England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2017

Mr Justice Goose:

Introduction

1. Ms Julie Wright ("the Applicant") was convicted of offences contrary to the Animal Welfare Act 2006 before the East Berkshire (Slough) Magistrates' Court on the 7th January 2016. She had previously pleaded guilty to an offence contrary to the Dangerous Dogs Act 1991. She was sentenced following her conviction to 16 weeks' imprisonment, suspended for 12 months on each offence. Disqualification and destruction orders were made under the 2006 Act and the 1991 Act. The Applicant appealed against her sentence and the convictions under the Animal Welfare Act 2006, appearing before the Crown Court at Reading ("the Defendant"). The appeal hearing was heard on the 27^th March 2017 before His Honour Judge Grainger sitting with two magistrates. That appeal hearing was by way of a retrial of the evidence called by both the Applicant and the Respondent.
2. In a careful and reasoned judgment the Court quashed the applicant's conviction of one offence under the Animal Welfare Act 2006 but the second conviction was upheld. The sentence was varied to reduce the suspended sentence to 14 weeks' imprisonment. The disqualification order was also reduced but the destruction orders remained in place. On the 3rd April 2017 the Applicant asked the Defendant to State a Case, pursuant to section 28 of the Senior Courts Act 1981 and Part 35 of the Criminal Procedure Rules 2015. The proposed question of law in the application was:-

a) Can a person 'keep or train' a dog within… section 8(1)(h) of the Animal Welfare Act 2006 through an agent?

b) Is the offence under section 8(1)(h) of the Animal Welfare Act 2006 limited to a person who actually 'keeps or trains an animal for use in connection with an animal fight?'.

After considering the application to State a Case His Honour Judge Grainger together with the two Magistrates who heard the appeal with him, refused to State a Case. The court did not consider that there was any merit in the questions of law.

3. On the 4^th May 2017 the Applicant sought permission to apply for judicial review of the Defendant's refusal to state a case. The Applicant contended that the refusal was irrational or otherwise unlawful and sought declaratory and mandatory relief. Upon the application for permission the single judge directed a "rolled-up hearing" on notice to the Defendant and the Royal Society for the Prevention of Cruelty to Animals ("the Interested Party"). The single judge considered the application to be weak but that a broader point of significance had been raised that should be considered by the court.

The application for permission

4. At the start of the hearing before this court, in which the Applicant appeared in person with assistance from a friend (Ms Shires) and the Interested Party was represented by counsel Mr O'Donnell, I gave permission to apply for judicial review but without commenting upon the merits of the claim. The parties agreed that the arguments for both permission and claim were the same.

Background

5. The Applicant lives at an address in Slough. On the 10th February 2014 Police Officers and RSPCA inspectors attended her home and seized her two dogs which were kept in caged kennels in the back garden. The purpose of the seizure was to take them to a place of safety. The dogs were believed to be dangerous dogs under the Dangerous Dogs Act 1991, namely Pitbull terrier type dogs. The Applicant was reported for summons to appear before the Magistrates' Court at East Berkshire on three charges:-

a) That on the 10th February 2014 at… Slough, Berkshire you had in your possession a dog to which section 1 of the Dangerous Dogs Act 1991 applies, namely two Pitbull terrier type dogs known as "Jack" and "Homer", contrary to section 1 of the Dangerous Dogs Act 1991

b) That on the 10^th February 2014 at… Slough, Berkshire you kept…a treadmill, an A frame, break-sticks and a ball and spring designed or adapted for use in connection with an animal fight with the intention of them being so used, contrary to section 8(1)(g) of the Animal Welfare Act 2006.

c) That between 1^st July 2013 and 3^rd February 2014 within the vicinity of Slough, Berkshire you kept or trained an animal, namely a bull terrier type dog known as "Honey" for use in connection with an animal fight, contrary to section 8 (1)(h) of the Animal Welfare Act 2006.

Initially the Applicant pleaded not guilty to all three charges, but later changed her plea on the first charge to guilty. After trial the magistrates found the Applicant guilty on the second and third charges and sentenced her.

6. On appeal to the Crown Court at Reading the Applicant was successful in relation to the second charge but her conviction on the 3^rd charge was upheld. Her sentence was varied to reduce the custodial term of the suspended sentence order. The disqualification period, from keeping a dog, was reduced from 10 years to 8 years but the destruction order in respect of the two dogs in the first charge namely "Jack" and "Homer" was maintained.
7. Upon her unsuccessful appeal in respect of the third charge relating to the dog named "Honey" the Applicant requested the Defendant to State a Case which was refused by the court on the 20th April 2017.

The legislation

8. The offence in the third charge before the magistrates court of keeping or training an animal of a bull terrier type for use on connection with an animal fight was created by section 8 of the Animal Welfare Act 2006 which provides:-

" 8(1) a person commits an offence if he –

…

(h) keeps or trains an animal for use for in connection with an animal fight"

It is readily apparent that the drafting of the Act contains a typographical error in repeating the word "for" within section 8(1)(h). Both before the Reading Crown Court and at this court the parties are agreed that there is no significance in the error and the interpretation of its meaning. With that concurrence I agree. The purpose of this subsection and of section 8 is to create criminal offences for those who engage in animal fighting. Whilst specifically, a person who "keeps or trains" an animal for use in connection with an animal fight commits a criminal offence.

The Applicant's questions of law

9. Although expressed in two questions they address the same point. The first question ("can a person keep or train" a dog within… section 8(1) of the Animal Welfare Act 2006 through an agent?) is the more pertinent. The second question "is the offence under section 8(1)(h) of the Animal Welfare Act 2006 limited to a person who actually "keep or trains an animal for use in connection with an animal fight?" repeats the question (my emphasis). Given the issues in the Applicant's case before the lower courts, the Applicant's contention is that she cannot be guilty of the offence if the animal was in the physical possession of another person. Therefore, the Applicant asks whether in law a person can "keep or train" an animal through another or should the offence be restricted to those who "actually" keep or train the animal. By this question the Applicant seeks to argue that the interpretation of the offence should be confined to those with the actual physical possession in the keeping or training of the animal.
10. Although acting in person, the Applicant had the benefit of a bundle prepared by her former solicitors and the application to State a Case prepared by counsel who was instructed in the lower courts. In argument the Applicant referred to section 3 of the Animal Welfare Act 2006, with its definition of "responsibility" for animals. It was accepted by the Applicant, however, that the issue in her claim related to the keeping of animals rather than responsibility, which word was used in different contexts within the 2006 Act. The Applicant has also maintained that she was not charged with an offence through an agent and that, for most of the period of the offence between the 1^st July 2013 and 3^rd February 2014, the dog was not staying with her but at the home of a friend in Slough and later with another friend in the Irish Republic. The Applicant made other submissions which were aimed at the evidence in the original trial in the magistrates' court and the crown court and were not of any assistance upon her claim for judicial review of the refusal to State a Case.

Submissions by the Interested Party

11. Counsel for the Interested Party relied on the detailed grounds of response and a skeleton argument. It was argued that the use of the word "keeps" has an ordinary meaning that is wide enough to cover joint possession or possession through a third party, just as might the word "trains". It was also submitted that on the facts as found by the Crown Court the Applicant was in physical possession of the animal for part of the charge period making the question academic.
12. Neither party in the hearing was able to refer to any statutory assistance for the meaning of "keeps or trains" in the context of the Animal Welfare Act 2006.

The factual context

13. Although the facts of this case are not determinative of the meaning of "keeps" within section 8(1)(h) of the 2006 Act, they are important for the purposes of the Applicant's questions and her claim for judicial review. In a careful and detailed judgment in the conviction appeal, His Honour Judge Grainger and the Justices made a number of findings of fact to the criminal standard of proof. The relevant findings are set out in paragraphs 17 and 30 of the judgment.

"17. Our own findings (put shortly)…is that (the dog Honey) continued to belong to Ms Wright rather than to any Irishman called Michael Mullins…In any event it is our firm view that Honey was in Ms Wright's care and keeping throughout the relevant period, the bitch originally seems being kept at Ms Wright's own house and later, after she had whelped, being kept for convenience though for substantial amounts of time at Jonathan Barrie's house. …Ms Wright was keeping Honey when the dog was at Jonathan Barrie's place just as much as when she was kept at Hoylake Close (the home of the Applicant).

…..

30.…We find that whatever else Ms Wright may or may not have done in the past, on this occasion in January and February 2014, Ms Wright allowed herself for whatever reason to move from a deep and unhealthy interest in the world of organised dog fighting into a practical and criminal involvement. We find that the texts we have referred to clearly demonstrate that at the end of the charge period Ms Wright (whether by herself or through her agent John Barrie) kept Honey for use in connection with an animal fight by arranging for the dog to be sent to Ireland for assessment and/or training for that purpose. Indeed, it strikes us that the very act of sending her to Ricky Bernard with that end in view may itself have been an instruction of "training" for use in connection with an animal fight contrary to the…Act."

14. It follows, therefore, that the court made clear findings of fact about the ownership by the Applicant of the dog and her purpose for keeping the dog, namely for use in connection with an animal fight. It was also found as a fact that for some part at least, the dog was kept at the Applicant's own home. It was, however, the court's interpretation of section 8(1)(h) and the word "keeps", to include through others, that is challenged by the Applicant.

Discussion and conclusion

15. I shall put aside for the moment the finding of fact that during the period of the charge the Applicant had physical and actual possession of the dog for the purposes of animal fighting. Of itself this would mean that the Applicant's claim for Judicial Relief is academic. The broader question is whether an animal in the physical possession of another, but at the direction and arrangement of the person charged, still be kept by that person? In my judgment the answer is in the affirmative.
16. Although there is no statutory interpretation within the Animal Welfare Act 2006 of the word "keeps" the starting point is that the word should be given its ordinary natural meaning. By such a meaning a person may keep an animal by having actual physical possession but also by requesting another to keep it for them. The word includes an assumption of a level of control over the animal whether at the Applicant's home or at the home of another. In either event the animal is still being kept by the Applicant.
17. There is some assistance for this broader and non-restricted meaning within section 34(2)(c), relating to post-conviction powers. Section 34(1) creates a power of disqualification from possessing or owning animals. Subsection 2 indicates that keeping animals can be shared:

"34 Disqualification

(2) Disqualification under this subsection disqualifies a person

…

(c) from participating in the keeping of animals".

Participation in the keeping of animals, for the purposes of a disqualification order, is not confined to shared physical possession. It would include knowingly having joint control of the animal wherever it might be kept.

18. No statutory assistance has been found upon the interpretation of the word "keeps" within the context of the 2006 Act. Some assistance with the broader interpretation can be found, however, within The Wildlife and Countryside (Registration Ringing and Marking of Certain Captive Birds) (England) Regulations 2015. That regulation was made under the terms of the Wildlife and Countryside Act 1981. At regulation 2 it provides ' "keep" means keep, or have in one's possession or control". This disjunctive interpretation involving possession or control implicitly means that actual possession is not essential for keeping a bird.
19. In conclusion section 8(1)(h) of the Animal Welfare Act 2006 makes it a criminal offence to keep or train an animal for use in connection with an animal fight. It is to be interpreted to include those may have actual physical possession as well as those who retain control of the animal whilst it is elsewhere. The keeper of an animal may have it in their own home or retain it in the home or place of another. Equally a person may themselves train the animal to fight or arrange for another to carry out the training for them. There is no sensible basis to restrict the interpretation of section 8(1)(h) to the person who has actual physical possession or actually does the training themselves; to do so would unnecessarily restrict the offence and the policy of the legislation to criminalise those who are involved in training animals to fight.
20. If follows, therefore, that in answer to the specific questions raised by the Applicant, a person can keep or train a dog within section 8(1)(h) of the Animal Welfare Act 2006 though an agent. Also the offence is not limited to a person who actually keeps or trains an animal, assuming that the question is aimed at the possessor in the strictest sense.
21. It must follow, therefore, that the refusal by the Defendant to State a Case, in its decision on the 20^th April 2017 was not wrong, irrational or unlawful; it was, in my judgment correct. Having granting permission at the beginning of this "rolled-up hearing" for judicial review, I dismiss the claim of the Applicant.
22. There remains the outstanding question of the destruction order made by the East Berkshire Magistrates' Court under the Dangerous Dogs Act 1991 in respect of the first charge against the Applicant, to which she pleaded guilty. That Order has been stayed until the outcome of these proceedings have been concluded. Although it is right to say that these proceedings did not concern the first charge under the Dangerous Dogs Act 1991, but the third charge under the Animal Welfare Act 2006, nevertheless, the destruction order has not been carried out in respect of the surviving dog which belongs to the Applicant. The Applicant indicated that she has referred her conviction, by way of a plea of guilty, to the Criminal Cases Review Commission and awaits their response. I was shown a copy of a letter from the Commission which confirmed what the Applicant had said. It was agreed between the parties that I should extend the stay of the destruction order until 21 days after the unsuccessful outcome of the referral to the Commission, should that be the case. Of course, should the Applicant be successful and her conviction overturned, the destruction order would fall away.
23. The Interested Party has made an application for costs from Central Funds, pursuant to section 17 of the Prosecution of Offences Act 1985.  The Interested Party is not a public authority and is not acting on behalf of a public authority.  It is a private charity which prosecuted the case before the Magistrates Court and properly responded to the application for Judicial Review.  In the circumstances I am satisfied that its costs should be paid out of Central Funds.  I have considered the calculation of those costs and I am satisfied that they are recoverable in the sum claimed namely £8221.80.