R (Haynes) v Stafford Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Walker,MR JUSTICE WALKER
Judgment Date14 Jun 2006
Neutral Citation[2006] EWHC 1366 (Admin)
Docket NumberCase No: CO/7427/2005

[2006] EWHC 1366 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Walker

Case No: CO/7427/2005

Between:
The Queen on the Application of
Malcolm Haynes
Claimant
and
Stafford Borough Council
Defendant
and
(1) The Parrot Society U.k.
(2) Stafford Showground Ltd
(3) Shaun Smith
(4) The Secretary of State for Environment, Food and Rural Affairs
Interested Parties

Mr Alan Bates instructed by Richard Buxton, Cambridge, for the Claimant

Mr Eric Owen instructed by the Head of Law and Administration, Stafford Borough Council for the Defendant

Ms Carine Patry instructed by Knights Solicitors for the First and Second Interested Parties

The Third Interested Party did not take part in the hearing

Mr Paul Harris instructed by the Head of Litigation and Prosecution Division, Department for Environment, Food and Rural Affairs, for the Fourth Interested Party

Mr Justice Walker

Introduction

1

The history of this case has involved several twists and turns. The position now reached is that the claimant seeks three declarations. The declarations sought can be summarised in broad terms. The first is that a bird fair licensed by Stafford Borough Council would, as conceived by its organiser, involve the commission of criminal offences contrary to section 2 of the Pet Animals Act 195This bird fair has now occurred, and there has been no suggestion that the arrangements put in place were different in any relevant respect from those conceived by the organiser. The second is that the issue of the licence in question to the organiser of the bird fair was unlawful because it purported to authorise the selling of animals as pets by different independent traders. If that proposition were correct, and a licence was needed and not personally obtained by such traders, it would follow that these traders committed a criminal offence under the same Act. The third is that a "general licence" issued by central government in order to permit gatherings of birds under the Avian Influenza (Preventive Measures) (No 2) Regulations 2005 (SI 2005/3394) was invalid and accordingly the council could not proceed on the basis that it was valid. Here a question could arise whether the consequence, if that proposition were correct, would be that those who have permitted birds to be gathered together at bird fairs in reliance upon the general licence have committed a criminal offence.

2

Thus the first proposed declaration explicitly involves, and the second and third proposed declarations implicitly may involve, the determination by this court of questions which could call for consideration by a criminal court if criminal proceedings were brought. All parties have proceeded on the footing that this court in these proceedings is exercising civil jurisdiction. An initial point accordingly calls for consideration: is it permissible and appropriate for this court to pronounce on questions in this case which potentially affect criminal liability? I shall call this initial point "the Criminal Liability Question."

3

In this judgment I shall first set out the history of the proceedings. I then examine the Criminal Liability Question before turning to discuss each proposed declaration in turn.

History of the proceedings

4

The claimant runs an animal rescue and re-homing charity from his home in Staffordshire, not far from the Stafford County Showground ("the Showground"). The second interested party, Stafford Showground Limited ("the Showground Operator"), is the body through which the Showground is run and which contracts with individuals and organisations for the hire of the Showground. In the late summer and early autumn of 2005 the claimant was concerned about the well-being of birds at a bird selling fair ("the October 2005 Event") to be held on 9 October 2005 at the Showground. The October 2005 Event was organised by the first interested party, which I shall refer to as "the Parrot Society". The claimant eventually learnt that there had been a decision by the defendant Stafford Borough Council ("the Council") to issue a pet shop licence under the Pet Animals Act 1951 ("the 1951 Act") for the October 2005 Event. I shall refer to this licence as "the 2005 Pet Shop Licence". On 19 September 2005 the claimant issued a claim form seeking permission to apply for judicial review of this decision. He sought three main remedies. The first was the quashing of the 2005 Pet Shop Licence. The second was a declaration ("the Section 2 Declaration") that the October 2005 Event involved the commission of criminal offences contrary to s 2 of the 1951 Act. The third was a declaration ("the Different Traders Declaration") that a single pet shop licence could not lawfully be issued to the Parrot Society to authorise the selling of animals as pets by a number of different independent traders.

5

The matter came before Burton J on the papers. By order dated 26 September 2005 he refused an application by the claimant for expedition. He concluded that it could not be justified to seek to pursue a claim putting at risk an event which had been scheduled for 9 October 2005, and he refused permission to seek the quashing of the 2005 Pet Shop Licence. However he granted permission to apply for judicial review in respect of the Section 2 Declaration and the Different Traders Declaration. Having noted that there were issues to be resolved in relation to the standing of the claimant, he added:

"The judicial review application should take its ordinary course (with any necessary amendments) and can be resolved so as to give guidance in respect of any future such events."

6

As envisaged by Burton J, the October 2005 Event took place as planned on 9 October 2005. Meanwhile, however, the European Commission ("the Commission") and member states of the European Union, including the United Kingdom, had become increasingly concerned about avian influenza virus ("AIV"), and in particular about the westward spread of its H5N1 subtype ("H5N1") which was known to be highly pathogenic. For some years the Commission had funded surveillance programmes to detect AIV in member states. During 2004 and 2005 an increasing number of third countries were the subject of import restrictions imposed by the Commission. On 19 October 2005, following confirmation of H5N1 in birds in Turkey, Commission Decision 2005/734/EC required, among other things, that member states take appropriate and practicable measures to reduce the risk of transmission of H5N1 from birds living in the wild to poultry and other captive birds. Two days later the Commission by Decision 2005/745/EC of 21 October 2005 inserted a new article 2a into Commission Decision 2005/734/EC. Paragraph 2 of the new article 2a provided:

"Member states shall ensure that the collection of poultry and other birds on markets, shows, exhibitions and cultural events is prohibited; however the competent authority may authorise the collection of poultry and other captive birds on such premises subject to the favourable outcome of a risk assessment."

7

The new article 2a was implemented in England by the Avian Influenza (Preventive Measures) Regulations 2005 (SI 2005/2989). These were replaced with effect from 9.12.05 by the Avian Influenza (Preventive Measures) (No 2) Regulations 2005 (SI 2005/3394). For present purposes there is no material difference between the regulations, and I shall refer to them as "the Avian Flu Regulations". In the meantime on 30.11.05 Commission Decision 2005/734/EC was amended by Commission Decision 2005/855/EC, which among other things revised article 2a in ways which I shall discuss later in this judgment.

8

Regulation 5 of the Avian Flu Regulations provides as follows:

"(1) No person shall permit birds to be collected together at any fair, market, show, exhibition or other gathering except under the authority of a licence issued by the Secretary of State.

(2) The Secretary of State shall only grant a licence if a veterinary risk assessment has been carried out and she is satisfied that the gathering and the transit of birds to and from the gathering would not significantly increase the risk of the transmission of avian influenza virus (in particular of virus of the sub-type H5N1)."

9

On 31 October 2005 the third interested party, Mr Sean Smith ("Mr Smith"), applied to the Council for a licence for a bird show at the Stafford County Showground on 5 March 2006 ("the March 2006 Event"). Although he is a member of the Parrot Society, Mr Smith acted in his personal capacity in relation to the organisation of the March 2006 Event. He had organised events of a similar kind, known as the Stafford Spring Show, since 1990. His application was initially refused in the absence of a licence under the Avian Flu Regulations. Mr Smith reapplied on 20 January 2006, asserting that he had the benefit of a licence from the Department for Environment, Food and Rural Affairs ("DEFRA"). This is the department for which the fourth interested party ("the Secretary of State") is responsible. What Mr Smith in fact relied upon was what had been described by DEFRA as a "general licence" placed on its website on 20 December 2005, under which bird fairs and other events could proceed if organisers advised the local office of the State Veterinary Service ("SVS") in advance and observed relevant general licence conditions. I shall refer to this licence as "the AIV General Licence" and to the conditions as "the AIV General Licence Conditions". Council officials concluded that Mr Smith would not be able to comply with a condition requiring that certain records be kept in relation to "all attendees."...

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