R (Gray and another) v Crown Court at Aylesbury
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Mr Justice Silber |
| Judgment Date | 12 March 2013 |
| Neutral Citation | [2013] EWHC 500 (Admin) |
| Docket Number | >Case No: CO/10303/10 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 March 2013 |
[2013] EWHC 500 (Admin)
Lord Justice Toulson
Mr Justice Silber
>Case No: CO/10303/10
CO/3363/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an Application for Judicial Review
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fullerton (instructed by Nigel Weller & Co) for James Gray
Richard Cherrill (instructed by Nigel Weller & Co) for Julie Gray
Robert Seabrook QC and Ian O'Donnell (instructed by Paris Smith) for the Interested Party
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.
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
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."
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.
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 3 rd, 4 th and 9 th 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
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.
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).
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."
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)...
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