James Henry Barrington v Jeffrey Colbert, Keith Colbert and John Fleming
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MR JUSTICE GARLAND |
| Judgment Date | 10 November 1997 |
| Judgment citation (vLex) | [1997] EWHC J1110-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 1997 |
| Docket Number | CO/1273/97 |
[1997] EWHC J1110-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
and
Mr Justice Garland
CO/1273/97
MR R BRYAN (instructed by Chancellors Solicitors, Kent DA6 8BB) appeared on behalf of the Appellant.
MR G BEBB (instructed by Turners Solicitors, Bournemouth, Dorset BH2 5QQ) appeared on behalf of the Respondents, Mr Keith Colbert and Mr John Fleming.
Mr Jeffrey Colbert appeared in person but was not represented.
(As approved)
Monday 10th November 1997
This is a prosecutor's appeal by way of Case Stated from the decision of the New Forest Magistrates made on 14th September 1994. It revolves around the meaning of the words: "captivity and confinement" in the Protection of Animals Act 1911 (as amended).
The Respondents were charged that:
"On the 9th day of October, 1993 at Ocknells enclosure in the New Forest in the County of Hampshire, jointly by unreasonably doing an act, namely imprisoning a fox and a dog together in a water filled culvert did cause unnecessary suffering to the said fox.
Contrary to S. 1(1)(a) of the Protection of Animals Act 1911 as amended…[The 1911 Act. ]"
There was a separate charge under the Act, but, for present purposes, that is not material.
At the hearing of this appeal Mr Keith Colbert and Mr John Fleming are represented by counsel Mr Bebb, Mr Jeffrey Colbert is present in Court but did not apply to add anything to the submissions of counsel on behalf of the
other Respondents.
The Magistrates heard the case in August and September 1994. They found that on 9th October 1993 the Respondents formed part of a lawful hunt of the New Forest Fox Hounds in their capacity as Terriermen.
In the course of the hunt the Respondents were requested to attend at Ocknells enclosure in the New Forest by the huntsmen. A fox the huntsmen had been hunting, had entered a land drain (also known as a culvert) in the area and remained in that land drain. It had gone to ground in the land drain at about 12.55pm. The Master of the Hunt decided that the fox should be shot and killed. This was thought necessary because the land drain was only about 30 yards from the A31 road, a busy dual carriageway linking the New Forest town of Ringwood and the M27 motorway. If the fox was allowed to go free in that location it might cause danger to motorists as well as to persons and animals engaged in the hunt. Further, the justices found the purpose of the hunt was to cull and reduce the population of foxes and the area had a high density of foxes.
One of the conditions of the licence, under which the hunt operated, was that if pursuant to the hunt any digging was necessary the person seeking to dig must obtain the permission of the New Forest Duty Keeper. The keeper was duly contacted and told that the intention was that a Jack Russell Terrier dog would be introduced into the land drain to chase the fox from it so that it could be killed by shooting. The Duty Keeper gave permission for that to happen, provided the water level at the bottom end of the land drain was shallow enough to allow the dog to be introduced safely. There was a delay in the procedure because another dog entered the land drain and it was some time before it could be removed. The drain was 48 yards long and 12 inches in diameter. It followed the contour of the hill rising steadily at first and then steeply after ten yards. At the bottom end, the land drain was 75 per cent filled with water and there were rocks and silting in the entrance.
Those obstructions were cleared with the result that the water level at the entrance dropped to six inches, a depth in which it was considered, by the Respondent, Mr Jeffrey Colbert, and the duty keeper, to be a safe level for the Jack Russell Terrier dog to be introduced. After the first ten yards, due to the rising contour, the drain was clear of water except for a trickle. Expert evidence was given from a vetinary surgeon, and accepted by the Justices, that it was safe to enter the Terrier into the land drain in the circumstances which then prevailed.
The Terrier selected, by the name of "Tosh", was an experienced dog. The procedure which was expected to be followed was that the dog would travel up the land drain and when in close proximity to the fox would bark and growl at it thereby causing the fox to leave the drain at the top end. At the top end a purse net was placed over the drain in such a way that the fox would be restrained when leaving the drain. The fox would not see the net which would enfold around the animal as it left the drain. Once in the net it was proposed that the fox would be shot.
A number of people gathered at the top end of the drain. There was a group of up to 18 people who were there to support the hunt and at least 8 people present were opposed to the hunt taking place. At 13.22 the net was placed over the top end of the land drain and four minutes later Tosh was introduced. A spade was placed near the bottom entrance of the land drain once the dog had entered. This, the Justices found, was a common hunting practice, the object being to slow the exit of the fox if, and when, it emerged from the drain.
At first the operation went well and at 13.28 the fox bolted from the top end of the land drain. However, due, as the Justices found, to the crowd which had gathered at the top end of the land drain, the fox returned into the drain instead of being enfolded in the net. At 13.40 the dog was heard to be baying in the land drain and one minute later it emerged pulling out the fox at the bottom end of the drain having locked on to the fox's jaw. One minute later at 13.42 hours one of the Respondents, having hurried down the length of the drain from the top end to the bottom end, shot and killed the fox with a single shot. The dog had not been injured and apart from the fatal shot to the head there were no serious injuries to the fox.
On the basis of those findings the Justices concluded that:
"The fox was not a captive animal for the purposes of Section 15 of the Protection of Animals Act, 1911. We did not consider that the Protection of Animals Act, 1911, envisaged that an animal found in this way for this period of time would amount to 'captivity or confinement'. We accepted that the Protection of Animals Act, 1911, required captivity to mean something more than capture and necessitated 'further act of dominion".
Accordingly the fox was not entitled to protection under the 1911 Act.
The question posed for the opinion of this Court is:
"Were we entitled to conclude that in law the fox in question was not a captive animal to which Section 1 of the Protection of Animals Act, 1911 applied?"
Section 1(1) of the 1911 Act provides, in so far as is material:
"If any person—
(a) shall…by…unreasonably doing or omitting to do any act, or causing or procuring the commission or omission of any act, cause any unnecessary suffering…to any animal…
such person shall be guilty of an offence of cruelty within the meaning of this Act…"
The wording of section 1(1)(a) permits of many permutations of charge, and I have read only those parts which relate to the charge actually preferred in this case. The word "animal" is defined in section 15 of the Act:
"(a) the expression 'animal' means any domestic or captive animal;
It emerges from (b) that the fox is not a domestic animal.
"(c) the expression 'captive animal' means any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any, bird, fish or reptile, which is in captivity, or confinement, or which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement;"
Only two words in that definition are in issue, but I have read the whole of it so that those words can be considered in context.
There can be no doubt that the fox was effectively restrained in the land drain for a significant period of time. Once the spade was placed at one end, and the net at the other, the fox could not get out. The Appellant puts the time of restraint at 45 minutes, time running from when the fox entered the land drain to the time of its death. The Respondent submits that the restraint began only when the net was placed over the top end of the land drain. I am inclined to prefer the latter view, but do not find the difference in time between the parties critical for present purposes.
The Appellant is a former executive director of the League Against Cruel Sports and appears before this Court by Mr Bryan of counsel. Mr Bryan submits that during the period of restraint the fox was in captivity or confinement within the meaning of those words in section 15(c) and was, therefore, a captive animal. Mr Bebb submits that the inability of the animal for a period of time to get away was insufficient to place it within that definition.
We have been referred to a number of cases, but it is only in two of them that I find help for the present purposes. First, Rowley v Murphy [1964] 2 Q.B. 43 was a case where a wild stag was being hunted and slipped and fell under a stationary van. It was dragged out and then dragged into a nearby enclosure where it was killed. When the case was heard in the Divisional Court Lord Parker, Chief Justice, and Fenton Atkinson J found the case a difficult one. Lord Parker stated that he had found it "by no means an easy question".
Fenton Atkinson J was clearly...
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