The Queen on the application of MALCOLM HAYNES v STAFFORD BOROUGH COUNCIL [2006] EWHC 1366 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2006] EWHC 1366 (Admin)Case No Case No: CO/7427/2005Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
The Queen on the application of MALCOLM HAYNESClaimantSTAFFORD BOROUGH COUNCILDefendant(1) THE PARROT SOCIETY U.K. (2) STAFFORD SHOWGROUND LTD (3) SHAUN SMITH (4) THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSInterestedParties
Before
Mr Justice WalkerMr Alan Bates instructed by Richard Buxton, Cambridge for the ClaimantMr Eric Owen instructed by the Head of Law and Administration, Stafford Borough Council for the DefendantMs Carine Patry instructed by Knights Solicitors for the First and Second Interested PartiesThe Third Interested Party did not take part in the hearing.Mr Paul Harris instructed by the Head of Litigation and Prosecution Division, Department for Environment, Food and Rural Affairs for the Fourth Interested PartyDate 14 June 2006
[1]Mr Justice Walker : Introduction The history of this case has involved several twists and turns. The position now reached is that the claimant seeks three declarations. The declarations sought can be summarised in broad terms. The first is that a bird fair licensed by Stafford Borough Council would, as conceived by its organiser, involve the commission of criminal offences contrary to section 2 of the Pet Animals Act 1951. This bird fair has now occurred, and there has been no suggestion that the arrangements put in place were different in any relevant respect from those conceived by the organiser. The second is that the issue of the licence in question to the organiser of the bird fair was unlawful because it purported to authorise the selling of animals as pets by different independent traders. If that proposition were correct, and a licence was needed and not personally obtained by such traders, it would follow that these traders committed a criminal offence under the same Act. The third is that a "general licence" issued by central government in order to permit gatherings of birds under the Avian Influenza (Preventive Measures) (No 2) Regulations 2005 (SI 2005/3394) was invalid and accordingly the council could not proceed on the basis that it was valid. Here a question could arise whether the consequence, if that proposition were correct, would be that those who have permitted birds to be gathered together at bird fairs in reliance upon the general licence have committed a criminal offence.[2]Thus the first proposed declaration explicitly involves, and the second and third proposed declarations implicitly may involve, the determination by this court of questions which could call for consideration by a criminal court if criminal proceedings were brought. All parties have proceeded on the footing that this court in these proceedings is exercising civil jurisdiction. An initial point accordingly calls for consideration: is it permissible and appropriate for this court to pronounce on questions in this case which potentially affect criminal liability? I shall call this initial point "the Criminal Liability Question."[3]In this judgment I shall first set out the history of the proceedings. I then examine the Criminal Liability Question before turning to discuss each proposed declaration in turn. History of the proceedings[4]The claimant runs an animal rescue and re-homing charity from his home in Staffordshire, not far from the Stafford County Showground ("the Showground"). The second interested party, Stafford Showground Limited ("the Showground Operator"), is the body through which the Showground is run and which contracts with individuals and organisations for the hire of the Showground. In the late summer and early autumn of 2005 the claimant was concerned about the well-being of birds at a bird selling fair ("the October 2005 Event") to be held on 9 October 2005 at the Showground. The October 2005 Event was organised by the first interested party, which I shall refer to as "the Parrot Society". The claimant eventually learnt that there had been a decision by the defendant Stafford Borough Council ("the Council") to issue a pet shop licence under the Pet Animals Act 1951 ("the 1951 Act") for the October 2005 Event. I shall refer to this licence as "the 2005 Pet Shop Licence". On 19 September 2005 the claimant issued a claim form seeking permission to apply for judicial review of this decision. He sought three main remedies. The first was the quashing of the 2005 Pet Shop Licence. The second was a declaration ("the Section 2 Declaration") that the October 2005 Event involved the commission of criminal offences contrary to s 2 of the 1951 Act. The third was a declaration ("the Different Traders Declaration") that a single pet shop licence could not lawfully be issued to the Parrot Society to authorise the selling of animals as pets by a number of different independent traders.[5]The matter came before Burton J on the papers. By order dated 26 September 2005 he refused an application by the claimant for expedition. He concluded that it could not be justified to seek to pursue a claim putting at risk an event which had been scheduled for 9 October 2005, and he refused permission to seek the quashing of the 2005 Pet Shop Licence. However he granted permission to apply for judicial review in respect of the Section 2 Declaration and the Different Traders Declaration. Having noted that there were issues to be resolved in relation to the standing of the claimant, he added:
"The judicial review application should take its ordinary course (with any necessary amendments) and can be resolved so as to give guidance in respect of any future such events."
[6]As envisaged by Burton J, the October 2005 Event took place as planned on 9 October 2005. Meanwhile, however, the European Commission ("the Commission") and member states of the European Union, including the United Kingdom, had become increasingly concerned about avian influenza virus ("AIV"), and in particular about the westward spread of its H5N1 subtype ("H5N1") which was known to be highly pathogenic. For some years the Commission had funded surveillance programmes to detect AIV in member states. During 2004 and 2005 an increasing number of third countries were the subject of import restrictions imposed by the Commission. On 19 October 2005, following confirmation of H5N1 in birds in Turkey, Commission Decision 2005/734/EC required, among other things, that member states take appropriate and practicable measures to reduce the risk of transmission of H5N1 from birds living in the wild to poultry and other captive birds. Two days later the Commission by Decision 2005/745/EC of 21 October 2005 inserted a new article 2a into Commission Decision 2005/734/EC. Paragraph 2 of the new article 2a provided:
"Member states shall ensure that the collection of poultry and other birds on markets, shows, exhibitions and cultural events is prohibited; however the competent authority may authorise the collection of poultry and other captive birds on such premises subject to the favourable outcome of a risk assessment."
[7]The new article 2a was implemented in England by the Avian Influenza (Preventive Measures) Regulations 2005 (SI 2005/2989). These were replaced with effect from 9.12.05 by the Avian Influenza (Preventive Measures) (No 2) Regulations 2005 (SI 2005/3394). For present purposes there is no material difference between the regulations, and I shall refer to them as "the Avian Flu Regulations". In the meantime on 30.11.05 Commission Decision 2005/734/EC was amended by Commission Decision 2005/855/EC, which among other things revised article 2a in ways which I shall discuss later in this judgment.[8]Regulation 5 of the Avian Flu Regulations provides as follows:
"(1) No person shall permit birds to be collected together at any fair, market, show, exhibition or other gathering except under the authority of a licence issued by the Secretary of State. (2) The Secretary of State shall only grant a licence if a veterinary risk assessment has been carried out and she is satisfied that the gathering and the transit of birds to and from the gathering would not significantly increase the risk of the transmission of avian influenza virus (in particular of virus of the sub-type H5N1)."
[9]On 31 October 2005 the third interested party, Mr Sean Smith ("Mr Smith"), applied to the Council for a licence for a bird show at the Stafford County Showground on 5 March 2006 ("the March 2006 Event"). Although he is a member of the Parrot Society, Mr Smith acted in his personal capacity in relation to the organisation of the March 2006 Event. He had organised events of a similar kind, known as the Stafford Spring Show, since 1990. His application was initially refused in the absence of a licence under the Avian Flu Regulations. Mr Smith reapplied on 20 January 2006, asserting that he had the benefit of a licence from the Department for Environment, Food and Rural Affairs ("DEFRA"). This is the department for which the fourth interested party ("the Secretary of State") is responsible. What Mr Smith in fact relied upon was what had been described by DEFRA as a "general licence" placed on its website on 20 December 2005, under which bird fairs and other events could proceed if organisers advised the local office of the State Veterinary Service ("SVS") in advance and observed relevant general licence conditions. I shall refer to this licence as "the AIV General Licence" and to the conditions as "the AIV General Licence Conditions". Council officials concluded that Mr Smith would not be able to comply with a condition requiring that certain records be kept in relation to "all attendees." Having obtained confirmation from DEFRA that "attendees" referred only to "exhibitors and vendors", Mr Smith appealed to the Council's Public Appeal Committee, which on 15 February 2006 granted him a pet shop licence ("the 2006 Pet Shop Licence") for the March 2006 Event.[10]On 23 February 2006 the claimant issued an application seeking, among other things, a substantive hearing of the claim if possible before 2 March 2006 or as soon as possible thereafter, and to amend the claim in order to seek judicial review of the council's decision to proceed on the basis that the AIV General Licence was valid and on the basis that Mr Smith could comply with the AIV General Licence Conditions. This application came before McCombe J at an oral hearing on 1 March 2006. The attempt by the claimant to ensure that the substantive hearing preceded the March 2006 Event was unsuccessful, and a claim for interim relief was refused. However McCombe J directed that the substantive hearing be listed for 29 March 2006, and gave the claimant permission to amend the relief sought in three respects. The first new head of relief was the quashing of the 2006 Pet Shop Licence. The second was a declaration ("the AIV General Licence Declaration") to the effect that the AIV General Licence was invalid and accordingly the council could not proceed on the basis that it was valid. The third was a declaration as to the meaning of "attendee" in the AIV General Licence Conditions. The claimant did not serve an amended claim form prior to the hearing on 29.3.06. A document has now been prepared setting out the amendments which would appear in an amended claim form, and these are generally in line with the permission granted by McCombe J. The case as argued, however, differed from that permitted by McCombe J in two main respects. First, as noted in the document now prepared, the quashing of the 2006 Licence is not pursued as it did not prove possible for the substantive hearing to take place until after 5 March 2006. Second, DEFRA made arrangements prior to the hearing to deal with all but one of the claimant's criticisms of its actions under the Avian Flu Regulations. The one remaining question under those Regulations was whether Regulation 5 permitted the grant of a general licence as DEFRA contended, or whether the claimant was right to assert that a specific licence was required for each specific event. Meanwhile the March 2006 Event took place as planned on 5.3.06. Following that event, Mr Smith took no part in the hearing before me on 29.3.06.[11]At the outset of the hearing on 29.3.06 I drew attention to a concern which, so far as I could tell, had not occurred to any of the parties. This was that the present case involved questions as to whether criminal offences had been committed. In Attorney General v Able [1984] QB 795, Woolf J said it was important that the court should bear in mind the danger of usurping the jurisdiction of the criminal courts. He cited the observation of Viscount Dilhorne in Imperial Tobacco Limited v Attorney General [1981] AC 718 at 742 that only in a very exceptional case would it be right for a civil court to make a declaration as to the criminality or otherwise of future conduct. I adjourned the hearing until later that morning so that the parties could consider this question.[12]When the hearing resumed the parties were not in agreement. The claimant contended that none of the proposed declarations gave rise to any danger of usurping the functions of the criminal court. The Council, the Parrot Society and the Showground Operator all said that the Section 2 Declaration and the Different Traders Declaration would usurp the function of the criminal court. DEFRA, in agreement with the claimant, said that a decision on the AIV General Licence Declaration would not usurp the function of the criminal court. I concluded that I should reserve my decision on this question until I had heard argument on the substantive issues. I also gave directions enabling the parties to lodge written submissions on this question after the conclusion of oral argument on the proposed declarations. Thereafter I heard oral argument on the AIV General Licence Declaration, and oral submissions from the claimant and from the Council, the Parrot Society and the Showground Operator on the Section 2 Declaration and the Different Traders Declaration. I gave directions for the claimant's reply on the Section 2 Declaration and the Different Traders Declaration to be submitted in writing. During April 2006 written submissions were duly lodged, and at my request at the end of that month the parties provided further written submissions. The Criminal Liability Question[13]In oral argument the parties took me to discussion of this question in the third edition of Lewis, Judicial Remedies in Public Law (which I shall refer to as "Lewis") at paragraphs 7- 053 to 7-061. Reference was also made to discussion in Zamir and Woolf, The Declaratory Judgment , (now in its third edition written by Lord Woolf and Jeremy Woolf, and which I shall refer to as "Zamir and Woolf") at paragraphs 4.172 to 4.204. In written submissions the parties commented on a further helpful discussion of the question in an article by Alice Robinson entitled "Declarations as to the Criminal Legality of Conduct" at [2006] JR 30. On analysis, as it seems to me, there was no disagreement among the parties on the accuracy of certain propositions which can be identified from these discussions and the cases cited. I do not attempt, by identifying these propositions, to set out a code of general application. The propositions are simply those which may have relevance to the present case.[14]The first proposition is that the High Court has jurisdiction to make a declaration as to whether a criminal offence has been committed or may be committed in the future, but it is only to be exercised in exceptional circumstances. As explained by Simon Brown LJ in R v DPP ex p Camelot Group plc (1997) 10 Admin L Rep 93 at 104, the decision falls to be taken not as one of high principle but rather in the light of a number of considerations. The court should adopt an essentially flexible approach to the exercise of its declaratory jurisdiction in this field. The only rigid rule is that once criminal proceedings have begun the civil courts should not intervene. That said, other things being equal, criminal disputes, even upon pure issues of law, are best decided in criminal courts and between the parties most directly affected by their outcome.[15]The second proposition is that the extent to which a case is fact sensitive or not is a factor of great importance, and consistently with this a question of pure law may more readily be made the subject matter of a declaration: see Lord Steyn in R (Rusbridger) v Attorney General [2004] 1 AC 357 at para 23 and conclusion 3(iv) of Simon Brown LJ in Camelot .[16]The third proposition is that it will be relevant to consider the extent to which there is a cogent public or individual interest which could be advanced by the grant of a declaration. This proposition was put forward by the Attorney General in Rusbridger and was implicitly accepted by Lord Steyn at para 24. To my mind it is a proposition which will be generally applicable to any discretionary grant of a declaration.[17]The fourth proposition is that while recognising the advantages of the application of the law being clear in relation to future conduct, it would only be proper to grant a declaration if it is clearly established that there is no risk of it treating conduct as criminal which is not clearly in contravention of the criminal law (see Woolf J in Attorney General v Able [1984] QB 795 at 807G, 808A-B).[18]The fifth proposition is that there may be a distinction between declarations that certain conduct is criminal as opposed to those that certain conduct is not criminal. If a court declares what conduct will be criminal, it may be performing exactly the task which the jury would have to perform at a criminal trial. However, if the court rules that the conduct is not criminal, it is performing a similar function to the judge at a criminal trial who stops the case on a submission of no case to answer. (See Woolf J in Able, [1984] QB at 807 to 808.)[19]The sixth proposition is that the courts should be particularly wary of embarking on this jurisdiction otherwise than at the suit of the Attorney General: see conclusion 3(i) of Simon Brown LJ in Camelot .[20]The seventh proposition is that the courts should be particularly cautious where a proposed declaration involves existing conduct, rather than merely prospective future conduct: see conclusion 3(ii) of Simon Brown LJ in Camelot .[21]The eighth proposition is that the availability of an alternative remedy is always relevant, and it may be a decisive factor. The court should consider the advantages and disadvantages of the respective remedies: see conclusion 4 of Simon Brown LJ in Camelot .[22]Mr Bates for the claimant submitted that the focus of these proceedings was not on whether a criminal offence had been committed. He recognised that if the court decided that there had been no valid pet shop licence or avian flu general licence, it might follow that criminal offences were committed. However the questions involved were questions of law.[23]He added that if the council had refused a licence, the Parrot Society could have appealed to the Magistrates. However, as a licence had been granted, the only avenue of challenge before the event would be by way of judicial review.[24]Recognising that the ability to resolve the matter by private prosecution may be highly relevant, Mr Bates noted that s 6 of the 1951 Act gave power to a local authority to prosecute proceedings for any offence under the Act committed in the area of the authority. Mr Bates submitted that it might be implicit that a private prosecution could not be brought. However, he had not researched the question as, at the time when the claim was commenced, the October 2005 event had not yet taken place, and he had not anticipated that the point would arise at the substantive hearing.[25]On behalf of the Council, Mr Owen said that s 6 did not prevent a private prosecution, and such a prosecution would achieve certainty one way or the other. The 6 month time limit under section 127 of the Magistrate Court Act 1980 would expire in relation to the October 2005 event early in April 2006.[26]This case, submitted Mr Owen, is fact-sensitive. Woolf J in Able identified a distinction between declarations that certain conduct is criminal as opposed to those that certain conduct is not criminal. If a court declares what conduct will be criminal, it may be performing exactly the task which the jury would have to perform at a criminal trial. However, if the court rules that the conduct is not criminal, it is performing a similar function to the judge at a criminal trial who stops the case on a submission of no case to answer. (See [1984] QB 807 to 808.) In this case the Section 2 Declaration would be a statement by the court that the October 2006 event involved the commission of criminal offences contrary to section 2 of the 1951 Act.[27]Ms Patry for the Parrot Society and the Showground Operator submitted that her clients were at the mercy of potential private prosecutors as well as public prosecution. The fact that the claimant had sought the Section 2 Declaration showed how crucial this point was to the complaint about the October 2005 Licence. She drew attention to paragraph 4.178 of Zamir and Woolf, where the substance of the first, second, fifth, sixth and seventh propositions above can be identified.[28]It was said by Ms Patry that three of the factors identified by Simon Brown LJ in Camelot were present in this case: it involved existing conduct, a declaration of criminality was sought, and the facts were to some extent in dispute. As had been said in Able , it was for the criminal court to try the criminal law. Ms Patry added that if clarification was needed then this was for Parliament, and she observed that there was at present before Parliament an Animal Welfare Bill which would deal with licensing in cases of this kind.[29]Mr Harris for the Secretary of State confirmed that the issues under the 1951 Act would be addressed in the Animal Welfare Bill. His client did not make any submissions on which particular construction of the 1951 Act was correct, nor on whether the civil or criminal court should resolve that question. On the AIV General Licence Declaration, if the AIV General Licence were quashed then the March 2006 Event would have involved a criminal offence. However, DEFRA could not prosecute those involved, for that would be an abuse of process. DEFRA either had exclusive power to prosecute or would seek to prevent any private prosecution, and thus there was no real possibility of a private prosecution in this case – a fact distinguishing it from Able . The question posed for this court in relation to the AIV General Licence would not involve examining the position of individual defendants in a criminal case. If there were a prosecution, the court would be aided by resolution of the question of law as to whether the AIV General Licence was valid, and it was in the public interest to resolve that question. If the Attorney General became involved, the same issue of law would arise, and this would doubtless come to the High Court. It was, said Mr Harris, an impossible hypothetical to think that this point would be resolved in a criminal court.[30]Mr Bates in reply said that time was needed to investigate whether a private prosecution could be bought under the 1951 Act. The Bill would not repeal section 2 of that Act, it would merely give DEFRA power to regulate pet fairs, and thus royal assent would not mean that these issues went away. He accepted that the wording of the Section 2 Declaration referred to criminal conduct, but it could have been worded differently, and the impact would still be the same. There was no real prospect of any prosecution for the October 2005 Event. If there were a risk of such a prosecution, the court could defer judgment until after the time limit for bringing a prosecution had expired.[31]Turning to the written representations following the hearing, in summary:(i) The Council submitted that no bar on private prosecutions arose from anything in the 1951 Act or the law concerning the prosecution of offences.(ii) The Claimant advanced two submissions. The first was that what was challenged was not a decision of criminal procedure but a decision to grant a licence, and accordingly concerns about the dividing line between civil and criminal courts were simply not applicable. The second was that the second and third propositions above, when applied to this case, led to the conclusion that declaratory relief was appropriate. The facts as to what occurred at the October 2005 event were agreed. No question of fact arose as regards the AIV General Licence. As to private prosecution, this was not barred by statute, but inquiries of the RSPCA had revealed a separate problem. This was that in a case where a licence had been granted by a local authority the public interest test in the Code for Crown Prosecutors would not be met. Accordingly the RSPCA, although it considered that sales in the course of business at bird fairs contravened s 2 of the 1951 Act, had not prosecuted those involved as it believed that the Director of Public Prosecutions would take over the prosecution (under section 6 of the Prosecution of Offences Act 1985) and discontinue it. The result was that the civil court was the only court which in practice could resolve important questions of animal welfare law.(iii) The Secretary of State accepted that both local authorities and private individuals could prosecute a breach of Regulation 5 of the Avian Flu Regulations. However under Regulation 13 the Secretary of State had power to take over any prosecution by a local authority. If a local authority prosecutor contended that the AIV General Licence was invalid, the Secretary of State would take over the prosecution and discontinue it. For similar reasons to those identified by the RSPCA, if a private prosecutor advanced such a contention the DPP would take over the prosecution and discontinue it, a course which the Secretary of State would support.(iv) The Secretary of State added that the Animal Welfare Bill would, if enacted in its current form, allow the repeal of relevant provisions in the 1951 Act.(v) The Parrot Society and the Showground Operator pointed out that the Section 2 Declaration would in effect stigmatise as criminal a number of bird fairs, for some of which the 6 month time limit had not yet expired. They said that criminal proceedings were "entirely realistic and possible." In particular, a private prosecution remained available and it mattered not whether the RSPCA chose to take action: the claimant could not rely upon his own failure to bring a private prosecution. The question the claimant wished to be determined was "not a crucial issue" – it had remained unresolved for 25 years, since the advent of bird shows. These proceedings were a proxy for criminal proceedings and presented no features of 'exceptionality.' There was no evidence that any local authority desired clarity on these issues. Moreover the Animal Welfare Bill would soon provide clarity.(vi) The claimant replied that the court could not assume that the Bill would be enacted as presently drafted, nor could it assume that a power to repeal relevant provisions of the 1951 Act would inevitably be exercised.[32]In the light of the parties' oral and written submissions, I set out in turn my conclusions on the application to this case of each of the eight propositions above:(i) In my view the Criminal Liability Question arises for consideration in relation to all three declarations. The mere fact that what is challenged is not a decision of criminal procedure cannot of itself relieve the civil court of the need to consider possible criminal consequences of the relief sought. I mention in passing in relation to the AIV General Licence Declaration that the parties did not seek to argue a more general proposition which might also have engaged the Criminal Liability Question. This is that in the ordinary course, in the absence of fraud or other similar conduct on the part of a licence-holder or predecessor in title, a licence is to be treated as valid unless and until it is quashed. As a matter of construction it might well be that a conclusion by this court that the AIV General Licence was invalid would not entail criminal liability for anyone. As the point was not argued I say no more about it. As regards both the Section 2 Declaration and the Different Traders Declaration it seems to me that on any view they require the court to consider questions which as a matter of construction are relevant to the potential criminal liability of a large number of persons. These proceedings involve as parties only a small selection of those persons. In particular, those who have in the course of a business sold birds at bird fairs are not parties. They would in relation to any criminal proceedings be directly affected by these two declarations, for the court would have pronounced on questions relevant to any prosecution. Concern about usurping the functions of the criminal court is not removed by the mere fact that these are proceedings for judicial review of a licensing decision. All other things being equal the issues in question are best decided in the criminal court between a prosecutor and a person who is alleged to have committed a relevant offence. I should only pronounce upon these issues if the circumstances are truly exceptional.(ii) Both the Section 2 Declaration and the Different Traders Declaration require the court to determine the law and apply it to the facts of the October 2005 Event. While certain facts relevant to that event have been agreed between the claimant and the Council, the Parrot Society and the Showground Operator, those who in the course of a business sold birds at that event have played no part in this process, and as mentioned above are not party to these proceedings. For those reasons alone I would refuse to grant those declarations in the form drafted by the claimant. It remains for consideration whether declarations as to the true construction of the 1951 Act could be granted without trespassing into fact sensitive areas. By contrast, the AIV General Licence Declaration is not fact sensitive.(iii) There is a strong public interest in resolving the issues of pure law which arise on all declarations sought. This is common ground in relation to the AIV General Licence Declaration. In relation to the 1951 Act, it is said that the points which arise have gone unresolved for 25 years. That in my view does not lessen their importance. Certain local authorities accept the view of the RSPCA that under the 1951 Act sales in the course of a business cannot lawfully take place at bird fairs. Others disagree and have licensed bird fairs accordingly. The effect is that people in different areas of the country are in practice governed by different views as to what the law of the country as a whole requires. That is in principle offensive to the rule of law and the fact that it has continued for some years makes it more offensive. It calls for remedy. The matter may be remedied if the Animal Welfare Bill is enacted in its present form and if the power to repeal relevant sections of the 1951 Act is exercised. I cannot, however, assume that either of these events will in fact occur.(iv) For the reasons given at (ii) above, I would refuse to grant the Section 2 Declaration and the Different Traders Declaration in the form drafted by the claimant. When considering whether to grant declarations as to the true construction of the 1951 Act, and whether to grant the AIV General Licence Declaration, I must be satisfied that those declarations would not treat conduct as criminal which is not clearly in contravention of the criminal law.(v) The same considerations as at (iv) above apply.(vi) The fact that these proceedings are not brought by the Attorney General means that I must proceed with particular caution.(vii) These proceedings involve existing conduct and this means I must proceed with particular caution.(viii) It is common ground in relation to the AIV General Licence Declaration that there is no alternative remedy. In relation to the 1951 Act, those opposing declaratory relief recognised that a local authority which granted a licence could hardly turn round and prosecute traders on the basis that activities contemplated with equanimity by the local authority when granting the licence were nevertheless unlawful. It was said, however, that a private prosecution could be brought. In theory that is true. In practice it is not true. I see no reason to doubt the conclusions of the RSPCA as reported in the claimant's written submissions. It would on its face be unjust and a substantial abuse of power to allow a person who had relied upon an apparently valid licence to be prosecuted for committing an offence when the licence had plainly been granted in order to authorise the activity in question. There would thus be every reason for the DPP to intervene. Subsequent written submissions from other parties did not contest this specific reason given by the RSPCA for the absence of any private prosecutions. I conclude that in practice there is no alternative remedy in relation to any of the declarations sought.[33]In these circumstances my conclusion on the AIV General Licence Declaration is that there is a well established case for treating the questions raised by that declaration as very exceptional: the factors against proceeding with the matter are plainly outweighed by points (ii), (iii) and (viii) in the preceding paragraph. On the remaining declarations, points (ii), (iv) and (v) in the preceding paragraph compel the conclusion that the present wording is inappropriate. Even though the time limit has expired for prosecution of those who sold birds at the October 2005 Event, it would be wrong to stigmatise their conduct as criminal. However, it remains for consideration whether I should resolve questions as to the true meaning of the 1951 Act without declaring that any particular person has committed a criminal offence. I would refuse to do so if an adequate alternative remedy were available. In that regard points (i), (vi) and (vii) of the preceding paragraph combine with the general principles of discretionary relief in administrative law so as to outweigh point (iii). However, the inability in practice to bring a private prosecution casts matters in an entirely different light. First, it means that in practical terms there is no danger of this court pronouncing on points which could arise for determination in a criminal court. Second, there is in reality no alternative remedy open to the claimant. These proceedings offer the only practical way of resolving issues of construction which have led to the law being applied differently in different parts of the country. The public interest in resolving these points is so great as to overcome factors pointing the other way, provided always that any declarations made by this court do not treat conduct as criminal which is not clearly in contravention of the criminal law. The Section 2 Declaration[34]Under this head, for the reasons given above, I seek to resolve questions as to the true meaning of s 2 of the 1951 Act without declaring that any particular person has committed a criminal offence. The 1951 Act provides in s 2 that it shall be an offence to "carry on a business of selling animals as pets in any part of a street or public place, or at a stall or barrow in a market".[35]The Showground was accepted on all sides not to be a "street." I was not asked to determine whether the Showground is or was on 9 October 2005 a "public place" – the claimant assumed for the purposes of these proceedings that it was not. The only question of law which arises is whether there are implicit in the 1951 Act certain qualifications on the ordinary meaning of "market" as "a concourse of buyers and sellers".[36]The Council initially said that the reference to "a market" in s 2 is a reference only to a concourse of buyers and sellers "held by franchise granted by the Crown or by Act of Parliament". The Council added, however, that if there were ambiguity it was permissible to have recourse to extracts from Hansard of Parliamentary debates leading to the Pet Animals (Amendment) Act 1983 ("the 1983 Act"). As originally enacted, section 2 had excepted markets from the prohibition which otherwise barred carrying on a business of selling animals as pets in any part of a street or public place. Concerns had arisen as to what happened in markets, and this led to the promotion of a Bill which became the 1983 Act. It was argued by the Council that statements in Parliament showed that the amendment was intended to address the problems caused by selling animals outside at street markets and other public places where passing shoppers may be tempted into an impulse purchase.[37]The Parrot Society and the Showground Operator did not espouse the suggestion that s 2 refers only to franchise markets. Their assertion, also based on extracts from Hansard, was that the aim of the amendment made by the 1983 Act was to prohibit sales of pets from open markets.[38]I can dismiss at once the suggestion that s 2 refers only to franchise markets. Both the 1951 Act and the 1983 Act were concerned with animal welfare. There is no sensible reason to distinguish franchise markets from other markets when providing for the welfare of animals.[39]The other suggested limitations are founded solely on extracts from Parliamentary debates. Nothing else was put forward to suggest that the amendment introduced by the 1983 Act was confined to street markets or markets in public places. As a matter of construction it would be highly surprising if the amendment were so confined. If that had been the intention of Parliament then the 1983 Act could have achieved that intention by the simple expedient of removing the exception, with the result that the prohibition in s 2 would apply to all streets and public places. Far from being confined in this way, on its face the 1983 amendment added to the circumstances in which an offence would be committed. The obvious inference is that Parliament intended markets to be caught, whether or not they were also streets or public places.[40]When lodging material for the hearing on 29.3.06, the Parrot Society and the Showground Operator made no attempt to identify and to apply the principles which determine whether the court may refer to Hansard. The Council simply asserted that it was permissible to do so in accordance with the principles in Pepper v Hart [1993] AC 593 . With some misgivings, at the hearing on 29.3.06 I read the material which had been copied from Hansard. It undoubtedly showed that some of the problems identified by the promoters of the amendment in 1983 had arisen at specific street markets. The general problems identified, however, included impulse buying, protection from the weather, animal welfare generally, and pets being sold by persons who were not experts.[41]Subsequent written submissions sought – at my invitation - to remedy the failure to identify and apply the principles which determine whether the court may refer to Hansard. Those submissions did not significantly alleviate my misgivings. However I need not examine those misgivings in detail here, for in my view the extracts from Hansard provided no support at all for the suggested limitations. The general problems described by the promoters could equally arise in markets which were not in streets or other public places. The payment of money for a ticket to enter a showground is no guarantee against impulse buying. Any need for protection from the weather arises whether or not markets are public. As to the contention that the 1983 Act is aimed at open markets, the only relevant distinction I can see is that an open market might be more likely to give rise to problems of protection from bad weather. Reading into s 2 a distinction between open and non-open markets, however, would give priority to considerations of bad weather over other general considerations which would apply to both open and non-open markets. I can see no justification for thinking that Parliament intended to do so. Concerns as to animal welfare generally, and pets being sold by persons who were not experts, are just as much applicable to showground markets as they are to street and non-street open markets. It was strenuously asserted that the October 2005 Event was a well-regulated bird fair attended by expert vendors. Even if that were so in the case of that particular event it would not necessarily be true of all non-street or non-open markets. Accordingly it does not support a conclusion that concerns about animal welfare and lack of expertise could have no application to non-street markets or non-open markets.[42]I am satisfied that declaratory relief setting out my conclusions as to the meaning of "market" in s 2 can be given without declaring that any particular person has committed a criminal offence. I propose, subject to argument about the precise wording, to grant a declaration that on its true construction the word "market" in s 2 of the 1951 Act is not confined to franchise markets, street markets, open markets, or public markets. The Different Traders Declaration[43]This was a second basis on which the claimant suggested that the Council misdirected itself in thinking that the October Event 2005 would be lawful. For reasons given earlier I consider that I should confine my consideration in this regard to questions of law. The discussion below assumes that no problem arises under s 2 of the 1951 Act – an assumption which is questionable in the light of my conclusions on the Section 2 Declaration.[44]The 2006 Pet Shop Licence stated:
"STAFFORD BOROUGH COUNCIL … HEREBY LICENCE THE PARROT SOCIETY UK … being the [proposed] occupier of premises known as SIX HALLS AT THE STAFFORDSHIRE COUNTY SHOWGROUND …to KEEP A PET SHOP at those premises … This licence … shall remain in force until and including SUNDAY 9 OCTOBER 2005."
[45]Two important concerns that led the Parrot Society to seek the 2006 Pet Shop Licence were, first, that it might be held to be keeping a pet shop at the October 2005 event, and, second, to ensure that traders who carried on business away from the Showground at premises where they were licensed to keep a pet shop did not need to obtain additional individual licences from the Council in order to carry on the same business at the October 2005 Event.[46]The 1951 Act by s 1(1) prohibits keeping a pet shop without a licence and by s 1(2) enables local authorities to grant a licence to a person to keep a pet shop at specified premises in their area. By s 7(1), subject to immaterial provisos: "References in this Act to the keeping of a pet shop shall … be construed as references to the carrying on at premises of any nature (including a private dwelling) of a business of selling animals as pets, and as including references to the keeping of animals in any such premises as aforesaid with a view to their being sold in the course of such a business, whether by the keeper thereof or by any other person:[47]As a matter of ordinary use of the English language it is difficult to see how the Parrot Society at the October 2005 Event was carrying on a business of selling animals as pets. The agreed facts did not suggest the Parrot Society was the seller of any birds at the October 2005 Event. It provided vendors with stalls, and regulated what the vendors could do. In that regard it was in no different legal position from a landlord of commercial premises licensed as pet shops, who could hardly be suggested to be carrying on a business of selling animals as pets. Nor did the agreed facts suggest that those exhibitors who were in the business of selling birds as pets and sold them at the October 2005 Event did anything other than enter into normal contracts of sale as vendors. Thus at first blush the 2005 Pet Shop Licence was not apt to deal with either of the two important concerns which had led to it being sought. It was not needed in order to meet the first concern, which simply did not arise. It was not apt to deal with the second concern, for on the face of it the traders were carrying on the business in question, not the Parrot Society.[48]I asked Ms Patry about the objects of the Parrot Society. It seemed to me that it might be relevant whether those objects included carrying on the business of selling birds as pets. Ms Patry replied that the objects were not in evidence, but there was evidence that one of the functions was to run such shows for their members. She did not submit that it was necessary for the show that those who elsewhere carried on the business of selling pets should be at the show. However, there were members who carried on that business, and a licence was obtained so that those members could be exhibitors. In 1951 shows of this kind had not been conceived of, but since then, however, there had been such shows for the last 25 years.[49]Mr Owen for the council submitted that in section 7 (1) of the 1951 Act the words "and as including references" were to be construed disjunctively, so that the organiser of the show, even though not carrying on the business of selling animals as pets, was keeping a pet shop in the sense of keeping animals at the showground with a view to their being sold in the course of a business of selling animals as pets. It was difficult, he said, to see how individuals could comply with the conditions which the Council had imposed in the 2005 Pet Shop Licence, and thus it was essential that the licence be granted to an organiser to ensure that the conditions were met. By way of example, condition 22 required that a qualified veterinary surgeon be present at least 30 minutes before the event was open to the public and during the event and for at least 30 minutes after the event closed to the public. Condition 13 required that fire fighting equipment, including extinguishers, be provided as approved by a chief fire officer and should be sited as directed by him. There were other conditions to ensure monitoring of the welfare of the animals. It was essential, submitted Mr Owen to look at the real world and how the event was going to work in practice. This approach enabled the statutory purposes to be achieved.[50]Ms Patry asserted that the Parrot Society kept animals at the October 2005 event for certain stallholders to sell in the course of a business of selling animals as pets. I asked whether she then accepted that those stallholders were carrying on such a business. Ms Patry's reply was that it cannot have been intended by Parliament that each stallholder must comply with the conditions appropriate to the October 2005 Event. Stallholders had to come from throughout the country, and only a global organiser could ensure that appropriate procedures were in place. A similar procedure had been adopted for "pet superstores." It must therefore be the case that the organiser of the bird show is the correct licensee, and that there is no (onerous) requirement for every stallholder to obtain a licence for the day. Ms Patry added that no person disqualified under the 1951 Act from keeping a pet shop would have a stall at Parrot Society shows.[51]I reject the contention that a licence has to be granted to an organiser so that there is someone who undertakes to meet conditions thought desirable under s 1 of the 1951 Act. It seems to me that the Council when licensing individual traders can insist that there be an organiser of the event, that the organiser enter into an undertaking to meet relevant conditions, and that the individual trader so far as appropriate should also meet relevant conditions. In those circumstances I can see no basis for giving the words of s 1 and s 7 of the 1951 Act anything other than their natural meaning.[52]I do not propose to go into the detailed facts concerning what actually occurred at the October 2005 Event, for that would be contrary to the conclusion I have reached on the Criminal Liability Question. As a matter of pure law, however, I conclude that on the true construction of s 1 and s 7 of the 1951 Act where the organiser of an event provides facilities to enable a trader to carry on the business of selling animals as pets, the mere provision of those facilities of itself does not have the consequence that the organiser is the keeper of a pet shop nor of itself does it have the consequence that the trader is not the keeper of a pet shop at the event. I am satisfied that declaratory relief of that kind, subject to any submissions as to precise wording, can be given without declaring that any particular person has committed a criminal offence. The Avian Flu General Licence[53]The argument advanced by Mr Bates for the claimant had two stages.[54]The first stage was that it was clear from the ordinary and natural meaning of the words in Regulation 5 that gatherings of birds at fairs and markets could only take place under the authority of a licence issued by the Secretary of State, and that the Secretary of State only had the power to issue such a licence if two conditions precedents were satisfied, namely(i) that a veterinary risk assessment had been carried out, and(ii) the Secretary of State was satisfied (presumably on the basis of that risk assessment) that "the gathering" and the transit of birds to and from "the gathering" would not significantly increase the risk of the transmission of avian flu. This interpretation was said to accord with the purpose of the provision (and the Commission Decision on which it is based). The purpose of Regulation 5 (and article 2a.2 of the Commission Decision that it implemented) must plainly have been to create a regime in which gatherings of birds at fairs and markets were subject to a general prohibition. There could be exceptions to that general prohibition, but only where a risk assessment had been carried out that allowed the Secretary of State (as the responsible authority in the UK) to come to a view about the risk that "the gathering" in question presented in relation to the transmission of avian flu. In that regard, it is clear that different types of gatherings of birds will present different degrees of risk.[55]The second stage in the claimant's argument was that it did not accord with the purpose of Regulation 5, or even with common sense, to suggest that a single risk assessment could be carried out in relation to all of these types of events. Each event presented its own particular risks, and the Secretary of State has no power to grant a licence in respect of any such event unless the risks presented by that event have first been properly assessed. There were differences between a local show and a major gathering, in particular as to the traceability of buyers.[56]Mr Harris on behalf of the Secretary of State referred me to the witness statement of Dr Graham Lewis, deputy head of the exotic disease prevention and control division in DEFRA. This explained that avian influenza is a significant, infectious viral disease in poultry and birds. Subtype H5N1 of the virus is highly pathogenic which means that it can cause severe disease in birds and quickly take on epizootic proportions liable to present a serious threat to animal and public health, and to reduce sharply the profitability of poultry farming. DEFRA works on the assumption that all species of bird are susceptible to the avian influenza virus, as there is no conclusive contrary scientific evidence.[57]Dr Lewis explained that during the second half of 2005 the European Commission promulgated a number of Decisions requiring that risk-based measures be taken by member states. These measures included the new article 2a introduced by the decision of 21 October 2005. Following introduction of that article, in the light of the autumn migration of the wild birds, the uncertainty and lack of data about means and spread of the virus, and the need urgently to transpose the 21 October 2005 Decision, the veterinary advice given to DEFRA was that gatherings of birds should take place only under a specific licence and even then only provided that, among other things, there was an individual risk assessment of the specific gathering. Over a hundred individual licences were granted for low risk shows of budgerigars, canaries, British birds and two types of finches. By December 2005 the autumn migration season was coming to a close and the numbers of migratory birds arriving into the United Kingdom from higher risk areas were decreasing. There was also by then a far clearer picture of the epidemiology of the virus. A further risk assessment by veterinary and epidemiological experts led them to advise the Secretary of State that the level of risk as at 13 December 2005 was low or not significant, and that bird shows (among other events) could go ahead under one generic set of licence conditions appropriate to the current level of risk. In those circumstances the Secretary of State made a judgment that it was less administratively burdensome on both individuals and DEFRA to permit general licences where risk conditions did not dictate otherwise.[58]Relying on this statement, Mr Harris submitted that all action to combat the virus was risk based. Risk was assessed by the experts, and it was assessed continuously because the position was dynamic. The AIV General Licence had now been set out in written form in a document dated 15 March 2006, which made it clear that there were general licence conditions and bio-security conditions. The AIV General Licence Conditions required that a record of all sales must be kept by the event organiser for at least three months, including the name, address and telephone number of both seller and buyer, and any identifying features or individual identification of the purchased bird or birds. They also required notification of the event to the local SVS office at least 14 days prior to the event taking place. Notification was to include the date, location, detail of the event organiser and anticipated numbers and types of birds.[59]Mr Harris observed that the accumulation of data was a continuing process, and that every avian influenza control and eradication measure depended on what the experts said about the risks of particular activities. He drew my attention among other things to the Commission Decision of 19 October 2005 (2005/734/EC). There recital (10) stated:
"The measures of the Decision should be risk-based and not limited to short term action…"
[60]Further, article 1 of the Decision required member states to take appropriate and practicable measures to reduce the risk of transmission of virus subtype H5N1 from birds living in the wild to poultry and other captive birds, taking into account criteria and risk factors which were set out in annex I to the Decision. Depending on the specific epidemiological situation, the measures in question were to be directed in particular at preventing direct and indirect contact between birds living in the wild, in particular water fowl, on the one hand, and poultry and other birds, in particular ducks and geese, on the other hand. They were also to be directed, depending on the specific epidemiological situation, at ensuring separation between domestic ducks and geese from other poultry.[61]As to the specific epidemiological situation in this country, the experts thought that there could be general licences and had identified the conditions that would be required. The AIV General Licence of 15 March 2006 specifically required compliance with all of those conditions.[62]Further, Mr Harris noted a change in article 2a, paragraph 2. As set out earlier in this judgment, that paragraph as inserted by the Decision of 21 October 2005 required member states to ensure prohibition of "the collection of poultry and other birds on markets, shows, exhibitions and cultural events" but permitted the competent authority to authorise "the collection of poultry and other captive birds on such premises subject to the favourable outcome of a risk assessment." By Commission Decision 2005/855/EC of 30 November 2005 article 2a.2 was replaced with the following:
"2. Member states shall ensure that the bringing-together of poultry and other birds at markets, shows, exhibitions and cultural events, including point-to-point races of birds, is prohibited. However, the competent authority may authorise such gatherings of poultry and other captive birds, provided that the result of a risk assessment is favourable."
[63]Mr Harris said that the AIV General Licence was in accordance with these provisions. There was a change from the use of the singular word "collection" to the plural "gatherings" when describing what might be authorised, but Mr Harris did not suggest that this had great weight. As to the true construction of the Commission decisions, any ambiguity was to be resolved by reference to their purpose. If a risk assessment permitted it, it would be sensible to have a general approach throughout the country, while if the risk assessment warranted different approaches in different parts of the country then that would be the proper course.[64]Mr Harris submission was that there is nothing in the language or structure of either Article 2a or Reg. 5 that dictates that the "risk assessment" need be generic or specific to each event, nor that the "authoris[ation]" or "licence" needs to be generic or specific. The language and intent of both instruments is flexibly and proportionately to allow either or both approaches, depending on the risk.[65]For the sake of completeness, however, and to the extent necessary, Mr Harris also relied upon section 6 of the Interpretation Act 1978 in response to the Claimant's linguistic points on the construction of Reg. 5. Section 6 provides that, unless the contrary intention appears, words in the singular include the plural (and vice versa). The operation of section 6 in this case is shown below in italics:
"(1) No person shall permit birds to be collected together at any fairs, markets, shows, exhibitions or other gatherings except under the authority of a licence issued by the Secretary of State. (2) The Secretary of State shall only grant a licence if a veterinary risk assessment has been carried out and she is satisfied that the gatherings and the transit of birds to and from the gatherings would not significantly increase the risk of transmission of avian influenza virus (in particular of virus of the sub-type H5N1)."
[66]In reply, Mr Bates said that the purposes of the Regulations and of the Decisions need not be the same and were conceptually distinct. Initially he conceded that article 2a.2 could allow for general licensing. On reflection, he withdrew that concession, and in any event observed that even if article 2a.2 permitted general licences, that would not require member states to introduce, or even make provision for such licences. Accordingly interpretation of Regulation 5 in accordance with what the claimant said was the ordinary and natural meaning of the words used would not be incompatible with the Commission Decision.[67]At my request the Secretary of State provided subsequent written information about other language versions of the current version of article 2a.2. In each of those examined a plural word was used to describe "gatherings" and a singular word was used to describe the risk assessment.[68]In further written submissions the claimant asserted that as a matter of common sense a purposive construction of article 2a.2 would not permit a "general licensing" regime. Such a regime amounts to nothing other than a general authorisation of gatherings of birds, which would appear to be the antithesis of the general prohibition prescribed by article 2a.2 (albeit one which allows for exceptions on the basis of a favourable risk assessment). Moreover the argument advanced by the Secretary of State on the Interpretation Act foundered because it took no account of the proper purposive approach. The Secretary of State had tendered no evidence that Regulation 5 was drafted against the background of an intention to provide for anything other than individual licensing of gatherings of birds. In those circumstances administrative convenience could not alter the proper interpretation of Regulation 5.[69]To my mind the claimant's argument breaks down at the second stage. I see no reason why, as a matter of common sense, one should rule out the possibility that a single risk assessment might in certain circumstances be carried out in relation to a number of different types of contemplated future events. If those circumstances prevailed then the Secretary of State would have power to grant a licence in respect of such future events in reliance upon that risk assessment. It would be for those preparing the risk assessment to identify whether there were relevant distinctions between a local show and a major gathering, for example as to the traceability of buyers, and adjust the risk assessment accordingly. In that regard I detect no significant difference between the Regulations and the two successive versions of article 2a.2. The second version of article 2a.2 appears to have emerged at a stage when the Commission thought that clarification was required as to the epidemiological role of birds participating in point-to-point races within the framework of cultural events: see recital (5) to Decision 2005/855/EC. If a soundly conducted risk assessment concludes that matters can be dealt with by a general licence, I would be surprised to find, and in the absence of clear words to that effect I do not find, that the Regulations or relevant Commission Decisions bar such a conclusion. That would run counter to the recognition in all these measures that a risk based approach is appropriate. This conclusion is not the antithesis of the general prohibition prescribed by article 2a.2: it is a recognition that a general prohibition may properly require to be ameliorated by general measures.[70]On this analysis, it seems to me that the basic reasoning of the first stage of the claimant's argument is sound, but is of no assistance to the claimant. In the circumstances which have occurred, application of that reasoning leads to the conclusion that it is permissible to have general exceptions to the general prohibition. This is because a risk assessment has been carried out which allows the Secretary of State (as the responsible authority in the UK) to come to a view that risks presented by any "gathering" of a type falling within the risk assessment can appropriately be dealt with by the AIV General Licence and the accompanying AIV General Licence Conditions, which vary for different types of gathering.[71]For these reasons I refuse to grant the AIV General Licence Declaration. Conclusions[72]The AIV General Licence Declaration is refused. In relation to the Section 2 Declaration and the Different Traders Declaration, I will not grant the declarations sought, but I will grant declarations dealing with the true construction of the 1951 Act.[73]Orders consequential on the above conclusions should, I hope, be capable of agreement. MR JUSTICE WALKER: For the reasons given in my written judgment I allow this application for judicial review to the extent that I will make declarations as to the true construction of the Pet Animals Act 1951. In all other respects this claim is dismissed. I invite submissions as to consequential orders. MR BATES: My Lord, Miss Patry has another engagement and would therefore be grateful if we could deal with the declarations point first. MR JUSTICE WALKER: Yes. MR BATES: I received your Lordship's e-mail of last night. I want to apologise to the court for any difficulty or confusion by the form in which I drafted the second declaration. MR JUSTICE WALKER: No need to apologise. Let us deal with the first declaration first. Is everyone content that we substitute "refers to" for "means"? MR OWEN: Yes, my Lord. MR BATES: Yes, my Lord. MR JUSTICE WALKER: Thank you. So we turn to the second declaration. MR BATES: On the second declaration, my Lord, as I understand it all parties are content with the second declaration in the way that your Lordship has drafted it. MR JUSTICE WALKER: Excellent. In that case it may assist if I ask one of the parties to draw up the terms of an order, given that there has been a bit of to-ing and fro-ing. Will one of you take that on? MR BATES: We are happy to do that, my Lord. MR JUSTICE WALKER: That is very kind. What other matters arise? MR BATES: That deals with matters so far as declarations are concerned. The only remaining matter, my Lord, is costs. Now, I accept straightaway, first of all, that the claimant did not succeed on all points. In particular, the claimant did not succeed on the DEFRA point and also that the declarations had differed materially from the original declarations that the claimant proposed. Just dealing with the second aspect of that, the declaration, first of all, when the claimant began these proceedings, clearly there was no criminal risk to anyone (if I can put it that way) because at that time of course the October event had not yet been held. So the claimant was simply establishing that the proposed events fell within a particular criminal offence that was set out in the statute. MR JUSTICE WALKER: What happened about your application for expedition? MR BATES: The original application for expedition was refused. MR JUSTICE WALKER: Yes, and was anything said about costs? MR BATES: Nothing was said about costs at that stage, my Lord, no. MR JUSTICE WALKER: Are you making an application for costs now? MR BATES: I am, my Lord, yes. MR JUSTICE WALKER: Against? MR BATES: Against the local authority. MR JUSTICE WALKER: Against Mr Owen? MR BATES: Yes. I apologise for not making that clear. MR JUSTICE WALKER: Do you seek costs in full? MR BATES: We do seek costs in full, my Lord, yes. But on the construction of the Pet Animals Act it is clear, in my submission, that the claimant has succeeded on the substance of the matter and that if this claimant had been heard prior to the October event being held, on the basis of the findings of law that your Lordship has made, the licence which the local authority had granted at that stage would have been quashed. Moving on to the DEFRA point -- MR JUSTICE WALKER: That is by no means clear. MR BATES: Well, at any rate, my Lord, the licence should not have been granted, given that, on your Lordship's findings in respect of the law, that event, as conceded by the organiser, would have involved the commission of offences eventually. MR JUSTICE WALKER: On the way that you have put it, questions would have arisen as to the commission of criminal offences. I would not have quashed the granting of the licence for the reasons that you gave, namely that as envisaged by the organiser it involved the commission of a criminal offence. That would not have happened because the court would not inquire into that. What the court would do would be to look at the construction of the Act and make declarations, whether we were before or after 9 October, as it seems to me. MR BATES: My Lord, I do not wish to transgress into the issue of when the court can and cannot make declarations in respect of criminal matters, if I can put it that way, because my Lord dealt with that very fully in his judgment. My point is that in effect the parties throughout these proceedings have conducted themselves on the basis that the correct construction of section 2 would depend upon whether or not the licence should have been granted. The approach which the local authority took to the grant of that licence was originally, as my Lord is aware, that because the defendant was not a franchise market -- MR JUSTICE WALKER: Let me try to help you. So far as the oral argument was concerned, once we had disposed of the criminal liability question, there were three areas of law that were debated. Area one concerned section 2 of the 1951 Act. Area two concerned by and large section 1, but also section 7 of that Act. Area three concerned the European Commission decision and the consequent regulations. You succeeded as regards construction effectively on areas one and two; but you failed so far as the criminal liability question was concerned, and you failed on area three, the Avian Flu Regulations. MR BATES: Yes. MR JUSTICE WALKER: So this is not a case where at the hearing you succeeded on all points. MR BATES: No, my Lord. MR JUSTICE WALKER: You succeeded on half. MR BATES: It is not my submission at all that we succeeded on all points. I accepted that right at the outset. All that I am saying in respect of the declarations is that clearly when the declarations were granted, they were granted on the basis that section 2 created a criminal offence. That is why reference is made to a criminal offence in the declaration as originally drafted. Of course at that stage the risk to any particular party of criminal proceedings was not live because the event had not taken place. So far as the DEFRA point is concerned, my Lord, of course originally there were a number of points which were made regarding the DEFRA licensing regime. Only one of them was ultimately pursued at the final hearing essentially because DEFRA recognised the force of the other points and amended the basis accordingly. I do not suggest for a moment that your Lordship should make any finding with respect to the force of those. My submission is that it was necessary for the validity of the licensing regime to be considered as part of the context of these proceedings, given the first licences had been issued in March. Now, if my Lord were of the view that therefore the claimant should not be entitled to recover all of his costs, then it would be necessary to consider the amount of costs that were attributable to that point. MR JUSTICE WALKER: Wait a minute. At the moment you are making submissions in support of an application that a hundred per cent of your costs should be paid by the defendant, Stafford Borough Council? MR BATES: Yes, my Lord. MR JUSTICE WALKER: And I have your point that you succeeded on the substance of the matter as regards the 1951 Act. MR BATES: Yes, my Lord. MR JUSTICE WALKER: Now, on the Avian Flu Regulations are you saying that Stafford Borough Council ought to pay your costs on the proceedings in relation to and argument about the Avian Flu Regulations? MR BATES: My Lord, the point which I make about that is of course the arguments which were made on the Avian Flue Regulations were not simply with respect to the point which was ultimately decided by the court because when this point was originally advanced the Avian Flu Regulation regime was very different from the regime as it was at the time when the hearing took place, and of course it was the old regime (if I can put it that way) that was in force at the time when the March 2006 licence was granted. MR JUSTICE WALKER: You have reached an agreement though, have you not, with DEFRA as to DEFRA's costs of appearing in these proceedings? MR BATES: My Lord, as DEFRA is an interested party, we have not sought any costs against them and they have not sought any costs against us. MR JUSTICE WALKER: But, nonetheless, you say that the costs of the avian flu argument have to be borne by the Borough Council, even though they were not responsible for the Avian Flu Regulations or the general licence in any way? MR BATES: All I say on the point, my Lord, is that there were a number of different grounds of challenge to the licences which the local authority had issued. Now, the claimant has succeeded on certain of those grounds and I cannot say any more than that. It is a matter for my Lord -- MR JUSTICE WALKER: Yes. MR BATES: -- as to what my Lord thinks is the fair outcome. Also I will say, my Lord, that if the court is not with me on the position which I have advanced on the first position, that the council should bear all of the costs, then it is necessary to look at what proportion of the costs were attributable to the DEFRA argument. My submission on that is that the DEFRA arguments were not introduced into these proceedings at all until a fairly late stage -- as late as 1 March of this year -- these proceedings having been started last September. Secondly, as my Lord will recall from the substantive hearing, the DEFRA arguments occupied a very small amount of time -- something like half an hour -- and, as I recall, in fact Mr Harris left at the conclusion of that argument and the proceedings carried on for some considerable time after that. Therefore I would suggest that if the claimant is not to have all of his costs, the deduction should be somewhere in the region of ten or fifteen per cent. MR JUSTICE WALKER: There has been no previous costs order in relation to any aspect of the case, has there? MR BATES: There was a previous costs order, my Lord, in relation to the seeking of interim relief on March 1. MR JUSTICE WALKER: Before McCombe J? MR BATES: Miss Patry who is here actually represented Mr Shaun Smith, who was the organiser of the March 2006 events, and as part of those proceedings on that day the claimant sought interim relief. That application was refused and McCombe J made an order for costs in favour of Mr Smith with respect to the interim relief issue. MR JUSTICE WALKER: Yes. MR BATES: And of course that order was subject to the usual proviso in the case of a legally aided claimant. MR JUSTICE WALKER: Yes, I follow. Thank you. Miss Patry, there is no application against you for costs and you make none? MISS PATRY: That is correct, my Lord. MR JUSTICE WALKER: Thank you. Mr Owen? MR OWEN: My Lord, I resist the order sought, the order for the council to pay 100 per cent costs. I accept that the council must pay some of the costs. It is plain in the first place that the claimant failed on the third declaration -- the DEFRA point. It would appear that agreement has been made between the claimant and DEFRA that no orders as to costs will be sought as between themselves, and now the claimant seeks to obtain an order for costs embracing that element against Stafford Borough Council. In terms of the quantum, Mr Bates says that this issue -- MR JUSTICE WALKER: I can cut you short on the DEFRA point. At the moment it seems to me that that was an issue which, in truth, arose between the claimant and DEFRA and that you were forced to appear and to play some part in it, but the part that you played in it was very minor and I can see no basis whatever upon which the claimant could seek costs against you. MR OWEN: I am very grateful for that, my Lord. I accept that the claimant has succeeded in relation to the section 2 declaration. In relation to the section 1 and the section 7 declaration on the Pet Animals Act, it is the case, my Lord, that until this morning the claimant was still seeking a different form of declaration from the words and findings represented by those words in paragraph 52 of your Lordship's judgment. It is now accepted by the claimant that what your Lordship sought to achieve and did achieve in paragraph 52, and the preceding paragraphs containing the reasoning, was to ensure that fact-sensitive situations could be addressed if necessary. MR JUSTICE WALKER: Yes. MR OWEN: Because your Lordship was obviously concerned about criminalising those whose conduct might be so characterised, even though they are not before this court. So I would respectfully suggest that, so far as the second declaration is concerned, the claimant has not, in fact, achieved the declaration as sought. MR JUSTICE WALKER: That is true of both of them. What was sought in relation to the first was a declaration of criminal liability. MR OWEN: I was coming on to that further point, my Lord, because trespassing on the issue of quantum of court time involved here, your Lordship made the point in argument with Mr Bates a few moments ago that much time was indeed spent on the criminal liability issue and the claimant has failed on that also. It follows, therefore, my Lord, that when one looks at the declarations as made by your Lordship in your Lordship's judgment, and compares it with the claim as advanced, there is an obvious difference and the claimant has not succeeded in relation to either. But, nonetheless, I accept, my Lord, trying to be realistic, that Stafford Borough Council will have to pay some of the costs. What I do submit is that that should be a small portion in the circumstances, especially bearing in mind the criminal liability issue; secondly, the terms of the declarations as sought; and thirdly, the DEFRA issue, which was effectively between the claimant and the Department. My Lord, in addition, of course, whilst there has been one order for costs made in these proceedings, as your Lordship knows, on 1 March, no other order for costs has been made, and the claimant has also failed, first of all, in relation to seeking to stop the October 2005 event, which he sought to do before Burton J on paper; and secondly, the claimant failed to stop the March event, which he sought to do before McCombe J. So, my Lord, in my respectful submission, the claimant should not recover costs in respect of any of those matters or argument incidental to those matters, and I would respectfully submit that justice in this case would be reflected by a very small order for costs -- perhaps 25 or 33 per cent. MR JUSTICE WALKER: Yes. Mr Bates? MR BATES: My Lord, I will be extremely short. So far as the points made by my learned friend about the drafting of the declarations last night -- MR JUSTICE WALKER: No, you need not trouble about that. The substantial point is that you sought two particular declarations. On any view you have not been granted those declarations. MR BATES: My Lord, I have already made my point on that. One has to look at what was put forward in the context of the time when it was put forward. MR JUSTICE WALKER: Yes. MR BATES: As far as the discussion of the criminal liability -- the substantive hearing in respect of that -- this was of course an important point, but a point that was made by your Lordship on the day of the hearing, which none of the parties had considered, and in my submission it is a point that does need to be considered anyway in a case where we were concerned with the interpretation of section 2 against the background of a challenge to a licence which had then been overtaken by events in terms of the events already being held. Finally, insofar as the 1st March hearing is concerned and the seeking of the interim relief, as I stated earlier, my Lord, McCombe J did make an order in favour of the true object of the interim relief which was Mr Smith, and the hearing on 1 March would have had to take place anyway because, as my Lord will recall, there were a substantial number of orders made on that day, not least in respect of the expansion of ground A. MR JUSTICE WALKER: On which you lost. MR BATES: I accept that, my Lord. The point that I was making was in relation to the interim relief, that there was no additional cost caused to the local authority in respect of that application and therefore, in my submission, that aspect has already been dealt with by an order for costs made by McCombe J. MR JUSTICE WALKER: Yes. MR BATES: Thank you, my Lord. JUDGMENT : MR JUSTICE WALKER: MR OWEN: May that be subject to a detailed assessment, my Lord? MR JUSTICE WALKER: Yes, subject to a detailed assessment if not agreed. MR OWEN: Thank you, my Lord. MR BATES: My Lord, may I also ask for the usual detailed assessment of the claimant's costs? MR JUSTICE WALKER: Yes, detailed assessment of the claimant's publicly funded costs. MR BATES: I am grateful, my Lord. MR JUSTICE WALKER: Anything else arising? Thank you all.

Cited in 7 later judgments