R RSPCA v Colchester Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Blake,Mr Justice Beatson |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] EWHC 1418 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3916/2014 |
| Date | 11 March 2015 |
[2015] EWHC 1418 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Blake
CO/3916/2014
Mr R Jenkins (instructed by Harris Cuffaro & Nichols) appeared on behalf of the Claimant
Mr M Fullerton (instructed by HMCTS Complaints Correspondence Team) appeared on behalf of the Defendant
This is an application for judicial review of the decision of District Judge Sheraton, sitting at Colchester Magistrates' Court on 20th June 2014, to exclude evidence which the claimant, the Royal Society for the Prevention of Cruelty to Animals (which I shall I refer to as the "RSPCA") sought to adduce at the trial of Deborah Fuller and Philip Sheldrake (the interested parties). They were charged with committing offences under sections 4(1) and 9(1) of the Animal Welfare Act 2006 in relation to 44 dogs kept at their premises. As a result of the district judge's decision all charges were dismissed.
In an application dated 10th July 2014 the RSPCA requested the court to state a case for the opinion of the High Court. Notice had previously been given to the court of the RSPCA's intention to do this. On 10th July, the same day as the formal application, the District Judge refused to state a case certifying the application as frivolous. He stated that it was frivolous because his decision to exclude the evidence was an exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984. He referred to a Divisional Court case which stated that it would be loathe to interfere with the exercise of such a discretion short of Wednesbury unreasonableness. The District Judge stated that his decision was not, and could not be said to have been, Wednesbury unreasonable. Accordingly, it was within the scope of his discretion under section 78.
These proceedings were filed on 20th August 2014. The claimant sought a mandatory order requiring the Magistrates' Court to state a case or in the alternative the determination of two questions framed by, or, on its behalf. The questions were:
"Based on the facts as [the District Judge] found them to be and the submissions made on behalf of the parties was the decision the [the District Judge] reached legally sound and reasonable?"
and:
"If it was not should [the District Judge] instead have refused the application to exclude the evidence of the search and continued to hear the trial?"
Permission was refused on the papers on 29th September 2014 but granted following an oral hearing before McGowan J on 28th November. When granting permission the learned judge observed that, as the Magistrates' Court had already given a reasoned judgment containing all the necessary facts and explained its refusal to state the case, in the light of the authorities, there was nothing to be gained by ordering that a case be stated.
The material statutes in these proceedings are the Environmental Protection Act 1990 (" EPA"), the Animal Welfare Act 2006 ("AWA") and, although no longer material, the Breeding of Dogs Act 1991. The material provisions are Schedule 3 paragraph 2 of the EPA and sections 19, 52, 18 and 15 of the AWA. I order them that way because section 19 deals with the power of entry for section 18 purposes. Section 52 deals with conditions for grant of a warrant, including the fourth condition which was relevant at one stage of this case. It is that it is "inappropriate to inform the occupier of the decision to apply for a warrant because it would defeat the object of entering the premises" or because "entry is required as a matter of urgency" (section 52(5)). Section 18 concerns powers in relation to animals in distress. In particular 18(5) provides:
"An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies—
(a) that it is suffering, or
(b) that it is likely to suffer if its circumstances do not change."
For the purposes of the Animal Welfare Act, inspectors, who are one of the categories of those authorised to enter, have to be designated by the appropriate authority. Section 51 is the empowering provision. Mr Fullerton, on behalf of the Ms Fuller, stated that RSPCA inspectors are not designated under the Act and that appeared not to be contentious.
The material facts can be stated relatively briefly. On 1st August 2013 Ms Wesley Smith, an officer of the Tendring District Council applied for a warrant authorising her to enter premises at Manningtree in Essex if need be by force pursuant to the Environmental Protection Act 1990, the Animal Welfare Act 2006 and the Breeding of Dogs Act 1991. The warrant mistakenly designated the latter the 1999 Act. Indeed throughout the papers including Mr Jenkins' grounds and various skeleton arguments, the EPA is described as the 1999 Act but it is clear that the Act we are concerned with is the 1990 one.
The background information supporting the warrant stated that the Council's Environment Health team had been dealing with ongoing complaints about the premises since 2008. There were, at the date of the application, complaints concerning the condition of the animals within the premises, excessive barking from the dogs, odour emanating from the premises, accumulations of dog faeces within the premises and the breading of dogs within the premises and under the ownership of Ms Fuller and Mr Sheldrake.
The documents supporting the application stated that the council was unable to undertake a comprehensive assessment of the premises because officers had always been refused access. It was stated that Ms Fuller was extremely hostile to their officers. The document also stated that the purpose of trying to obtain a warrant:
"… is to enable us to ascertain whether there is a statutory nuisance emanating from the premises and to allow the council's animal welfare officer to assess the conditions of the dogs within the property and surrounding grounds within the assistance of a RSPCA officer and RSPCA appointed veterinary. It was stated that advising Ms Fuller and Mr Sheldrake the council's intention to enter the property and grounds would in the Council's opinion be detrimental to the case."
On the same day a Justice of the Peace issued a warrant to enter the premises "under the Environmental Protection Act 1990". The warrant stated that "it is necessary" that Ms Wesley Smith should enter the premises under that Act and that "it is apprehended that admission to the premises will be refused and an application for admission would defeat the object of the entry". The only reference in the warrant to the two other statutes referred to in the application is in the heading at the top of the warrant. But the words there are struck out in manuscript. The District Judge stated that the reference to those statutes "had been struck through by a legal adviser or magistrate indicating a refusal of the applications under those statutes."
The warrant was executed on 7th August 2013. Ms Wesley Smith attended the with PC Jane Thomas to execute the warrant. She was also joined by Ms Sage, another Council officer, and Mr Taylor a RSPCA inspector. Some of the information in these facts is from the claimants' statement of facts submitted with the application for judicial review. The summary of the evidence in those grounds of review states that Mr Taylor stated that he was invited onto land at 10.30 am by the police and council officers.
At some stage Mr Taylor telephoned Dr Natasha Bond, a veterinary surgeon, who attended and inspected the dogs. According to the summary in the grounds, in Police Constable Thomas' evidence she noted that the vet arrived at 1.00 pm, ie two-and-half hours after the commencement of the search. Dr Bond signed the certificate pursuant to section 18(5) of the Animal Welfare Act, which empowers an inspector or a constable to take a protected animal into possession if a veterinary surgeon certifies that it is suffering or likely to suffer if its circumstances do not change.
During the remainder of the day the dogs were removed from the premises to other boarding establishments (see paragraph 8 of the judgment). Their condition led to three charges of causing unnecessary suffering contrary to section 4 of the Animal Welfare Act and 10 charges of failing to take reasonable steps to ensure the needs of the dogs were met contrary to section 9. The section 9 charges related to a variety of problems including not providing a suitable diet or environment, failing to arrange veterinary care for a facial disease and confining the dogs to kennels for long periods.
The trial was heard over five days between 16 and 20 June. At the conclusion of the prosecution case the defendants' representatives submitted that the court should exercise its discretion under section 78 to refuse to allow evidence arising from the search of the premises as, having regard to all the circumstances, the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The basis of the defence submissions are summarised in paragraphs 13 to 19 of the District Judge's judgment. In a nutshell it was contended on behalf of the defendants that the search was commenced and proceeded with in breach of code B6.9 of the Police and Criminal Evidence Act, which states that:
"Premises may be searched only to the extent necessary to achieve the purpose of the search having regard to the size and...
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