Riley & Ors v Crown Prosecution Service (CPS)

This is an appeal by way of case stated (“the Case”) from the judgment, dated 30^th September, 2015 (“the judgment”) of District Judge Clarke, sitting at the Blackburn magistrates’ court, determining a number of preliminary issues in relation to criminal proceedings brought under the Animal Welfare Act 2006 (“the Act”).

As appears from the Case, an information was laid by the Respondent (“the CPS”) against the Appellant, Stephen Riley (“SR”), on the 21^st April, 2015, as follows:

“ On 12^th September 2014 at Dunnockshaw Farm, Dunnockshaw, Burnley, Lancashire…. Caused unnecessary suffering to a protected animal, namely a bovine, by failing to stop the continued handling and movement of the said bovine using ropes, when you knew or ought reasonably to have known that the continued act would have that effect of causing unnecessary suffering to the said animal.

Contrary to section 4(1) Animal Welfare Act 2006”

So far as concerns the Appellants, Geoff Riley (“GR”), Michael Riley (“MR”) and Kevin Riley (“KR”), informations were laid by the CPS against each of them individually on the 1^st May, 2015, in these terms:

“ On 12^th September 2014 failed to take such steps as were reasonable in all the circumstances to prevent an animal for which he was responsible, namely a bovine, from suffering unnecessarily by failing to stop the continued handling and movement of the said bovine using ropes. ”

Ss. 4(1) and 4(2) of the Act provide as follows:

“ (1) A person commits an offence if –

(a)

an act of his, or a failure of his to act, causes an animal to suffer,

(b)

he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,

(c)

the animal is a protected animal, and

(d)

the suffering is unnecessary.

(2)

A person commits an offence if –

(a)

he is responsible for an animal,

(b)

an act, or failure to act, of another person causes the animal to suffer,

(c)

he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d)

the suffering is unnecessary.”

As summarised in the Case, the matter concerned a cow in a slaughterhouse operated by B Riley & Sons (“the partnership”), of which all the Appellants were partners. While being relocated from a holding pen to a separate room where it would be stunned and then killed, the cow fell in a confined space known as the “race”. SR was the manager on site and directed staff to attempt to raise the cow, using a combination of pulling and the use of ropes. An Official Veterinarian (“OV”) on site, a Mr Gil, directed that the cow should be killed and bled in the race. The prosecution case is that the attempts to raise and move the cow caused unnecessary suffering. SR disputes those allegations on a factual basis. GR, MR and KR are prosecuted as partners of the partnership, on the basis that they failed to prevent this incident. They were not present on the day.

A number of issues arose (“the Questions”). As appears from the judgment and the Case, the Judge dealt with them as follows. First, he rejected a time bar argument and held that the proceedings had been brought in time. Secondly, as to GR, MR and KR, the Judge held that it was possible for a prosecution to be brought against individual partnership members in respect of actions undertaken on behalf of the partnership; it was for the CPS to decide whether to bring charges against the individuals or the partnership itself. There was, the Judge said, “an element of mens rea” required, where the prosecution chooses to proceed against individuals. Thirdly, the Judge rejected an abuse of process argument. Fourthly, as the Judge explained it:

“ I found that it was premature to seek a court of summary jurisdiction to stop proceedings based upon paucity of evidence before a trial had commenced. I felt that the most I could do was to offer comment upon the strength of the prosecution case. ”

Fifthly, there was an allegation that there had been an altercation between SR and the OV; the Judge ruled admissible, evidence of an allegation that SR had pushed the OV, as relevant to the question of whether SR had heard the OV’s instruction and thus to whether SR had taken reasonable steps to prevent the animal from suffering unnecessarily.

Against this background, the Judge framed the Questions for the opinion of this Court as follows:

“ 7.1 Did I err in holding that the proceedings were brought in time and that the Court had jurisdiction to hear the proceedings (‘Question 1’)?

7.2

Did I err in allowing the CPS to pursue a case against Geoff Riley, Michael Riley and Kevin Riley in the way it seeks to do so (‘Question 2’)?

7.3

Did I err in refusing to stay the proceedings against the Defendants on the basis that the proceedings were an abuse of the Court’s process (‘Question 3’)?

7.4

Did I err in refusing to, or failing to, rule as to whether that which was evidentially alleged by the CPS constituted ‘unnecessary suffering’ within the meaning of section 4 of the Animal Welfare Act 2006 (‘Question 4’)?

7.5

Did I err in holding that the CPS evidence in relation to the alleged push incident was admissible at the trial (‘Question 5’)?”

I take the Questions in turn and, in doing so, acknowledge my thanks to Mr Hercock, for the Appellants and Mr Shaw, for the CPS, for the assistance given to us.

(1) Outline: The general rule in the magistrates’ court is contained in s.127(1) of the Magistrates’ Courts Act 1980 (“the MCA 1980”), namely, that the court shall not try an information unless it is laid within 6 months from the time when the offence was committed.

By way of, in my view, an exception to the general rule, s.31 of the Act provides as follows:

“ (1) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980 …., a magistrates’ court may try an information relating to an offence under this Act if the information is laid –

(a)

before the end of the period of three years beginning with the date of the commission of the offence, and

(b)

before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge.

(2)

For the purposes of subsection (1)(b) –

(a)

a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact…..”

In the present case, the agreed chronology was recorded in the Case and may be summarised as follows:

The short point on which this Question hinges is whether the FSA or the CPS is the “prosecutor” for the purposes of s.31(1)(b) of the Act. If the answer is the FSA, then the prosecution is time barred. If the answer is the CPS, then the prosecution was brought within time.

(2) Discussion: For the Appellants, Mr Hercock forcefully advanced the argument that the FSA was the prosecutor within S.31 of the Act and that the prosecution was thus time-barred. The building blocks of his argument were these. A plethora of European Union (“EU”) regulations (which need not be set out in extenso here) underlined the importance of the role of the “competent authority” in respect of official controls at slaughterhouses. In the United Kingdom, this role is carried out by the FSA through the use of OVs; the FSA and their OVs are thus responsible for enforcing animal welfare laws at slaughterhouses. This responsibility is recognised in the FSA Manual of Official Controls (the version we have is dated 5^th November, 2015 but there is no suggestion that the terms were different at the date/s with which we are concerned), which provides that the OV should “…verify compliance with relevant EU and domestic legislation prior to and during slaughter and killing, taking proportionate enforcement action where necessary…”. Furthermore, the European Commission (“EC”) “Country Profile” for the United Kingdom on the “Organisation of Food Safety, Animal Health, Animal Welfare and Plant Health Control Systems” (valid as of April 2013) states that responsibility for “animal welfare policy and controls on-farm, at slaughter…” lies with the Department for Environment, Food and Rural Affairs (“DEFRA”), which has delegated “..the responsibility for animal welfare implementation in slaughterhouses to the FSA.” Such responsibility may include “..when necessary, a recommendation for prosecution”.

S.31 of the Act exceptionally extended the time limit for prosecution which otherwise and generally applied pursuant to s.127 of the MCA 1980. That exception was to be construed strictly and in the light of the mischief at which it was aimed: viz., as appeared from the Explanatory Notes to the Act, to deal with cases where it was difficult to prosecute for cruelty to animals, because evidence of the offence had not been discovered until some considerable time after the offence was committed. Such circumstances were likely to be rare and in any event did not encompass this case. Here, time should start running from the 12^th September, 2014, when the OV observed the alleged incident, or, at latest, from the 2^nd October, 2014 when the FSA’s Investigating Officer obtained the witness statement from the OV. In the circumstances, the CPS certificate was plainly wrong and could not stand.

The Judge did not accept this argument and, attractively presented though it was, nor do I. It founders on the distinction well-known in our Criminal Justice System (“CJS”) between investigators and prosecutors. For my part, the “prosecutor” here, for the purposes of s.31(1) of the Act was the CPS, not the OV or the FSA investigators.

First, I accept Mr Shaw’s submission that the FSA, a creation of statute, has no prosecution powers in relation to animal welfare offences and thus under the Act. In short:

Secondly, underlying this separation of roles between investigators and prosecutors is the important principle that initiating a CPS prosecution requires operational independence, together with the exercise of judgment on the part of the prosecutor, in accordance with the Code for Crown Prosecutors. Indeed the rationale for the creation of the CPS was the establishment of a national prosecution service independent from the Police who, in the classical English model, act as investigators. The interests of justice are furthered by bringing skilled, careful and independent judgment to bear when deciding whether to initiate a criminal prosecution; it is not and ought not to be a mechanistic exercise. Such considerations were, with respect, well-expressed by Pill LJ in giving the substantive judgment of this Court in RSPCA v Johnson [2009] EWHC 2702, a case concerning a prosecution by the RSPCA of a horse owner under s.4 of the Act. At [33] – [34], Pill LJ said this:

“ 33. There is no principle of law that knowledge in a prosecutor begins immediately any employee of that prosecutor has the relevant knowledge and Donnachie does not establish one. It is right that prosecutors are not entitled to shuffle papers between officers or sit on information so as to extend a time limit. There is, however, a degree of judgment involved in bringing a prosecution, and knowledge…involves an opportunity for those with appropriate skills to consider whether there is sufficient information to justify a prosecution.

34.

It is not disputed that the Society have a department making decisions as to whether to prosecute. That is separate from the role of the investigating officers who obtain information on the ground….It is in the public interest that prosecutions are brought only upon a consideration of the evidence by an expert mind….”

See too, per Bean LJ in Letherbarrow v Warwickshire County Council [2015] EWHC 4820 (Admin), at [17] et seq.

For completeness, while I respectfully agree by analogy with the observation of Kennedy LJ in Morgans v Director of Public Prosecutions [1999] 1 WLR 968, at p. 983, that s.31 should be strictly construed as an exception to s.127 of the MCA 1980, the decision in that case turned on facts very different from those of this case, where police officers were both investigators and made the charging decision. The expression “…actively instrumental in…. prosecuting it” (at p. 982) is to be read in that context. With regard to R (Donnachie) v Cardiff Magistrates’ Court [2007] EWHC 1846 (Admin); [2007] 1 WLR 3085, it is, with respect, unnecessary to add anything to Pill LJ’s observation in Johnson (supra), at [33].

Thirdly, this separation of the roles between investigators and prosecutors is not a charter for paper-shuffling, as Pill LJ observed in Johnson (supra). In a case such as this, time starts running under s.31(1)(b) of the Act once a suitably qualified CPS employee has knowledge of “...evidence which the prosecutor thinks is sufficient to justify the proceedings…”. Internal CPS delays or transfers of the file will not serve to extend time under that sub-section – and the three year “long stop” provision under s.31(1)(a) will not avail a prosecutor where relevant delay has exceeded the six month period specified in s. 31(1)(b). Although the Explanatory Notes (referred to above) focus on the particular mischief at which s.31 is aimed, it does not seem to me that this statutory purpose entitles or obliges the Court to disregard the well-established and important distinction between investigators and prosecutors in our CJS – and which is very much applicable to the distinct roles of the OV, the investigators and the CPS lawyer/s here. Equally, the need to answer the question of who is the “prosecutor” under s.31(1)(b) is not dispensed with by the desirability of construing s.31 “strictly” as suggested by Morgans (supra) and with which I agree. In the present case, while it is indeed regrettable that the relevant evidence was not before the CPS prosecutor sooner, the delay was not such as to cast any doubt on the fairness of the proceedings; whether in a case of egregious delay on the part of investigators impacting on the fairness of the proceedings there might be some other remedy, can safely be left to a case where that issue arises for decision.

Fourthly, on the facts of the present case, there is nothing to undermine the CPS Certificate, signed pursuant to s.31(2)(a) of the Act.

It follows, in my judgment, that the prosecution was commenced in time and that the time bar Ground of appeal must fail.

(1) Introduction: This Question relates solely to the information laid against GR, MR and KR. As already recorded, the Judge held that the prosecution could proceed against them. The nature of the CPS case should at once be underlined: there was no suggestion that the matter complained of represented a system failure on the part of the partnership or these partners, GR, MR and KR. Importantly, there was also no suggestion that any of GR, MR or KR were present at the slaughterhouse on the 12^th September, 2014, when the incident allegedly occurred. Still further, there is no allegation that the offence allegedly committed by SR under s.4(1) of the Act was jointly committed by GR, MR or KR. Essentially, the CPS case is that GR, MR and KR are criminally liable, without more, for the alleged acts of SR, a co-partner. Against this background, Mr Shaw accepted, realistically, that the CPS case must fail unless the s.4(2) offence (of which GR, MR and KR were charged) was one of strict liability.

(2) The short answer: The short answer to Question 2 is that plainly the s.4(2) offence is not one of strict liability and requires mens rea. It follows that the CPS case on this Question is unsustainable and that the appeal on this Ground must be allowed.

First, the offence under s.4(2)(c) alleged in the information against GR, MR and KR is that they “failed to take such steps as were reasonable in all the circumstances” to prevent the animal suffering unnecessarily by “failing to stop the continued handling and movement of the said bovine using ropes”. It is the circumstances which determine what steps were reasonable; knowledge of the circumstances is thus an essential ingredient of the charge. If this is right, then the s.4(2)(c) offence with which GR, MR and KR were charged is not one of strict liability and, at the least, an element of culpability is required. Even if it be the case that once there is knowledge of the circumstances, the test of the reasonableness of the steps required is objective, the conclusion that this is not an offence of strict liability remains unaffected. In the present case there is no allegation – let alone proof – that any of GR, MR and KR had knowledge of the circumstances; it is not even suggested that they were present on the day.

Secondly, the same conclusion is reached by asking whether it can be said that a criminal offence under s.4(2)(c) is committed by an individual who intervened in good faith and tried but failed to “stop the continued handling and movement of the said bovine using ropes”. For my part, I cannot conceive that criminal liability should attach to such an individual. Again, if this be right, then the offence is not one of strict liability.

Thirdly, as I understood it, Mr Shaw accepted that the offence under that part of s.4(2)(c) which involved “permitting” an animal to suffer through the act or omission of another person, was not one of strict liability and did involve mens rea. This seems right to me and, on that footing, I would require a very great deal of persuasion to conclude that an offence under the first part of the sub-section required mens rea, while an offence under the immediately following wording of the same sub-section (involving “failing” to take such steps as were reasonable in all the circumstances) did not.

This conclusion is sufficient to dispose of the appeal in favour of GR, MR and KR but, in deference to the arguments advanced to us, I elaborate further, if briefly, on the partnership Question - and on Questions 3 – 5, which are not academic in respect of SR.

(3) Further elaboration: Statements of principle appear to be few and far between as to the criminal liability of partners but, as it seems to me, the “short answer” is consistent with such as there are.

First, in the sphere of partnership as elsewhere, criminal liability is ordinarily personal to the individual offender. As Lord Widgery CJ observed in Parsons v Barnes [1973] CLR 537, at p. 538, in the context of trading standards legislation,:

“ No general proposition could be laid down that one partner was necessarily responsible for the acts of his co-partner under the legislation. ”

So too, in Garrett v Hooper [1973] RTR 1. The defendant was a partner in a business and the joint owner of a vehicle which was partnership property and was driven by a co-partner in breach of road traffic legislation. The defendant’s appeal against his conviction was allowed. As expressed in the headnote, “…a co-partner did not ‘use’ a vehicle merely because it was driven by his partner on partnership business…”. In the present case, however, the CPS case hinged on GR, MR and KR being criminally liable merely and necessarily, without more, because (as is alleged) SR was guilty of an offence under s.4(1) of the Act.

Secondly, the position is or may well be different where a strict liability offence is jointly committed by partners, as illustrated in Clode v Barnes [1974] 1 WLR 544 where the defendant was a joint supplier of a vehicle to which a false trade description was applied; the defendant’s appeal against conviction was dismissed. In the present case it was not and could not have been alleged that GR, MR and KR jointly committed any offence with SR.

Thirdly, as already highlighted, it was no part of the CPS case that SR’s alleged offence under s.4(1) disclosed a system failure on the part of the partnership. Different questions would plainly arise as to the liability of co-partners under s.4(2) in such a “system failure” case – but that is not this case.

Fourthly, the prosecution was brought against GR, MR and KR not against the partnership. Thus the question whether it could have been brought against the partnership instead of against those individuals does not strictly arise. However, given the conclusion that the s.4(2) offence involves an element of mens rea, the Crown could not circumvent the requirement to prove that element by choosing to prosecute the partnership rather than the individual (co-) partners. Even if one partner has the requisite mens rea to commit an offence under s.4(2), his state of mind cannot be attributed to the partnership such as to render it – and his otherwise blameless co-partners – criminally responsible for his acts or omissions. See, in this regard, the observations of Hughes LJ (as he then was) in R v L(R) and F(J) [2008] EWCA Crim 1970; [2009] 1 Cr App R 16, at [30], including his reference to s.5 of the Interpretation Act 1978 and, hence, to the Interpretation Act 1889. The position may be different in a s.4(2) case where the Crown alleges and is in a position to prove mens rea on the part of all the partners.

Fifthly, ss. 10 and 12 of the Partnership Act 1890 (“the Partnership Act”), do not assist the CPS to overcome the difficulties in this case, already canvassed. Ss. 10 and 12 of the Partnership Act provide as follows:

“ 10. Liability of the firm for wrongs.

Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act.

12.

Liability for wrongs joint and several

Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein become liable under either the two last preceding sections.”

Even if the allegations against SR are made good and (1) render the partnership liable for a penalty and (2) in addition to SR, GR, MR and KR are liable to pay that penalty if not met out of partnership assets (but see below), these sections go no further and do not provide the basis for holding GR, MR and KR criminally liable for the offence (ex hypothesi) committed by SR. Ss. 10 and 12 of the Partnership Act are concerned with satisfying debts and liabilities for which a partnership has become liable; they do not operate to impose criminal liability where none has otherwise been established. I add this. As already concluded, the offence here is not one of strict liability. In the circumstances, it is even questionable that ss. 10 and 12 of the Partnership Act could be relied upon to satisfy any penalty arising from the acts of SR from the assets of GR, MR and KR, who were not complicit in the s.4(1) offence: see, R v W. Stevenson & Sons and others [2008] EWCA Crim 273; [2008] 2 Cr App R 14, per Lord Phillips of Worth Matravers CJ (as he then was) at [28] and consider too the Interpretation Acts, supra.

This Ground is hopeless and we did not call on Mr Shaw for the CPS. The Judge was entirely right to reject the Appellants’ arguments; those did not come even arguably close to satisfying the requirements for a jurisdiction to be very sparingly used. So far as concerns GR, MR and KR, either they succeed on the partnership point - in which case they do not need this Ground – or they fail on the partnership point, in which case the prosecution would be properly pursued and this Ground would not avail them. In the event, GR, MR and KR have succeeded on the partnership point. As to SR, the prosecution will in due course either succeed or fail on the facts; if it would otherwise succeed, there is no basis whatever for asserting an abuse of process. For my part, I would only add that I am not at all attracted to the suggestion that a separate proportionality test needs to be satisfied: see, James v DPP [2015] EWHC 3296 (Admin); [2016] 1 WLR 2118. No more need be said of this Ground.

This Question is now academic for GR, MR and KR but it is not for SR. As I understand it, the Judge was asked to make a ruling on a question of law under s.8A of the MCA 1980, effectively stopping the proceedings. It appears that the suggested question of law went to whether the evidence as it then stood did not disclose that the animal had suffered unnecessarily, within the meaning of s.4 of the Act. The Judge declined to make such a ruling, saying this:

“ …It would be highly unusual in this jurisdiction [i.e., the summary jurisdiction] for a decision to be made upon the strength of the evidence until such time as the prosecution had actually called its evidence, involving as it does consideration of a submission of no case to answer under the Galbraith principles.

I am of the view that to invite the court to dismiss or stop the charge on that basis is premature….”

The most the Judge said he could do was to comment on the strength of the case, as part of the case management process. That he did, saying that it was “an odd stance” for the CPS to take to submit that the evidence could be “developed” during the trial to establish a fundamental component of a charge.

I can well understand the reticence of the Judge to make a ruling under s.8A of the MCA 1980, as the case then stood, effectively stopping the proceedings. In my view, in the exercise of his discretion under s.8A(3), the Judge was entitled to decline to make such a ruling. In general, additional pre-trial hearings in the magistrates’ court are to be avoided, as one of the aims of Transforming Summary Justice (“TSJ”).

I do, however, think that the Judge could, with respect, have done more by way of case management. There can be no question of the CPS “developing” its case in this regard at trial; SR was and is entitled to know the core facts alleged against him in good time in advance of the trial. The CPS case as to “unnecessary suffering” was undoubtedly such a fact. The Judge could and should have required the CPS to clarify its case on this point within a very short period following the hearing; the Judge had ample case management powers to do that. It is of course of the essence of TSJ that trial by ambush should be a thing of the past. As it is, we have been told by Mr Shaw that a further witness statement from the OV, addressing this issue, has been served as additional evidence; had this not been the case, I might well have been minded to make a suitable and peremptory direction.

I would accordingly dismiss the appeal advanced under this Ground.

There is nothing in this Ground and we did not call upon Mr Shaw. The evidence of the pushing allegation was plainly admissible, for the reasons given by the Judge. Elaboration is unnecessary and I would dismiss the appeal advanced under this Ground.

For the reasons given, I would answer the Questions (stated in the Case):

It follows that:

I agree.