James v The Royal Society for the Prevention of Cruelty To Animals (RSPCA) (Rev 1)

On 8 April 2010 at Goole Magistrates’ Court, the appellant, Yvonne James, pleaded guilty to three charges of causing unnecessary suffering to protected animals. The charges related to three horses which were found to have been living in atrocious conditions. Four weeks later on 6 May 2010, she was sentenced on each charge to a community order with supervision and unpaid work requirements. Orders were also made depriving her of her ownership of the three horses, and disqualifying her from keeping, dealing in and controlling horses for an unlimited period. She was also ordered to pay what was described as the “costs” of the prosecutor, the RSPCA, in the sum of £38,644.56.

Mrs James appealed against her sentences and the order for “costs”. The appeal was heard at Hull Crown Court by Judge Swanson and two justices on 26 August 2010. The appeal was dismissed, and Mrs James now appeals to the High Court by way of case stated against the dismissal by the Crown Court of her appeal against the order for “costs”.

The first ground of appeal is that the order for “costs” should have been reduced by the Crown Court to reflect the contention advanced on behalf of Mrs James that the seizure and detention of the horses had been unlawful. That contention is based on section 18(5) of the Animal Welfare Act 2006 (“the Act”), which provides:

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

(a)

that it is suffering, or

(b)

that it is likely to suffer if its circumstances do not change.”

The unchallenged facts were that a veterinary surgeon went to the stables where the horses were found at the request of the RSPCA. She examined the horses, and said that they were suffering and in need of veterinary attention. As a result, a police officer, who also had been requested to attend the stables by the RSPCA, assumed responsibility for the horses, and they were later cared for by the RSPCA. The critical point is that the veterinary surgeon’s certificate that the horses were suffering was not in writing. It was just what she said, and the first ground of appeal is that only a certification in writing amounts to a sufficient certification for the purposes of section 18(5).

The Crown Court rejected that contention. Judge Swanson said in the case stated:

“We considered that this oral opinion was sufficient certification.”

Accordingly, the first question which the Crown Court has stated for the opinion of the High Court is:

“Is it lawful under section 18(5) of the Animal Welfare Act for an inspector or constable to take a protected animal into his possession if a veterinary surgeon present at the scene states orally that the animal is suffering?”

The issue as to whether the certification required by section 18(5) needs to be in writing had been considered by the Crown Court on other occasions. In Rumachic (Appeal no. A2008/0123, 23 October 2008), Judge Waddicor and two justices at Lewes Crown Court held that it had to be in writing. But in Shine (Appeal no. 2009/0202, 6 October 2010), Judge Tain and two justices, coincidentally again at Lewes Crown Court, held that it did not have to be in writing. Judge Tyrer in Gray is said to have also held that it did not have to be in writing, but a copy of his judgment has not been provided to me and its citation is unknown.

The word “certifies” in section 18(3) is not defined in the Act. Mr Jonathan Edwards for Mrs James acknowledges that the issue is one of construction as to whether the word “certifies” means certifies in writing. The word “certifies” has to be construed, of course, in accordance with its ordinary meaning, subject to the context of the statutory provisions in which it appears. The word connotes a degree of formality, and the proposition that the degree of formality which is necessary is that the certification be in writing is, in my view, supported by section 18(10) of the Act, which provides, so far as is material:

“A veterinary surgeon may examine and take samples from an animal for the purpose of determining whether to issue a certificate under subsection … (5) with respect to the animal.”

If “a certificate” under section 18(5) is to be issued, that is more consistent with the certificate having to be in writing, because it is documents which tend to be issued rather than expressions of opinion.

The RSPCA argues that, when it comes to the context, including the need to give effect to what Parliament must be regarded as having intended, a different approach should be adopted. Two points are made. First, where it is proposed that a certificate required by the Act should have a degree of formality about it, the Act says so explicitly. An example of that is said to be section 6(4) of the Act, which provides:

“For the purposes of subsection (3), a dog is a certified working dog if a veterinary surgeon has certified, in accordance with regulations made by the appropriate national authority, that [certain specified conditions] are met.”

I do not think that the language of section 6(4) is persuasive at all. Section 6 relates to the docking of dogs’ tails. Sections 6(1) and 6(2) identify the circumstances in which the docking of a dog’s tail is made a criminal offence. Section 6(3) provides that sections 6(1) and 6(2) do not apply “if the dog is a certified working dog that is no more than 5 days old”. So section 6(4) requires the certification to be in accordance with regulations made by the appropriate national authority because it proceeded on the assumption that there were or would be regulations in existence in various countries relating to the certification of working dogs. Such a qualification was unnecessary in section 18(5), because there are no regulations governing the kind of certification required by section 18(5).

However, the RSPCA’s second point is a far more compelling one. The aim of the Act, as is apparent from its title, is to promote animal welfare. That is achieved, in part, by preventing, or at least reducing, animal suffering. Indeed, that is the explicit aim of section 18 of the Act, which is headed “Powers in relation to animals in distress”. It is said, therefore, that section 18(5) should be construed as far as possible in a way which does not subject an animal in distress to further suffering. The RSPCA contends that an animal might well be subjected to further suffering if a veterinary surgeon who is called to the scene is not in a position to produce a written certificate of the animal’s condition immediately. That might happen, for example, if there are a large number of animals, some of whose seizure is necessary because they need urgent treatment, and some not, and there is not sufficient time to produce a written certificate covering only those animals whose seizure is necessary. It might also happen, for example, if the circumstances at the time made the production of a written certificate impracticable, for example, if the weather was too bad for the appropriate documentation to be raised on site, or if the site was dangerous and the veterinary surgeon as well as the animal had to leave the site as soon as possible.

It is true that section 18(6) caters for those occasions when animals have to be put out of their suffering quickly. It provides that:

“An inspector or a constable may act under subsection (5) without the certificate of a veterinary surgeon if it appears to him –

(a)

that the condition of the animal is such that there is no reasonable alternative to destroying it, and

(b)

that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon.”

But section 18(6) is concerned with taking steps to put an animal out of its distress before the veterinary surgeon has arrived. It does not apply when the veterinary surgeon has arrived, and something needs to be done then to put the animal out of its distress. I have not overlooked the consequences of the issue of a certificate for the owner of an animal, which may result in the seizure of a well-loved pet. But it would, I think, be very surprising if section 18(5) were to be construed in a way which permits a police officer to act so as to put an animal out of its distress before the veterinary surgeon arrives, but does not permit the animal to be relieved of its suffering after the veterinary surgeon arrives, even though the veterinary surgeon thinks that the animal is suffering, but for one reason or another does not put that into writing.

For these reasons, I have concluded that section 18(5) does not require the certification to be in writing, and that the seizure and detention of Mrs James’s horses was not unlawful. Accordingly, the answer I give to the first question posed for the opinion of the High Court is “Yes”.

The “costs” which were comprised in the order for “costs” of £38,644.56 included £491.16 for the RSPCA’s investigation of the offences and £2,250 for the RSPCA’s legal costs. The balance of the “costs” related to the cost of transporting the horses to where they were cared for (£879.37), the veterinary costs (£4,064.39), and the cost of looking after the horses (£30,959.64). Orders for the payment of legal costs by persons convicted of offences before a magistrates’ court are permitted by section 18(1) of the Prosecution of Offences Act 1985 to the extent that the magistrates’ court considers them just and reasonable. In the light of R v Associated Octel Co Ltd [1997] 1 Cr App R (S) 435 and Balshaw v Crown Prosecution Service [2009] EWCA Crim 470, no point has been taken that an order for costs could not include the RSPCA’s costs of investigating the offences. Orders for the reimbursement of expenses incurred by someone acting under section 18 of the Act are permitted by section 18(13) of the Act. It was presumably pursuant to those sections that the magistrates’ court made the order for “costs” which it did.

The magistrates’ court did not make a collection order, i.e. an order which, amongst other things, identified how the order for “costs” should be paid. That was because the RSPCA requested the magistrates’ court not to make such an order. Para. 12(1) of Schedule 5 to the Courts Act 2003 required the court to make a collection order “unless it appears to the court that it is impracticable or inappropriate to make the order”. The magistrates’ court was satisfied that it was impracticable or inappropriate to make a collection order, given (a) the large amount and (b) the RSPCA’s intention to enforce the order for “costs” as a civil debt. The RSPCA was entitled to do that by virtue of section 41(3) of the Administration of Justice Act 1970, which provided that sums required to be paid as a result of orders in criminal proceedings are enforceable in the High Court or the county court as if the sum was due as a result of a judgment of the High Court or the county court, though certain methods of enforcement such as the issue of a writ of fieri facie are excluded.

The Crown Court accepted that Mrs James was not in a position to pay the sum of £38,664.36 in the foreseeable future. However, it was told by the RSPCA’s counsel that she had a substantial equitable interest in a property which might satisfy that sum, and that it was only if her equity in that property became available that the debt would be enforced as a civil debt. It was in those circumstances that the Crown Court dismissed the appeal against the order for costs, and the second question which the Crown Court has stated for the opinion of the High Court is:

“Is it appropriate to make an order for costs without a collection order, when the court accepts that a defendant cannot satisfy the order within a period of time certain, but may be able to satisfy such an order at some time in the future, such order being enforceable in the civil jurisdiction.”

Mr Edwards argues that the Crown Court should not have agreed with the magistrates’ court that a collection order should be dispensed with. Making a collection order, he says, was neither impracticable nor inappropriate. I do not agree. If the court thought it appropriate for orders for costs and reimbursement of expenses in the amounts sought by the RSPCA to be made, and if the court thought that Mrs James had, either then or in the foreseeable future, the means to pay such amounts, I would have agreed that it would have been neither impracticable nor inappropriate to make a collection order. But this was a case in which the court thought that Mrs James did not have the means to pay such amounts in the foreseeable future. In those circumstances, it was entirely inappropriate to make a collection order which purported to identify a date by when Mrs James was to pay those amounts.

The real question which this appeal raises is whether, having decided that it was inappropriate to make a collection order in respect of any order which it might make for the payment of costs or the reimbursement of expenses, a court can then make orders for costs and the reimbursement of expenses when the defendant does not have the means to pay the amounts ordered in the foreseeable future, but may have the means to do so at some date in the more distant future. Unlike a fine which is a punishment, an order for the payment of costs or for the reimbursement of expenses is entirely compensatory. Accordingly, the issue is whether the interest of the prosecutor in being compensated for its outlay outweighs the fact that a defendant may have the prospect of eventually having to pay out a large sum hanging over their head for years. In my opinion, that is the judgment call which it is for the sentencing court to decide on the facts of any particular case.

It goes without saying that orders for the payment of costs and reimbursement of expenses should not be made for amounts which a defendant is unable to pay. But I do not see why a defendant should be treated as unable to pay such amounts if there is a real basis for saying that there could well come a time when he or she is able to pay such amounts. If there comes a time when a defendant could pay the amounts for costs and the reimbursement of expenses which the court thinks appropriate, and if the court thinks that it is an appropriate case for that possibility to be hanging over the defendant until such time as the court realistically thinks that the defendant would have the resources to pay the sums awarded, then in my view it would be unfair for the prosecutor to be denied recovering those amounts.

In that connection, the critical fact to remember is that once a collection order has not been made, the order is enforceable as a civil debt. If an attempt is made to enforce such a debt in the county court, the county court has the power to stay its enforcement: see section 71(2) of the County Courts Act 1984. No doubt the county court will exercise that power if (a) an attempt to enforce the debt is made at a time when the defendant does not have the means to pay it, and (b) the debt arises from an order made by a criminal court and was enforceable as a civil debt because the criminal court took the view that it should not be enforced while the defendant did not have the means to pay it from the realisation of those assets which the Crown Court had identified as the assets which might be capable of being realised to pay the amounts ordered.

In the present case, the Crown Court concluded, in the light of Mrs James’s evidence about her means, that she had an equitable interest in her husband’s half-share with his brother in the house in which they lived. Mrs James wishes to challenge that finding, and Mr Edwards wanted to address me on that issue, but the correctness of that finding was not one of the topics on which the Crown Court sought the opinion of the High Court, and I have to proceed on the basis that the Crown Court’s finding is correct. Of course, if the house is not sold, Mrs James will not be able to realise that equitable interest, but if the house is sold, she will have an equitable interest in half the net proceeds of sale, and it would be for the county court to decide whether it was appropriate for the debt to be enforced in those circumstances.

For these reasons, the answer I give to the second question posed for the opinion of the High Court is “Yes”. But the question was posed in the abstract. It did not relate to Mrs James, and the question which the Crown Court needs to address in her case is whether it is appropriate for the possibility of her having to pay these sums to be hanging over her head until such time as the Crown Court realistically thinks that she would have the resources to pay them. It follows that her case has to be remitted to the Crown Court for that issue to be considered in the light of this judgment.