England and Wales High Court (Administrative Court) Decisions

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

		CO/3916/2014 Royal Courts of Justice Strand London WC2A 2LL
		11th March 2015

1. LORD JUSTICE BEATSON: This is an application for judicial review of the decision of District Judge Sheraton, sitting at Colchester Magistrates' Court on 20th June 2014, to exclude evidence which the claimant, the Royal Society for the Prevention of Cruelty to Animals (which I shall I refer to as the "RSPCA") sought to adduce at the trial of Deborah Fuller and Philip Sheldrake (the interested parties). They were charged with committing offences under sections 4(1) and 9(1) of the Animal Welfare Act 2006 in relation to 44 dogs kept at their premises. As a result of the district judge's decision all charges were dismissed.
2. In an application dated 10th July 2014 the RSPCA requested the court to state a case for the opinion of the High Court. Notice had previously been given to the court of the RSPCA's intention to do this. On 10th July, the same day as the formal application, the District Judge refused to state a case certifying the application as frivolous. He stated that it was frivolous because his decision to exclude the evidence was an exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984. He referred to a Divisional Court case which stated that it would be loathe to interfere with the exercise of such a discretion short of Wednesbury unreasonableness. The District Judge stated that his decision was not, and could not be said to have been, Wednesbury unreasonable. Accordingly, it was within the scope of his discretion under section 78.
3. These proceedings were filed on 20th August 2014. The claimant sought a mandatory order requiring the Magistrates' Court to state a case or in the alternative the determination of two questions framed by, or, on its behalf. The questions were:

"Based on the facts as [the District Judge] found them to be and the submissions made on behalf of the parties was the decision the [the District Judge] reached legally sound and reasonable?"

and:

"If it was not should [the District Judge] instead have refused the application to exclude the evidence of the search and continued to hear the trial?"

Permission was refused on the papers on 29th September 2014 but granted following an oral hearing before McGowan J on 28th November. When granting permission the learned judge observed that, as the Magistrates' Court had already given a reasoned judgment containing all the necessary facts and explained its refusal to state the case, in the light of the authorities, there was nothing to be gained by ordering that a case be stated.

4. The material statutes in these proceedings are the Environmental Protection Act 1990 ("EPA"), the Animal Welfare Act 2006 ("AWA") and, although no longer material, the Breeding of Dogs Act 1991. The material provisions are Schedule 3 paragraph 2 of the EPA and sections 19, 52, 18 and 15 of the AWA. I order them that way because section 19 deals with the power of entry for section 18 purposes. Section 52 deals with conditions for grant of a warrant, including the fourth condition which was relevant at one stage of this case. It is that it is "inappropriate to inform the occupier of the decision to apply for a warrant because it would defeat the object of entering the premises" or because "entry is required as a matter of urgency" (section 52(5)). Section 18 concerns powers in relation to animals in distress. In particular 18(5) provides:

"An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies—

(a)that it is suffering, or

(b)that it is likely to suffer if its circumstances do not change."

5. For the purposes of the Animal Welfare Act, inspectors, who are one of the categories of those authorised to enter, have to be designated by the appropriate authority. Section 51 is the empowering provision. Mr Fullerton, on behalf of the Ms Fuller, stated that RSPCA inspectors are not designated under the Act and that appeared not to be contentious.
6. The material facts can be stated relatively briefly. On 1st August 2013 Ms Wesley Smith, an officer of the Tendring District Council applied for a warrant authorising her to enter premises at Manningtree in Essex if need be by force pursuant to the Environmental Protection Act 1990, the Animal Welfare Act 2006 and the Breeding of Dogs Act 1991. The warrant mistakenly designated the latter the 1999 Act. Indeed throughout the papers including Mr Jenkins' grounds and various skeleton arguments, the EPA is described as the 1999 Act but it is clear that the Act we are concerned with is the 1990 one.
7. The background information supporting the warrant stated that the Council's Environment Health team had been dealing with ongoing complaints about the premises since 2008. There were, at the date of the application, complaints concerning the condition of the animals within the premises, excessive barking from the dogs, odour emanating from the premises, accumulations of dog faeces within the premises and the breading of dogs within the premises and under the ownership of Ms Fuller and Mr Sheldrake.
8. The documents supporting the application stated that the council was unable to undertake a comprehensive assessment of the premises because officers had always been refused access. It was stated that Ms Fuller was extremely hostile to their officers. The document also stated that the purpose of trying to obtain a warrant:

"... is to enable us to ascertain whether there is a statutory nuisance emanating from the premises and to allow the council's animal welfare officer to assess the conditions of the dogs within the property and surrounding grounds within the assistance of a RSPCA officer and RSPCA appointed veterinary. It was stated that advising Ms Fuller and Mr Sheldrake the council's intention to enter the property and grounds would in the Council's opinion be detrimental to the case."

9. On the same day a Justice of the Peace issued a warrant to enter the premises "under the Environmental Protection Act 1990". The warrant stated that "it is necessary" that Ms Wesley Smith should enter the premises under that Act and that "it is apprehended that admission to the premises will be refused and an application for admission would defeat the object of the entry". The only reference in the warrant to the two other statutes referred to in the application is in the heading at the top of the warrant. But the words there are struck out in manuscript. The District Judge stated that the reference to those statutes "had been struck through by a legal adviser or magistrate indicating a refusal of the applications under those statutes."
10. The warrant was executed on 7th August 2013. Ms Wesley Smith attended the with PC Jane Thomas to execute the warrant. She was also joined by Ms Sage, another Council officer, and Mr Taylor a RSPCA inspector. Some of the information in these facts is from the claimants' statement of facts submitted with the application for judicial review. The summary of the evidence in those grounds of review states that Mr Taylor stated that he was invited onto land at 10.30 am by the police and council officers.
11. At some stage Mr Taylor telephoned Dr Natasha Bond, a veterinary surgeon, who attended and inspected the dogs. According to the summary in the grounds, in Police Constable Thomas' evidence she noted that the vet arrived at 1.00 pm, ie two-and-half hours after the commencement of the search. Dr Bond signed the certificate pursuant to section 18(5) of the Animal Welfare Act, which empowers an inspector or a constable to take a protected animal into possession if a veterinary surgeon certifies that it is suffering or likely to suffer if its circumstances do not change.
12. During the remainder of the day the dogs were removed from the premises to other boarding establishments (see paragraph 8 of the judgment). Their condition led to three charges of causing unnecessary suffering contrary to section 4 of the Animal Welfare Act and 10 charges of failing to take reasonable steps to ensure the needs of the dogs were met contrary to section 9. The section 9 charges related to a variety of problems including not providing a suitable diet or environment, failing to arrange veterinary care for a facial disease and confining the dogs to kennels for long periods.
13. The trial was heard over five days between 16 and 20 June. At the conclusion of the prosecution case the defendants' representatives submitted that the court should exercise its discretion under section 78 to refuse to allow evidence arising from the search of the premises as, having regard to all the circumstances, the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The basis of the defence submissions are summarised in paragraphs 13 to 19 of the District Judge's judgment. In a nutshell it was contended on behalf of the defendants that the search was commenced and proceeded with in breach of code B6.9 of the Police and Criminal Evidence Act, which states that:

"Premises may be searched only to the extent necessary to achieve the purpose of the search having regard to the size and nature of whatever is sought."

I interpolate at this stage that, although this is not part of the summary of the defence case, that section 16(8) of Police and Criminal Evidence Act provides:

"A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued."

and Code B paragraph 6.9A provides that:

"A search may not continue under a warrant's authority once the object of the search has been achieved."

14. The District Judge stated that authority to enter had only been given under the Environmental Protection Act 1990, in other words, to establish whether there was a statutory nuisance. The condition of the dogs way not a valid purpose of the warrant issued under the Environmental Protection Act 1990 and the application for a warrant under the other Acts had not been granted. He found that the warrants under the Animal Welfare Act and the Breeding of Dogs Act had been refused. In the case of the Animal Welfare Act 2006 (see paragraph 21) because the qualifying criteria in section 52 of the Act were not present at the time of the application. He did not explain why this was so other than to say "on the information before me it is clear that the qualifying criteria for a warrant was not present". I have considered whether this point, which was not raised in the original grounds, affected matters down the line and have concluded that it does not. The warrant was not issued under the Animal Welfare Act and Mr Jenkins in fact did not develop that part of the written grounds. I consider that he was correct not to do so as the point did not get anywhere.
15. Returning to the judgment, the consequence (see paragraph 23) was that the warrant only permitted a search of the premises to ascertain the statutory nuisance was being committed and not to ascertain the condition of the animals or whether unlawful dog breeding was taking place.
16. Moreover (see paragraph 24), notwithstanding the statement in the code B "Notes for Guidance" that those involved in the search should all be fully briefed about any powers to be exercised and the extent and limits of them, it was clear that no such briefing took place. Neither Mr Taylor nor PC Thomas looked at the warrant and so they were not aware of any limitations in it. Additionally (see paragraph 28), Ms Wesley Smith's evidence was that, when she attended to execute the warrant, she told Ms Fuller that the warrant was for a statutory nuisance to check how many litters there were and to check the welfare of animals. The District Judge stated at paragraph 29 that it was evident that:

"Notwithstanding the refusal of the magistrate to grant a warrant under the Animal Welfare Act the council officers have proceeded to use the warrant granted under the Environmental Protection Act as if it had also been granted under the Animal Welfare Act."

He also stated that at paragraph 32, that both Council officers and Mr Taylor were "inexperienced in the obtaining of an execution of warrants" but that both council officers had stated they were "PACE trained".

17. In considering whether to exercise his discretion under section 78, the District Judge stated that he had to consider all the circumstances including the circumstances in which the evidence was obtained. He took into consideration the lack of understanding or failure in training of the Council officers and Mr Taylor, as to the limits of searches under Police and Criminal Evidence Act, and that Ms Wesley Taylor had stated that the warrant allowed for inspections of dogs "when clearly that was not the case" (see paragraph 33).
18. The District Judge accepted (at paragraph 32) that this may have been a lack of understanding or a failure of training and (at paragraph 35) that it may have been the result of inexperience and misunderstanding rather than malicious intent. He considered that the extension of the purpose of the warrant in ascertaining whether there was a statutory nuisance to welfare enquiries about the animals was a breach of code B6 and (see paragraph 34), it was the evidence of obtained as a result of the unauthorised search that led to the arrest of Ms Fuller. He concluded:

"35. I am of the opinion that in operating in the manner in which she did Ms Wesley Taylor circumvented the refusal of the magistrate to grant a warrant under the AWA. While I accept this may have down to experience of misunderstanding rather than any malicious intent, in further advising Ms Fuller that the warrant permitted inspection of the dogs when it clearly did not and she should have known that it did not, she acted to the serious detriment of the householder.

36. I have weighed in the balance the adverse effect of admitting the evidence as against excluding it and acknowledging that without the evidence obtained from the search there would be no other evidence on which the prosecution could rely. But in the circumstances that I have found, I am not able to condone the breaches mentioned and I exclude the evidence obtained during the search of the premises."

19. The grounds upon which the RSPCA originally sought judicial review of the refusal to state the case are:

(i) on the facts the District Judge erred in finding that the application for a warrant under the Animal Welfare Act was "refused" by the magistrate who issued the warrant;

(ii) the District Judge erred in law in finding that the warrant could not have been granted pursuant to section 52 of the Animal Welfare Act, or alternatively reached a perverse decision on the facts;

(iii) the judge erred in finding that those lawfully on the premises were confined by the terms of the warrant and had no authority to investigate welfare issues. The investigation of welfare issues was a subordinate purpose which in the light of the decision of the Divisional Court (Richards LJ and Openshaw J) in R Hicks v Commissioner of Metropolis [2012] EWHC 1947 (Admin) paragraphs 230 and 235, showed that even if the dominant purpose for entry was to enquire in aspects of statutory nuisance, items found outside the scope of the search could be seized. Accordingly when discovering offences contrary to the Animal Welfare Act the officers presence did not become unlawful. Neither did the examination of the dogs and their conditions. Accordingly there was no breach of the code.

20. The last two grounds are alternatives to the primary submission that the judge in erred in finding there was a breach of the provisions of the code. It was contended (ground (iv)) that the breaches of the code were not substantial, and were made in good faith. Secondly, it was contended ground (v)that the District Judge failed to identify properly the issues of prejudice and he was wrong to find prejudice to Ms Fuller and Mr Sheldrake. He was wrong to do so, it was submitted because their case was not that the animals were not in a poor condition but that the situation was a temporary one.
21. In the event Mr Jenkins primarily pursued ground (iii), that based on Hicks case. He also relied, in the alternative, on the submission that even viewed as a matter of discretion, the District Judge had stepped outwith the broad discretion given to him to exclude evidence.

Analysis

22. The District Judge stated at paragraph 17 that there was no suggestion that the warrant under the EPA had been wrongly granted. Mr Jenkins submitted that it followed from this that those searching the premises were authorised to be on the premises and were searching lawfully. They were authorised to search for noise from excessive barking, odour emanating from the premises and the accumulations of dog faeces within the premises. What, he asked, were those searching meant to do when they discovered evidence of an arrestable offence? He submitted they were entitled to seize that evidence under section 19 of the Police and Criminal Evidence Act and/or section 18(5) of the Animal Welfare Act.
23. I have extracted the material parts of section 18(5). Section 19 of the Police and Criminal Evidence Act provides that the powers conferred under the section are exercisable by a constable who is lawfully on any premises and such a constable (under 19(3)) can seize anything which is on the premises if he has reasonable grounds for believing that his evidence in relation to an offences which he is investigating or any other offence and that it is necessary to seize it in order to prevent the evidence being concealed lost or destroyed.
24. In response to questions from the Bench Mr Jenkins accepted that it would not have been lawful to extend the scope of the search beyond the terms of the warrant granted. He also accepted that, once the purposes of the authorised search had been achieved, it would not have been lawful to conduct another search for another purpose. He was right to concede that in view of the terms of section 16(8) of Police and Criminal Evidence Act and paragraph and 6.9A of code B which I have set out above. Notwithstanding those concerns, Mr Jenkins argued that this was a large piece of land with a lot of animals in it and a lot of places to search. When the officers were on the land and still searching for the purposes authorised by the warrant, for EPA purposes, if they discovered evidence of offending behaviour, he argued that they were entitled to seize it and they were not extending the warrant in doing so. That, he maintained, was the result of sections 91 and 93 of Police and Criminal Evidence Act and of section 18(5) of the Animal Welfare Act. He argued that the search authorised pursuant to the EPA was still in progress when those searching encountered the animals and formed they were in very poor condition. He relied on summary of Police Constable Thomas' evidence in paragraph 6 of the statement of facts filed with the application for judicial review. That states that Police Constable Thomas:

"... walked around and saw dogs in various states of appearing under fed, some were pitifully thin. She recalled a general strong smell of faeces and urine and unclean conditions in which the dogs were kept with no bedding."

25. Mr Jenkins stated there was no clear finding by the District Judge that the search for EPA purposes had concluded. This was not surprising. The premises were large and, as those searching methodically worked their way through the premises, they found both evidence concerning EPA matters and evidence of offences under the Animal Welfare Act. Realistically, he said, there was an overlap between the two in an EPA complaint dealing with dogs.
26. I will deal with this first before turning to Mr Jenkins' alternative submission. It is important to bear in mind the context of the precise decision of R (Hicks) v Commissioner for the Metropolis upon which he relies. That case was concerned with a large number of searches, including the search of a squat in Camberwell under a warrant authorising searches for stolen bicycles, bicycle parts and computers. The search happened, very shortly before the last major royal wedding, and the police were concerned about disruption of the wedding. The question was whether they were precluded from seizing material relating to royal wedding disruption, such as leaflets (which seem to have been the only items) for which there was no warrant while searching for stolen bicycles, bicycle parts and computers which were organized. The court held the police were not so precluded. First, it was said the fact that the concern to prevent disruption of the royal wedding influenced the attention given to the particular premises and the decision to apply for and execute search warrants did not mean that it followed that the dominant purpose in executing the warrants was to prevent the disruption of the royal wedding rather than to search for stolen goods. The court stated at paragraph 234 that:

"It is very difficult to see how the execution of those warrants on 28 April by carrying out the searches authorised by the warrants can have been vitiated by the existence of an ulterior dominant purpose that did not impinge on the validity of the warrants themselves."

Secondly the search for stolen goods, the authorised purpose, was continuing. The court, at paragraph 235, was satisfied that the searches did not exceed the scope of the warrants. The officers seized substantial quantities of computer equipment falling within the authorised purpose, and the fact that flyers were found did not meant that the searches were conducted for the ulterior purpose of finding such evidence.

27. Thirdly, the fact that the police were looking for material outside the scope of the warrants did not make the search unlawful because that purpose did not impinge on the validity of the warrants themselves and because, as I have stated, the searches did not exceed the scope of the warrant (see paragraph 243). Accordingly, as a result of section 19 of the Police and Criminal Evidence Act, the police were authorised to seize anything on the premises which a constable had reasonable grounds for believing was evidence in relation to an offence which he was investigating or any other offence where it was necessary to seize it in order to prevent the evidence being concealed, lost or destroyed.
28. In the present case the application of this reasoning means the seizure of the animals during the course of the examination, once the examination had taken place may have been lawful. But Hick's case is distinguishable for the following reasons. First, in the present case, the officers proceeded to use the EPA warrant as if the warrant was also granted under the Animal Welfare Act (see the decision paragraphs 29 and 33). In Hick's case by contrast (see paragraph 234) there was clearly awareness by the police involved of the limited purpose for which the warrant was given. That, together with the fact that extensive computer and bicycle parts were seized and the search was ongoing, puts that case into a different category to this.
29. Secondly, the District Judge in this case accepted that the assessment of the EPA complaint entitled the Council officer to take a RSPCA officer because of the likelihood of contact with dogs (see paragraph 25). But that officer was only attending to assess the condition of the dogs (decision 27) not for EPA purposes.
30. Thirdly, section 19 was not relied on by the RSPCA. There is no clear finding by the District Judge as to whether, when the inspector called the vet in (some two-and-half hours after the commencement of the search), the officers were still in the process of assessing whether there was noise or whether there was a great smell, or whether that process had been completed. Mr Jenkins accepted that while he made the substantive point that he made before us today, there was no explicit reliance on section 19 and Hick's case was not drawn to the attention of the District Judge. In this case, although the evidence was not clear, in my judgment, the District Judge appears to have considered that the authorised search had come to an end once those present had identified that there was a nuisance from noise and an unsanitary smell. See, in particular, paragraph 30 of his judgment) which stated that the officers should only have acted under the warrant "only to the extent necessary to determine whether there was a statutory nuisance, and once completed there would be no authority to continue on the premises". The District Judge had heard the prosecution evidence, including the fact that it was not until 1.00 pm that the vet arrived to makes assessment of the condition of the animals. Until that assessment had taken place the conditions necessary under section 18 of the Animal Welfare Act were not in place. The District Judge's conclusion was that the officers used the EPA warrant as though it was also granted under the Animal Welfare Act. In my judgment, there was sufficient evidence before him so to conclude.
31. Accordingly, the District Judge was entitled to conclude there had been non-compliance with code B (paragraph 6.9) and had he referred to section 16(8) of Police and Criminal Evidence Act, with that as well. Accordingly, I would reject Mr Jenkins' submission that the District Judge erred in law.
32. I add a footnote to my conclusion on this point. In his written submissions, Mr Jenkins relied on the Divisional Court in Hicks referring to officers executing a search not being required to adopt tunnel vision (see Hicks' case at 235); citing R v Chesterfield justice, ex parte Bramley [2000] QB 576 at 584. In that case, in executing a warrant empowering searches for stolen goods of people suspected of fraud, officers seized documents subject to legal professional privilege. Kennedy LJ stated at 584:

"Clearly any constable who takes part in the execution of the warrant must know the purpose for which it was issued, and must not go further than is necessary to achieve that purpose, but he is not required to adopt tunnel vision."

33. In this case, to repeat, the District Judge found that the Council officers and the RSPCA inspector, who took part in the execution of the warrant and did not know the purpose for which it was issued. They wrongly understood that it was issued to enable them to search for evidence of animal cruelty. Because of that they went further than the purpose for which the warrant was issued. Because they went further than the boundaries of the warrant, the admonition against tunnel vision does not help the claimant in this case. The principle of legality is an important principle in the public law of this country. It is an important common law principle as emphasised by the House of Lords in Simms case.
34. This was a case in which applications were made for warrants pursuant to three statutes. A warrant was only issued pursuant to one of those statutes but those who executed the warrant proceeded as though a warrant had been granted under one of the other statutes as well. They then sought to seek to defend what they did on the grounds that serious ill animals were in fact found. It was in truth an argument that the end justifies the means.
35. Mr Jenkins accepted that the second limb of his case, based on discretion, has to overcome a high hurdle. An exercise of discretion by a judge under section 78 of the Police and Criminal Evidence Act is a matter with which appellate or reviewing courts very rarely interfere. I do not consider that Mr Jenkins has come anywhere near getting over the hurdle. The District Judge took account of the good faith of those who entered: (see paragraphs 32 and 35) I made reference to those earlier. Secondly, as Mr Fullerton observed in his short submissions, good faith is not enough to justify the non-exclusion of evidence.
36. The breach here, in my judgment, was significant because the officers went into premises intent on executing a search for a purpose for which they had not been authorised. One of them told Ms Fuller that the warrant allowed for this. That is why, in my judgment, the breach was significant even if it was in good faith. A breach which is significant is not made insignificant by good faith. The authorities suggest that a significant breach should normally lead to the exclusion of the evidence.
37. Secondly, although the defendants may have admitted that the condition of the dogs was poor, the consequences of the gathering of evidence in support of a prosecution under the Animal Welfare Act was severe. The animals would be taken away from the individual. The individual would have to meet the RSPCA's costs of caring for the animals as part of the costs of resisting a prosecution the liability for as well as the legal costs. The background is one in which officers of the State, aided by officers of a large, well-funded charity, which does excellent work in many cases, used the power of the State compulsorily to enter land. It is incumbent that the officers of the State and those who assist them in this way take care that the principle of legality which has protected us so well over many centuries is observed.
38. For these reasons I refuse this application.
39. MR JUSTICE BLAKE: I agree that the application should be refused for the reasons given by my Lord.
40. On the facts set out in his judgment the District Judge was entitled to conclude that there was any breach of the relevant Code of Practice and indeed of the principles of the limitation powers entry pursuant to section 16(6) of Police and Criminal Evidence Act. On those findings his decision to exclude the evidence was neither irrational nor surprising.
41. MR JUSTICE BEATSON: We are grateful to both of you. Can I ask that you assist the court by the drawing up of an order which if it is sent through to me, through my clerk, will be sorted out as soon as possible. I think my Associate will need an email address.