Ward v RSPCA [2010] EWHC 347 (Admin)

Case No CO/11547/2009[2010] EWHC 347 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 29 January 2010
Strand
London WC2
B E F O R E:
LORD JUSTICE AIKENS
MR JUSTICE OPENSHAW
Between
ANTHONY WARDClaimant-v-
Between
RSPCADefendant
Computer-Aided Transcript of the Stenograph Notes ofMerill Legal Solutions Limited165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR NICHOLAS WOOD (instructed by Grenville J Walker) appeared for CLAIMANTMR IAIN O'DONNELL (instructed by HGW Solicitors ) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE AIKENS:

[1]Mr O'Donnell, we need not trouble you. I will ask Openshaw J to give the first judgment.[2]MR JUSTICE OPENSHAW: This is an appeal by way of a case stated from a decision of His Honour Judge Burford QC, sitting with magistrates in the Crown Court at Southampton, by which on an appeal from the Lyndhurst Magistrates' Court, they upheld the convictions of the appellant, Anthony Ward, for two offences of causing unnecessary suffering to two ponies contrary to Section 4(1)(a) of the Animal Welfare Act 2006. Under Section 34 of the Act, they disqualified him from owning and keeping, or participating in keeping, or being a party to an arrangement under which he is entitled to control or influence the way in which animals are kept for a period of 10 years. They made an order that he can not apply for that disqualification to be lifted for three years. He was also ordered to pay costs and compensation. The appeal is directed only to the disqualification.[3]Mr Ward and his partner, Sarah Moore, live together and work as smallholders at Oakley Farm, Agars Lane, Sway, near Lymington in the New Forest. They keep ponies and cattle. The facts are as set out in the case stated. They can be summarised as follows.[4]On 4 May 2007, inspectors from the RSPCA went to the farm and found two ponies in a distressed condition, which was due to a severe worm infestation. Mr Ward and Ms Moore had treated each pony for worms by giving a recognised proprietary medicine. This was, as the court found, a reasonable treatment to give at the time that it was given, but the treatment had been ineffective as he ought to have realised from their condition. I read from the case stated at paragraphs IV to VIII:
"A reasonably humane and competent horse owner would have been aware by the end of April 2007, and therefore on 4 May 2007, that the condition of [the ponies] was such that veterinary advice should have been sought. Neither appellant sought such advice. "
On 4 May 2007, [both ponies] were suffering from worm infestation to a degree that needed veterinary treatment. "The failure by 4 May 2007 to seek veterinary advice caused [the ponies] unnecessary severe distress and discomfort. Their muscles were significantly wasted. "Both appellants ought reasonably to have known that their failure to seek veterinary assistance was likely to result in [the ponies] suffering unnecessarily and severely."[5]Once the veterinary surgeon had prescribed the correct medicine, the ponies recovered. The appellants' culpability therefore lay in not recognising that the ponies were suffering to the extent that they required veterinary treatment and allowing that state of affairs to continue, and to continue until the ponies were caused unnecessary and indeed severe suffering.[6]Mr Ward has two relevant previous convictions. In 1997 he was convicted of causing unnecessary suffering to two ponies by failing to provide reasonable care; and in 1999 he was convicted of causing unnecessary suffering to two cows. I read from paragraph XII of the case stated:
"They were so neglected and so undernourished that they had to be put down by a vet as soon as they were discovered. Mr Ward was sentenced to four months imprisonment on each count concurrent, suspended for 12 months, and he was disqualified for five years from keeping cattle. This ban expired on 6 May 2004."
[7]That was, as Mr Wood has recognised, a very bad case of neglect. But the questions asked of this court are these.[8](1) whether the court was entitled to consider either of Mr Ward's two previous convictions as material to the issue of disqualification.[9](2) whether it was appropriate to include cattle within Mr Ward's disqualification.[10](3) whether the court was entitled to give weight to the fact that Mr Ward's previous disqualification expired less than three years before the commencement of the instant offences.[11](4) whether it was inconsistent to disqualify Mr Ward while not disqualifying his co-appellant.[12](5) whether it was appropriate to disqualify Mr Ward when he was carrying on business in partnership with his co-appellant.[13]The first point to be made is that this is not just a straightforward appeal against sentence. This court does not have the same general powers as the Court of Appeal Criminal Division when reviewing sentences passed in the Crown Court. In Section 28 of what is now the Senior Courts Act:
"Any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court."
[14]An appeal therefore, by way of case stated, will succeed only if the sentence passed was in excess of jurisdiction or was wrong in principle.[15]Questions 1 and 3 are directed to the relevance of the previous convictions. In my judgment, that is effectively answered by Section 143.2 of the Criminal

Justice Act 2003 which reads as follows:

"In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to: "
The nature of the offence to which the conviction relates and its relevance to the current offence, and:
"The time that has elapsed since the conviction."
[16]It is very unusual for a farmer to have three convictions for such an offence. In my judgment, Judge Burford and the magistrates were quite right to stress the importance of those two previous convictions and the fact that the last disqualification expired only three years before this offence. Both points were, in my judgment, seriously aggravating factors to an already serious offence. The answer to questions 1 and 3 is therefore: "Yes".[17]The next point asks whether it was right to disqualify him from keeping cattle as well as ponies. It is true that the present offence was committed towards ponies, but the previous conviction was for causing unnecessary suffering to cattle and the lack of care which he displayed in this case, namely his failure to recognise the animals were suffering and that it was necessary to call out a vet, is just as likely to be directed towards his cattle as towards his ponies. I have no doubt, therefore, that he was rightly disqualified from keeping cattle as well as ponies. The answer to question 2 is therefore "yes".[18]Question 4 asks whether it was inconsistent to disqualify the appellant but not his partner. It is said that their culpability was the same in respect of this offence. They were farming in partnership and each was responsible for the condition of the animals. But his partner had no previous convictions and he did. His conviction, in my judgment, was quite sufficient to justify the imposition of a disqualification on him, but not on her. There is, in my judgment, no objectionable disparity between them. The answer to question 4 is therefore "no".[19]The last question asks whether it was appropriate to disqualify Mr Ward when he was carrying on the business in partnership. I do not entirely understand this argument, which seems to suggest that a farmer is or should be exempt from disqualification if he is in partnership, but that is quite untenable as a proposition.[20]An order of disqualification is no doubt in part a punishment. The Animal Welfare Act 2006 was intended to promote the welfare of animals and part of the mechanism of protection is the order of disqualification following convictions for offences under the Act. It was, in my judgment, plainly appropriate to disqualify him, notwithstanding that he was in partnership with her and that may cast a burden upon her. The answer to question 5 is therefore "yes".[21]In my judgment, this disqualification was entirely justified. It was not in any way unlawful or in excess of jurisdiction. The high hurdle set by Section 28 of the Senior Courts Act has simply not been crossed in this case, and in my judgment the appeal entirely fails.

LORD JUSTICE AIKENS: I agree.