King v Royal Society for the Protection of Cruelty To Animals [2007] EWHC 637 (Admin)

Case No CO/9592/2006

[2007] EWHC 637 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 5 March 2007

Strand

London WC2

B E F O R E:

LORD JUSTICE LATHAM

MR JUSTICE DAVIES

Between

KINGClaimant

-v-

Between

ROYAL SOCIETY FOR THE PROTECTION OF CRUELTY TO ANIMALSDefendant

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MISS A GREGORY (instructed by O'Garra's of Leeds) appeared for CLAIMANT

MR M FENHALLS (instructed by Kenneth Bush of Norfolk) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE LATHAM:

[1]This is an appeal by way of case stated from a decision of the Norfolk Magistrates' Court which dealt with an application under Section 142 of the Magistrates' Court Act 1980 to revisit an original decision.

[2]The hearing with which we are concerned, that is the rehearing, was on 2 August 2006. The position was that the respondent had preferred 45 informations against the appellant under Section 1 of the Protection of Animals Act 1911, as amended. When the matter came before the magistrates in the first instance, on 30 January 2006, the appellant pleaded guilty to six offences. That was as a result of discussions between the prosecuting solicitor and those acting on behalf of the appellant. After recitation of the basis upon which the matter was to proceed, in other words in relation to the specific counts to which the appellant intended to plead guilty, clause 4 was in the following terms:

"The prosecution and defence support each other on any disqualification for all animals save for six dogs."

[3]The intent behind that paragraph was that the plea was put forward on the basis, on its face at least, that the prosecution would not be asking for any disqualification in relation to the six dogs for which the appellant at that time was caring.

[4]As a result, when the matter came back before the magistrates for sentence on 28 April 2006 the penalty imposed - 12 months community order with an unpaid work requirement of 160 hours - then included an order disqualifying her from keeping animals for life save for six dogs that were currently in her custody, and when they died no more than two neutered dogs. There was one other offence to which she pleaded guilty with which we are not concerned.

[5]On 17 May 2006 this court considered and gave judgment in Royal Society for the Protection of Cruelty to Animals v Chester Crown Court

[2006] EWHC Admin 1273

. In the course of the judgment in that case Lord Justice Sedley stated that the power contained in the relevant section of the Protection of Animals (Amendment) Act 1954 did not permit a disqualification in those terms. Section 1 (1) provides as follows:

"Where a person has been convicted under the Protection of Animals Act 1911 ..... of an offence of cruelty to any animal the court by which he is convicted may, if it thinks fit, in addition to or in substitution for any other punishment, order him to be disqualified, for such a period as it thinks fit, for having custody of any animal or any animal of a kind specified in the order."

As to that power,

Lord Justice Sedley said at paragraph 8 of the judgment as follows:

"This power is, in my judgment, precise and exhaustive. It gives the court a choice as to (a) the duration of any disqualification it imposes and (b) what kinds of animal the disqualification is to relate to. But that is all. There is no way of reading into it a discretion of the sort for which the defendants had contended. A court considering disqualification therefore needs to have in mind that an order is flexible only in these two respects."

[6]It is apparent that the section, as interpreted in that judgment, does not permit or empower a magistrates' court to impose the sort of disqualification order which was imposed in the present case. It is perhaps a narrow interpretation of the section; but it is an interpretation by which this court is bound, and sets out what the meaning of that section in the statute not only is but was.

[7]Against that background, the respondent sought to re-open this matter under Section 142 of the Magistrates' Court Act by an application on 6 June 2006. It was as a result of that application that the order was made with which we are concerned today. The magistrates, having heard argument from both the respondent before us and the appellant, concluded that it had power to re-consider the order that had been made, that in its discretion it should exercise that power and, having considered the facts, replace the disqualification order that had been made with a disqualification from having custody of any dogs for a period of 15 years. It is against that order that the appellant appeals to us today, as we have indicated, by way of case stated.

[8]The first basis upon which Miss Gregory, on behalf of the appellant, sought to put her case was that the order should be considered as a valid order at the time it was made because that was the general understanding of the powers of the court. As we indicated to her in argument, that is not a sustainable submission. The decision of this court in Chester Crown Court was a decision as to the meaning of the Act and that meaning is the meaning of the Act at all material times since the Act was enacted. It follows that the court on 28 April 2006 had no power to impose the disqualification that it did.

[9]That raises the next question which she submits justifies the appeal which is the question of whether or not Section 142 should have been invoked by the magistrates in the present case. She submits that the section, properly construed, provides the magistrates simply with a discretionary power to interfere with the sentence and that, in all the circumstances in this case, the magistrates should not have exercised their discretion in the way that they did. The section provides as follows:

"142 Power of magistrates' court to re-open cases to rectify mistakes etc. (1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."

[10]It is apparent from the way in which that section is worded that, as Miss Gregory submits, it provides the magistrates with a discretionary power. Implicit in the word "may" is the fact that the magistrates have a discretion as to whether or not to interfere with a sentence even if the original sentence was invalid. It follows that the question in each case is whether it is in the interests of justice for the magistrates to intervene.

[11]Miss Gregory points out that in the present case the hearing before the magistrates on 28 April 2006 took place against the background of discussions between her and those acting for the prosecution which had resulted in an agreement, part of the agreement being the paragraph to which we have referred relating to disqualification. She submits that against that background it was, quite simply, unfair and unjust for the magistrates to permit the prosecution to re-open the matter and unfair and unjust of the magistrates to interfere with the order that had originally been made. She points out that at the time the court considered the matter in April the respondent was pursuing the appeal in the Chester Crown Court case and the hearing was only some three weeks away. In those circumstances one would have expected, or at least hoped, that the respondent would have brought to the attention of the magistrates the fact that the powers of the court were to be subject to consideration by this court in a short time.

[12]We have heard from Mr Fenhalls as to the latter submission. The way in which the prosecution in such cases is, in practice, operated means that the respondent, which is a charity with restricted funds, may not always be aware centrally of everything that is being done on its behalf by independent solicitors instructed on its behalf in individual areas. It is unfortunate therefore that there is no system whereby a track can be kept of significant appeals such as Chester Crown Court, which was clearly an important appeal as to the powers of the Magistrates' Court in circumstances such as this. We are quite satisfied that it was simply because of this administrative lacuna that those who were advising in this case were not made aware of that appeal; and there is undoubtedly nothing sinister that can be implied into the fact that those concerned with this case were unaware of the pending decision in the Chester Crown Court case. Although it was therefore unfortunate, there can be no question of categorising it as an abuse.

[13]Turning to the other aspects of Miss Gregory's arguments on what might be called the merits of the decision as to the exercise of powers under Section 142, whilst we can understand not only the disappointment but the sense of unfairness that may have originally been generated by the way in which this matter was dealt with both by the prosecution and by the magistrates, nonetheless, when one considers what the position would have been had the matter been dealt with in a more structured way, the issue can be put in its proper context. If the prosecution or the defence had been aware on 28 April 2006 of the pending decision in the Chester Crown Court case, we have no doubt that the matter would have been adjourned to await that decision. Had it been adjourned to await that decision, the consequence would have been, as it seems to me, inevitable that the magistrates would have appreciated that they could not deal with the case in the way which both the prosecutor and appellant had originally hoped or expected that it could be.

[14]We are told, and it is apparent from all the material we have, that the plea that had been entered on behalf of this defendant was an unequivocal plea. Therefore the fact that the powers of the magistrates had been clarified in the way that they had so as to expose the appellant to a different form of disqualification from that which had originally been anticipated could not have affected the plea. The magistrates would then have considered the case on its merits in the light of the powers which this court in the Chester Crown Court case had indicated that it had.

[15]I return to the question of whether or not in the circumstances the decision of the justices could be said to be one which was an unreasonable or a perverse exercise of the discretion which they undoubtedly had. They were confronted with the fact that the disqualification that had been imposed was invalid despite the fact that the matter had come before the magistrates in the way that it had, namely after discussion between the prosecution and the defence. In the light of what we have indicated as to the powers of the court, I do not consider that the magistrates could be said, in any sense, to have been unreasonable in determining that the proper course to take in the interests of justice was to re-consider the disqualification in the light of the powers that it did have, bearing in mind that it had a duty to the public and to animals which these statutes are intended to protect.

[16]I turn to the final question which is whether in all the circumstances of the case nonetheless the disqualification for 15 years was one which was itself unreasonable or perverse, because that is essentially what Miss Gregory has to succeed in persuading us that it was if we are to interfere with the sentence itself. Her client had a remedy by way of appeal to the Crown Court against that sentence if it was simply a question of whether the sentence was manifestly excessive.

[17]There is no doubt from the case stated that the magistrates were fully aware of all the circumstances of the case. They took into account the background material to which we have referred. When they ultimately concluded that the sentence should be one of 15 years' disqualification, they did so on the basis that the underlying order made by the magistrates in the first instance had been, subject to the conditions which they had not been entitled to impose, a lifetime ban. They considered that in all the circumstances they could properly reduce that or moderate that to one of 15 years. Whether that was a sentence which might be considered to be a harsh sentence or not is not the question with which we are concerned, as I have explained. We simply have to decide whether it was unreasonable or perverse or was one taken without consideration of all relevant matters. I do not consider that the decision falls into that category.

[18]Accordingly I would dismiss this appeal.

MR JUSTICE DAVIES: I agree.

[20]MR FENHALLS: My Lords, may I turn to the question of costs briefly?

LORD JUSTICE LATHAM: Yes.

[22]MR FENHALLS: You will see from the Chester Crown Court case that there was a power to seek costs from central funds. I seek that order. The respondent is a charity with limited funds, and is here for the reasons which are set out in the skeleton arguments. I ask for an order that they be taxed in due course.

LORD JUSTICE LATHAM: Paid out of central funds?

[24]MR FENHALLS: Yes.