Cornwall County Council v Baker

MR JUSTICE TOULSON: This is a prosecutor's appeal by way of case stated from a decision of justices for the county of Cornwall, sitting at Truro Magistrates' Court, to dismiss an application made by the prosecutor, Cornwall County Council, for an order under section 2 of the Protection of Animals (Amendment) Act 2000. The respondent, Roger Baker, was being prosecuted for seven alleged offences of cruelty to animals under section 1 of the Protection of Animals Act 1911. The animals identified in the informations were six cross bred ewes and one cross bred lamb.

Under the 1911 Act the court has powers, after conviction of a defendant, to prevent further suffering of the animal to which the offence relates. Under section 2 the court may order the destruction of the animal. Under section 3 it may deprive the convicted person of ownership of the animal, and it may make such order for the disposal of the animal as it thinks fit.

Under the Protection of Animals (Amendment) Act 1954, the court additionally has power, after conviction of a person for an offence under section 1 of the 1911 Act, to make an order disqualifying that person from having custody of animals, or specified kinds of animals, for such period as the court thinks fit. But none of the animal welfare powers so far referred to are exercisable by a court prior to conviction.

Under section 11 of the 1911 Act, a police officer has a power, unrelated to any criminal proceedings, if he finds an animal which appears to him to be so diseased or so severely injured or in such a physical condition that there is no possibility of removing it without cruelty, to summon a veterinary surgeon. Subject to the veterinary surgeon's opinion, steps can then be taken for the animal to be put down or removed. But those powers only arise at an extreme stage. So unless a situation became so bad as to fall within section 11, prior to the 2000 Act animals which were the subject of cruelty or neglect proceedings would remain in the hands of the owner while proceedings under the 1911 Act took their course.

The 2000 Act gives certain intervention powers to the court before conviction. The issue in this case concerns their scope. It is a short Act. Its long title reads:

Section 2 is the critical section. It provides:

Section 3 contains provisions for the enforcement of the procedure introduced by the Act, in particular by giving powers of entry to the premises on which the animals in question are kept. Section 4 contains further provisions, mainly of a financial nature, for ensuring the effective operation of the statutory scheme.

In the present case, after criminal proceedings had been instituted against the respondent, the local authority applied to the court for an order to be made under section 2 of the 2000 Act in respect of 80 animals. Of these, 73 were unidentified and unidentifiable animals alleged to be owned by the respondent, and the other seven animals were those to which the informations related. In presenting the application to the justices, the local authority's representative explained that seven informations had been laid to open the door for prosecution, and that the animals subject to those informations had since been destroyed under powers contained in the 1911 Act due to their continued deterioration. I take it that the animals must have been destroyed under section 11.

The County Council's submission was that the purpose of the 2000 Act was to give new powers to prevent further suffering of animals, and that those powers were not restricted to the animals which were the subject of the prosecutions. The justices were told that the 73 other animals were not at the time of the application suffering within the meaning of the 1911 Act, but were at risk of suffering if the local authority did not act. The respondent's submission was that the phrase "animals in question" in section 2 of the Act related only to the seven animals identified within the informations.

The justices recorded their findings in paragraph 8 of the case stated:

The justices posed for the opinion of the High Court the question whether they were justified in finding that the "animals in question" were those to which the offence relates, namely the seven to which the informations related, and as a result dismissing the application.

Mr Butler for the local authority submitted that the animals in question in section 2(1) mean the animals which were the subject of the application, and which might be any animals falling within section 1(2), i.e. any animal which the respondent kept, or had kept, for commercial purposes. Alternatively, he submitted that the expression "the animals in question" was ambiguous in that it could either bear the meaning for which he contended, or that which the justices found. He sought to refer to extracts from Hansard, when the Act was passing through Parliament under the principle of Pepper v Hart [1992] AC 593.

I concur with the opinion of the justices. I do so for a number of reasons. Firstly, in my opinion, the natural meaning of the expression "the animals in question" in section 2(1) is the animals in question in the proceedings brought by the prosecutor. If the draftsman had intended that the power under section 2 should extend to other animals, I would have expected the section to have been drafted very differently.

The prosecutor is defined in section 1. If one were to read the words of section 2(1), but incorporating the full definition of the prosecutor, the subsection would read as follows:

Secondly, the power given to the court under section 2 is an interim power. An order under the section ceases to have effect on the discontinuance or other disposal of the proceedings under section 1 of the 1911 Act: see section 2(4). What was the lacuna intended to be filled by this interim power, and why should the power cease on the termination of the proceedings under section 1 of the 1911 Act? If the section bears the meaning found by the justices, the answers to those questions are readily supplied. The lacuna was that animals which were the subject of cruelty or neglect proceedings might remain in the hands of the owner and continue to suffer while proceedings under the 1911 Act took their course. There would be no need for the power to continue after the conclusion of the proceedings under the 1911 Act for these reasons. If the proceedings resulted in an acquittal of the defendant, there would be no justification for further interference with his custody of his animals. If the proceedings resulted in the conviction of the defendant, then the court would already have its powers under sections 2 and 3 of the 1911 Act to make whatever order was best for the welfare of the animals.

However, if section 2 was intended to extend the court's intervention powers to protect the welfare of animals which were not themselves the subject of an allegation of cruelty or neglect, but were considered to be at risk of suffering at the hands of a defendant, it is hard to see why such powers should come to an end on the conviction of the defendant. One might think that the conviction of a defendant would be added material for supporting the case that his other animals were at risk. It is true, as Mr Butler points out, that on conviction the court would have powers to disqualify the defendant from holding animals, but those powers would relate to the defendant personally rather than to the animals, and it is not clear why a power to make arrangements or give orders for the safe custody of other animals at risk should automatically be brought to an end on the defendant's conviction, merely because he would be exposed to the possibility of a disqualification order.

Thirdly, if there were an ambiguity, it would be permissible to have regard to the long title. In R v Bates [1952] 2 AER 842 at page 844, Donovan J said:

The long title to the 2000 Act suggests, as its language states, that it was to enable provision to be made for the care, disposal or slaughter of animals to which section 1 of the 1911 Act relates, and not to make provisions for the welfare of animals unrelated to such proceedings.

Mr Butler submitted the wider construction, for which he contends would be subsumed within the words "and for connected purposes", but that is not a persuasive argument. If the purpose of the section was to extend the protective arm of the court not only to animals to which proceedings under the 1911 Act related, but also to any other animals kept by the owner for commercial purposes, that would be a substantial extension rather than merely a connected purpose.

Lastly, I confess that with considerable hesitation, and wrongly as I now think, I looked at the passages from Hansard on which Mr Butler sought to rely. The Act resulted from a private member's Bill. Mr Butler referred me to the report of the promoter's statement to the House of Commons on the second reading of the Bill. What was said falls far short of satisfying the strict criteria laid down in Pepper v Hart for the admission of such material as an aid to construction. In so far as it tends in either direction, it tends, in my view, to support the reading of the justices than otherwise, for the promoter stated that her aim was to plug what she described as "a very clear gap" in the 1911 Act in that, as matters stood, animals which were the subject of cruelty or neglect proceedings could be left to suffer while the law took its course.

For those reasons, this appeal is dismissed. Thank you very much, Mr Butler.