Gray & Ors, R (on the application of) v Crown Court Aylesbury & Anor [2013] EWHC 500 (Admin)

Case No CO/10303/10Case No CO/3363/2011[2013] EWHC 500 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an Application for Judicial Review
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/03/2013
Before
LORD JUSTICE TOULSONMR JUSTICE SILBER
Between
THE CROWN COURT AYLESBURYDefendantRSPCAInterested party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Fullerton (instructed by Nigel Weller & Co) for James GrayRichard Cherrill (instructed by Nigel Weller & Co) for Julie GrayRobert Seabrook QC and Ian O’Donnell (instructed by Paris Smith) for Interested PartyHearing Hearing date: 26 February 2013
JudgmentLord Justice Toulson :
[1]The principal claimant, Mr James Gray, used to be a horse trader. The business was carried on at Spindle Farm, Chalk Lane, Hyde Heath, Amersham. On 8 May 2009 Mr Gray was convicted at Central Buckinghamshire Magistrates’ Court before District Judge Vickers of 11 offences under the Animal Welfare Act 2006 (“the Act”). The trial lasted 52 days. All but 2 of the charges were under section 4. Charges 2 and 9 were under section 9. Four other members of Mr Gray’s family, including his wife, were found jointly guilty with him on some of the charges. On each of the charges Mr Gray was sentenced to 24 weeks’ imprisonment concurrent and disqualified under section 34 for an unlimited time from dealing in, owning or keeping equines (horses, ponies and donkeys), with a further stipulation that he should not be entitled to apply for a termination of his disqualification for a period of 10 years. Additional orders were made for deprivation and seizure of animals to which the various charges related. Mrs Gray was convicted on charges 2 and 9. She was sentenced to a community order and a disqualification order. Mr Gray was ordered to pay £400,000 and Mrs Gray was ordered to pay £750 towards the cost of the prosecution.[2]Mr Gray and his co-accused appealed to Aylesbury Crown Court. The appeal was heard by a bench consisting of His Honour Judge Tyrer and two magistrates. The court heard evidence over 34 days and delivered a written judgment of 134 pages on 6 May 2010. Mr Gray’s appeal was allowed in respect of charges 6 and 10 but dismissed in respect of the other 9 offences. In respect of those 9 offences the court activated the disqualification and deprivation orders, which the district judge had suspended pending the hearing of the appeal, and it made supplemental orders for the execution of the deprivation order. Mrs Gray’s appeal against conviction on charges 2 and 9 was dismissed. After the conclusion of the appeal, the court received submissions on costs and handed down a costs judgment on 12 November 2010. Mr Gray was ordered to pay £200,000 towards the prosecution’s costs of the appeal in addition to the £400,000 costs ordered by the district judge. Mrs Gray was ordered to pay £200,000 in respect of the prosecution’s costs of the appeal.

Applications for judicial review

[3]Mr Gray asked the Crown Court to state a case on a large number of points of law. Mrs Gray sought separately to challenge, by case stated, the costs order made against her on the appeal. The requests to state a case were declined and applications were made to the Administrative Court for orders requiring the court to state a case in relation to conviction, sentence and costs. Permission was given to Mr Gray to seek judicial review of the refusal to state a case on legal issues and for Mr and Mrs Gray to seek judicial review of the decisions on costs, but questions remained about the form of case to be stated and the scope of any potential review. In response to a draft proposed on behalf of Mr Gray, the Crown Court produced a draft statement which it offered to sign, but this led to further argument. In order to make progress and curtail further debate as to the form of case stated, on 4 December 2012 Ouseley J ordered as follows:
“This case shall proceed by way of judicial review of the decision of Aylesbury Crown Court, as set out in the long judgment on the grounds that it contains errors of law as set out in the questions listed in the draft short case stated, as drafted but not signed by HHJ Tyrer.”
[4]Ouseley J added, for the avoidance of doubt, that the parties in their skeleton arguments “may suggest minor adjustments to the questions as set out in the short case stated” to reflect the legal issues, but that the court would proceed using the Crown Court judgment and the draft case stated.[5]The questions identified in the draft case stated were the following:
“1. Did the Crown Court correctly interpret the words “ought reasonably to have known” as they appear in s4(1)(b) [of the Act], as providing an objective basis upon which to determine whether a defendant has committed an offence of causing unnecessary suffering under s4(1) [of the Act]? 2. Did the Crown Court correctly interpret the words “such steps as are reasonable in all the circumstances”, as they appear in s9(1) [of the Act], as providing an objective standard for deciding whether a defendant has committed an offence of failing to ensure that the needs of an animal are met to the extent required by good practice under s9 [of the Act]? 3. When it ruled that the seizures which took place on the 3rd, 4th and 9th days of January 2008 of equines on the appellants’ premises were lawful, based as they were upon the oral rather than the written certifications of veterinary surgeon at those premises, did the court fundamentally misinterpret the language and object of s18(5) [of the Act]? 4. Was the Crown Court, sitting, as it was, in its appellate capacity, acting in excess of its jurisdiction when it handed down a deprivation order against the appellants pursuant to s33 [of the Act]? 5. Is a conviction under s9 [of the Act] bad for duplicity if it is founded upon the same findings of fact as a conviction under s4 [of the Act]? [6]. At a date subsequent to the judgment being handed down, the Crown Court heard the respondents’ applications for costs. A written judgment was subsequently handed down. The question for this Honourable Court is whether the decisions made by “the costs judgment” are sound in law.”

The legislation

[6]The Act repealed the whole of 9 previous Acts and parts of 11 other Acts. It followed a root and branch re-examination of animal welfare law. Its aim was to modernise, simplify and improve animal welfare legislation. The process of consultation and consideration took 4 years. This began with a public consultation from January to April 2002. On 14 July 2004 the government published a draft Animal Welfare Bill. The Bill was the subject of pre-legislative scrutiny by the Select Committee on Environmental, Food and Rural Affairs. The committee received written submissions and heard oral evidence from a large number of organisations and individuals. It published its report on 1 December 2004. The government published its reply on 3 March 2005. A revised Animal Welfare Bill was published on 13 October 2005 and the Act received royal assent on 8 November 2006 and came into operation on 6 April 2007.[7]An animal is protected under the Act if it is not living in a wild state (section 2). Persons responsible for animals include anyone who owns an animal or is in charge of it, whether on a permanent or temporary basis (section 3).[8]Section 4 is headed “Unnecessary suffering”. It provides:
“(1) A person commits an offence if— (a) an act of his, or a failure of his to act, causes an animal to suffer, (b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so, (c) the animal is a protected animal, and (d) the suffering is unnecessary. (2) 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. (3) The considerations to which it is relevant to have regard when determining for the purposes of this section whether suffering is unnecessary include— (a) whether the suffering could reasonably have been avoided or reduced; (b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment; (c) whether the conduct which caused the suffering was for a legitimate purpose, such as— (i) the purpose of benefiting the animal, or (ii) the purpose of protecting a person, property or another animal; (d) whether the suffering was proportionate to the purpose of the conduct concerned; (e) whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person. (4) Nothing in this section applies to the destruction of an animal in an appropriate and humane manner.” (a) an act of his, or a failure of his to act, causes an animal to suffer, (b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so, (c) the animal is a protected animal, and (d) the suffering is unnecessary. (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. (3) The considerations to which it is relevant to have regard when determining for the purposes of this section whether suffering is unnecessary include— (a) whether the suffering could reasonably have been avoided or reduced; (b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment; (c) whether the conduct which caused the suffering was for a legitimate purpose, such as— (i) the purpose of benefiting the animal, or (ii) the purpose of protecting a person, property or another animal; (d) whether the suffering was proportionate to the purpose of the conduct concerned; (e) whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person. (ii) the purpose of protecting a person, property or another animal; (4) Nothing in this section applies to the destruction of an animal in an appropriate and humane manner.”
[9]Section 9 is headed “Duty of person responsible for animal to ensure welfare”. It provides: “(1) A person commits an offence if he does not take such steps as are reasonable in all the circumstances to ensure that the needs of an animal for which he is responsible are met to the extent required by good practice. ” (2) 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. (3) The circumstances to which it is relevant to have regard when applying subsection (1) include, in particular— (a) any lawful purpose for which the animal is kept, and (b) any lawful activity undertaken in relation to the animal. (4) Nothing in this section applies to the destruction of an animal in an appropriate and humane manner. ” (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. (a) any lawful purpose for which the animal is kept, and (b) any lawful activity undertaken in relation to the animal.[10]Section 18 is headed “Powers in relation to animals in distress”. It provides, so far as material: “(1) If an inspector or a constable reasonably believes that a protected animal is suffering, he may take, or arrange for the taking of, such steps as appear to him to be immediately necessary to alleviate the animal's suffering. (2) Subsection (1) does not authorise destruction of an animal. (3) If a veterinary surgeon certifies that the condition of a protected animal is such that it should in its own interests be destroyed, an inspector or a constable may—(a) destroy the animal where it is or take it to another place and destroy it there, or(b) arrange for the doing of any of the things mentioned in paragraph (a). (4) An inspector or a constable may act under subsection (3) without the certificate of a veterinary surgeon if it appears to him— (a) that the condition of the animal is such that there is no reasonable alternative to destroying it, and (b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon. (5) An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies— (a) that it is suffering, or (b) that it is likely to suffer if its circumstances do not change. (6) An inspector or a constable may act under subsection (5) without the certificate of a veterinary surgeon if it appears to him— (a) that the animal is suffering or that it is likely to do so if its circumstances do not change, and (b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon. ... (10) A veterinary surgeon may examine and take samples from an animal for the purpose of determining whether to issue a certificate under subsection (3) or (5) with respect to the animal.” (a) destroy the animal where it is or take it to another place and destroy it there, or (b) arrange for the doing of any of the things mentioned in paragraph (a). (a) that the condition of the animal is such that there is no reasonable alternative to destroying it, and (b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon. (a) that it is suffering, or (b) that it is likely to suffer if its circumstances do not change. (a) that the animal is suffering or that it is likely to do so if its circumstances do not change, and (b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon.[11]Section 33 is headed “Deprivation”. It provides so far as material:
“(1) If the person convicted of an offence under any of sections 4…and 9 is the owner of an animal in relation to which the offence was committed, the court by or before which he is convicted may, instead of or in addition to dealing with him in any other way, make an order depriving him of ownership of the animal and for its disposal.”
[12]Section 51(1) defines an “Inspector”, in the context of any provision, as a person appointed to be an inspector for the purposes of that provision by the appropriate national authority (which in relation to England means the Secretary of State) or a local authority. Section 51(5) provides that an inspector shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under the Act if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it. RSPCA inspectors are not inspectors for the purposes of the Act and the seizures purportedly made under order section 18, as explained below, were therefore made by police officers.

Facts

[13]The Crown Court heard evidence from 40 witnesses and set out its findings in considerable detail. A brief summary will be sufficient to set the context for the questions of law which arise for determination. On 4, 5 and 9 January 2008 RSPCA officers and the police carried out lengthy visits to Spindle Farm. (The reference in the draft case stated to 3, 4 and 9 January was a typographical error.) Veterinary surgeons also attended. Numerous witnesses described in graphic terms the shocking conditions in which equines were held and the poor condition of many of them. Among the living equines there were dead and decomposing equine carcases. During those visits a total of 115 equines were seized by police officers purporting to act under section 18. According to the prosecution, the RSPCA had never previously been involved in the seizure of so many animals. The condition of three animals was such that they were destroyed. Many others were taken into custody for their protection. These actions were all taken on the advice of veterinary surgeons who considered such action to be necessary in the interests of the animals’ welfare.[14]Charges 1 and 2 related to animals whose carcasses were found at the farm.[15]Charge 3 related to an animal, KH1, which was in such a condition that it was put down. The court found that it was satisfied that the animal suffered unnecessarily by being neglected and starved. It could not get to food or water.[16]Charge 4 related to 13 horses, identified by KH numbers. The allegation was that unnecessary suffering was caused to these animals by failing to provide them with a suitable diet. The court was satisfied that they had been neglected and left to starve. It found that Mr Gray ought to have known that unnecessary suffering was caused by failing to provide them with a suitable diet.[17]Charge 5 related to a piebald pony, KH3. It was suffering from an infection of the penis which developed to such an extent that the pony needed to be put down. The court found that it suffered unnecessarily from a failure to provide veterinary treatment for its condition, and that if Mr Gray had taken proper steps to obtain treatment the pony would have survived.[18]Mr Gray’s appeal was allowed on charge 6.[19]Charge 7 concerned a horse which had to be put down. It was emaciated, suffered from an infected eye and exhibited chronic diarrhoea. The court was satisfied that it suffered unnecessarily by reason of Mr Gray’s failure to obtain proper veterinary care for it.[20]Charge 8 concerned a donkey foal, KH22. It was emaciated and starved to death, being finally overcome by salmonellosis. The court was satisfied that the animal suffered unnecessarily as a result of Mr Gray’s failure to see that it was able to obtain a proper amount of food.[21]Charge 9 was brought under section 9 and concerned ponies and other equines RS1-97. The veterinary surgeon who orally authorised their seizure conceded that most of the animals were in an acceptable condition but the court was satisfied that they had not been properly looked after and that the conditions at the farm were such that they were likely to suffer if their circumstances remained unchanged.[22]Mr Gray’s appeal succeeded on charge 10.[23]Charge 11 concerned 6 animals which were also the subject of charge 9 (RS58, 82, 83, 89, 91 and 96). The animals were emaciated and close to death. The court found that they suffered unnecessarily as a result of Mr Gray’s failure to provide them with a proper diet. Question 1: interpretation of “knew or ought reasonably to have known” in section 4(1)(b).[24]The expression “knew or ought reasonably to have known” is a common expression in English law and does not require to be glossed. A person who is responsible for an animal carries out the physical element (actus reus) of an offence under section 4(1) if he causes the animal to suffer unnecessarily, whether by act or omission. For the conduct to constitute an offence, the prosecution have to prove additionally that the defendant knew or ought to have known that his act or omission would, or was likely to, have that consequence. (To digress for a moment, it could be argued as a matter of strict grammar that the prosecution need only prove that the defendant knew or ought reasonably to have known that the act or omission would cause the animal to suffer, and not that the suffering would be unnecessary. That linguistic argument could be advanced because the “knew or ought reasonably to have known” requirement is placed between paragraph (a) (causation of suffering) and (b) (unnecessary nature of the suffering), whereas paragraph (d) should more appropriately have come after paragraph (a) and before paragraph (b). However, it cannot have been the legislature’s intention to criminalise an act done with realisation that it would cause the animal pain but in the honest and reasonable, albeit mistaken, belief that it was necessary for the animal’s welfare. In the present case the judge directed himself that the prosecution had to establish that the defendant knew or ought reasonably to have known both that his or her act or failure would cause an animal to suffer and that the suffering was unnecessary. In my judgment he was right.)[25]Mr Fullerton submitted on Mr Gray’s behalf that, on its proper construction, section 4(1)(b) requires either proof of knowledge that the animal was in a condition causing it unnecessary suffering or proof that it was showing signs of suffering which could not be missed by a reasonable, caring owner. The effect of his submission was that the offence requires either actual knowledge or a form of constructive knowledge that the animal was showing signs of unnecessary suffering, and that negligence is not sufficient.[26]That submission does not accord with a natural reading of the language of the subsection. Its plain effect is to impose criminal liability for unnecessary suffering caused to an animal either by an act or omission which the person responsible knew would, or was likely to, cause unnecessary suffering, or by a negligent act or omission.[27]In support of his argument Mr Fullerton relied on authorities relating to section 1(1)(a) of the Protection of Animals Act 1911. That provision made it an offence if a person:
“Shall cruelly beat, kick, ill-treat, over-ride, over-drive, over-load, torture, infuriate, or terrify any animal, or shall cause or procure, or, being the owner, permit any animal to be so used, or shall, by wantonly or unreasonably doing or omitting to do any act, or causing or procuring the commission or omission of any act, cause any unnecessary suffering, or, being the owner, permit any unnecessary suffering to be so caused to any animal.”
[28]That Act was the corner piece of animal welfare legislation prior to its repeal and replacement by the 2006Act. The judge took the view that the language of section 1(1)(a) of the 1911 Act, and authorities as to its construction, were irrelevant to the construction of section 4 of the 2006 Act. The judge was right. The language of the provisions is significantly different. It would be wrong in principle to construe the provisions of the 2006 Act by reference to differently worded provisions of the repealed legislation.[29]Further, if there were ambiguity about section 4(1) of the 2006 Act (which is not the case), the explanatory notes, the departmental select committee’s report and the government’s response to that report make it clear that the offence was intended to capture unnecessary suffering caused by negligence. The committee’s recommendation 17 included:
“…that the mens rea element of the clause 1(1) cruelty offence [which became section 4 in the 2006 Act] should be assessed by means of an objective test, so that the defendant’s conduct will be assessed on the basis of what a reasonable person in the position of the defendant would have known about the consequences of his or her conduct.”
[30]The government stated in its reply:
“The cruelty offence was always intended to capture acts of neglect where these amounted to unnecessary suffering…We agree with the comments regarding the mens rea element and an objective mental test will apply, i.e. “knew or ought reasonably to have known”.”
Question 2: interpretation of “such steps as are reasonable in all the circumstances” in section 9(1)[31]The offence created by section 9 was a new offence. Its purpose was to strengthen animal welfare protection in that previously no general offence was committed by neglect of an animal unless it could be proved to have caused the animal to suffer unnecessarily. (Some animals had been protected under the Welfare of Farmed Animals (England) Regulations 2000, made under Part 1 of the Agriculture (Miscellaneous Provisions) Act 1968, but this was an example of the earlier piecemeal nature of animal welfare legislation.) The select committee suggested at paragraph 16 of its report that the distinction between “the cruelty offence” and “the welfare offence” (which became respectively section 4 and section 9) should be whether the animal had suffered unnecessarily, not the mental state of the person concerned. The language of section 4 and section 9 is consistent with that approach. Mr Fullerton’s argument as to the proper construction of section 9(1) mirrored his argument as to the proper construction of section 4(1)(b), which I have rejected. The judge was right to construe section 9(1) as setting a purely objective standard of care which a person responsible for an animal is required to provide.[32]Mr Fullerton sought to advance a separate argument about the form of charges 2 and 9. At the close of the prosecution’s case on the hearing of the appeal, it was argued that the case on those charges should be dismissed because of a lack of particularity in the charges. The Crown Court rejected that argument. In a written ruling dated 15 February 2010 it observed that the case advanced against the appellants had been plain from the outset and that the appellants had instructed two experts, neither of whom had suggested that they were embarrassed by the lack of particularity. Mr Fullerton sought to resurrect this complaint. It is not within the issues which Mr Gray has been given permission to argue, and I would not give him permission to do so.

The lawfulness of the seizures on 4, 5, and 9 January 2008

[33]The animals were seized in purported pursuance of section 18 by police officers acting on oral statements made by veterinary surgeons that they considered it necessary in order to protect the animals from likely suffering. After the animals were seized, they underwent examination and samples were taken for analysis. The results formed part of the evidence for the prosecution.[34]In Mr Gray’s submission of no case to answer at the Crown Court, it was argued that this evidence was inadmissible because the seizures had been unlawful since there had been no written certificate by a veterinary surgeon. The court held that section 18(5) did not require the process of certification to be in writing. It added that the unprecedented scale of the situation discovered on the visits resulted in pressure of circumstances such that “oral certifications were the only viable course to adopt”. The court further held that if the seizures were unlawful, the illegality did not prevent the resulting evidence from being admissible under the principle set out in R v Sang [1980] AC 402 and that it was not unfair to admit it. Mr Fullerton submitted that the court erred in law in rejecting his submission about the lawfulness of the seizures and the admissibility of the resulting evidence.[35]There has been judicial disagreement about the proper interpretation of section 18(5). In the case of Rumachic 23 October 2008, Her Honour Judge Waddicor held on an appeal from the magistrates’ court to Lewes Crown Court that section 18(5) required a written certificate. She reasoned that Parliament cannot have intended any distinction to be drawn between the verb “certifies” in subsection (5) and the phrase “issue a certificate” in subsection (10), which clearly connoted a document. Further, subsection (6) made provision for an inspector or constable to act without a certificate in circumstances where an animal appeared to be suffering, or at risk of suffering, and the need for action was such that it was not reasonably practicable to wait for a veterinary surgeon. Parliament had thereby anticipated that there might be circumstances in which it would be very difficult for a veterinary surgeon to produce a written certificate, but the welfare of the animal concerned required immediate action.[36]Judge Waddicor considered that if Parliament had intended that the word “certifies” should include an oral expression of opinion, the subsection would have used other language. It would have said “if a veterinary surgeon is of the opinion that” or “considers that”, just as subsection (6) uses the expression “if it appears to him” in relation to an inspector or a constable.[37]In James v RSPCA [2011] EWHC 1642 (Admin) Keith J took a different view. He held that section 18(5) does not require the certification to be in writing. He accepted that the word “certificate” is more consistent with a requirement for a document, but he considered that the context necessitated a different approach. The aim of the Act is to promote animal welfare. Contrary to the underlying purpose of the Act, an animal might be subjected to unnecessary further suffering if a veterinary surgeon who was called to the scene was not immediately in a position to produce a written certificate and if in those circumstances there were no power of seizure. He noted that section 18(6) was intended to cater for those occasions when animals should be put out of their suffering quickly, but he did not regard that subsection as applying in the hypothetical situation to which I have referred. He said: “…section 18(6) is concerned with taking steps to put an animal out of its distress before the veterinary surgeon has arrived. It does not apply when the veterinary surgeon has arrived, and something needs to be done then to put the animal out of its distress. …But it would, I think, be very surprising if section 18(5) were to be construed in a way which permits a police officer to act so as to put an animal out of its distress before the veterinary surgeon arrives, but does not permit the animal to be relieved of its suffering after the veterinary surgeon arrives, even though the veterinary surgeon thinks that the animal is suffering, but for one reason or another does not put that into writing.” (Original emphasis)[38]I prefer the reasoning of Judge Waddicor. Mr Fullerton referred to the Oxford English Dictionary definition of “certificate” as:
“A formal document attesting a fact, esp birth, marriage, or death, a medical condition, a level of achievement, a fulfilment of requirements, ownership of shares, etc”
[39]I take due note of the purpose of legislation, but nonetheless I do not consider that the drafter of the Act can have intended the word “certificate” to include something which was not in writing. As Judge Waddicor observed, if that had been the drafter’s intention, other language would have been used.[40]Keith J’s concern arose from his reading of subsection (6)(b). He read the words “the need for action is such that it is not reasonably practical to wait for a veterinary surgeon” as meaning “…that is it not reasonably practical to wait for a veterinary surgeon to arrive”. But the words “to arrive” are his interpolation, which I do not consider to be necessary or correct. The language can properly be read as meaning “not reasonably practicable to wait for a veterinary surgeon to issue a certificate under subsection (5)”. That interpretation makes sense and would accord with the purpose of subsection (6).[41]In my judgment, to be within section 18(5) the certifying must be in writing. However, it does not follow that the seizures in the present case were unlawful. As I have noted, the court found that the action taken in the present case was the only viable way to proceed. On that factual finding, it appears to me that the constable who seized the animals acted lawfully under section 18(6). Further, if that were wrong, I see no basis for holding that the court erred in law in its application of the principle in R v Sang. The court was entitled to conclude that the probative value of the relevant evidence justified its admission and that no significant prejudice was caused to Mr Gray by the fact that the veterinary surgeons’ assessment of the animals’ condition was not put in writing.

Question 4: jurisdiction of the crown court to make a deprivation order

[42]The deprivation orders were made by the magistrates’ court which convicted Mr Gray. The operation of the deprivation orders was suspended pending the determination of the appeal, after which their operation was activated. There is no basis for holding that the Crown Court lacked jurisdiction to act as it did. While not formally abandoning the point, Mr Fullerton did not attempt to pursue it.

Duplicity

[43]The question posed is whether a conviction under section 9 is bad for duplicity if it is based upon the same findings of fact as a conviction under section 4. I have explained the reason for the Act including both the welfare offence under section 9 and the unnecessary suffering offence under section 4. Section 4 requires proof that the animal has incurred unnecessary suffering, which is not required for the commission of an offence under section 9. There can be no objection to a person being prosecuted for both offences in relation to the same animal. There can equally be no objection to a person being convicted of both offences if the conduct proved in relation to the welfare offence is wider than the conduct which can be proved to have caused actual suffering to the animal.[44]The question posed for the opinion of the court is narrower. If a person is proved guilty of an offence under section 4, should there be a separate conviction under section 9 in circumstances where the neglect proved under section 9 was no wider than the conduct which caused the unnecessary suffering for which there was guilt under section 4? On those assumed facts the court should not in my view record a separate conviction for the less serious offence, because the conduct would be entirely subsumed within the conduct giving rise to guilt of the more serious offence. A separate conviction would therefore be otiose and a potentially misleading entry on the person’s record. It would not be right in any event to impose an additional penalty for the lesser offence, and I cannot see what useful purpose would be served by recording a separate finding of guilt in respect of it. Otherwise every conviction under section 4 would be liable to bring with it a matching conviction under section 9.[45]On the facts of the present case, however, there was no complete duplication. The argument relates to Mr Gray’s conviction for two pairs of offences, under charges 1 and 2 and charges 9 and 11.[46]Charges 1 and 2 related to carcasses of animals found at the time of the RSPCA’s intervention. Charge 1 was under section 4 and related to 15 animals. Charge 2 was under section 9 and related to 17 animals, 15 of which were the animals identified under charge 1. Under charge 1 the Crown Court found that the 15 horses were neglected and starved. Under charge 2 the court found that “much the same as was said” under charge 1 applied also to charge 2. It may be arguable that the conviction on charge 2 should have been limited to those animals which were not also the subject of charge 1, but there can be no objection to the fact of a separate conviction on charge 2 and no separate penalty was imposed.[47]On charge 11 Mr Gray was found guilty of causing unnecessary suffering to 6 animals. The essential allegation was that they suffered unnecessarily because of failure to provide them with a nutritionally balanced diet. As a result they were emaciated and some were near to death. On charge 9 Mr Gray was convicted of a welfare offence in relation to 97 animals, including the 6 which were the subject of charge 11. Charge 9 not only included 91 animals which were not the subject of charge 11, but the lack of care of the animals was not confined to failure to provide them with a nutritionally balanced diet. They were not protected to the extent required by good practice from risk of disease.[48]For those reasons I am not satisfied that a case has been made out for this court to interfere with Mr Gray’s convictions on charges 2 and 9.

Costs

[49]In relation to the challenges made by Mr and Mrs Gray to the costs orders of the Crown Court, I agree with the judgment of Silber J.

Conclusion

[50]I would dismiss Mr Gray’s claim for judicial review. I would allow Mrs Gray’s claim, quash the order for costs made against her by the Crown Court and remit the matter to the Crown Court for fresh consideration, if it is practicable for the court to be reconstituted. Mr

Justice Silber:

[51]I have had the advantage of reading Toulson LJ’s judgment. I am in total agreement with it and the disposal he advocates. I now turn to the costs appeal.[52]The District Judge made orders that the First Appellant should pay £200,000 costs and that the Second Appellant should pay £750 costs. These Appellants together with other Appellants appealed and, as we have explained, there was a lengthy contested hearing on liability issues in the Crown Court occupying 34 days of evidence.[53]Judgment was given on 6 May 2010 dismissing all appeals save for allowing the appeals of the Fifth Appellant on charges 5 and 7 and the appeals of the First and Fifth Appellants on charges 6 and 10.[54]There was than an application by the Respondent for costs against the First, Second, Third and Fourth Appellants, which was heard by the Crown Court on 5 November 2010. The Respondents, who sought orders solely against the First, Second, Third and Fourth Appellants contended that their costs totalled £732,674.35 of which £43,230.51 in respect of expert fees, which had already been ordered to be paid out of central funds leaving a balance of £689,444.19[55]The Crown Court found the sums claimed to be reasonable sums and no serious counter-argument was advanced before them and it ordered that: -(a) the First Appellant should pay a further £200,000 towards the costs of the Respondents which together with the costs previously ordered would make a total of £600,000;(b) The Second Appellant should pay a further £200,000 towards the costs of the Respondents which together with the costs previously ordered would make a total of £200,750 less £5 previously paid. In making that Order, the Crown Court took into account the fact that the Second Appellant was likely to be entitled to a share of Spindles Farm, which was the home of the First and Second Appellants, either because the First Appellant had transferred a one-half share of it to the Second Appellant or, if that transfer was set aside, in the form of matrimonial ancillary relief bearing in mind that she had been married to the First Appellant for more than 20 years;(c) The Third Appellant should pay a further £500 towards the costs of the Respondent which together with the costs previously ordered would make a total of £600; and that(d) The Fourth Appellant should pay a further £750 towards the costs of the Respondent which together with the costs previously ordered of £500 would make a total of £1250 less £25 already paid.[56]The First and Second Appellant have sought in these proceedings to challenge the orders (a) and (b) respectively. This challenge has to be on conventional judicial review grounds and so the hearing before us was not an appeal. (ii). The First Appellant’s Challenge[57]The submissions made by Mr. Fullerton on behalf of the First Appellant were that: -(a) The costs orders made failed to comply with the requirements that they should not be grossly disproportionate to fines imposed;(b) Cost orders should be such that save in exceptional cases, they must be payable out of income which can reasonably be paid over 2 or 3 years and only to a modest extent out of capital.(c) The Crown Court should have reviewed the costs orders made by the District Judge.[58]It is common ground that by section 18 of the Prosecution Offences Act 1985, the Crown Court was empowered when dismissing an appeal against conviction to make “such orders to costs to be paid by the accused to the prosecutor as considered just and reasonable”. Part 76 of the Criminal Procedure Rules sets out how the court should approach these matters and the relevant parts of it provide that:- “3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including—(a) the conduct of all the parties; and(b) any costs order already made. …. (6) If the court makes an order for the payment of costs— (a) the general rule is that it will be for an amount that is sufficient reasonably to compensate the recipient for costs— (i) actually, reasonably and properly incurred, and (ii) reasonable in amount; …. (7) On an assessment of the amount of costs, relevant factors include— (a) the conduct of all the parties; (b) the particular complexity of the matter or the difficulty or novelty of the questions raised;(c) the skill, effort, specialised knowledge and responsibility involved;(d) the time spent on the case;(e) the place where and the circumstances in which work or any part of it was done; and(f) any direction or observations by the court that made the costs order.” ….

Issue 1: Costs orders should not be grossly disproportionate to the fine

[59]Mr Fullerton submitted that the Crown Court erred in imposing an order for costs against the First Appellant which was grossly disproportionate to the fines imposed. He explained that the maximum fine which could be imposed for each offence under section 4 is £20,000 and for each offence under section 9 £5000. Thus, for the seven section 4 offences for which the First Appellant was found guilty, the maximum total fines that could have been imposed amounted to £140,000 and for the two section 9 offences for which the First Appellant was found guilty, the maximum fines that could have been imposed totalled £10,000. In consequence, Mr. Fullerton contended that the First Appellant’s total liability for costs should not have exceeded this sum.[60]In support of this submission, he relied on the decision of this Court in R vNottinghamshire Justices ex parte Fohmann (1987) 84 Cr App 316 in which Otton J said having reviewed the authorities and echoing comments made in Whalley (1972) 56 Cr. App. R 304, 305 concluded on page 319 by stating that “the costs and fine should be kept in step”. In that case, the Court quashed an order made by the Magistrates ordering the Defendant to pay a fine of £400 and £600 for the costs of the prosecution because of the financial circumstances of the claimant. In fact, his only income was derived from supplementary benefits and so the Court made a fact-sensitive decision. It does not set out any principle and certainly not that costs should ever be grossly disproportionate to fines.[61]In Jones (1988) 10 Cr. App. R. (S) 95, Turner J giving the judgment of this Court said at page 96 that: - “The two orders for fine and costs ought within reasonable limits to go step by step with each other”.[62]In R. v Northallerton Magistrates Court ex p Dove [2000] 1 Cr. App R (S) 136, Lord Bingham CJ reviewed the authorities and he then explained that: - “Whilst there was no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine”.[63]Mr. Cherrill, counsel for the Second Appellant, drew our attention to the Practice Direction (Costs in Criminal Proceedings) ([2011] 1 Cr App R 13) which states in Paragraph 3.7 that:
“The Divisional Court has held there is a requirement that any sum ordered to be paid by way of costs should not ordinarily be greatly at variance with any fine imposed”
[64]The position that emerges is that the normal rule is that costs should not be grossly disproportionate to a fine imposed for the same offences, but in appropriate cases, there could be exceptions to that rule where justice would require it.[65]In the present case, the Crown Court was quite entitled to reject the submission that costs should not be grossly disproportionate to the fine, because the Crown Court was obliged or at least entitled to make a balanced judgment in the light of part 76.2 of the Criminal Procedure Rules 2010 which emphasised that the court “must regard to all the circumstances including (a) the conduct of all the parties.Factors, which were specifically stated and which are relevant to this case are “the particular complexity of the matter”, which took account of the number of animals involved as well as 34 days of evidence as well as more time on legal argument, “the time spent on the case”, and the “the conduct of all the parties” which included the fact that the First Appellant availed himself of the opportunity to take all points.[66]We have concluded that these factors mean that the Crown Court was entitled to make the costs order in this case, which occupied the Courts for so many days and which was so complex. The approach of the Crown Court was consistent with the direction of Lord Bingham in the Northallerton case (supra) at page 142 that the purpose of a costs order is “to compensate the prosecutor and not to punish the defendant”. We stress we had to approach this case not as an appeal but as a judicial review application. Issue 2: Costs orders should be such that save in exceptional cases, they must be payable out of income which can reasonably be paid over 2 or 3 years and only to a modest extent out of capital[67]Mr. Fullerton contends that orders for costs should be such that save in exceptional cases, they must be payable out of income which can reasonably be paid over 2 or 3 years and only to a modest extent out of capital. He relies on the decision in Hamilton-Jones v RSPCA (2000) 164 JP Reports 345 but the Case Stated in that case explained that the appellant intended to pay for costs out of capital received from the sale of the house but only a modest award was made out of capital. We have found nothing in this fact-sensitive judgment, which supports Mr. Fullerton’s submission.[68]In our view, there is no rule based on precedent or on principle which prevents a Court making a costs order which entails paying costs solely out of capital assets. Indeed, is very easy to envisage cases in which a retired person with no income but large amounts of capital could be ordered to pay very substantial costs out of capital assets. There is nothing whatsoever in the statutory regime which shows that this cannot be the case.[69]Indeed if Mr Fullerton was right and costs orders could only be made which would be payable out of income and not capital, it is difficult to see how costs orders could be made against serving prisoners as they would have no income but might have substantial capital in the form of a house. Issue 3: The Crown Court should have reviewed the costs order handed down in the Magistrates Court by District Judge Vickers[70]The Crown Court did consider whether it should review the costs order of £400,000 handed down by the District Judge against the First Appellant. The approach of the Crown Court was to proceed on the assumption that it had jurisdiction to review the costs order, but then in the exercise of its discretion, it decided not do so.[71]The reasons given by the Crown Court for not interfering with the District Judge’s decision were that:(i) it had not seen any judgment or information as to the basis of the District Judge’s costs order and they were not in a position to understand why he made the order or upon which basis;(ii) the Third Appellant had since paid fully the orders made against her by the District Judge and so far as she was concerned she had a legitimate expectation that this was a final order;(iii) it was bound to have regard to the orders made by the District Judge.[72]We do not consider that point (ii) has any significance or merit but bearing in mind that there was very little material put before the court in support of the application to review the decision of the District Judge by the First Appellant, the Crown Court was entitled to take the stance that it did, particularly bearing in mind that the District Judge had presided over the extremely long case and that he had been required to rule upon very many of the voluminous issues and challenges which were raised. In our view, the Crown Court was entitled to conclude that there was inadequate information upon which it could interfere with the District Judge’s order and no criticism can be made of their decision not to do so.[73]I should add that there is no merit in any of the other grounds put forward on behalf of the First Appellant and so his costs appeal has to be dismissed. The Second Appellant’s appeal on costs[74]Mr Cherrill contends that the order made by the Crown Court for £200,000 costs as against the Second Appellant was manifestly excessive and unreasonable especially bearing in mind that she was appealing only two convictions for which the maximum fine was £5000 for each offence.[75]Mr Cherrill points out that in R v Ronson and Parnes (1992) 13 Cr App R (S) 153. Neill LJ giving the judgment of the Court of Appeal (Criminal Division) accepted at page 156 a submission by prosecution counsel that:- “..the right way of approaching the question of costs, where there are several defendants, is to see what would be the reasonable estimate of costs if that defendant had been tried alone. There may be cases where, even on that figure, you can then look to see whether more than one person ought to contribute to that sum by way of costs”.[76]Later in his judgment, Neill LJ stated at pages 156 -157 in relation to the application of that rule in that case that:- “The difficulty about that approach is in this case is that there is a wide disparity of view between the prosecution as to the time which would have been taken up by the trial [of one defendant being tried by himself]…We see no way in which we can properly resolve that difficulty and, therefore, we think we must approach the question by this Court exercising its own discretion. It is bound to be , in the circumstances, a rather rough and ready approach and ,indeed, it cannot be anything other than that, because it would be quite impractical to carry out detailed calculations”.[77]So it follows that the Crown Court when dealing with the Second Appellant’s appeal should first have considered what costs would have been incurred by the prosecution if she had been tried alone and then, only if such a task was not possible because the Court could not resolve any dispute about the length of such a hearing with the Second Appellant being tried by herself, the Court would have to resolve for itself what sum to order.[78]It is quite clear that in this case the Crown Court, whose attention was probably not drawn to the statements in the Ronson case, did not adopt this approach as they appeared to hold the First and Second Appellants equally liable for the costs of £400,000 by ordering each of them to pay one-half of this sum.[79]In our view this was an incorrect approach and the matter should be remitted for further consideration. We should add that Mr Cherrill in his skeleton argument drew our attention to the fact that there is also an issue as to whether the Second Appellant is entitled to any proceeds of sale from the former matrimonial home. The Trustee in Bankruptcy of the First Appellant is seeking to have the transfer of Spindells Farm set aside and a hearing is due to take place of this application in Aylesbury County Court on 14 April 2013.[80]We consider that it would be prudent for the remitted determination of the Second Appellant’s costs to await the decision at that hearing.[81]We reserve all issues of costs in relation to the present application so that they can be dealt with in writing.

Cited in 1 later judgment