Royal Society for the Prevention of Cruelty To Animals (RSPCA) v Webb [2015] EWHC 3802 (Admin)

Case No CO/1786/2015

[2015] EWHC 3802 (Admin)

THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Strand

London WC2A 2LL

Date Thursday, 22 October 2015

B e f o r e:

LORD JUSTICE BEATSON

MR JUSTICE MITTING

Between

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALSAppellant

Between

DEAN PATRICK SHANE WEBBRespondent

DIANE WEBBRespondent

Computer-Aided Transcript of the Stenograph Notes of

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Mr Richard Thatcher (instructed by Wykes O'Donnell Williams) appeared for Appellant

The Respondents appeared in person for in person

J U D G M E N T (As approved by the Court)

LORD JUSTICE BEATSON:

This

[1]is an appeal by way of case stated. On 10 October 2014, His Honour Judge Gosling and lay justices sitting at the Crown Court at Derby allowed an appeal by Mr and Mrs Webb, who are the respondents in this court. The appeal was against orders of the Southern Derbyshire Magistrates' Court made on 21 October 2010 pursuant to section 20 of the Animal Welfare Act 2006 ("the 2006 Act") about a number of cats believed to be owned by Mr and Mrs Webb.

[2]The cats had been in the possession of the appellant in this court, the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA") since 9 February 2010. On that date they were taken from the Webbs' home pursuant to section 18(5) of the 2006 Act. On 10 August 2010, the RSPCA filed a complaint seeking authority under section 20(1)(b), (d) and (e) of the 2006 Act to dispose of the cats by finding them new owners and, dependent on the condition of the individual cats, to have they destroyed. It did so as "a person other than the owner who appears to have sufficient interest in the animals the subject of the application": see section 20(3)(b) of the 2006 Act.

[3]I set out the material parts of sections 18 and 20 of the 2006 Act. They provide:

"18. Powers in relation to animals in distress (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."

I interpolate that section 18(3) authorises the destruction of an animal if a veterinary surgeon certifies that its condition is such that it should in its own interests be destroyed, and an inspector or a constable may destroy an animal without the certificate of a veterinary surgeon if it appears that there is no reasonable alternative and it is not reasonably practicable to wait for a veterinary surgeon. Section 18(5) provides:

"(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."

I again interpolate that section 18(6) provides for an inspector or a constable to take an animal into possession without the certificate of a veterinary surgeon if it appears that the conditions in subsection (5) are met and it is not reasonably practicable to wait for a veterinary surgeon.

[4]Section 20(1) is headed "Orders in relation to animals taken under section 18(5)". Subsection (1) provides: "(1) A magistrates' court may order any of the following in relation to an animal taken into possession under section 18(5)—(a) that specified treatment be administered to the animal;

(b) that possession of the animal be given up to a specified person;

(d) that the animal be disposed of otherwise than by way of sale;

(e) that the animal be destroyed.

[5]Before the Crown Court, Ms Howe, on behalf of Mr and Mrs Webb, whose skeleton argument we have seen, raised broad issues about the scope and nature of section 20 of the 2006 Act. The Crown Court, however, identified three preliminary issues to be decided which would determine the course of the case thereafter. They were whether Mrs Webb, who had not filed a Notice of Appeal, should be joined to the appeal and given leave out of time to do so; whether the application was a "complaint" seeking a civil order; and thirdly, whether, if it was a complaint, it was filed within the applicable time limit.

[6]On 10 October 2014 the Crown Court, as I have stated, allowed the appeal but on that date it reserved its reasons. It adjourned the case until 28 November to deliver those reasons and hear applications for costs. To assist the parties, it handed down its reasoned ruling on 24 October in advance of the final hearing. It found that the application was a "complaint" seeking a civil order, but that it was not filed within the 6-month time limit from the time when "the matter of complaint arose" prescribed by section 127(1) of the Magistrates' Courts Act 1980 and was thus out of time.

[7]The sole issue before this court in the appeal by the RSPCA is whether the RSPCA's complaint was filed within the time limit. Although I will refer to the "complaint" issue, for these proceedings this court proceeds on the basis that the application was a complaint and thus subject to section 127. If the matter of complaint arose, as the Crown Court held it had done, on 9 February 2010, it was out of time by one day. But it was in time if, as the RSPCA argue, the matter of complaint arose on 20 May 2010 when Ms Christine Jamieson, the veterinary surgeon who had attended on 9 February, provided a witness statement which asserted that the highly infectious feline corona virus had been discovered in all the cats taken and four born subsequently. His Honour Judge Gosling and the lay justices decided that the complaint arose on 9 February 2010 and thus that the proceedings before the justices were a nullity.

[8]Paragraph 5 of the case states that the material facts were agreed as set out in paragraphs 1 to 24 of the reasoned ruling, and to that extent they are incorporated into the case. For present purposes, it suffices to state that on 9 February a police officer, an RSPCA inspector and Ms Jamieson, to whom I have referred, attended Bridge Farm, Barrow upon Trent, Derbyshire, the home of Mr and Mrs Webb. Paragraph 2 of the reasoned ruling states that the veterinary surgeon issued certificates under section 18(5) of the Animal Welfare Act 2006 stating that 36 cats and kittens were suffering or were likely to suffer if their circumstances did not change.

[9]The RSPCA's skeleton argument and its original application for the section 20 order to the Derby Magistrates' Court give more detail. The skeleton argument states that the certificate dated 9 February stated that three kittens were suffering and a further 29 cats and kittens were likely to suffer, and that six days earlier eight section 18(5) certificates had been issued in respect of one kitten suffering and three ducks likely to suffer. Paragraph 2 of the ruling also states that 36 cats and kittens were removed by the Derbyshire Constabulary and transferred to the possession of the RSPCA under section 18(8) of the 2006 Act.

[10]Paragraph 3 of the reasoned ruling states that "in the ensuing months" the animals underwent tests and treatment at Ms Jamieson's practice. Some of them died and four kittens were born. On 20 May 2010, Ms Jamieson provided the witness statement to which I have referred. She recommended that the animals should all be rehomed as quickly as possible and that any cat developing full-blown symptoms of the disease should be put down.

[11]Paragraph 7 of the reasoned ruling states that a copy of the RSPCA's section 20 application, together with other documents provided to the court including a hearsay notice and witness statements, were sent to Mr and Mrs Webb on 10 August 2010. There was a hearing on 16 September, but at that hearing Mr and Mrs Webb stated they resisted the application and wished to be heard. They were unrepresented at that stage. The hearing was adjourned until 21 October.

[12]The next development was that on 24 September 2010, the RSPCA instituted criminal proceedings. It laid informations before the magistrates' court alleging that Mr and Mrs Webb caused the cats to suffer unnecessarily contrary to section 4 of the 2006 Act prior to and up to 9 February 2010. Although these offences are summary offences, section 30(1) of the 2006 Act extends the usual 6-month time limit for laying an information to 3 years, provided (see section 30(1)(b)) the information is laid before the end of the period of 6 months beginning with the date on which the evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. After the information was laid, summonses were issued in the criminal proceedings with a return date of 11 October 2010.

[13]When the section 20 application came before the magistrates on 21 October 2010, although the criminal case was pending, the magistrates proceeded to hear it. Mr and Mrs Webb remained unrepresented. The evidence adduced were the witness statements which were received as hearsay, Mr Webb made submissions seeking to resist the orders, and the justices made the orders for possession by the RSPCA, rehoming, and destruction of the animals where advice was received to that end. The order also stated "It is further ordered that the RSPCA shall retain possession of the said cats until the appeal is determined or withdrawn". That part of the order reflects the provisions of section 21(2) of the 2006 Act.

[14]At the end of the hearing, Mr Webb stated he wished to appeal and was asked to set out a Notice of Appeal in writing. He did so on 10 November 2010, within the 21 days allowed for such a notice. Mrs Webb had not at that stage appealed, but at the hearing of the appeal on 10 October 2014 the Crown Court gave her permission to do so out of time for reasons they stated in the reasoned ruling which are not relevant to the matters before this court.

[15]Returning to the chronology, the RSPCA contacted the court office on 25 November 2010, 35 days after the hearing before the magistrates and thus after the end of the period for lodging a Notice of Appeal had expired, to ask whether an appeal notice had been filed. In error, the court office informed the RSPCA that no notice had been filed. The notice in fact filed to which I have referred was overlooked. After that, the RSPCA began rehoming some cats and putting down others.

[16]Before the criminal case came to court in November 2011, Mr and Mrs Webb's then solicitors, Nigel Weller & Co, wrote to the Crown Court informing it that they understood there was an appeal against the section 20 order pending. They stated that they did not act for the Webbs in that appeal, but asked that any appeal be suspended until the outcome of the criminal proceedings. At some time in November the RSPCA discovered the existence of Mr Webb's appeal notice and wrote asking that the matter be listed for mention because the criminal proceedings were still pending. Following that, it was ordered that the appeal against the section 20 order be mentioned after the criminal proceedings had concluded. That is the explanation for the lapse of time between the magistrates' court decision in 2010 and the decision of His Honour Judge Gosling and the lay justices.

[17]The criminal proceedings were not concluded until 14 May 2013 when, following a ten-day hearing, Mr and Mrs Webb were acquitted of all the offences they had been charged with. But by that date a large number of the cats had either been destroyed or rehomed. The magistrates' order that the possession of the cats be retained until the conclusion or withdrawal of the appeal had, in the words of the ruling, "been overridden because of the erroneous information provided by the magistrates' court" to the RSPCA. I add that it is not apparent from the reasoned ruling or the case stated - perhaps because it is not directly relevant - how many of the animals were put down or rehomed before the time in November 2011 when the RSPCA discovered the existence of Mr Webb's appeal notice and how many had been put down in the 18 months between that date and the conclusion of the criminal proceedings. Of course some of what happened afterwards might have happened because of the development of the full disease.

[18]When the appeal against the section 20 order first came before the Crown Court on 13 August 2013, Mr Webb appeared unrepresented and asked for an adjournment to get legal representation. The RSPCA resisted that application on the ground that by then no animals remained which could be returned to Mr Webb even if he succeeded. I observe that, while that may well be true, underlying this is the fact that should the RSPCA succeed and should Mr and Mrs Webb not succeed, then the 2006 Act makes provision for them to bear the responsibility for the expenses of the RSPCA when looking after the animals. The notion that the only interests of the Webbs in these proceedings was to get the animals back, which is implicit in the grounds on which they resisted the application for an adjournment, is odd but is reflected in what was said about whether the Webbs had any interest in these proceedings shortly before the hearing before us.

[19]When the matter came before the Crown Court and Mr Webb was represented, the judge required skeleton arguments and adjourned the matter. It did not come back in January 2014 when it should have, but only got before the court for mention in May 2014 and then was adjourned to 10 October.

[20]As to the question whether the proceedings under section 20 are by way of complaint within section 127 of the Magistrates' Courts Act and the relevant time limit, the material parts of the case stated by

the judge and justices on 28 November 2014 and perfected on 25 March 2015 are:

"6. In so far as the facts are relevant to the case stated, we found as follows: (i) The respondents laid a complaint with the Magistrates Court on 10 August 2010. (ii) The animals to which the complaint related had been seized, in accordance with section 18(5) of the Act, on 9 February 2010, a veterinary surgeon having certified that the animals were suffering, or likely to suffer, if their circumstances did not change. 7. The appellants argued (inter alia) that the matter of complaint 'arose' within the meaning of section 127(1) Magistrates' Court Act 1980 on 9 February 2010. Accordingly, they contended, the complaint had to be laid no later than 9 August 2010 to be within the statutory time limit required by section 127(1). Accordingly, the complaint was time barred by one day. 8. The respondents argued that the matter of complaint arose, not on 9 February 2010, but on 20 May 2010, being the date on which the veterinary surgeon instructed by the respondents, Christine Jamieson, submitted a witness statement setting out the detailed condition of each animal, and recommendations as to their future care and treatment. 9. We accepted the appellants' submission. In rejecting the respondents' submission, we decided as follows: (a) Parliament plainly contemplated that, once a matter of complaint arose, a complainant should be given a reasonable time within which to develop the case in order to justify the issue of proceedings. That period was set at 6 months. (b) Most cases develop as the investigation unfolds during the 6 months. But that cannot alter the date on which the matter arose. (c) If the contention of the respondents was correct, then they would be able to proceed at their own pace, holding off issuing a complaint, and putting the matter before the court, until a time of their own dictation when they decided that the complaint had crystallised. The animal owners may be deprived of a court ruling indefinitely. (d) Accordingly, the complaint having been laid out of time, there was no lawful complaint before the Magistrates, or us, and the proceedings were a nullity. We therefore allowed the appeal."

[21]The question stated for the opinion of this court is whether the judge and justices were correct in deciding that the matter of complaint arose in this case on 9 February rather than 20 May 2010. The question whether the Crown Court was correct to conclude that the proceedings were commenced by way of complaint so that section 127(1) of the Magistrates' Courts Act applies is, as I have stated, not before the court. This court therefore must proceed on the assumption that the Crown Court was correct in its conclusion. As I have said, the question before us is whether the 6-month period had expired.

[22]Mr Thatcher, on behalf of the RSPCA, submitted that a seizure of the animals under section 18(5) of the 2006 Act does not constitute the commencement of time when the complaint arose. He argued that the seizure of the animals under that provision is the end of a short procedure, beginning with the issue of a certificate under that section and ending with the animals taken into possession. He points out that there is no right of appeal from a seizure under section 18(5) and that such a seizure is not contingent on actual suffering but may occur where the veterinary surgeon determines that the animal is likely to suffer if its circumstances do not change.

[23]In broad terms, I accept the submission that a seizure of animals under section 18(5) does not in itself and automatically constitute the commencement of time when the complaint arose. It is not altogether clear from the case that the Crown Court did so find that this was as an automatic consequence, but if it did, in my judgment, it erred.

[24]Mr Thatcher's submission that the need for an application under section 20(1) may only arise long after the 6 months have elapsed since the act of seizure may well be true. The example in his written submissions is of a stallion which is suffering and is seized but it later becomes necessary to geld the stallion because it has become a danger to either other horses, to those looking after it, or to itself. That submission has force. In the circumstances of the present case he submits that at the time that these cats were taken into possession on 9 February the conditions for section 18, ie that the inspector or the constable reasonably believed that the animals were suffering, were met, but their underlying condition in fact was unknown. Analysis and tests were needed to determine what that condition was.

[25]As an abstract proposition, these two submissions, as I have said, have force. But the fact that in some circumstances there is no matter of complaint for some time after a seizure does not mean that on particular facts a complaint may not have arisen at the time of the seizure. Although an order under section 20 cannot be made until after an animal has been taken into possession under section 18(5), I do not consider that the complaint may not arise at that time on the particular facts of a case. The heading to section 18 is "Power in relation to animals in distress", and sections 18(4) and 18(6) to which I have referred make provision for the inspector or a constable to act without a certificate where the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon. Although those provisions are concerned with what can be called urgent and possibly emergency situations, they show that what is relevant is the condition of the animal at the relevant time. Mr Thatcher ultimately during the oral submissions accepted that to be the case.

[26]It was submitted before the Crown Court and is submitted before this court that in the circumstances of this case, until the completion of Ms Jamieson's witness statement which clarified the condition of the animals following her veterinary examination, while the RSPCA would know or have reasonable belief that the animals were suffering or likely to suffer if their circumstances did not change, it did not know which of the available orders under section 20 to apply for in relation to any individual animal. Mr Thatcher submitted that the condition of the cats was not known on that date and could only be discovered by the analysis and testing. The animals could present healthy, although they had the virus, and the suffering which led to their seizure may be unrelated to their condition. For those reasons, any application before such analysis and testing would be prospective, and although he did not use these words I apprehend what is behind it is the submission that it would be a speculative application.

[27]By the date of the application it was known that the animals would either have to be rehoused, albeit in a home where there was no other cat, or to be put down or destroyed. I observe even at the date of the application it was not known which of those alternatives would be appropriate for an individual animal. For that reason what was sought were orders under both paragraphs (d) and (e) of section 21, ie under (d) that the RSPCA might dispose of the animals otherwise than by way of sale to enable them to be rehoused, and under (e) that the RSPCA be empowered to euthanize any such animals where advice was received to that effect.

[28]What was the position on 9 February 2010 when the animals were seized? My summary of the facts and the possibly impermissible reference to the skeleton argument and the application, but a reference made because it was relied on by the RSPCA, leads me to this conclusion. It appears from the skeleton argument and the application that it is accepted by the appellant that by 9 February, three kittens had been certified as suffering and a further kitten had been certified as suffering six days earlier. That is confirmed by the grounds of the application for the section 20 order.

[29]As Mr Thatcher submitted, the mere fact that the animal is suffering does not necessarily mean that time starts running. But on the facts in the reasoned ruling which, as I have said, are incorporated into the case, it appears that at least one of the cats must have had the virus or the antibodies for it at the date of seizure, and that the Crown Court proceeded on that basis. In those circumstances, I have concluded that the facts found were such as to enable the judge and the lay magistrates to conclude that time started running on those particular facts.

[30]Mr Thatcher's particular concern, when stepping back from the facts of this case, appeared to me to be the position that the Crown Court had apparently appeared to conclude that in all circumstances time would start running at the date of the seizure. For the reasons I have given, that would be an erroneous conclusion. But the state of the facts (and even today a certain ambiguity into what was known and what was unknown) has led me to the conclusion that there was material upon which the Crown Court could have concluded, as they did, that the judge and justices were entitled to decide that the matter of complaint arose in this case on 9 February 2010, and, if my Lord agrees, this appeal should be dismissed because, on the material before the Crown Court at that date, that was the position.

[31]Before leaving the case, I observe that we have proceeded on the basis that section 127 applies. Whether that is indeed the case has not been explored in this court. I do not want to say anything which would indicate a view one way or the other save that the matter has not been decided. However, a number of the submissions, both in the skeleton argument before the Crown Court, and those that were made after the exchange between my Lord and Mr Thatcher about the position if the owners of the animals had made the application, lead me to consider that this is a question that should not be regarded as concluded.

MR JUSTICE MITTING: I agree.

LORD JUSTICE BEATSON: Mr and Mrs Webb, we have dismissed the appeal and so things are where they are, and that is the end of this matter.

[34]MR WEBB: Thank you very much.