CO/6541/2015 
Neutral Citation Number: [2016] EWHC 993 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
The Courthouse 
 1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
 
Tuesday, 1st March 2016
 
B e f o r e: 

MR JUSTICE LEGGATT

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Between: 
MARZAN 
Claimant

v 

RSPCA 
Defendant 
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The Claimants appeared in Person assisted by Ms Jay (McKenzie Friend)

Mr Clarke appeared on behalf of the Defendant
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J U D G M E N T
MR JUSTICE LEGGATT:
1.	On this appeal by case stated the court is asked to decide whether a police officer unlawfully entered the appellants’ home on 15th January 2014.  
2.	The appellants, Mr and Mrs Mazan, were convicted at Bradford Magistrates' Court on 12th March 2015 of some seven offences under the Animal Welfare Act 2006 relating to their failure to provide proper treatment for 13 Red Setter dogs.  They received concurrent sentences of 6 months' imprisonment for each offence.
3.	Mr and Mrs Mazan appealed against their convictions and sentence to Bradford Crown Court where their appeals were heard by His Honour Judge Bartfield and two lay justices on 25th and 26th June 2015.  Save in relation to one of the charges against Mr Mazan, the appeals against conviction were dismissed.  On the appeals against sentence the sentences of imprisonment were varied, being reduced from 6 months to 4 months' imprisonment in relation to each offence.
4.	Before the magistrates and in the Crown Court, where the appeal involved a rehearing, the prosecution case depended on evidence obtained from a search of Mr and Mr Mazan's home address carried out by a police officer on 15th January 2014.  They were not at home at the time and the officer forced entry to the premises relying on the power under section 17(1)(e) of the Police and Criminal Evidence Act 1984 to enter and search any premises for the purpose of "saving life or limb or preventing serious damage to property".
5.	At the hearing in the Crown Court the appellants applied to exclude the evidence obtained from the search, arguing that the entry was unlawful.  The Crown Court rejected that argument.  The court did so after hearing evidence from PS Green, the police officer who entered the premises.  The court found that Sergeant Green genuinely believed that dogs kept on the premises were at imminent risk of death and hence there was a danger of serious damage to property.  The court further concluded that that belief was based on reasonable grounds and that, in those circumstances, the entry and search of the premises were lawful.
6.	On the application of Mr and Mrs Mazan Bradford Crown Court has stated a case for the opinion of this court consisting of three questions.  In the form approved by the Crown Court the wording of the questions is somewhat garbled but in substance they are: 
a.	Did PS Green, on the facts of the case, make an unlawful entry under section 17(1)(e) of the Police and Criminal Evidence Act 1984 such that any evidence obtained therefrom was inadmissible?  
b.	Did PS Green genuinely believe that it was necessary for her to enter the premises to prevent serious damage to property (in this case dogs)? 
c.	If PS Green did hold such a genuine belief, was that belief based on reasonable grounds? 
7.	In coming to its decision that the entry was lawful the Crown Court addressed the second and third of those questions.  It is clear that as a matter of law they are the right questions to ask.  If Sergeant Green genuinely and reasonably believed that it was necessary to enter the premises to avert a risk of serious damage to one or more dogs, then the officer had power to enter under section 17(1)(e) and the entry was lawful.  On the other hand, if Sergeant Green did not genuinely and reasonably hold such a belief, the entry was unlawful.  Accordingly, the Crown Court applied the correct legal test.  
8.	In these circumstances - as I have explained to Mr and Mrs Mazan, who regrettably do not have the benefit of legal assistance today although they have been ably assisted by their McKenzie Friend, Miss Jay – their appeal to this court faces a major difficulty.  Under section 28 of the Senior Courts Act 1981 the grounds on which a decision of the Crown Court may be questioned on an appeal to the High Court by case stated are limited to arguments that the decision is wrong in law or in excess of jurisdiction.  The Crown Court undoubtedly had jurisdiction to decide whether the entry to the premises was lawful, so in order to found an appeal the appellants need to show that the decision of the Crown Court was wrong in law.  However, it is clear, as I have said, that the Crown Court considered what in law were the correct questions and, on the face of it, the question whether Sergeant Green genuinely held the relevant belief is a question of fact.  So too is the question whether that belief was based on reasonable grounds, since that is also a question which is to be decided on the basis of factual evidence by the tribunal which has heard that evidence.  It is what is sometimes referred to as a question of fact and degree.
9.	There are circumstances in which findings of fact can involve errors of law.  If a court makes a finding of fact which is not supported by any evidence its decision will be regarded as wrong in law.  So too if it comes to a conclusion which is based on a view of the evidence which could not reasonably be held.  But those are high hurdles.  The weight to be attached to evidence is a matter for the fact‑finding tribunal.  A decision will not be unlawful just because this court would have reached a different decision.  It must be possible to say that no reasonable tribunal, applying their minds properly to the evidence, would have reached the conclusion in fact reached in order for this court, on an appeal by case stated, to have the power to interfere.
10.	As summarised by the Crown Court its ruling on the question of admissibility, the evidence of Sergeant Green - who testified in the Crown Court and was cross‑examined - was to the following effect.  She received a request to attend the premises where she was met by two RSPCA inspectors who were already present and by Mr Roberts, a dog warden from Bradford Council.  She obtained information from them about the situation.  She was told of a previous history of visits to the premises by RSPCA inspectors who had on some visits encountered evidence of neglect of the dogs and she was also told what they had observed that day.  She told the Crown Court that she was particularly concerned that there were said to be puppies in the house.  She said that she was immediately struck by the overwhelming odour and that she thought that such was the nature of it that there would be dead dogs on the premises.  Faced with that situation and the fact that the house was unoccupied at the time, she concluded, so she told the court, that there was a risk of serious damage to property, namely a risk of imminent death of one or more dogs.
11.	The Crown Court having heard that evidence, and other evidence as well, ultimately concluded that the officer did indeed have a belief, as she had told the court, that the lives of one or more dogs were in danger.  They asked themselves whether there were reasonable grounds for that belief and thought it a closely balanced decision.  Nonetheless, the court came to the conclusion that the officer's decision was within the bounds of reasonableness, albeit that another officer might have reached a different decision, and on that basis the Court found that the entry was lawful.
12.	When one looks at what the grounds were on which the officer claims to have feared that there were one or more dead dogs on the premises, most of those grounds do not seem to me to be rationally capable of supporting that conclusion.  There was, first of all, a history of neglect.  But although that history had given the RSPCA inspectors cause for concern and although it had involved, at one stage, the issue of a warning notice, on no previous occasion when the premises had been visited had dogs been seen in a condition which gave rise to any fear that they might be at risk of dying.
13.	Mr Clarke, who represented the RSPCA below and has appeared again today, has helpfully summarised for me other matters in the evidence on which the police officer relied.  Another such matter was that the dog warden present had not been permitted to enter the premises on a previous occasion.  But that again does not seem to me to provide any rational ground for suspecting that there might be dead dogs on the premises on this occasion.  In addition, the officer was told that the householder was unlikely to return until 7 or 8 o'clock in the evening.  It was, I think, around 4 o'clock by the time the officer was called, so that shows only that her concern would be justified only if there was a risk that one or more of the dogs might die or sustain very serious injury within the space of at most a period of 3 or 4 hours.  Another concern of the officer was that there might be puppies on the premises.  That would certainly indicate dogs who would be potentially more vulnerable but is not in itself evidence of any risk faced by the dogs.  A further point was the noise of the dogs, but that only went to show that there were live dogs on the premises, not to confirm a fear that dogs might have died or be on the point of death.
14.	The linchpin of the officer's evidence, as it seems to me, was evidence that she gave to the court of an overwhelming odour which she said that she experienced.  She had made a witness statement on 8th January 2015, shortly before the Crown Court hearing, in which she said that the smell was so horrendous that it could quite easily have been rotting flesh and it seems that her testimony in the Crown Court was to that effect.
15.	If that evidence was truthful, then it seems to me that it does provide a basis on which the officer could have feared that there were one or more dead dogs on the premises.  If that evidence was truthful, it must follow that the Crown Court was entitled to reach the conclusion that the officer held a genuine belief that it was necessary to enter the premises in order to prevent a risk of serious damage to property.  If that evidence was truthful, it likewise seems to me that the court was entitled to conclude that there was a reasonable basis for that belief.
16.	I must confess that on the basis of the record of the evidence that I have seen, I harbour very grave doubts as to whether the officer's evidence on that point was accurate and I have a serious concern that her evidence could have been exaggerated.  In saying that I have in mind, amongst other things, the following.  First of all, there was evidence in the courts below from the dog warden, Mr Roberts, that he had in fact climbed into the garden of the property before the police officer arrived.  That entry was clearly unlawful but nothing in itself, for present purposes, turns on that.  He said in his witness statement, and I assume gave evidence in court to similar effect, that having climbed over the fence he looked through a hole into the shed where many at least of the dogs were housed.  He said that he managed to count about 10 Irish Setters inside the shed.  He could see the dogs moving but other than that could not see much.  The main thing that he said that hit him was the smell of faeces and urine.
17.	In addition, the police officer, Police Sergeant Green, herself made a witness statement on 16th January 2014, the day after the premises had been searched.  In that statement she described how she had arrived at the premises and been greeted by the dog warden and two RSPCA inspectors.  She recounted how the inspectors had told her about a previous warning they had issued to Mr and Mrs Mazan for neglect of the Red Setters they kept at the premises and that they had serious concerns for their welfare.  She then says in her statement that she entered the garden and the smell of urine and dog faeces was overpowering.  She then opened the shed door and had to stand back to catch her breath as the smell was making her wretch and her eyes began to water.  She said that she was appalled at what she saw.
18.	That evidence clearly provided foundation for a belief that there was reason for serious concern about the welfare of the dogs but conspicuously there is no mention in that statement of any belief that dogs might be at imminent risk of death.  Moreover, although there is a description of the smell that she encountered as "overpowering", there is no suggestion in that statement that she believed that the smell might be the smell of rotting flesh.  Moreover, on the basis of what she was told by the dog warden, Mr Roberts, she would have known that he had already entered the garden and seen dogs moving inside the shed.  There is no suggestion that he had seen anything or reported anything to the officer which provided any basis for believing or fearing that there might any be dead dogs inside the shed.  It was not until Police Sergeant Green made a second statement, almost exactly a year later, shortly before the Crown Court hearing, that the first suggestion was made that the smell that she encountered could have been the smell of rotting flesh.
19.	In those circumstances, I cannot but, as I say, feel concern as to whether the officer's evidence was accurate when she told the court that she interpreted the odour that she smelt as possibly an odour of dead flesh and believed, on that basis, that she might find dead dogs inside the premises.
20.	However, at the end of the day, I have to remind myself that I have not heard the evidence of the police officer.  I have not heard what answers she gave or may have given at the Crown Court hearing to the concerns that I have expressed.  Nor have I heard directly any of the other evidence in the case.
21.	The Crown Court did hear the evidence of the officer.  They heard her cross‑examined.  They heard it put to her no doubt, and I am told by Mr Clarke it was suggested to her in cross‑examination, that her evidence about thinking the smell might be rotting flesh was an afterthought, whether consciously or unconsciously designed to bolster evidence which would otherwise have been insufficient to justify the entry to the premises.  It was the Crown Court which heard that evidence and it was the Crown Court, and not this court, which was charged with the responsibility of finding the facts in this case.  It is impossible to say that there was no evidence before the Crown Court which was capable of supporting the conclusion that the officer genuinely and reasonably believed that it was necessary to enter in order to prevent serious damage to property.  Nor do I feel able to conclude that the findings made by the Crown Court were findings which no reasonable fact‑finding tribunal, which heard the evidence given in the Crown Court, could have reached.
22.	If this court had power to reconsider the facts of the case I might very well have come to a different conclusion from the conclusion reached by the Crown Court.  But that is not, as I have sought to explain, the jurisdiction of the High Court on an appeal by case stated.  I can only intervene if I am able to conclude that the decision of the Crown Court was wrong in law.  On the basis of the material before the Crown Court and for the reasons that I have explained, I am unable to reach that conclusion.  It accordingly must follow that the appeal by way of case stated must be dismissed.
23.	MR CLARKE:  My Lord, I think it probably ‑‑ I do not know if your Lordship is minded to answer the questions specifically or considers that the judgment has effectively done that.
24.	MR JUSTICE LEGGATT:  Let me remind myself.
25.	MR CLARKE:  Page 35.  
26.	MR JUSTICE LEGGATT:  I have answered the questions in the judgment but I could draft an order which gives shorter answers to the question if it is of help.
27.	MR CLARKE:  I will leave that to Mrs Mazan.  
28.	I have two other matters to mention.  That is that your Lordship will see that the actual sentence was indicated but it was not passed and bail was granted to attend back at the Bradford Crown Court on a date for them to be informed.  I have made enquiries and I know that Judge Bartfield finishes sitting this Friday and will resume again on the 30th March.  I wonder if your Lordship could make a direction that the appellants are required to attend either this Friday or Wednesday, 30th March.
29.	MR JUSTICE LEGGATT:  You are explaining to me that the sentence has not had effect yet.
30.	MR CLARKE:  It has not had effect.  The learned judge indicated what the sentence would be but deferred or adjourned the actual imposition of that sentence until the conclusion of these proceedings and imposed a condition of bail that at the conclusion of these proceedings the appellants appear at the Bradford Crown Court as ordered or whenever.  So the order that would be appropriate would be for them to attend either on Friday 4th March or Wednesday 30th March.  Those days we know Judge Bartfield is at Bradford.
31.	MR JUSTICE LEGGATT:  The 3rd or 30th did you say? 
32.	MR CLARKE:  Friday the 4th, this Friday 4th or Wednesday 30th which is the first sitting day after the Easter holiday.
33.	The only other application that I have is that I seek an order that the respondent's costs be paid from Central Funds under section 17 of the Prosecution of Offences Act.  This is one of those occasions, this is a summary matter and in the Administrative Court or the Divisional Court a non local authority are entitled to that order.
34.	MR JUSTICE LEGGATT:  What is the criterion.  What is the test?
35.	MR CLARKE:  The test is that we are not a public body.  We have responded to an application by way of Case Stated and it is possible for you to make an order that you did not consider it reasonable.
36.	MR JUSTICE LEGGATT:  As long as your attendance is reasonable that is the test.  In that case I will make that order.
37.	MR CLARKE:  I am grateful.  
38.	THE CLAIMANT:  Do these circumstances themselves need to ask for representation in the court?
39.	MR JUSTICE LEGGATT:  I do not know what your representation order at present, the status of it is. 
40.	THE CLAIMANT:  ‑‑ sentence.
41.	MR JUSTICE LEGGATT:  You ought to be represented.
42.	THE CLAIMANT:  Representation I am going (inaudible) the barrister in the first place and she's available on the 30th. 
43.	MR JUSTICE LEGGATT:  I was going to say 30th March unless you have a problem with that.
44.	THE CLAIMANT:  Not at all. 
45.	MR JUSTICE LEGGATT:  Well I will bail you to attend at Bradford Crown Court on the 30th March.
46.	THE CLAIMANT:  Thank you very much.
47.	MR JUSTICE LEGGATT:  I am sorry you have had to conduct a day's hearing without legal assistance but I think you were helped by Miss Jay and I felt that I did have all the points that could have been made on your behalf if you had been represented.  As I have tried to explain, it is really because of the limited powers of the court that I have reached the conclusion I did.  If I were the tryer of fact the course of the hearing might have been different.  
48.	I am grateful for the assistance you have all given me and to Mr Clarke. The court will adjourn.