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St Helena Supreme Court Judgments


You are here: BAILII >> Databases >> St Helena Supreme Court Judgments >> Thorpe v The Attorney General [2025] SHSC 10 (28 May 2025)
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Cite as: [2025] SHSC 10

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IN THE SUPREME COURT OF ST HELENA
ON APPEAL FROM
THE ST HELENA MAGISTRATES' COURT
10/2024
AND ON AN APPLICATION FOR CONSTITUTIONAL REDRESS

Judgment Given on 28th May 2025
Hearing Dates: 5th And 6th May 2025

B e f o r e :

HHJ MALCOLM SIMMONS
____________________

MICHAEL THORPE
Appellant/Plaintiff
- and -

THE ATTORNEY GENERAL
 Respondent/Defendant

____________________

The Appellant, Michael Thorpe, was represented by Mr. Joshua Hitchens
The Respondent, the Attorney General of St. Helena, was represented by Mr. Simon Dykes

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    (1) Introduction

  1. The appellant, Michael Thorpe, was convicted before the St. Helena Magistrates Court on 11th November 2024 on two counts, namely (1) Criminal damage in destroying a dog without lawful excuse under section 3 of the Criminal Damage Ordinance 1979 and (2) Failing to comply with a condition of a firearm certificate in using a gun for purposes other than sport or vermin control under section 4(2) of the Firearms Ordinance 1997.
  2. The appellant appeals his convictions.
  3. I am grateful to Mr. Hitchens and Mr. Dykes for their very helpful skeletons and authorities that I have had an opportunity of reading. I have listened carefully to their respective submissions. While I may not refer specifically to cited authorities or their respective submissions, I have considered them in reaching my findings.
  4. (2) Factual and procedural background

    (a) Factual background

  5. The appellant resides on land located at Oak Bank, St Pauls, St Helena, on which there is a house and a fishpond. The fishpond is six feet deep and contains koi carp.
  6. On 1st July 2024, a Ms. Yon reported to police that her dog, Pepper (the "dog"), had been missing since 23rd June 2024.
  7. It appears the dog had been missing for a week before, on 30 June 2024, it entered upon Mr Thorpe's land. Mr Thorpe heard a dog barking and then found the dog in his fishpond, apparently unable to climb out. Mr Thorpe did not attempt to rescue the dog, he said through fear of it biting him. He shot the dog twice in the head, following which it sank to the bottom of the pond. Mr Thorpe removed the dog from the pond, using a gaff. He tied its legs together, put the dog into his vehicle, and drove to another location on his land, where he buried it. The dog had no name tag. Mr Thorpe said he did not know to whom the dog belonged. The dog was microchipped.
  8. (b) Police involvement

  9. On 2nd July 2024, PS Oliphant and PC Crowie attended Mr Thorpe's land to make inquiries regarding the missing dog. Mr Thorpe was asked questions by PS Oliphant.
  10. On 3rd July 2024, PS Oliphant conducted a voluntary interview under caution with Mr Thorpe at his home (the "first voluntary interview"), the purpose of which was, inter alia, to confirm the account given by Mr Thorpe during the conversation the previous day. Mr Thorpe was told at the start of the interview that it was to be recorded on PS Oliphant's body worn camera. Moreover, he was informed that he was entitled to legal advice at any stage. Mr. Thorpe was not told that he was not under arrest, that the interview was voluntary and that he could end it at any time. He was not told that he could speak with a legal advisor on the telephone.
  11. During that interview, Mr Thorpe recounted his version of events, and said that he understood the legislation to mean that if a dog was on his property and destroying property, then he was entitled to shoot it. Mr Thorpe stated that he believed his actions were lawful.
  12. 10. An entry in the pocket notebook of PS Oliphant refers to a conversation between the officer and the owner of the dog wherein, inter alia, PS Oliphant records the owner "not accepting that [appellant] has done anything wrong." That might suggest the officer had told the dog's owner that Mr. Thorpe was not suspected of having committed an offence. However, the entry goes on to record that, during that conversation the dog's owner was "…still unwilling to fully understand that police have to prove beyond reasonable doubt." That is entirely equivocal.

  13. On 4th July 2024, PC Henry, the firearms licensing officer, attended Mr Thorpe's land and told him that, if he were to shoot a dog, he should inform police so that the dog's owner might be informed.
  14. On 5th July 2024, Inspector Coombe, Sergeant Williams, and PC Henry attended Mr Thorpe's land. Mr Thorpe showed the officers where he had buried the dog. The body of the dog was exhumed and subsequently examined by a veterinarian who confirmed that it had been shot. The dog was identified as Pepper.
  15. On 6th July 2024, Mr Thorpe was asked by PS Williams to attend the police station for a further voluntary interview in relation to the incident on 30th June 2024. PS Williams informed Mr Thorpe that, after review and, due to some apparent discrepancies, police would need to speak with him again as the police considered that an offence may have been committed. Mr Thorpe was advised of his entitlement to legal representation and, after initially refusing this, changed his mind.
  16. On 7th July 2024, a further voluntary interview under caution took place (the "second voluntary interview"), in which Mr Thorpe was represented by Emily Cairns-Wicks ("Ms Cairns-Wicks"). PS Williams and PC Rummery were present during that interview. PC Rummery began to inform Mr Thorpe about the nature of the police investigation but was interrupted by PS Williams. Moreover, Mr Thorpe was not told, following a request, what he said in the first voluntary interview, nor were any discrepancies or fresh evidence put to him to justify the second voluntary interview. Rather, PS Williams simply stated that they "need to have this interview, just to get a bit more detail." The interview lasted 1 hour and 24 minutes, and involved PS Williams covering the same ground repeatedly. Limited additional information was provided by Mr Thorpe in this interview, over and above that from the first voluntary interview.
  17. The St Helena Magistrates' Court rendered two pre-trial rulings (collectively, the "two pre-trial rulings"). The first relates to the construction of section 11(2) of the Animal Trespass Ordinance 1982 (the "pre-trial ruling on construction"). The second relates to the exclusion of the first and second voluntary interviews (collectively, the "two voluntary interviews") of Mr Thorpe (the "pre-trial ruling on exclusion"). I will consider each in turn.
  18. (c) Pre-trial ruling on the construction of section 11(2) of the Animal Trespass Ordinance, 1982

  19. The pre-trial ruling on construction relates to section 11(2) of the Animal Trespass Ordinance 1982. This provides as follows:
  20. The lawful occupier of any land, or any person acting with the occupier's authority, may shoot or otherwise humanely destroy any dog found trespassing on the land and killing, wounding or worrying any domestic animal or poultry, without being responsible to the owner or keeper of the dog, or liable to an action at law or any other process.

  21. The first matter considered by the court was whether section 11(2) applies in criminal proceedings. The court considered that, although the thrust of the wording "being responsible" within section 11(2) is to obviate only civil liability, the wording "any other process" effectively precluded "the doing of something in both criminal and civil proceedings". Thus, it was held that "the protection provided relates to responsibility for the shooting or killing of the dog". However, the court continued to note that section 11(2) could not avail Mr Thorpe insofar as it could not excuse him "from the allegation that he has breached the conditions of his firearm licence".
  22. The second matter considered by the court was whether a fish is a domestic animal for the purposes of section 11(2). Under section 2 of the Animal Trespass Ordinance 1982, a domestic animal is defined as follows:
  23. all beasts and birds that by habit or training live in association with man: for example, cattle, horses, sheep, goats, pigs, poultry, cats and dogs

  24. The court noted that, because fish are clearly not birds, they must, to be caught by section 2, fall within the meaning of "beasts". This term is not defined in St Helena legislation.
  25. The court referred to legislation from England and Wales. The now repealed Wild Animals in Captivity Protection Act 1900 defines an "animal" (for the purposes of that Act) as "any bird, beast, fish or reptile which is not included in the Cruelty to Animals Acts 1849 and 1845". These latter Acts do not use the word 'beast'.
  26. The court also referred to the Animal Health Act 1981 at section 87(1), which provides a definition of animal without reference to the word "beast". Section 87(2) and (3) provide as follows:
  27. (2) The Ministers may by order for all or any purposes of this Act extend the definition of "animals" in subsection (1) above so that it shall for those or any of those purposes comprise-
    (a) any kind of mammal except man; and
    (b) any kind of four-footed beast which is not a mammal.
    (3) The Ministers may by order for all or any of the purposes of this Act (except so far as it relates to disease) extend the definition of "animals" in subsection (1) so that it shall for those or any of those purposes comprise-
    (a) fish, reptiles, crustaceans, or
    (b) other cold-blooded creatures or species, not being creatures in respect of which an order can be made under subsection (2) above.

    22. The court concluded from these above-cited Acts that the word "beast" is not used in England and Wales legislation to describe birds, fish, or reptiles. Moreover, section 9 of the Animals Act 1971 provides protection to a landholder in civil proceedings for killing or injuring a dog that is worrying livestock. Livestock in this sense is defined as "cattle, horses, sheep, pigs, goats and poultry, and also deer … and, in sections 3 and 9 also, whilst in captivity, pheasants, partridges and grouse". The court concluded that section 9 "seeks to ensure landholders are protected in civil proceedings when a dog is worrying poultry, certain mammals and some game birds".

  28. Turning to St Helena legislation, the court considered the Animals (Diseases) Ordinance, 1944, which defines "animals" as including "all beasts, birds, reptiles, fishes and insects, and the young, eggs and semen thereof". The Interpretation Ordinance 1968 defines "animal" as "birds, reptiles, fish and every kind of vertebrate animal and their young". The Protection of Animals Ordinance 1969 excludes fish from the definition of "animal" and "domestic animal", although a fish could be a "captive animal". No further reference is made to captive animals in the 1969 Ordinance.
  29. The court noted that the Animals (Diseases) Ordinance 1944 is the only reference to "beasts" in St Helena legislation, apart from that in the Animal Trespass Ordinance 1982. The court reiterated that the 1944 Ordinance separates animals into beasts, birds, reptiles, fishes and insects, whereas the 1982 Ordinance limits "domestic animals" to all beasts and birds. The court concluded that, if the 1982 Ordinance had intended the definition of "domestic animals" to include reptiles, fish, or insects, then it would have expressly done so. Moreover, if "beasts" were to include animals, then there would be no need for the definition of "domestic animal" to refer to both beasts and birds.
  30. The court therefore concluded, in relation to this second matter, that "domestic animal" for the purposes of section 11(2) does not include fish. Thus, there was no need to determine whether Mr Thorpe's fish by habit or training lived in association with man.
  31. As a result, the court concluded in the pre-trial ruling on construction that Mr Thorpe could not avail himself of the protection of section 11(2).
  32. The third matter considered by the court in the pre-trial ruling on construction relates to the Criminal Damage Ordinance 1979. The court noted that the offence, under the 1979 Ordinance, must be committed without lawful excuse, which includes "protecting property which the defendant owns which he honestly believed was in immediate need of protection and the means of protection were reasonable having regard to all the circumstances". The court compared this to the offence under the Protection of Animals Ordinance 1969, which requires unnecessary suffering. The court considered that the requirement of unnecessary suffering does not require a defence of necessity, with a burden on the defendant. The court highlighted that, in determining whether unnecessary suffering had occurred, it would refer to sections 4(3) and 62(1) of the Animal Welfare Act 2006.
  33. (d) Pre-trial ruling on the exclusion of the two voluntary interviews

  34. The pre-trial ruling on exclusion relates to the exclusion of the two voluntary interviews of Mr Thorpe.
  35. The pre-trial ruling on exclusion was given following an application by the defence under section 67 of the Police and Criminal Evidence Ordinance 2003. The basis for the application for exclusion was that Mr Thorpe was not told what offence was being investigated and, for the first voluntary interview, was not told that he was not under arrest and that he could stop the interview at any time.
  36. Section 67(1) of the Police and Criminal Evidence Ordinance 2003, reads as follows:
  37. In any proceedings the court may refuse to allow evidence on which the prosecutor proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

  38. The court began by considering the codes of practice made pursuant to the Police and Criminal Evidence Ordinance 2013. It also considered the equivalent codes of practice in England and Wales which confer greater rights on citizens insofar as they require, inter alia, that suspects are to be informed of the offence that they are suspected of having committed. In response to this analysis, the defence argued that the resultant disparity leaves St Helenians with inferior rights. This disparity, the defence argued, should be remedied by the court.
  39. The court noted that the EU Directive (2012/13/EU) leading to the amendment to the codes of practice in England and Wales was not directly linked to the European Convention on Human Rights ("the ECHR"), and that England and Wales had not been bound to adopt the EU Directive. Moreover, there had been no finding by the European Court of Human Rights ("the ECtHR"), or any domestic court, that the pre-amendment codes of practice in England and Wales (that the St Helena codes of practice as implemented reflect) were inconsistent with the ECHR. Rather, the amendment was simply the result of an optional EU Directive.
  40. The court found that the St Helena codes of practice were not inconsistent with sections 9 and 10 of the Constitution of St Helena, Ascension and Tristan da Cunha 2009 (the "Constitution").
  41. The court took the view that it was not necessary for police to explain the particular offence under investigation, so long as a defendant was aware that the interaction constituted an investigation into potential criminal offences arising out of a particular set of circumstances. Thus, all that was required was that the defendant knew of the reasons for the interview and their rights, so that they could be exercised. Mr Thorpe, the court said, knew that the first voluntary interview concerned the circumstances surrounding the death of the dog, which he had acknowledged he shot.
  42. The court stated that Mr Thorpe was not under arrest, meaning there was no need, as a matter of St Helena law, for him to be told of the grounds for his arrest. Nor were proceedings at the stage of being before a court. Rather, the police were at an investigatory phase, and part of the relevant investigation involved asking Mr Thorpe about the circumstances at the time the dog was shot. Mr Thorpe was warned that if the matter went to court, the interview could be used, and that there were potential consequences of his not mentioning facts that he later relied on. This, the court considered, was sufficient for Mr Thorpe to know that the first voluntary interview constituted part of a criminal investigation into his shooting the dog. In other words, the requirement that a suspect be given sufficient information to understand the nature of the potential offence was, in the circumstances, implicit in the nature of the caution and from the content of the first voluntary interview, and supported by the voluntary nature thereof.
  43. The court therefore concluded that Mr Thorpe was not treated differently than a suspect would have been treated in England and Wales, and that it was a matter for the Supreme Court whether the Constitution requires a strict adherence to the terms of the codes of practice of England and Wales.
  44. The court did however state that, insofar as Mr Thorpe having not been told during the first voluntary interview that it could be terminated, that he need not take part in it and that he was not under arrest, there had been a breach of St Helena codes of practice 3.16 and 10.2. However, the court said Mr Thorpe had been made aware the day before the first voluntary interview that he would not be under arrest and that if he did not wish to proceed, that was his right. The result of Mr Thorpe's awareness thereof meant that the exclusion test in section 67 of the Police and Criminal Evidence Ordinance 2003 had not been satisfied. The court found that Mr Thorpe was fully aware of his rights, the result being that section 67 was not engaged for the two voluntary interviews.
  45. The court further raised issue with the second voluntary interview, expressing its concern at the manner in which, in its words, police "went over the same ground time and again which caused distress to the defendant".
  46. The court concluded that the officers' conduct during the second voluntary interview did not render it unreliable. The evidence obtained during the second voluntary interview would not be excluded, but restricted to additional information provided by Mr Thorpe.
  47. (3) Trial

  48. Evidence was heard on 6th November 2024, prior to which the court had heard argument for, and communicated its decisions on, the two pre-trial rulings.
  49. (a) Evidence

  50. Mr Thorpe chose not to give evidence. He had received the necessary advice regarding inferences that may be drawn therefrom.
  51. The only live witness was PC Henry, the firearms licensing officer. In cross-examination, PC Henry confirmed that when he visited Mr Thorpe's on 4th July 2024, he did not inform him of any breach of his firearms certificate. Rather, he told Mr Thorpe that, if he were to shoot another dog, he should inform the police so that the dog's owner could be traced.
  52. Although he did not give evidence at trial, Mr Thorpe's evidence as to the facts and his intentions, as ascertained from the two voluntary interviews, were set out by the court as follows:
  53. 7. … In the second interview Mr Thorpe confirmed that before he saw the dog he was outside his kitchen and heard it barking. He went to get his gun from the cabinet in the breakfast room, loaded it and then went to find the dog. He saw the dog in his pond and assumed it was after his fish. He described it as half drowned and that the dog could not get out of the pond so he shot it twice to the head whereupon it sank to the bottom. He then went to get a gaff and fished it out and after that he tied it with flax and buried it.
    8. He didn't help the dog out because he was afraid it might bite him. He described the dog as trying to get out of the pond but it could not. He said he shot it humanely. The pond is 6 feet deep and the dog was in distress. He could not say if the dog attacked his fish but he did find a dead one the next day.
    9. He said that if the silt in the bottom of the pond is disturbed it releases ammonia which is harmful to the fish and he said the silt was already stirred up by the dog by the time he saw it.

    (b) Destruction of property and lawful excuse

  54. The court reiterated the lawful excuse qualification contained within the Criminal Damage Ordinance 1979, the burden being on the prosecution to prove that Mr Thorpe did not have such an excuse. Section 7(2) provides as follows:
  55. A person ('A') charged with an offence to which this section applies is, whether or not A would be treated for the purposes of this Ordinance as having a lawful excuse apart from this subsection, to be treated for those purposes as having a lawful excuse-
    …
    (b) If A destroyed or damaged the property in question … in order to protect property belonging to A or another person … and at the time of the act or acts alleged to constitute the offence A believed that-
    (i) the property … was in immediate need of protection; and
    (ii) the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

  56. The court also noted that section 7(3) provides that it is immaterial whether the belief is justified (or not), if the belief is honestly held.
  57. (c) Meaning of "vermin control" in the firearms certificate

  58. PC Henry was examined on the contents of the guidance notes for firearms certificates, issued by the police. The examination found that the guidance notes state that police will only accept four categories as a genuine reason to hold a firearms certificate: collector; game; vermin; and target shooting.
  59. Although there is no definition of the word "vermin" in the guidance notes, the purpose of the category of vermin is described as allowing the applicant to "protect their property", and that "this may include farmers". Moreover, vermin control is described in the relevant frequently-asked-questions document as allowing "mainly for farmers and gardeners to shoot and control pest to protect their gardens and livestock".
  60. The court emphasised that the issuance of a firearms certificate for vermin control has the function, inter alia, of substantiating the right derived from the Animal Trespass Ordinance 1982, to protect some types of animals from dogs by permitting the shooting of dogs.
  61. The court further set out that the guidance notes and frequently-asked-questions document make clear that "vermin control" is a loose term, designed to cover protection of property from animals generally, rather than protecting property from what would usually be defined as vermin.
  62. (d) Findings of the Magistrates

  63. The court reached the following findings:
  64. 23. On the evidence it is clear that Mr Thorpe was entitled to protect his fish from the dog at the time the dog was in the pond and the issue for the criminal damage is whether the means of protection were reasonable having regard to all the circumstances.

    24. We find that, having regard to the interviews, that Mr Thorpe believed he had a right to shoot a dog on his land. We find that this belief, combined with the fact that he chose to get a gun and load it before going to look for the dog, demonstrates so that we are sure that his intention was to shoot and kill the dog whatever the circumstances he found it in.

    25. However, he did find the dog in his pond and it was reasonable to remove the dog from the pond to protect the fish. What was not reasonable was the method used to remove the dog. It was unnecessary to shoot a sentient animal that was in distress and that was attempting to extricate itself from the pond. The dog could be assisted out of the pond without having to put hands near it. The very act of shooting the dog exacerbated the circumstances that Mr Thorpe asserts he was trying to achieve, namely to prevent the silt at the bottom of a 6 foot pond from being disturbed. Simply put there was no purpose to shooting this dog that furthered the stated aim of protection of the fish.

    26. It follows on from this that we cannot find, on the evidence of the facts of the case, that Mr Thorpe genuinely believed that the means of protection of his fish was reasonable having regard to all the circumstances. No other potential lawful excuse exists on the facts of this case. The Crown have discharged their burden to the requisite standard. In coming to this conclusion, we draw no inference from silence at court and make every allowance we can for the defendant's good character.

    27. We find, so that we are sure, that the firearm was not used for vermin control in that it was used in such a way that did not protect the fish he had a right to protect.

  65. The court therefore returned guilty verdicts in relation to both offences.
  66. (e) Offences of which the Appellant was convicted

  67. Mr Thorpe was convicted of two offences:
  68. (1) Criminal damage in destroying a dog without lawful excuse under section 3 of the Criminal Damage Ordinance 1979.

    (2) Failing to comply with a condition of a firearm certificate in using a gun for purposes other than sport or vermin control under section 4(2) of the Firearms Ordinance 1997.

    (f) Sentencing

  69. Mr Thorpe was sentenced on 13th November 2024. On count 1, he was fined £1,150 and ordered to pay £200 in prosecution costs. He was also ordered to pay compensation in the sum of £1,000.
  70. On count 2, there was no separate penalty but, pursuant to s.42 of the Firearms Ordinance 1997, the Marlin 39A .22 rifle used to kill the dog was ordered to be forfeited and his firearms certificate FA002/2022 was cancelled.
  71. (4) The appeal and plaint

    (a) Nature of the appeal

  72. Grounds one and three of the appeal are brought pursuant to section 242 of the Criminal Procedure Ordinance 1975. Section 242 provides as follows:
  73. (1) Except as hereinafter provided, any person convicted on a trial by the Magistrates' Court may appeal to the Supreme Court, and must be so informed by the presiding magistrate at the time when sentence is passed.
    (2) An appeal to the Supreme Court may be on a matter of fact as well as on a matter of law.

  74. Ground two is both a ground of appeal advanced pursuant to s.242 of the 1975 Ordinance and an application for redress pursuant to section 24 of the Constitution. Section 24(1) provides as follows:
  75. (1) If any person alleges that any of the provisions of this Part has been, is being or is likely to be breached in relation to him or her …, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person … may apply to the Supreme Court for redress.

    (b) Grounds of appeal

  76. In ground one, Mr Thorpe argues that the Magistrates' Court erred in concluding that koi carp were not domestic animals for the purposes of section 11(2) of the Animal Trespass Ordinance 1982.
  77. In ground two, Mr Thorpe argues that the admission of the two voluntary interviews by the Magistrates' Court constitutes a breach of his rights under the Constitution. It is also argued that Mr Thorpe's right to access to a lawyer at interview was breached. Thus, the verdict should be quashed. On 7th March 2025, with the agreement of the parties, I ordered that the application under s.24(1) and the appeal would be heard together during the hearing on 5th May 2025. At the outset of the hearing on 5th May 2025, Mr Dykes objected to the appeal and the application for redress being heard together. Mr Hitchens submitted that it was desirable to determine the question of whether the Constitution had been breached for the purposes of both the application for redress and appeal at the same time as this would be the most proportionate use of resources and avoid the risk of contradictory judicial decisions. Mr Hitchens made clear that any question of relief under the Constitution could then be adjourned if a breach was established. I agreed and shall deal with the application for redress in this judgment.
  78. In ground three, Mr Thorpe argues that the Magistrates' Court erred in finding that he did not have a reasonable excuse defence available to him pursuant to section 7 of the Criminal Damage Ordinance 1979.
  79. (5) Submissions on appeal

    (a) Ground one

  80. In ground one, the Appellant avers the Magistrates' Court erred in concluding that koi carp were not domestic animals for the purposes of section 11(2) of the Animal Trespass Ordinance 1982. This is for three reasons.
  81. First, section 1 of the 1982 Ordinance defines domestic animals as all beasts and birds that by habit or training live in association with man. There was clear evidence that, after a thousand years of being domesticated, koi carp are no longer capable of living in the wild, should not be released, and have no natural range. There was no reasonable basis to conclude that koi carp do not by habit reside with man.
  82. Second, section 3 of the Interpretation Ordinance 1968, provides that the word "animal" used in legislation includes fish.
  83. Third, the canons of statutory interpretation all point towards Mr Thorpe's koi carp falling within the meaning of domestic animals for the purposes of the 1982 Ordinance. This is for three reasons. First, on their ordinary meaning, the relevant words plainly incorporate domesticated fish. Second, the context of the enactment is that of the legislature recognising a strong public interest in controlling trespassing animals and incentivising owners to prevent the trespass of their animals. The enactment represents a conscious and positive decision to allow and require the destruction of animals which trespass and worry, wound or kill domestic animals or poultry. Third, legal certainty is fundamental, and where the scope of liability for an offence is not absolutely clear on the face of a statute, that doubt ought to be resolved in favour of the accused.
  84. In all material respects, Mr. Dykes adopts the findings and conclusions of the Magistrates Court.
  85. (b) Ground two

  86. In ground two, Mr Thorpe avers the admission of the two voluntary interviews by the Magistrates' Court constitutes a breach of his rights under the Constitution. It is also argued that Mr Thorpe's right to access to a lawyer at interview was breached. He thus avers the verdict should be quashed.
  87. Mr Thorpe contends that sections 5 and 10 of the Constitution require that a suspect be told, prior to being interviewed by the police, that they are suspected of a criminal offence, and the nature thereof. Mr Thorpe was not told this information, and the Magistrates' Court acknowledged that it was "very concerned" at PC Rummery's having been thwarted whilst attempting to inform Mr Thorpe of the offence in relation to which he was being investigated.
  88. Mr Thorpe avers that he had been specifically told by two police officers that he had committed no offence, and on 4th July 2024 PC Henry simply advised him that, if he were to shoot another dog, he should notify the police so they could inform the dog's owners. The further interactions with the police, including the second voluntary interview, therefore continued on the basis (from Mr Thorpe's perspective) that Mr Thorpe had committed no offence. This, it is submitted, informed Mr Thorpe's decision not to obtain any legal representation until 7th July 2024, and seriously inhibited his ability to mount a defence or answer the allegations against him. Moreover, the approach of repeatedly asking similar questions over several days, without telling Mr Thorpe what he was suspected of, was unjustifiable and unfair. It is therefore submitted that the Magistrates' Court erred in admitting the two voluntary interviews into evidence and refusing Mr Thorpe's application to exclude.
  89. Mr Thorpe further submits that his lack of access to a solicitor or qualified lawyer, and only to a lay advocate, when interviewed under caution, did not satisfy his constitutional right to access to a lawyer at interview.
  90. It is therefore concluded that Mr Thorpe was subject to two breaches of his rights under the Constitution, rendering the proceedings unfair such that the verdict stands to be quashed.
  91. (c) Ground three

  92. In ground three, Mr Thorpe avers the Magistrates' Court erred in finding that he did not have a reasonable excuse defence available to him pursuant to section 7 of the Criminal Damage Ordinance 1979.
  93. It is submitted that Mr Thorpe believed that his koi carp were in immediate need of protection, and that shooting the dog in order to protect them was reasonable and lawful. Accordingly, Mr Thorpe was entitled to avail himself of the statutory defence under section 7(2)-(3) of the Criminal Damage Ordinance 1979.
  94. (6) Consideration and Findings

    (a) Powers of the Supreme Court on appeal

  95. The powers of the Supreme Court in relation to grounds one and three, brought pursuant to section 242 of the Criminal Procedure Ordinance 1975, are provided by section 250, which reads as follows:
  96. (1) On an appeal against conviction, the Supreme Court, subject to subsection (1A), must allow the appeal if it is of the opinion that-
    (a) the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence;
    (b) the judgment should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice; or
    (c) on any other ground there has been a miscarriage of justice,
    and in any other case must dismiss the appeal.
    (1A) The court must, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred.
    (2) Subject to subsection (1), the Supreme Court on any appeal may-
    (a) reverse the finding and sentence, and acquit or discharge the appellant, or order a new trial;
    (b) alter the finding and find the appellant guilty of another offence, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence; or
    (c) with or without such reduction or increase and with or without altering the finding, alter the nature of the sentence or make any order which the Magistrates' Court could have made.
  97. The powers of the Supreme Court in relation to ground two, brought pursuant to section 24 of the Constitution, are provided by the further subsections of section 24, which provide where relevant as follows:
  98. …

    (2) The Supreme Court shall have original jurisdiction-

    (a) to hear and determine any application made by any person in pursuance of subsection (1); and
    …
    may make such declarations and orders, issue such writs and give such directions as it considers appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Part.
    (3) The Supreme Court may decline to exercise its powers under subsection (2) if it is satisfied that adequate means of redress for the breach alleged are or have been available to the person concerned under any other law.
    (4) Without prejudice to the generality of subsection (2), where, in the exercise of its powers under that subsection, the Supreme Court determines that one of the provisions of this Part has been breached in relation to any person, it-
    (a) may order the award to that person of such damages as the Supreme Court considers just and appropriate; or
    …

    (b) Ground one

  99. In its pre-trial ruling on construction, the Magistrates Court concluded that section 11(2) of the Animal Trespass Ordinance 1982, is capable of negativing criminal liability. However, on its interpretation, fish did not fall within the meaning of "domestic animal" for the purposes of section 11(2).
  100. The Magistrates Court found that "domestic animal", under section 2 of the 1982 Ordinance, is defined in part as "all beasts and birds" and fish are neither beasts nor birds.
  101. Fundamental to this appeal is the meaning of "domestic animal" for the purposes of the 1982 Ordinance and whether koi carp fall within that meaning. There could be no doubt that, having been discovered in the fishpond, the dog was trespassing and would have been 'worrying' any fish.
  102. Divining the meaning of "domestic animal" for the purposes of the 1982 legislation requires an exercise in statutory interpretation, by which the court seeks "the meaning of the words which Parliament used": Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 (per Lord Reid).
  103. The absence of published reports of debates during the passage of a bill, render's it difficult to determine the intention of the St. Helena Legislature and, therefore, adopt a purposive approach to interpretation.
  104. I recognise that a cautious approach should be adopted in attempting to 'read across' legislation, because the Legislature may not have intended words to have the same meaning. Indeed, the meaning may have evolved over time.
  105. Mr Thorpe, on appeal, submits that "[o]n their ordinary meaning, the words plainly incorporate domesticated fish". Indeed, one might approach this issue by simply adopting the definition of 'animals' in the Interpretation Ordinance 1968: "'animal' includes birds, reptiles, fish and every kind of vertebrate animal and their young" and then determining whether koi carp fall within the definition of 'domesticated'.
  106. The Magistrates Court approached this matter from a different perspective and undertook a finely balanced construction exercise. While I do not criticise the lower court for adopting that approach, it warrants careful analysis.
  107. The first step in construing the provision is to look at the actual words used. Section 2 provides:
  108. "domestic animal" means all beasts and birds that by habit or training live in association with man: for example, cattle, horses, sheep, goats, pigs, poultry, cats and dogs

  109. There are two approaches that might be taken in interpreting this provision. First, one might take the stance that "all beasts and birds" relates to "beasts" and "birds" as distinct items. Clearly, fish are not "birds", and therefore the question becomes whether the word "beasts" can include fish. As the Magistrates' Court recognised, early judicial commentary on the meaning of "beasts" features further, and rather antiquated, classification to the noun. For example, Stroud's Judicial Dictionary sets out that 'beasts' has some of the following qualifications:
  110. The beasts of Parque or Chase, properly extend to the bucke, the doe, the foxe, the marten, the roe; but, in a common and legal sense, to all the beasts of the forrest (Co. Litt. 233 A). …
    Beasts of the warren are "hares, conies, and roes" (13 Selden, xiii). …
    "Beasts that gain his land", 51 Hen. 3, stat. 4, does not include cart colts and young steers, unbroken to harness or the plough (Keen v Priest, 28 L.K. Ex. 157) …
  111. As the Magistrates' Court further set out, the Shorter English Dictionary defines the noun as follows:
  112. 1. gen. An animal (orig. including, now as distinct from, man); a creature. Now dial. & joc. exc. as explicitly contrasted with man.
    2. A quadruped mammal, as distinct from birds, reptiles, fish, insects, etc.; esp. a wild animal, or one hunted as game.
    3. A domesticated animal; esp. (a) a bovine farm animal; (b) a draught animal.

    85. As regards the first of these three definitions, a fish is, of course, an "animal … distinct from … man". Yet, section 2 distinguishes "beasts" from "birds", suggesting that "beasts" is not to be taken as referring to all animals distinct from man. If "beasts" was to be taken to refer to all animals distinct from man, then why, one might ask, did the drafters explicitly include "birds" as well? This is a point made by the Magistrates' Court below.

    86. As regards the second of the three definitions, a fish is clearly not a "quadruped mammal … hunted as game".

  113. As the Magistrates' Court highlights, the English law equivalent to section 11(2), the Animals Act 1971, which pre-dates the 1982 Ordinance, seeks to limit immunity to situations involving livestock. This would align with the third dictionary definition of "beasts", namely as a domesticated animal kept for the purposes of maintaining livestock. Fish do not fall within such a construction.
  114. If one were to follow this first approach to construction, therefore, it is inevitable that the word "beasts" cannot include fish, the result being that Mr Thorpe cannot avail himself of the protection offered by section 11(2). This was the approach adopted by the Magistrates' Court.
  115. The second approach to interpreting the meaning of section 2 involves approaching "all beasts and birds" as referring to animals generally. On this second construction, fish would fall within the meaning of "all beasts and birds".
  116. I am of the view that the second approach to construction is to be preferred. This is for five reasons.
  117. First, section 2 uses a "for example" clause to provide non-exhaustive examples of what will fall within the definition of "domestic animal" (Bennion, Bailey and Norbury on Statutory Interpretation at 18.3). This definition includes, importantly, cats. A cat would not normally fall within one's standard definition of "beasts", a point militating in favour of the second construction. Moreover, cats are not hunted, nor are they used as livestock. They are, quite simply, kept as pets. This might suggest that the section 11 (2) definition of "domestic animal" is not, contrary to the view of the Magistrates' Court below, concerned with just livestock, but also domesticated animals, namely pets.
  118. Second, if section 2 is in fact concerned exclusively with livestock, as the Magistrates' Court considered by reference to the Animals Act 1971, one must ask why cats are included, but fish not. Cats are not livestock. However, farmers regularly farm fish, such as salmon and trout, which, when farmed, are kept in specialised aquatic facilities. It could not be correct to reach the conclusion that a provision designed to protect livestock would protect cats, an entirely domesticated animal, and not fish, which are fully capable of being livestock. Such a construction should therefore be eschewed pursuant to the principle that legislative bodies are not to be taken to have intended absurd results: Oldham Metropolitan BC v Tanna [2017] EWCA Civ 50 at [31]. As Lord Hodge set out in Project Blue Ltd v HMRC [2018] UKSC 30 at [31]:
  119. it is without question a legitimate method of purposive statutory construction that one should seek to avoid absurd or unlikely results

  120. Third, it is important not to overlook the actual term utilised within section 2, namely "domestic animals". This may colour the proper construction of the words that follow. As Bennion, Bailey and Norbury on Statutory Interpretation sets out (at 18.6):
  121. Whatever definition is given to a term, the natural meaning of the term is likely to exert some influence over the way that the definition is understood and applied by the court. It is impossible to cancel the ingrained emotion of a word merely by an announcement.
  122. Moreover, as Lord Hoffmann said in MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47 at [18]:
  123. a definition may give the words a meaning different from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean.
  124. It seems to me that "domestic animals" taken in its natural form, properly refers both to livestock and pets, both being animals that are, in some sense, domesticated. This broad construction is supported by the Interpretation Ordinance 1968, which under section 3(1) defines "animal" as "birds, reptiles, fish and every kind of vertebrate animal and their young". This is a point made by Mr. Hitchens in his submissions, and the Magistrates' Court below. There does not appear to be anything in the word "domestic" that necessarily limits "animals" to livestock. Thus, adopting the approach of Lord Hoffmann, as helpfully codified by Bennion, Bailey and Norbury on Statutory Interpretation, the proper rules of statutory interpretation favour the second mode of construction.
  125. Fourth, the context of the 1982 Ordinance itself, provides assistance as to the proper construction of section 2. In R (O) v Secretary of State for the Home Department [2022] UKSC 3, the UK Supreme Court set out as follows (Lord Hodge at [29]):
  126. Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context.
  127. The term "domestic animal" only appears within section 11 of the Ordinance. All other sections of the Ordinance, in setting out the offences they create, make explicit reference to the specific animals which are relevant for the offence. Section 11 falls back on the broader definition of "domestic animal" in stipulating that:
  128. [t]he lawful occupier of any land, or any person acting with the occupier's authority, may shoot or otherwise humanely destroy any dog found trespassing on the land and killing, wounding or worrying any domestic animal or poultry
  129. This drafting mechanism supports the conclusion that the definition of "domestic animal" is intended to be a broad, catch-all definition. If the position were otherwise, it would have been logical for the drafters to make explicit reference to the particular domestic animals garnering protection under section 11.
  130. Perhaps a reason that the other provisions of the Ordinance refer to specific animals is that such other provisions relate for the most part to the trespassing (for example, sections 4-5) and impounding of said animals (sections 7-10). Naturally, only mammals that roam on land or in the air can trespass or be impounded. Fish, one would think, cannot. It might be the case that the reason the drafters referred only to specific animals, but did not refer to animals more broadly, in the trespass or impounding provisions is because any reference to animals generally, including domestic animals, was intended to be broader, incorporating animals that could not trespass or be impounded (namely animals that are neither airborne nor land borne). This would support the notion that "domestic animal" is intended to be construed broadly, such as to include fish.
  131. It should also be noted that the only reference to cats is in section 2, the provision defining "domestic animal". No other provision makes any reference to cats. This necessarily supports the view that section 11 is a provision protecting owners of all types of domestic animals, be they livestock or pets, from liability for shooting an intruding dog. If the drafters of the Ordinance had intended an alternate conclusion, then there would simply be no need to have mentioned cats in the Ordinance at all.
  132. Fifth, and as highlighted by Mr. Hitchens on appeal, the fact that section 2 is open to two possible, and conflicting, constructions, necessitates the conclusion that section 2 is drafted ambiguously. This would be a highly unsatisfactory outcome.
  133. In Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at p.638, Lord Diplock commented: ''The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.''
  134. As Lord Nicholls set out in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 397:
  135. Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.

    104. In short, there must be legal certainty, with offences clearly defined in law: R v Misra [2005] 1 Cr App R 21. Misra emphasises the principle of legal certainty is well-established in our jurisprudence: "a criminal offnce must be clearly defined in law… The principle enables each community to regulate itself", a point made in Ex parte Spath Holme Ltd.

  136. In Misra, the Court went on to describe the consequences of ill-defined law: "A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application". (per Lord Judge).
  137. 106. If one's liberty is threatened by a state-sanctioned prosecution, and that prosecution is itself dependent on the interpretation of an ambiguously drafted piece of legislation, it is necessary to resolve the ambiguity in favour of the defendant. In Ricketts v Ad Valorem Factors Limited [2004] BCC 164 at [30], Simon Brown LJ stated "…the court should strive to avoid adopting a construction which penalises someone where the legislator's intention to do so is doubtful, or penalises him in a way which is not made clear." As the case law demonstrates, this is a well-established rule of construction.

  138. Further, as Lord Philips LCJ set out in Thet v DPP [2006] EWHC 2701 (Admin) at [15]:
  139. If a criminal statute is ambiguous, I would question whether it is appropriate by the use of Pepper v Hart to extend the ambit of the statute so as to impose criminal liability upon a defendant where, in the absence of the Parliamentary material, the court would not do so. It seems to me at least arguable that if a criminal statute is ambiguous, the defendant should have the benefit of the ambiguity.

  140. Putting the five reasons set out above to one side, there are three core arguments that support the narrower first construction over the second. First, as the Magistrates' Court identified, there are a significant number of provisions, both from St Helena and from England and Wales, that potentially support the conclusion that fish should not fall within section 2.
  141. As regards St Helena legislation, the Magistrates' Court referred to: Animals (Diseases) Ordinance 1944; the Interpretation Ordinance 1968; and the Protection of Animals Ordinance 1969. As regards England and Wales legislation, the court utilised: Wild Animals in Captivity Protection Act 1900; the Animals Act 1971; and the Animal Health Act 1981.
  142. As a matter of legal principle, there is no issue in the Magistrates' Court having referred to such legislation as a tool for construction. Reference to the Interpretation Ordinance 1968, is of course entirely unobjectionable, the function of the 1968 Ordinance being to aid the construction of other statutory provisions: Bennion, Bailey and Norbury on Statutory Interpretation at 19.1 (in the context of England and Wales legislation).
  143. As regards the other pieces of legislation, both those of England and Wales and St Helena, such statutes are likely relevant under the doctrine of pari materia.
  144. Notwithstanding the prima facie relevance of such pieces of legislation, it does not seem to me that the statutes referred to by the Magistrates' Court necessitate the conclusion reached.
  145. Commencing with the England and Wales Wild Animals in Captivity Protection Act 1900, an animal is therein defined as "any bird, beast, fish or reptile". Under this statute, it is clear that fish are considered to be distinct from "bird" and "beast", suggesting that the latter two terms are optimally construed as not including fish. This was the conclusion reached by the Magistrates' Court below, and it is indeed compelling. This would militate in favour of the first mode of construction considered above.
  146. It is to be recalled, however, that the second mode of construction to which I have referred is not focused on the specific meaning of the word "beast", but rather concerns the meaning of "all beasts and birds" in a more holistic fashion.
  147. In any event, even if one remains focused on the distinct definition of "beast", it is proper that the Animal Health Act 1981 be given greater weight in a pari materia analysis than the Wild Animals in Captivity Protection Act 1900, the former having been introduced much closer to the 1982 Ordinance than the latter. Indeed, when seeking to identify the legislative intention underlying the word "beast", it is surely correct that a more modern Act's definition must necessarily override that of an older, repealed piece of legislation.
  148. As the Magistrates' Court below sets out, section 87(2)-(3) of the Animal Health Act 1981 provides as follows:
  149. (2) The Ministers may by order for all or any of the purposes of this Act extend the definition of "animals" in subsection (1) above so that it shall for those or any of those purposes comprise—
    (a) any kind of mammal except man; and
    (b) any kind of four-footed beast which is not a mammal.
    (3) The Ministers may by order for all or any of the purposes of this Act (except so far as it relates to disease) extend the definition of "animals" in subsection (1) so that it shall for those or any of those purposes comprise—
    (a) fish, reptiles, crustaceans, or
    (b) other cold-blooded creatures of any species, not being creatures in respect of which an order can be made under subsection (2) above.
  150. The Magistrates' Court concluded from this provision that "the word 'beast' is not, in the legislation, used to describe birds, fish or reptiles". With respect, it is not clear that this is correct. Section 87(2)(b) refers to a "four-footed beast which is not a mammal". Two observations might be made about this definition. First, "beast" can include an animal that is not a mammal. Second, "beast" can include an animal that is not four-footed. Were that not the case, the "four-footed" qualification would be entirely redundant. These two observations give rise to a definition of "beast" that is far wider than that found in the 1900 Act, being one that (by virtue of its inclusion of non-four-footed non-mammals) incorporates, among other things, fish, reptiles, and crustaceans. It seems therefore that the provision for "fish, reptiles, crustaceans, or other cold-blooded creatures of any species" in section 87(3)(a) - (b) is included solely for the avoidance of doubt as, strictly speaking, such animals would fall within the section 87(2)(b) definition.
  151. Respectfully, on my findings, the Magistrates' Court reached the incorrect conclusion as to the meaning of "beast" that can be drawn from England and Wales legislation. The most recent statutory view of the meaning of "beast", namely that from the 1981 Act, prior to the introduction of the 1982 Ordinance was one that necessarily included non-four-footed non-mammals, such as fish.
  152. As regards the Animals Act 1971, the Magistrates' Court considers this to be the "English equivalent of s.11(2) of the Animal Trespass Ordinance 1982". The court below sets out that section 9 of the Animals Act 1971 "provides protection to a landholder in civil proceedings for killing or injuring a dog that is worrying livestock". Although this is correct, it is argued on appeal that the inclusion within section 2 of the 1982 Ordinance of cats renders any focus on livestock entirely misplaced. Any interpretative assistance that might be derived from the Animals Act 1971 is therefore to be eschewed as contrary to the clear wording of - and intention behind - section 2 of the 1982 Ordinance.
  153. Turning now to St Helena legislation, the Magistrates' Court placed particular emphasis on the Animals (Diseases) Ordinance, 1944, which under section 2 defines animals as including "all beasts, birds, reptiles, fishes and insects, and the young, eggs and semen thereof". This definition constitutes potentially forceful support for the narrower construction. However, the definition of animals under section 2 of the 1944 Ordinance is self-evidently tautologous. This is apparent from the mention of "the young" within the definition. The young of any beast, bird, reptile, fish, or insect is clearly as much the same animal as the parent beast, bird, reptile, fish, or insect. The inclusion of "the young", therefore, evidences the function of section 2 of the 1944 Ordinance to serve as a catch-all provision, operating for the avoidance of doubt. As such, the conclusions that can be drawn from the separation of "beasts" and "fishes" are limited, particularly when, as set out above, the context of the 1982 Ordinance favours a construction of "all beasts and birds" that includes fish.
  154. Notwithstanding this point, the following observation of the Magistrates' Court should be noted:
  155. Given the legislature when enacting the 1982 Ordinance was replicating language used in the 1944 legislation had it intended the definition of 'domestic animals' to include reptiles, fish or insects then it would have expressly done so.

  156. That is no doubt a valid conclusion. However, it overlooks the fact that the 1944 Ordinance significantly pre-dates the Animal Health Act 1981 which, as set out above, includes non-four-footed non-mammals, such as fish. It might be assumed, therefore, that the proper legislative intent behind "beast", for the purposes of construing the 1982 Ordinance, is that of the England and Wales 1981 Act, and not the 1944 Ordinance.
  157. The final relevant piece of legislation considered by the Magistrates' Court is the Protection of Animals Ordinance, 1969. As the court below set out:
  158. The Protection of Animals Ordinance, 1969 excludes fish from the definition of 'animal' and 'domestic animal,' but a fish could be treated as a 'captive animal.' However other than defining what are captive animals the legislation makes no further reference to them. Domestic animals are mentioned just once in relation to protecting them from poisons used for the control of vermin.

  159. This is, of course, correct. However, the 1969 Ordinance does not mention "beast". Moreover, its definition of domestic animal is quite distinct from that in the 1982 Ordinance. The latter refers to animals that "by habit or training live in association with man", whilst the former refers to an animal that "is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man" (section 2). It is apparent from this that the 1969 Ordinance's definition is focused more on livestock, evidenced further by the presence of a separate definition for captive animals. Given the clear distinction between the schematic and functioning of the 1969 Ordinance and the 1982 Ordinance, and for similar reasons to those put in relation to the Animals Act 1971, it is doubtful that the 1969 Ordinance can provide much assistance in construing definitional terms within the 1982 Ordinance.
  160. Under the second potential argument supporting the narrower first construction, it might be said that the phrasing in section 2 of the 1982 Ordinance, requiring a domestic animal to be one that "by habit or training live[s] in association with man", colours the meaning of "all beasts and birds" to exclude fish. This is, it should be noted, a different question than that considering whether Mr Thorpe's koi carp "by habit or training live in association with man", which is considered below. Rather, this current question pertains to the logically prior matter of construction.
  161. To answer this question, one must identify what is meant by living "in association with man" for the purposes of section 2. Section 2 itself lists several examples of "beasts and birds" that are capable of being considered to live in association with man: cattle, horses, sheep, goats, pigs, poultry, cats and dogs. Taking cats and dogs as being perhaps the quintessential example of pets qua domestic animals, it is apparent that domesticated cats and dogs clearly live in association with man. This seems to be capable of being said as axiomatic without evidence. Cats and dogs, when kept as pets, often live in (or just outside of) residential dwellings alongside their owners, and in many cases, both give and receive physical affection. Dogs particularly can often follow commands, and both are trained to some extent to survive in a home environment. Both, either through pure training, pure habit, or both, demonstrate loyalty and associative behaviour to their owner. Self-evidently, therefore, cats and dogs live in association with man. The question therefore is whether it can be said that fish, and, in particular, koi carp, do the same.
  162. The drafters consider that poultry, another example given in section 2, is capable by habit or training of living in association with man. Poultry is quite different from cats or dogs, in that it does not follow commands, is seldom trained to live in a home environment, and is not normally the giver or receiver of physical affection. The difference is that, unlike cats or dogs, poultry is not in any sense trained to live in association with man, but rather does so as a matter of habit, such habit deriving from the enclosure in which it lives and its feeding habits. This is no different in substance from fish. Just as chickens might live in a coop and be fed seeds, fish might live in an outdoor pond and be fed fish food. As poultry, which are entirely different from cats and dogs, is capable of living in association with man, the same must as a matter of logic be capable of being true of fish.
  163. It might be argued that fish can never be a "domestic animal" on the basis that, if fish are not kept in an enclosure, such as a pond, they would inevitably swim away. However, this is in truth no different to many other species of animal. Cattle and poultry, for example, may be permitted to roam freely within a field, but these fields are almost invariably enclosed with fences. Such fences prevent the cattle and poultry from, essentially, running wild. The difference between fish, on the one hand, and cattle and poultry, on the other, is purely a matter of scale.
  164. As a matter of logic, fish are clearly capable of falling within the definition of "domestic animal".
  165. This conclusion is further supported when one considers an alternative to the statutory language of section 2, deployed in the Animals (Diseases) (Ascension) Regulations 1950. Regulation 2 sets out as follows:
  166. "domesticated animal" means any cattle, donkey, horse, sheep, goat, pig, rabbit, poultry, cat, dog or other animal adapted to a life intimately associated with and advantageous to humans;
  167. Fish, for the reasons set out above, are capable of being "adapted to a life intimately associated with" humans, in a similar manner to poultry and, in the case of regulation 2, rabbits. Moreover, it can likely be taken as axiomatic that fish qua pets are capable of being "advantageous to humans", with many owners undoubtedly enjoying their company and aesthetic value.
  168. Under the third potential argument supporting the narrower first construction, it might be asked why the fine ascribed to one's allowing a dog to kill, wound, or worry a domestic animal under section 11(1) is so high (£125) in comparison to the other offences created under the Ordinance, the next highest of which is £50 (section 14). Perhaps, one might argue, the comparative severity of the offence created under section 11(1) demands a restrictive interpretation of "domestic animal", such that liability is not too readily established.
  169. This reasoning must be erroneous. The fact that the other offences created within the Ordinance, the majority of which relate to livestock, attract comparatively low fines, is suggestive of the fact that section 11 is concerned with something much more than just livestock. Indeed, it appears that the large fine ascribed to the offence under section 11(1) is capable of being taken as indicative of the Legislature's recognition of the importance of domestic animals, particularly pets, and the harm that follows from killing, wounding, or worrying by a dog.
  170. In this sense the high fine under section 11(1) is not a reason to interpret "domestic animal" restrictively, but rather might be taken to evidence a statutory incentive mechanism, encouraging owners to control their dogs so that they do not kill, wound, or worry other domestic animals.
  171. As previously stated, any ambiguity as to construction should be resolved in favour of the defendant.
  172. As regards ground one, therefore, I am satisfied that "all beasts and birds", properly construed, does include fish. However, this leaves open the question of whether Mr Thorpe's koi carp "by habit or training live in association with man". It was briefly considered above whether fish are capable, by habit or training, of living in association with man, although this was considered at the general level for the purposes of construction.
  173. Mr Thorpe makes submissions on the domestication of koi carp as follows:
  174. The clear evidence before the Magistrates' Court was that after a thousand years of being domesticated, koi are no longer capable of living in the wild, should not be released and have no natural range. There was no reasonable basis to conclude that they do not, by habit, reside with man.

  175. The Magistrates' Court did not in fact conclude that koi carp do not, by habit, reside with man. Rather, the court below did not need to address the matter, having determined that fish do not fall within section 2.
  176. Most fish cannot be trained, and therefore the issue realistically that must be resolved is whether these koi carp "live[d] in association with man" by habit. The drafters clearly envisaged that poultry can "live in association with man", and it was further noted that poultry do so as a matter of habit, deriving from the enclosure in which it lives and its feeding habits.
  177. Mr Thorpe's koi carp lived in a fishpond, which was six feet deep. He fed them. Put simply, Mr Thorpe's koi carp were not wild. Thus, if cats and poultry are capable of living "in association with man" such as to be considered domesticated animals for the purposes of section 2, then so should koi carp.
  178. In conclusion, I find that the Magistrates' Court reached the incorrect finding in its pre-trial ruling on construction when construing section 2 of the 1982 Ordinance. Fish, namely koi carp, fall within the section 2 definition of "domestic animal" the result being that Mr Thorpe should have been able to avail himself of the protection afforded by section 11(2) of the 1982 Ordinance.
  179. Turning to Mr. Thorpe's conviction for failing to comply with a condition of a firearm certificate in using a gun for purposes other than sport or vermin control under section 4(2) of the Firearms Ordinance 1997, section 11(2) of the Animals Trespass Ordinance 1982 provides that the lawful occupier of any land, or any person acting with his authority, may shoot or otherwise humanely destroy any dog found trespassing thereon and killing, wounding or worrying any domestic animal or poultry 'without being responsible to the owner or keeper of the said dog, or liable to an action at law or other process whatever.'
  180. The scope of immunity in section 11(2) is exceptionally broad. Not only does it provide a defence to a charge of criminal damage but to an action at law or 'other process whatever'. On its plain and ordinary meaning, section 11(2) provides a defence not only to any civil liability but also to any prosecution that arises from the shooting of a dog, including failing to comply with the conditions of a firearms licence.
  181. The Magistrates Court found that "there is a right in the Animal Trespass Ordinance 1982 to protect some types of animals from dogs by shooting the dog. If the police do not issue firearms certificates that allow for this lawful activity then they have undermined a right contained [in the] legislation. It is clear from the guidance notes and frequently asked questions document that 'vermin control' is a loose term designed to cover protection of property from animals generally, as opposed to protecting property from what would normally be defined as vermin." That must be correct. If someone were to shoot a dog in circumstances in which section 11 (2) provided them with a complete defence, but could then be convicted of breaching the terms of their firearms licence, that would defeat the purpose of the legislation.
  182. Therefore, having found that 'domestic animals' includes fish, and more specifically, koi carp, Mr. Thorpe should not have been convicted on the charge of failing to comply with the conditions of his firearms licence under section 4(2) of the Firearms Ordinance 1997.
  183. As such, the trial ruling is prima facie liable to be set aside under section 250(1)(b) of the Criminal Procedure Ordinance 1975 on "the ground of a wrong decision on any question of law". Importantly, however, the Supreme Court may only set aside the judgment on the basis that there has been a miscarriage of justice (section 250(1)(b)), and "must, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred" (section 250(1A)).
  184. The Magistrates' Court's error of law in the pre-trial ruling on construction was not merely capable of affecting the result of the trial but did so. Had the error of law not occurred, Mr Thorpe would never have been tried in relation to the offence of criminal damage and failing to comply with the conditions of his firearms licence and guilty verdicts could not have been returned. A substantial miscarriage of justice has actually occurred, meaning the section 250(1A) proviso cannot engage, and the judgment should be set aside under section 250(1)(b).
  185. (c) Grounds 2 and 3

  186. This appeal having been allowed on ground one, grounds two and three do not strictly require consideration. While I do not propose addressing ground three, ground two raises issues of constitutional importance and I have been invited by the Appellant to reach a determination on it so that the plaint through which the application for Constitutional redress has been made can be disposed of.
  187. In ground two it was averred the admission of the two voluntary interviews by the Magistrates' Court constituted a breach of the appellants rights under the Constitution. It was also averred that his right to access to a lawyer at interview was breached. I shall address each component of ground two in turn.
  188. Section 10 of the Constitution replicates the provisions of article 6 of the ECHR and speaks primarily to conduct post-charge. Section 5 focuses at the general level on fundamental freedoms. Section 9, 'Protection of right to personal liberty', provides as follows:
  189. (2) Any person who is arrested or detained shall be informed promptly, orally and in writing, in a language that he or she understands, of the reason for his or her arrest or detention.

  190. A voluntary interview without arrest would not satisfy the definition of "arrested" in section 9(2). Being "detained" is necessarily an involuntary mechanism. As a matter of logic, one cannot realistically be said to be 'detained' during an entirely voluntary interview.
  191. Article 6(3) engages when a person has been "charged" with a criminal offence. In that sense, prima facie, a person's rights under the ECHR appear weaker than those at common law and under the Constitution, which engage as soon as an arrest has taken place.
  192. However, "charged" in the context of article 6(3) has evolved through interpretation by the courts and is now understood to have an "autonomous meaning and must be interpreted with reference to the objective rather than formal situation": Padin Gestoso v Spain (dec), no 39519/98, ECHR 1999-II (extracts) – (8.12.98)). Indeed, the relevant test might be taken to be whether there has been "official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", and whether "the situation of the [suspect] has been substantially affected" (Deweer v Belgium (27 February 1980, application no 6903/75), the court set out (at [46])
  193. This broad construction aligns with other limbs of article 6(3). For example, it is well-established that a person has the right to legal assistance from the initiation of the process of police questioning, in circumstances "which are decisive for the prospects of the defence in any subsequent criminal proceedings" in order to ensure a fair trial (John Murray v The United Kingdom (8 February 1996, application no 18731/91) (at [63]). Moreover, ECtHR dicta support the proposition that someone called for a voluntary interview is an "accused" for ECHR purposes (Wang v France (83700/17). Thus, citizens of St Helena do potentially have a prima facie constitutional right, potentially emerging pre-arrest and/or pre-charge, to be informed of the offence they are suspected of having committed.
  194. Further, a generous and purposive interpretation ought to be given to constitutional provisions (Reyes v The Queen [2002 2 AC 235) consistent with the 'partnership values' under sections 2 and 4 of the Constitution (Buckley v Attorney General [2024] SHSC 522). The UK having extended the application of the ECHR to St Helena pursuant to Article 56 of the Convention, a failure to give effect to convention rights, as enunciated through established jurisprudence from the ECtHR, would be inconsistent with the UK and St Helena's treaty obligations under the Convention (Buckley; Article 1 of the ECHR).
  195. In its pre-trial ruling on exclusion, the Magistrates Court reached the conclusion that Mr Thorpe had, as a matter of substance, been given sufficient information to put him on notice that he was suspected of a criminal offence. This finding, the court considered, meant there was no need for Mr Thorpe to be told specifically the nature of the offence he was suspected of having committed. That conclusion must be incorrect. The fact that Mr Thorpe had been given sufficient information to put him on notice, under the European Convention on Human Rights, required Mr Thorpe to be told specifically the nature of the offence he was suspected of having committed. This is because the circumstances of the two voluntary interviews, alongside the caution, seem to constitute - albeit implicitly - an "official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence". In any event, by this point "the situation of the [suspect] ha[d] been substantially affected".
  196. Any breach of article 6 rights does not require the automatic exclusion of evidence that is the product of that breach. Using the statutory framework, a court should consider whether the failure to exclude that evidence would render the trial unfair.
  197. Had Mr. Thorpe been informed much earlier that he was suspected of having committed a criminal offence, that may have informed his decision not to have legal representation until 7th July 2024, which is the second component of ground two.
  198. Having found a breach of Mr. Thorpe's constitutional rights, it falls to be considered whether that breach rendered his trial unfair.
  199. It is significant that there is a clear legislative framework in place to govern the admissibility of evidence obtained during police questioning.
  200. The Magistrates Court did not consider the evidence deriving from the voluntary interview to be capable of having such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The decision to exclude is the product of an evaluative, judgement-based process. The court held that evidence should not be excluded and, on issues such as this where context is vital, the trial court is usually better placed to make such decisions.
  201. Having carefully considered all the circumstances, including the circumstances in which the evidence was obtained, I am satisfied that the Magistrates Court was correct not to exclude the evidence obtained during the voluntary interviews.
  202. In the second component of ground two, Mr Thorpe submits that his lack of access to a solicitor or qualified lawyer, and only to a lay advocate, when interviewed under caution, did not satisfy his constitutional right to access to a lawyer at interview.
  203. Section 9(3) of the Constitution deals with legal representation pre-charge and section 10 (2) post-charge.
  204. 'Legal representative' is defined under section 115 of the Constitution as "a person who is entitled to practise before the court or other tribunal or authority exercising jurisdiction or power in respect of a person who is arrested, detained, or charged with a criminal offence".
  205. In the second voluntary interview, Mr Thorpe was represented by a lay advocate.
  206. A lay advocate has a statutory basis in the Legal Aid Assistance and Services Ordinance 2017 that satisfies the definition of 'legal representative' in section 115 of the Constitution. However, the Constitution must be interpreted in a way that is compliant with the ECHR.
  207. 168. While article 6 (3) of the ECHR refers to 'legal assistance', a term that is not defined in the Convention, the European Court of Human Rights has held that "… the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective;…" (Artico v Italy (13th May 1980, Application no 6694/74) at [33]; Salduz v Turkey (27th November 2008 App no (3639/02)).

  208. It is not entirely clear what "practical and effective" means in relation to the quality of legal assistance to be provided by member states. Assistance may be divined from the United Nations Basic Principles on the Role of Lawyers that provides "a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance" (1990 at paragraph 6).
  209. On the facts of this case, I do not consider the appointment of a lay advocate breached the appellants constitutional rights, as read with article 6. However, had Mr. Thorpe been charged with a more serious offence, the provision of a lay advocate may not have met the ECtHR test of 'practical and effective'.
  210. Conclusion

  211. Therefore, I allow ground one of the appeal and reverse the findings and sentences of the Magistrates Court and acquit the Appellant on the offences of (1) Criminal damage in destroying a dog without lawful excuse under section 3 of the Criminal Damage Ordinance 1979 and (2) Failing to comply with a condition of a firearm certificate in using a gun for purposes other than sport or vermin control under section 4(2) of the Firearms Ordinance 1997.
  212. In respect of the application for Constitutional redress, I dismiss the plaint for the reasons I give above.
  213. Given my conclusion on ground one of the appeal, ground three does not fall to be considered. Accordingly, grounds two and three are dismissed.

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