Patterson, R (on the application of) v RSPCA [2013] EWHC 4531 (Admin)

Case No CO/2893/2013[2013] EWHC 4531 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Venue LeedsDate Thursday, 14th November 2013
West Yorkshire
LS1 3BG
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF CONNOR PATTERSONAppellantAND CAROLINE PATTERSONAppellantv
Between
RSPCARespondent
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T. Cornberg (instructed by Lawson & Thompson) appeared for AppellantsMr M. Love (instructed by McKeag & Co) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BLAKE: This is an appeal by way of Case Stated from decisions of the justices sitting in Newcastle-upon-Tyne Magistrates' Court, dated 5th November 2012, whereby they convicted the appellants, Mr and Mrs Patterson, of a number of offences under the Animal Welfare Act 2006.[2]Mr and Mrs Patterson lived with their young children at Hope Cottage, Whitfield, Hexham, Northumberland. The court has been informed that is a tied cottage on a larger estate. This family at one time had a whole menagerie of animals located at Hope Cottage and its surrounding land connected to that cottage.[3]On 16th February 2011 Connor Patterson, was convicted of an offence of animal cruelty, contrary to section 8A of the Animal Welfare Act 2006 because he had participated in a blood sport. A disqualification order was made under section 34(2) of the Act. The term of the disqualification was originally for 8 years but was subsequently reduced on appeal to a period of 5 years.[4]As a result of that disqualification by s.34(9) of the Act it was a criminal offence for Mr Patterson to do any of the things that he was disqualified from doing. These are spelt out i in section 34(2) in the following terms:
"Disqualification under this subsection disqualifies a person— (a)from owning animals, (b)from keeping animals, (c)from participating in the keeping of animals, and (d)from being party to an arrangement under which he is entitled to control or influence the way in which animals are kept." ……… (5)Disqualification under subsection (2), (3) or (4) may be imposed in relation to animals generally, or in relation to animals of one or more kinds."
This was a general disqualification.[7]On 24 May 2011 inspectors from the RSPCA visited Hope Cottage. They found a whole host of animals and birds along with Mr and Mrs Patterson and their children. An inspector expressed the view that simply by living at Hope Cottage along with the animals Mr Patterson was breaching the terms of his disqualification order. By implication either the animals should go or Mr Patterson should.[8]They visited the premises again in December 2011, when they found all the animals in and about the premises and Mr Patterson was still in residence. They seized the animals and in due course informations were laid that gave rise to 12 charges before the justices.[9]Charge 1 was against Connor Patterson that:
"On dates between 24 March 2011 and 6th December 2011 at Hope Cottage, being a person subject to disqualification extending to all animals, imposed on the 16 February 2011 ... breached that disqualification in respect of 11 ducks, two guinea pigs, seven rabbits, eight dogs, one hamster, 20 chickens and four turkeys, contrary to section 34(9) of the Animal Welfare Act."
Charge 2 was against Caroline Patterson, the second appellant. That alleges that on the same dates she did aid, abet, council or procure Connor Patterson to commit the offence of breaching his disqualification. Each appellant was convicted of these offences.[10]The other 10 charges were joint counts against both appellants of animal cruelty, namely causing unnecessary suffering to a individual animals, typically by failing to provide of proper and necessary veterinary care and attention and that each defendant knew or ought reasonably to have known that failure would have the effect of causing unnecessary suffering.[11]Section 4 (A) of the Animal Welfare Act provides:
"A person commits an offence if- (a) he is responsible for an animal, (b) an act or failure to act of another person causes the animal to suffer, (c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening; and (d) the suffering is unnecessary."
Subsection (3) goes on to deal with what unnecessary suffering can include and section 9(2) provides:
"For the purposes of this Act, an animal's needs shall be taken to include— (a)its need for a suitable environment, (b)its need for a suitable diet, (c)its need to be able to exhibit normal behaviour patterns, (d)any need it has to be housed with, or apart from, other animals, and (e)its need to be protected from pain, suffering, injury and disease."
The claimants were acquitted of six of the animal cruelty charges and convicted on four of them. It is appropriate to consider the arguments relating to charges 1 and 2, breach of the disqualification order, first. It is common ground between the advocates that if on the facts found by the justices Mr Patterson could not be convicted of this offence, then he could not also be guilty of the animal cruelty counts. This is because if Mr Patterson was prevented by law from keeping or being responsible for animals, and he did not breach his obligations and even if the animals were in a state of neglect and suffering, he could not be the person responsible for lack of care rendered to those animals. If by contrast he was breaching the order and was in part responsible for caring for those animals, then there is no reason why he should not be jointly responsible with his wife for the way the animals were treated. Equally it is common ground that Mrs Patterson could not be guilty of aiding and abetting Mr Patterson if he was not guilty on charge 1.[12]I now turn first to the justices findings in relation to the offences relating to disqualification order. At paragraph 4.1 of the Case Stated the following facts were agreed:- "That the appellants are husband and wife who live together at Hope Cottage with two very young children. Mrs Patterson is a farm worker on the estate. Mr Patterson looked after the two young children when Mrs Patterson was not there." The next part of the case deals with history already summarised and then the evidence that is relevant to these convictions was recited:
"7.1.1 Evidence was given by RSPCA Inspector Walker that PC Heath and himself had visited Hope Cottage on 24 May 2011 and spoke to the appellants about the animals that continued to be at the property despite Mr Patterson's disqualification. Mr Patterson stated he had passed title to all the animals to Mrs Patterson and she was now solely responsible for them. The respondents believed this arrangement complied with the terms of Mr Patterson's disqualification. 7.1.2 In the opinion of the inspector this did not comply with Mr Patterson's disqualification because he was able to influence the manner in which the animals were kept, exercised some control over the animals and that he was in effect participating in their keeping. It is also his opinion that Mr Patterson knew of her husband's disqualification and her actions amounted to aiding and abetting his breach of disqualification. 7.1.3 The appellant signed PC Heath's notebook to confirm Mr Patterson's disqualification had been explained to them and they understood what this meant. They also confirmed the animals would be re-homed and were given 28 days to do this. 7.1.4 On 6th December 2011 at 07.54 hours a search warrant was executed at Hope Cottage by Northumbria Police with the assistance of RSPCA inspectors. As a result of this search five dogs in total were found inside the house, three Cocker Spaniels, a short haired terrier, a long haired terrier and a hamster. Other animals and birds, a dog spaniel, bitch spaniel, a Labrador bitch, seven rabbits, two guinea pigs, four Turkeys, eleven ducks, 20 chickens were found in the buildings outbuildings and garden. A total of 55 animals and birds were seized. As it was thought they were either suffering directly or being kept in an environment that would cause suffering. 7.15 In a statement dated 7 December 2011 PC Heath confirmed that on a visit to property on 6th December he provided a bucket of fresh water to the poultry and the poultry immediately drank from it until it was empty."
[14]The case then goes on to deal with the findings of veterinary surgeons about the condition of the animals. A number of vetinerary observations were made indicating lack of care or neglect that would have caused the animals unnecessary suffering.[15]At 10.1 the finding of fact relevant to the conviction on the disqualification charge is spelt out. Justices concluded as follows:
"The family living arrangements, from working arrangements and daily living conditions were such that Mr Patterson was living in close proximity to the large number of animals involved. He was able to participate, control or was able to influence the way in which animals were kept due to this close proximity. It would have been impossible for him not to have participated in the control or to have influenced the way in which a large number of animals were kept at the property and in the adjoining outbuildings. Therefore he was in breach of the disqualification order which had been imposed in March 2011 (count 1)."
[16]Before the court today Mr Love, who appears for the prosecuting RSPCA, supports the justices' reasoning. He does so on the basis that once it is accepted first that Mr Patterson lived in Hope Cottage surrounded by these 55 animals, some of which were living inside the house and some outside it and second that there were times when Mrs Patterson was not present during the day at the premises, the justices were entitled to conclude that Mr Patterson was either participating in the looking after these animals or was entitled to do so within the meaning of section 34(2)(d), that is to say he was party to an arrangement under which he was entitled to control or influence the way in which the animals are kept.[17]He gives in his skeleton argument an example which he says he put to Mr Patterson at trial to test the evidence in this case, and may have been influenced the conclusion at 10.1 noted above. He submits that if Connor Patterson was alone on the premises and there was a fire or some other emergency putting the animals at risk then he would be bound to take action to ensure their welfare. Any passer-by would be astonished if confronted by him taking such action they were informed he was subject to a 5 year disqualification.[18]There is no legal authority on this point. Mr Love helpfully draws the court's attention to a number of decisions of this court on the predecessor legislation.[19]Taylor v RSPCA [2001] EWHC (Admin) 103 concerned a man who was prohibited from looking after horses but there was evidence that after the disqualification was imposed he was making arrangements for the horses, the field in which they were kept and all other arrangements dealing with them and the justices concluded that he was acting in breach of a disqualification order. It was held they were entitled to do so.[20]The case quotes extensively from an unreported decision called RSPCA v Miller summarised in the 1994 Criminal Law Review page 516, a decision of the Divisional Court in which Ralph Gibson LJ and Smith J were concerned. That was an unusual case, in that it concerned someone who was banned from having custody of a dog but was seen holding someone else's dog in a carnival procession in a village for a short period of time before the dog was returned to the owner. The justices concluded, on the particular facts, that it was not demonstrated that he had custody of the dog, and acquitted and the Divisional Court held that that was a decision open to the justices.[21]At paragraph 19 of the judgment in Taylor there is a quotation from the judgment in Miller dealing with what "custody of a dog" can mean in the particular circumstances but the courts were astute to say that each case turns upon its particular facts and the courts will not seek to give definitions of ordinary words in statutes, the meaning of which has to be looked at in the context.[22]Arthur [2005] EWHC 2616 (Admin), was another case concerned with a horse. The horse had to be moved from a field in which it was kept. The owner of the field would only deal with the owner of the horse, who was disqualified from having custody of the horse. The owner of the horse entered the field to move the horse out of the field. It was opined by Walker J, on appeal from a decision of the Crown Court judge, who reached a similar conclusion, that leading a horse out of the field would not of itself have breached the requirement not to keep or have custody of the horse but the owner in that case went on to put the horse into a horse box, transported it and had physical custody of it for some time and that did breach the prohibition.[23]Returning to the present appeal, in my judgment, the justices were perfectly entitled to reach the conclusion that the living arrangements in which Mr Patterson found himself after the disqualification was such that he was in a position to influence the care in which the animals were kept on the premises. That of course is what they found at paragraph 10.1 and that is precisely what they record the inspector had said was the basis of his concern in the earlier visit in May 2011.[24]However, that is not what the statute says constitutes the conduct that amounts to a breach of the disqualification order. It is not sufficient that you are able to control or influence the way in which animals are kept, you must be[25]entitled to control or influence the way in which they are kept under an arrangement to which you are a party.[26]The court is conscious of the practical difficulties for inspectors of the RSPCA understandably seeking to police disqualification orders when they will not usually have 24 hour coverage of what is going on in particular premises. Of course, this is an area in which a successful prosecution may be founded on inferences drawn from primary facts whether undisputed or found by the justices to be the case. But this being a criminal prosecution the rule is that before a case can proceed to a finding of guilt by way of inferences to the criminal standard, the inference must not only be one that can be drawn from the evidence but the only sensible inference, the evidence is inconsistent with any other inference save guilt.[27]It is accepted that there is no direct evidence that Mr Patterson has cared for or was responsible for or was party to an arrangement by which he was entitled to care for any of the animals that he said he had transferred both ownership and responsibility for to Mrs Patterson. Of course whilst Mrs Patterson is out of the house Mr Patterson would have the opportunity to have cared for the animals but it is does not necessarily follow that he has used the opportunity to do so and if he has not done so, it is difficult to see what evidence there was that he was entitled to do so. There may be cases where the length of absence of any other responsible custodian is such that the justices are able to conclude by process of elimination that the disqualified person must have been the person who cared for the animals: fed them, watered them, exercised them and such like. But the case stated that the justices did not direct their minds to the question of whether there was an entitlement to care for or control the animals, and secondly, do not set out with any particularity why the facts in this case were so strong as to exclude any other inference but that Mr Patterson had at some point during the 6 months before December 2011 done things that he knew he was prohibited from doing. The account given consistently by the couple on initial inquiry, investigation and during the trial was that all responsibility had been transferred to Mrs Patterson and there had been no breaching or crossing of that division by the couple in the months following the disqualification and the visit to the inspectors.[28]There is this further difficulty underlining the prosecution case. A responsible owner, who has responsibility for animals and who is away for short periods during the working day might have made arrangements for their care. But equally such an owner might have failed to make arrangements for their care, as a result of which the animals suffered. It was the prosecutor's case, on the substantive animal cruelty charges that the animals were not properly cared for or examined for avoidable and treatable medical conditions. It is a little difficult on the evidence of neglect relied on in the substantive cruelty charges to say that the only reasonable inference if that Mrs Patterson must have made arrangements with Mr Patterson for him to discharge her responsibilities as carer despite her assertions to the contrary.[29]Further, with respect to Mr Love, the example he gives of someone who intervenes in the case of catastrophic emergency, for example, a fire with an animal trapped in a burning barn does notassist at all. Indeed it may merely divert attention from the real issues in the case. A person who spontaneously responds to a crisis and enters a barn may do so without any entitlement to do so and certainly without being a party to an arrangement giving a result to an entitlement to do so, who may indeed have entered the premises as a trespasser simply because of the urgency and the animal needed rescuing. Further, there is very considerable room for doubt by reason of the authorities that I have endeavoured to summarise whether any act in liberating an animal from a burning premises or flood, or other immediate threat to the animal's life, and freedom from suffering was sufficiently prolonged to amount to a keeping or a custody or an assumption of responsibility for the animal within the meaning of the section.[30]To that extent although the terms of the legislation has changed, I would concur with the observation made in the case of Miller by Ralph Gibson LJ that the prohibition was not so wide as preventing any form of contact with a dog or with an animal or control of an animal.[31]In my judgment, there were insufficient findings of fact made to entitle justices to reach the conclusion that the only sensible inference was that Mr Patterson had cared for the animals in the past, been responsible for their welfare and care or was party to an arrangement by which he was entitled to care. The fact that his presence meant that he was able to care in the event of a contingency requiring a care was not sufficient in itself.[32]I now turn to the remainder of the appeal and that concerns the substantive animal cruelty counts charges 3 to 12, of which only four had resulted in the convictions. For reasons already explained the immediate consequence of the decision on the disqualification count is that Mr Patterson would have to be acquitted of the four counts of which he has been convicted, because he was prohibited by law from being responsible and on the reasons already given, justices were not entitled to conclude upon the data that they have recited that he had breached the duty prohibiting him from being responsible.[33]That simply leaves the question of whether Mrs Patterson could be found guilty of the four counts of animal suffering of which she was convicted. As a matter of fact she was clearly responsible for the animals and the justices were entitled to so find. Equally on the evidence recited in some greater detail in the Case Stated, the justices were entitled to find that on each of the four counts in which there was a conviction that there was evidence of unnecessary suffering by neglect.[34]The submission is simply that in respect of each of those counts there was insufficient evidence to justify the conclusion that Mrs Patterson would have known of the conditions and her responsibility for them. Thus it is suggested that in respect of the duck, that the veterinary evidence was that if the duck or indeed the dogs with tooth decay and duck with the condition that the duck was in had been brought to a vet, the condition was so serious either advice had been given or an instant report would have been made to the prosecuting authorities.[35]Mr Cornberg submits: well, that did not actually happen and the attention of the veterinary authorities was and the condition, the precise condition of the animals was not brought to Mrs Patterson's attention. With respect, that is simply a comment upon the evidence and is incapable in law of finding a sufficient reason as to why the justices were not entitled to reach the conclusions that they did. She was the person responsible for these animals. It was her duty to ensure that the animals are inspected sufficiently regularly for conditions that would cause suffering to be brought to veterinary attention. It is plain on the justices' findings she failed to meet those obligations and therefore fell foul of the terms of the statute and the way they found.[36]Equally, it was suggested in the other remaining counts that was imposing too high a standard of care, for example requiring continuous supply of fresh water. Water is part of animals basic needs. The animals connected with this charge did not have access to water at all times and were found to be thirsty. The answer to that submission is found in the very full findings of the justice on this question, full findings which do contrast with the somewhat slight findings found of the first two counts.[37]In my judgment, there was ample evidence from which the justices could have concluded that the chickens, for example, had insufficient water and therefore a fundamental requirement of animal health, diet, water was held back and that was the responsibility of Mrs Patterson. So in respect of the four counts against Mrs Patterson alone of animal cruelty, this appeal is dismissed. I would accordingly answer the questions posed as follo0ws:-# Question 1: The justices were nto entitled to find that Mr Patterson was involved in the control of the animals or was entitled to participate in their care. Question 2: The justices were not entitled to convict Mrs Patterson for aiding and abetting Mr Patterson’s breach of the disqualification order. Question 3: The question whether there was a sufficient case to answer does not need to be considered in the light of the above and the fact that Mr And Mrs Patterson both gave evidence. Question 4: The answers are yes in respect of Mrs Patterson but no in respect of Mr Patterson. Question 5: The answer is yes an animal’s needs include access to fresh drinking water[38]For those reasons, the appeal is allowed to the extent that Mr Patterson’s convictions on all charges and Mrs Patterson’s conviction on the aiding and abetting charge are quashed and I direct that not guilty verdicts are substituted.[39]MR LOVE: My Lord, there is one very short point for the benefit of the tape. At the start of the judgment your Lordship referred to "Animals Act" rather than the Animal Welfare Act.[40]MR JUSTICE BLAKE: Thank you very much. I will no doubt have to correct that and do a bit of juggling there but thank you very much for advising me to that defect.[41]MR CORNBERG: I wonder and hope I am not being insolent in asking, and I do not want to throw this at my learned friend unfairly, but I understand that all of the animals have been taken away, re-homed for a period of time on the back of the breach of the disqualification order. I do not think my Lord can make any ruling on it, it would be rude to ask with about 2 seconds' notice.[42]MR JUSTICE BLAKE: From what I have seen that would appear to be quite sensible. This couple are not looking after the animals or Mrs Patterson is not and it may very well be that the reason why the animals that suffered had gone in the condition they did is precisely because Mrs Patterson is not able to look after without assistance and of course the one person that she cannot turn to for assistance is Mr Patterson. That is something your client will have to sort out, this is not an issue for this court.[43]MR CORNBERG: I raise it perhaps cheekily on the basis that I am not assisted in court nor are my clients here.[44]MR JUSTICE BLAKE: It is not for me to give any advice. But thank you both for your help on a case which has surprisingly intriguing questions.[45]MR CORNBERG: Can I mention, I understand may I put this on the tape effectively, I understand that legal aid has been granted so I am publicly funded and so I could not really ask for costs any more than I could have them awarded against me perhaps. In the circumstances both parties can bear their own.

MR JUSTICE BLAKE: Thank you very much.