before us today a decision of a differently constituted Divisional Court given on 23 March 1993, that being Lord Justice Evans and Mr Justice Morland, in Peterssen v Royal Society for the Prevention of Cruelty to Animals, [1993] Crim LR 852.  Peterssen was a case on facts very different from the present.  Putting it shortly, the appellant in that case was in the habit of keeping his dogs securely kept in to his caravan.  On this particular occasion he failed so to secure a door of that particular van.  In the event, his dogs escaped and got into an adjoining field  where they killed several sheep and injured a number of others, at a time when the appellant was away from the area.  
11.	In the course of delivering the first judgment, Mr Justice Morland referred to the decision of the court in Greenwood v Backhouse 1902 66 JP 519.  At page 4 of his judgment Mr Justice Morland said:
" ..... in this present case, the mens rea against this defendant was his unreasonable act in failing to secure the dogs within the caravan and thus knowing that if the dogs managed to get out they would, inevitably, run among the lambs and ewes and almost certainly cause them unnecessary suffering, those lambs and ewes being adjacent to where his pack of dogs was housed.
In my judgment the mens rea in this case was in the unreasonable conduct and act of this appellant with the knowledge and foresight he had of the consequences of not securing his dogs within the  caravan that damage would be occasioned, and     suffering would be occasioned, to the lambs and ewes in the field nearby."
Lord Justice Evans, in the course of giving his judgment, said (at page 8):
"But on the authority of Greenwood v Backhouse some guilty knowledge has to be proved against the defendant.  
The question next arises: guilty knowledge of what?  It seems to me that there has to be proved guilty knowledge of the fact that unnecessary suffering would, or might, be caused to the animal in question.
I would readily accept that foresight is an essential element of the guilty knowledge.  The case might well be different, and as at present advised I would say that it would be different, if for any reason it could not be said that the risk of injury to the sheep could have been foreseen."
12.	The submission of Mr Martin, appearing on behalf of the appellant before us today, focuses very heavily on those observations of Lord Justice Evans in Peterssen.  It has to be acknowledged, nevertheless, that the justices in the instant case cnoclusively found a number of things.  First, they found as a fact, and notwithstanding certain passages of the evidence of the appellant, that the appellant was aware that the dog had suffered substantial  loss of weight.  Secondly, the justices found that, in consequence, suffering had been occasioned to the dog and, thirdly, that that suffering was unnecessary.  
13.	Mr Rogers, on behalf of the respondent, did not seek to suggest to us that this court should not follow the decision in Peterssen.  However he submitted that in this case the only mens rea as such that was called to be proved on the part of the prosecution, as against the appellant, was her knowledge of the condition of the dog; and that, he said, had been found by the justices because they expressly found that,  as she knew, the dog had suffered a substantial loss of weight.  Mr Rogers submitted that that was sufficient for these purposes and it was not necessary for there to be any further finding that the appellant knew that there would also - or might - be, in consequence, suffering on the part of Clyde.  
14.	Mr Martin, on the other hand, by reference to what Lord Justice Evans had said in Peterssen, suggested to us that it also had to be proved by the prosecution not only that the appellant knew of the condition of the dog but also knew that that condition would, or might, lead to suffering.  
15.	It may perhaps be noted that in his commentary on the decision in Peterssen, Professor Smith was critical of aspects of the reasoning in that case, albeit not critical of the actual result.  But of course we have to apply that case so far as it establishes any principle applicable to the present case.  That having been said, I think there is a very great deal of force in what Mr Rogers has submitted to us which, I think, not only respects the need for finding of an appropriate degree of knowledge on the part of a defendant in question but also respects the actual wording of Section 1 of the 1911 Act.  But it is unnecessary, so far as I am concerned, to form any concluded view on that because, as it seems, to me at least, that it is inherent in what the justices have found that, whichever way one approaches it, this particular appellant did have the necessary knowledge and foresight.  
16.	The appellant had said that she had not realised that Clyde was unduly thin and had lost a substantial amount of weight.  That evidence was rejected.  It is to be noted that in the course of her own evidence, as set out in the summary in the case stated, at one stage she had admitted that she was aware that there was a problem.  
17.	It seems to me that that is sufficient to show that this charge, on the findings as made by the justices, had been proved.  Accordingly, in my view, that particular line of argument fails.  
18.	Mr Martin also submitted to us that, be that as it may, his client did not have a fair trial for the purposes of Article 6 of the Convention in that the charge as formulated and which he had come to meet at trial was not, in truth, the way in which the case went off on the justices' findings.  He submitted that, in substance, what she was being charged with was a failure to take appropriate veterinary advice but that was not what the information alleged.  He suggested further that had the appellant appreciated that that was the true gravamen of the information then the trial would, or might, have taken a different course and she might have conducted her part of the trial differently.  He did not give any further amplification of that last submission.  As it seems to me, the information was entirely correctly worded by reference to the circumstances of this case because the complaint of the prosecution was that there was a failure to provide an adequate diet suitable for Clyde's breed, age and condition and unnecessary suffering was caused in consequence.  
19.	I would also add that insofar as there was reference made to small intestinal bacterial overgrowth, that was irrelevant to the outcome before the justices because they simply found that there was a possibility that Clyde was suffering from SIBO; and there was no suggestion at all that Mrs Hussey either could have been or should have been aware of that being so.  Accordingly that particular technical complaint by reference to the wording of the information seems to me to be wholly misplaced.
20.	The final point made shortly by Mr Martin was that the justices had wrongly failed to address issues of causation.  I intend no disrespect for that particular argument by saying, no less shortly, that it seems to me there is nothing in that point at all.  
21.	For my part therefore I would dismiss this appeal. 
22.	LORD JUSTICE LATHAM:  I agree.  Like Mr Justice Davis, I have concerns about the extent to which the judgments of this court in Peterssen provide an appropriate, suitable solution to this type of case.  It seems to me that there is substantial force in Mr  Rogers' submission that the mental element in such a case as this is the knowledge by the defendant of the relevant condition of the animal in question.  Thereafter it would appear that the test will be an objective test as described in Hall.  Be that as it may, the findings of the justices in the present case make it unnecessary to come to a concluded view about that.  They are sufficiently clear to justify the conclusion that they reached even if a more subjective approach is taken to the meaning of the section in question. 
23.	I therefore also dismiss this appeal. 
24.	MR JUSTICE DAVIS:  I desire to add by way of addendum that we were briefly referred to the provisions of the Animal Welfare Act 2006.  The position is likely to change from that which previously prevailed by reference to the wording of Section 4 of the 2006 Act which is not yet in force.
25.	MR ROGERS:  I ask for a costs order to be taxed out of central funds.
26.	LORD JUSTICE LATHAM:  Certainly.  You have nothing to say about that Mr Martin? 
27.	MR MARTIN:  No.
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