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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> James v The Royal Society for the Prevention of Cruelty To Animals (RSPCA) (Rev 1)  EWHC 1642 (Admin) (19 May 2011)
Cite as: (2011) 175 JP 485,  EWHC 1642 (Admin)
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QUEEN'S BENCH DIVISION
Leeds Combined Court
1 Oxford Row
B e f o r e :
| YVONNE JAMES
- and -
THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr J Boumphrey (instructed by MBA Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Mr Justice Keith:
"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).
"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?"
"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.
"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).
"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.
"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 JUSTICE KEITH: Are there any consequential applications?
MR BOUMPHREY: My Lord, I would ask you to consider that I have succeeded in asserting my position in this court, and I would seek costs.
MR JUSTICE KEITH: You have had the two questions posed for the consideration of the court answered in the way that you wanted them.
MR BOUMPHREY: Yes, and in those circumstances, I would submit that I am, looking at it as a whole, the victor or the person who has gained.
MR JUSTICE KEITH: The answer to that is yes, but that does not mean that the order which the court made will necessarily stand, because it has to be reconsidered in the light of the principles which I have laid down in this judgment.
MR BOUMPHREY: Yes. The difficulty of course arises in a reservation of costs by the High Court to be effectively determined –
MR JUSTICE KEITH: I am not suggesting that -- perhaps I am. Perhaps I am suggesting that the costs of this appeal should be reserved to the judge who decides at Hull Crown Court, when it reconsiders the issue.
MR BOUMPHREY: I wonder whether that is the correct approach to matters, or whether this court ought to reserve the matters for a taxation in this court once the outcome of the further hearing in the Crown Court is known.
MR JUSTICE KEITH: When you say "reserved for a taxation", a taxation only arises if there is an order for costs. We have to determine whether or not there should be an order for costs.
MR BOUMPHREY: Yes, of course. I suppose there is no reason why a less superior court should not make a determination of costs in this case, but you or this court will be in the best position to know how its time has been spent today and --
MR JUSTICE KEITH: Well, the court will have the High Court's judgment, and so it will see the issues that were addressed and the conclusions which the court reached, and the Crown Court can be told that the hearing began at 10.30 am and finished at 1.15 pm, and that the court had the benefit of skeleton arguments from both sides. So I do not really see how it is in any lesser position.
MR BOUMPHREY: Would your Lordship excuse me a moment? My Lord, I apologise, and thank you, that is all I seek.
MR JUSTICE KEITH: What do you have to say about the appropriate order for costs?
MR EDWARDS: My Lord, I do not want to seem ungrateful, because I am very conscious that we have not got the answers we wanted on the two questions, and the respondents have. But the reality is that we wanted this order looked at again, and it is going to be, and the respondents tried to prevent that. So to that extent my respectful submission is that we, in the respect which matters, won.
MR JUSTICE KEITH: So what is the order for costs that you are suggesting I should make?
MR EDWARDS: That the costs should follow the event here.
MR JUSTICE KEITH: Then it is a matter of defining what the event is, and on one view the event is that I have answered the questions in a way in which the RSPCA --
MR EDWARDS: Yes.
MR JUSTICE KEITH: I have answered the questions that have been posed to me in a way that the RSPCA wanted them to be answered.
MR EDWARDS: My Lord, yes.
MR JUSTICE KEITH: So I think it may be a bit counter-productive, if you want to avoid an order for costs against you, for you to argue that the costs should follow the event.
MR EDWARDS: I meant in very simple stark terms before your Lordship, we have won, but I am conscious of the --
MR JUSTICE KEITH: So you are asking for your costs of the appeal?
MR EDWARDS: My Lord, yes I do --
MR JUSTICE KEITH: There are other alternatives: the other alternatives are that they should have their costs; that I should make no order as to costs --
MR EDWARDS: My Lord, yes.
MR JUSTICE KEITH: -- or that I should order that the costs of the appeal be reserved to Hull Crown Court when it reconsiders this issue. Do I as a matter of fact have jurisdiction to do that?
MR EDWARDS: I was just wondering that.
MR JUSTICE KEITH: I am not convinced that I do.
MR BOUMPHREY: You certainly have the jurisdiction to leave such matters to a Taxing Master or --
MR JUSTICE KEITH: Taxing only arises once an order for costs --
MR BOUMPHREY: Once there is actually an order, yes.
MR JUSTICE KEITH: I have to decide the issue of principle.
MR BOUMPHREY: Yes.
MR JUSTICE KEITH: All a Taxing Master decides is how much, but I have to decide the principle. I do not think that is helpful.
MR BOUMPHREY: Yes. Unless of course you were to reserve the issue itself until the outcome in the Crown Court --
MR JUSTICE KEITH: That is another alternative. I could reserve the issue to myself until the outcome is known.
MR BOUMPHREY: Yes.
MR EDWARDS: Yes.
MR BOUMPHREY: And that then gets rid of any jurisdictional problems about transferring matters to the Crown Court.
MR JUSTICE KEITH: It does.
MR BOUMPHREY: And it allows you to make a reasoned decision on the basis of what the Crown Court ultimately does.
MR JUSTICE KEITH: It does. Is there anything else you want to say?
MR EDWARDS: Might the court agree with this, that this case cries out for robust simplification in the light of reality, and that if at all possible a further hearing before this court should be avoided. In other words the court should not --
MR JUSTICE KEITH: Oh yes, I could decide that on paper.
MR EDWARDS: Yes, that is so, my Lord. But anything that goes to simplicity, and there is a lot of attraction perhaps in there being no order for costs between the parties. It reflects the rough justice of the result before your Lordship.
MR JUSTICE KEITH: Yes, thank you very much, indeed. I have come to the conclusion that this is a case for no order as to costs, not quite for the reasons that you have just indicated, but because the appeal has resolved differing views by the Crown Court on the issue as to whether or not a certificate needs to be in writing for the purposes of section 6(5) --
MR EDWARDS: Yes.
MR JUSTICE KEITH: -- and it has also resolved the perhaps more difficult question as to the extent to which a court when it comes to deal with compensatory orders rather than penal orders can take into account the possibility of an order hanging over defendants over many years. So I think one can say that this is the sort of case that could be brought and could be defended, and the interests of justice means in those circumstances there should be no order as to costs.
MR EDWARDS: Thank you, my Lord. May we have a legal aid taxation direction, please, my Lord?
MR JUSTICE KEITH: Your client is publicly funded?
MR EDWARDS: Yes.
MR JUSTICE KEITH: You call it legal aid taxation. That is what it was called prior to 2000.
MR EDWARDS: Yes, I am sorry.
MR BOUMPHREY: My Lord, I apologise, I put the words into my friend's mouth.
MR JUSTICE KEITH: I think you were just reminding him what he had to ask me for, rather than telling him about the language that he had to use.
MR EDWARDS: Yes, that is right.
MR JUSTICE KEITH: I am not sure that you do need it, actually, in the High Court on an appeal by way of case stated. You say you need a specific order, do you?
MR EDWARDS: I would feel happier, my Lord, if the court would indicate it.
MR JUSTICE KEITH: Can I take it you have not looked it up to see whether you need it?
MR EDWARDS: Yes, I am afraid that is right.
MR JUSTICE KEITH: All right, then, well let us proceed on the basis that I will order that there be a public funding assessment if such an order is required; if no such order is required, I make no order.
MR EDWARDS: Thank you very much, my Lord.
MR JUSTICE KEITH: Is there anything else?
MR BOUMPHREY: My Lord, no, thank you.
MR JUSTICE KEITH: Thank you both for your help in a case which I found really rather interesting.