CO/3384/2005 
Neutral Citation Number: [2005] EWHC 2616 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 20 October 2005
 
B E F O R E:

MR JUSTICE WALKER 

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THE QUEEN ON THE APPLICATION OF DAVID ANTHONY ARTHUR
(CLAIMANT)

-v- 

RSPCA
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MISS ANNE-MARIE GREGORY (instructed by Gregory Shulmans) appeared on behalf of the CLAIMANT
MR PAUL ROGERS (instructed by Wilson Devonald) appeared on behalf of the DEFENDANT
 
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J U D G M E N T
1.	MR JUSTICE WALKER:  The appellant appeals against a decision of the Crown Court at Swansea on 12 November 2004.  That decision dismissed his appeal against conviction at Swansea Magistrates' Court on 13 August 2003 for being in breach of an order of 9 April 2001 made by the Llanelli Justices.  The order of 9 April 2001 was made under section 1 of the Protection of Animals (Amendment) Act 1954.  That Act provides: 
"1(1) Where a person has been convicted under the Protection of Animals Act 1911 ... of an offence of cruelty to any animal the court by which he is convicted may, if it thinks fit, in addition to or in substitution for any other punishment, order him to be disqualified, for such period as it thinks fit, for having custody of any animal or any animal of a kind specified in the order." 
It may be noted that the statute uses the words, "having custody of".  In fact, the order that was made by the Justices on 9 April 2001, as recorded, was that the appellant be disqualified for five years from keeping any equine animal.  I will return later in this judgment to the significance, if any, of that difference in wording.
2.	The appellant was found both by the Swansea Magistrates' Court and by the Crown Court at Swansea to have infringed the order of 9 April 2001 in relation to three horses that he owned, when on 5 September 2002 those horses were the subject of a course of events.  Essentially, what happened was this: the appellant had the benefit of a court order requiring a Mr Bourne to deliver up to him these three horses.  Mr Bourne had refused to let anyone but the appellant enter the field and take recovery of the horses.  Mr Bourne was aware of the order that had been made by the Llanelli Justices on 9 April.  It seems that the judge, who made the order for delivery up of the horses, was not.  It appears that Mr Bourne may well have been seeking to engineer a position in which the appellant was going to be in breach of the order.  
3.	The police and the RSPCA were aware of what was happening and they were present.  What they saw was that, in compliance with Mr Bourne's requirements, it was only the appellant who was able to go into the field and gather the horses.  Once he had got the horses out of the field, however, the appellant was with a Mr Lewis.  That had been arranged with a view to Mr Lewis being the keeper of the horses rather than the appellant; the aim being to comply with the order of the Llanelli Justices.  However, once the horses were in the horsebox, it was not Mr Lewis but the appellant who drove the horsebox and took the horses to their ultimate destination.  It seems that Mr Lewis was driving in his own car separately from the horsebox, and there may well have been an ability to communicate with the aid of walkie talkies between the two vehicles.  
4.	In a careful judgment, to which I pay tribute, the Crown Court indicated that if this charge had solely been based on what happened in the field and the process of getting the horses to the horsebox, they would not have regarded the case as proven.  In the very special circumstances of this particular case, they would have regarded that as such a transient matter as not to amount to a "keeping" within the terms of the order.  What concerned them was the transporting of the horses in the horsebox.  The appellant was the driver of the horsebox, he was the sole person in the horsebox and the Crown Court, like the magistrates, was driven to the conclusion that during the period that the horses were in the horsebox, the appellant was the keeper of them and was thus in breach of the order.  It does seem to me that the appellant could have avoided exactly this problem by arranging for someone else who was insured to drive to be the driver of the horsebox.  
5.	With those comments about the facts, I turn to the points that are taken in a very helpful skeleton argument and supplementary written submissions from Miss Gregory, and the oral argument that she has advanced today.
6.	In her skeleton argument, Miss Gregory suggested that there was a distinction to be made between "keeping" and "custody".  She referred to the case of Crawford v Coggan [1964] Crim LR 292.  This point about there being such a distinction is a point which was developed further this morning in oral argument and I will return to it in due course.  In her skeleton argument, Miss Gregory went on to contend that at any time the appellant was keeping the horses, then the nature of his keeping was transient so as to provide a defence as set out in the Crawford v Coggan case.  I can deal with that very shortly.  Like the Crown Court, I can certainly see that what occurred in the field might have been regarded as merely transient.  But, to my mind, it is quite impossible to say that transporting the horses in the horsebox is the sort of transient incident that did not involve an infringement.  It seems to me that the operation in this case of transporting the horses in the horsebox was a substantial operation.  It was not fleeting in nature.  Accordingly, that point raised by Miss Gregory cannot, in my view, be right.
7.	Miss Gregory has turned to other reported cases.  The two that she cited were RSPCA v Miller [1994] Crim LR 516, and RSPCA v Taylor & Taylor [2001] 2 Crim App R 450.  She suggested that those cases should be distinguished from the facts in this case.  The essential element that Miss Gregory drew attention to was that in the present case the appellant is the owner of the horses.  She said, first, that neither case addressed the difficult question of what rights owners have when they have been disqualified from keeping animals, nor, in that regard, addressed the fact that the right to own the animal was not in dispute.  
8.	Second, Miss Gregory submitted that the undisputed right to ownership, but not to keep animals, is confusing and fraught with danger unless and until the court sets down a clear distinction between the two.  
9.	Miss Gregory has a third point about the cases, which I shall turn to shortly.  As to these first two points, it seems to me that they are really addressing the wrong question.  The courts have of course discussed what may be meant by the words "having custody of" found in the 1954 Act.  At the end of the day, however, the question is one of the application of ordinary words of the English language.  If I ask myself: did the appellant have custody of the three horses when they were in the horsebox?  The answer to my mind is unequivocally, yes.  If I ask: was the appellant keeping the three horses during the period which they were in the horsebox?  Equally, the answer to my mind plainly is, yes.  
10.	Here I should advert to some points made this morning orally.  Miss Gregory said that, using a dictionary definition, one who is the owner of a horse is one who is entitled to possession of the horse and therefore can be said to have custody of the horse.  Yet, she said, Parliament plainly intended that ownership and custody should mean different things.  Under section 3 of the Protection of Animals Act 1911, the courts have long been given a power on conviction of an offence of cruelty to deprive a person of the ownership of an animal.  That is a discretionary power.  Plainly, when Parliament in 1954 gave the additional power to deprive such a person of custody of an animal, they meant something different.  With all of that I agree.  
11.	In this case, however, the conclusion that the appellant had custody of these horses when they were in the horsebox, and that he was keeping them when they were in the horsebox, does not require me to place any reliance whatever on his ownership of the horses.  It seems to me that it is right for Miss Gregory to draw attention to the difficulties which may face an owner who is disqualified from having custody of an animal that he or she owns.  In general terms, all that I can say today is that such an owner would be well advised to make arrangements which do two things.  First, those arrangements should give custody of the animals in question to another person.  Second, those arrangements should state expressly that that other person is not to give the owner custody of the animals in question during the period of the disqualification.  I do not say that that will necessarily account for every eventuality, but it does seem to me to be a desirable course.  
12.	In this particular case, however, I do not consider that any problems of that kind arise.  As I said, in reaching the conclusion that during the period the animals were in the horsebox, the appellant was the person who had custody of them and was the person who was keeping them, I do not need to place any reliance whatever upon the fact that the appellant also happened to be the owner of these horses.  Nor, and more importantly, does it seem to me that the Crown Court was placing reliance on that fact as being crucial for the purposes of their decision.  If they were, it seems to me that, on the facts of this particular case, it is indeed immaterial.  
13.	The third point taken on the cases by Miss Gregory was that in neither of the cases cited was it necessary for the court to consider a set of facts that clearly point to necessity or entrapment.  Had they been required to do so, says Miss Gregory, this case would fall within what Ralph Gibson LJ had in mind when he said: 
"Parliament did not enact that a person disqualified after conviction for an offence of cruelty should be prohibited from having any contact with a dog or control of a dog."
On that, it seems to me that there might be something to be said for it if all that had happened in the present case was that, because of difficulties engineered by Mr Bourne, the appellant took the action in the field which he did.  However, in this case the actions of the appellant went far beyond what happened in the field.  It is to my mind quite impossible to bring those actions, in particular the transporting of the horses in the horsebox, within the remarks of Ralph Gibson LJ.
14.	The next point taken by Miss Gregory in her skeleton was that the original order was defective.  By this, I believe Miss Gregory meant that it had not been made using precisely the same terms as the statute.  In oral submissions this morning, she submitted that the order was in fact invalid because it used the term "keeping" rather than "having custody of".  I am sure that it is desirable that when orders of this kind are recorded, the statutory words are used.  The RSPCA are of course represented here today and I think it would be advisable for their representatives, when an order of this kind is made, to take such steps as they can to ensure that the court record uses the statutory words.  
15.	I am equally sure that when the magistrates made this order, they had in mind the exercise of their powers under the statute.  If there were any suggestion that by using the word "keeping" the magistrates were imposing a requirement on the defendant different from that which they were empowered to make, it seems to me the obvious answer to it would be that the word "keeping" was plainly intended by the magistrates to mean "having custody of", because that is the power that they were given under section 1 of the 1954 Act.  In any event, it seems to me that, in relation to animals, there is no such obvious contradistinction between the meaning of the word "keeping" and the meaning of the expression "having custody of" as to invalidate the magistrates' order.  
16.	It is said in Miss Gregory's skeleton argument that the appellant had thought that when he had the horses in the horsebox he would not be keeping them.  In his own mind he regarded that the transporting of the animals in the horsebox as perhaps having custody but not keeping, and therefore not a breach of the order.  That is a matter which might well be relevant to sentence, but cannot go to the question of whether he was in fact in breach of the order.
17.	A further point taken in Miss Gregory's skeleton argument was that there was, as she said, no evidence of the period of time that the appellant drove the vehicle.  She said the Crown Court was therefore wrong to find that the period of time was not insubstantial.  
18.	The Crown Court reached the conclusion that the period of time was not insubstantial by drawing an inference from other matters that were in evidence.  It seems to me that that is something that, as a matter of inference, the Crown Court were fully entitled to do. 
19.	The final point advanced in the main skeleton argument was that an order which refers to "keeping" should be taken at face value.  One should not have to go behind the order in order to discern what it means.  The answer, however, lies in the observation I made earlier, that even if one simply looks at this in terms of the question whether the appellant was keeping the animals, it seems to me, as a matter of ordinary use of English, during the period that they were in the horsebox and he was driving it, he was keeping them.  
20.	In supplementary arguments advanced in writing, Miss Gregory took issue with an analogy drawn by the learned Recorder in the Crown Court with the case of a disqualified driver.  Her suggestion was that, in this particular case, returning to the observation of Ralph Gibson LJ quoted earlier, there was an analogy to be made -- indeed a number of analogies.  First, Miss Gregory said that, in this particular case, it was analogous to other cases where there was no risk of harm.  Presumably if the police or RSPCA thought there was a risk of harm to the animal, they would have taken steps to prevent the appellant from driving the horsebox.  It seems to me that that is neither here nor there.  The question is whether the appellant was keeping the animals, and, for the reasons I have given, it seems to me to be plain that he was.  
21.	Miss Gregory also drew analogies with circumstances where a horse has bolted onto a road and was rescued by a disqualified person, or where a disqualified person came across an injured animal in the road.  The short answer is that neither of those are this case.  We are concerned with driving the animals in a horsebox, which is completely different.  
22.	It was then suggested that the court might give further guidance.  I declined to give further guidance.  Each case must be looked at carefully on its own facts.
23.	Turning to the submissions made in oral argument this morning, Miss Gregory submitted that an owner must have a duty of care towards his animals.  It seems to me that the precise duties of an owner would depend very greatly upon the precise circumstances.  I have already indicated the sort of steps that I think it would be advisable for an owner to take where an order under section 1 of the 1954 Act is concerned.  It does not seem to me that any suggested duty of care could possibly justify the steps that were taken by the appellant in this case -- to my mind in plain breach of the order.  
24.	Miss Gregory this morning also developed further her submissions about a distinction between "keeping" and "having custody of" and the question of whether the test should be the power of control where a person is an owner.  Those submissions I have dealt with already in this judgment.  
25.	In those circumstances, my conclusion is that this appeal must be dismissed.
26.	MR ROGERS:  My Lord, in relation to the questions that are posed by the court below, I think your Lordship needs to formally answer them.  Can I invite your Lordship to answer them in the way I have set out in my skeleton, which is: no, yes, no, which I think is in accordance with your Lordship's order.  At page 7 are the questions: 
"Is there a difference as a matter of law in the circumstances of this case between 'custody' and 'keeping'?" 
Your Lordship, in the circumstances of this case, as the question is posed, would answer that question, no.  
"Was the court entitled to find as a matter of fact that the period of time when the appellant had sole control of the animals in the vehicle was not so transient as [not] to amount to keeping, or custody care and control?" 
Your Lordship would answer, yes.  
"Was the original order of 9 April invalid because it used the word 'keeping' instead of 'custody'?"
Your Lordship would answer, no.  
27.	I hope that accords with your Lordship's observations in this matter.
28.	MR JUSTICE WALKER:  Yes, Miss Gregory, I think that must follow.
29.	MISS GREGORY:  My Lord, yes.
30.	MR ROGERS:  My Lord, the final issue is the question of costs.  I do not know whether my learned friend is legally assisted in this matter so far as the Legal Aid Board is concerned.  We have not, I do not think, produced a schedule of costs.  So far as contribution to costs is concerned, I am instructed to ask for the contribution towards the costs, but it may depend upon the status of the legal aid position of the appellant.
31.	MR JUSTICE WALKER:  What is the status, Miss Gregory? 
32.	MISS GREGORY:  He is on job seeker's allowance, my Lord. 
33.	MR JUSTICE WALKER:  But does he have legal funding from the Legal Services Commission? 
34.	MISS GREGORY:  I understand so, yes.  
35.	MR JUSTICE WALKER:  What would you submit is the appropriate order in relation to costs, Miss Gregory? 
36.	MISS GREGORY:  No order for costs, my Lord.  I hope you will agree it was an unusual set of facts before the court that have never been tested before.  
37.	MR JUSTICE WALKER:  What do you say as to costs, Mr Rogers? 
38.	MR ROGERS:  Given the likelihood of being able to enforce this order, my Lord, I will accept no order as to costs.
39.	MR JUSTICE WALKER:  No order as to costs.