Royal Society for The Prevention of Cruelty of Animals v Craige McCormick and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr DBE,Lord Justice Bean |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] EWHC 928 (Admin) |
| Date | 29 April 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/249/2016 |
[2016] EWHC 928 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mrs Justice Carr DBE
Case No: CO/249/2016
Mr Iain O'Donnell (instructed by Nash and Co) for the Appellant
Miss Sara-Lise Howe (instructed by Clive Rees & Assocs.) for the 1 st Respondent
Mr Nigel Weller ( Solicitor Advocate) for the 2nd Respondent
Mr Henry Spooner (instructed by Clive Rees & Assocs. for the 3rd Respondent
Mr Harry MacDonald (instructed by Boyle Leonard Solicitors) for the 4th Respondent
Miss Alecsandra Rees ( Solicitor Advocate) for the 5th Respondent
Hearing date: 21st April 2016
Introduction
This is an appeal by way of case stated following the ruling of District Judge Kevin Gray ("the District Judge") as to the meaning of " animal fighting" within s.8 of the Animal Welfare Act 2006 ("the Act") in the context of a prosecution by the Appellant ("the RSPCA") against various individuals said to be members of a group known as the "Devon Destroyers". The RSPCA is a private charity which, amongst other things, prosecutes animal welfare offences in England and Wales.
The five Respondents (originally alongside an additional two defendants) appeared at South and West Devon Magistrates' Court sitting at Newton Abbot on 12 th October 2015 charged with a total of 38 offences contrary to sections 4, 8 and 9 of the Act, and (as alternatives) contrary to section 3 of the Deer Act 1991 and section 1 of the Protection of Badgers Act 1992. Specifically, so far as the Act is concerned, the Respondents faced charges as follows:
a) Keeping and/or training a dog or dogs for use in connection with an animal fight contrary to section 8(1)(h) of the Act;
b) Causing an animal fight contrary to section 8(1)(a) of the Act;
c) Being present at an animal fight contrary to section 8(2) of the Act (Nathan Baker only).
The District Judge delivered his (reserved) ruling at the close of the prosecution case, it having been agreed by all parties that the question of interpretation arising went to the heart of the issues and affected questions of evidential admissibility. This was a most unusual case, in that there was no direct evidence of any of the activity alleged to have taken place, which was the subject of the offences under section 8 of the Act. Rather, the prosecution case rested on Facebook and mobile telephone messages and entries, together with photographs and items discovered upon the execution of search warrants. The course adopted by the District Judge was entirely appropriate as a matter of case management and procedure.
Again by agreement the District Judge gave his ruling by reference to the prosecution case taken at its highest. He ruled:
" My ruling is that to constitute "animal fighting" as defined in Section 8 of [the Act] the "protected animal" must be placed with the other "animal" in an environment where the ability of both and in particular the other "animal" to leave is restricted and controlled by some person or persons connected with that activity or by some artificial restraint. It is only when this occurs that it can be said that a protected animal is placed with an animal for the purpose of fighting as required by Section 8."
As a result of this ruling, the RSPCA elected to offer no evidence in relation to charges not brought under section 8 of the Act, on the basis that these were test prosecutions on the definition of " animal fighting". The District Judge went on to dismiss all of the charges under section 8 of the Act on 12 th November 2015.
The RSPCA seeks clarity of interpretation on the range of factual scenarios in which an animal fighting prosecution might be brought under section 8 of the Act. It emphasises that its intention is not to attempt to enlarge the ambit of the Act to encompass offences committed in the context of traditional (now illegal) hunting, but rather to ensure that it is able to prosecute in a range of factual circumstances where the purpose of the individuals involved is to procure a fight involving animals. As will be apparent from the summary of facts below, if the activities alleged did indeed occur, then they can only be seen as abhorrent and offensive to all right-thinking members of the public. If the District Judge's ruling is upheld, then the RSPCA intends to lobby for a legislative change to enable the prosecution of animal offences in a wider range of factual circumstances than the ruling permits.
To this end there are now two separate but overlapping questions framed for this Court as follows:
a) Was the District Judge correct in deciding that in order for an offence of animal fighting to be committed contrary to section 8 of the Act as defined by section 8(7) thereof, that the other animal, with which a protected animal is placed, has to be the subject of some control or restraint by some person or persons connected with that activity or some other artificial constraint so that its ability to escape is prevented? ("Question 1")
b) Was the District Judge correct in considering that the tenet of Section 8 of the Act is aimed at organised and controlled animal fights, such as dog fights, which invariably involve money? ("Question 2")
The assumed facts
As indicated above, the District Judge proceeded on the basis of the prosecution case at its highest, which can be summarised as follows: on the dates alleged in the charges (ranging between 2012 and 2014), one or more of the group would go into the countryside at night with one or more dogs (mainly lurchers or lurcher cross types) owned by them or in their charge seeking wild animals (namely deer, foxes, badgers and/or rabbits) in their natural environment. Their purpose was to set the dog or dogs on any wild animals found and for the dog or dogs to attack and kill. In some cases, particularly with deer, there would be a pursuit beforehand. When caught, the animal (except for rabbits) would fight to protect itself. This was, on the RSPCA's case "the animal fight". On occasion, in the case of deer, one of the Respondents might assist by cutting the deer's throat. On occasions, the dog or dogs suffered injury during the course of "the animal fight". One or more of the Respondents had raised the issue, on social media between them, of potentially digging out from its sett any badger found by the dogs, or roping any such badger and taking it to where the dog or dogs could attack it.
In written submissions, Mr O'Donnell for the RSPCA also submits it was the RSPCA's case that the Devon Destroyers created the scenarios within which their dogs and the wild animals they found were placed together to fight: first the Devon Destroyers attended locations where they knew or believed that they would locate the wild animals they sought, and secondly, documentary evidence was adduced that wild animals were moved from one location to another in order that they could then be " placed more discreetly with the dogs for the purpose of setting up the desired animal fight." It is right to record that these allegations are hotly contested.
The relevant legislation
Animal fighting has been outlawed since the Cruelty to Animals Act 1835. That act was repealed by the Cruelty to Animals Act 1849, which was amended and expanded by the Cruelty to Animals Act 1876. The Protection of Animals Act 1911 repealed the previous legislation and was amended by the Protection of Animals (Amendment) Act 1988 ("the 1911 Act"). The offence of causing an animal fight was there subsumed under the general heading of " offences of cruelty". Section 1(1)(c) made it an offence for any person to " cause, procure, or assist at the fighting or baiting of any animal; or [to] keep, use, manage, or act or assist in the management of, any premises or place for the purpose, or partly for the purpose of fighting or baiting any animal, or [to] permit any premises or place to be so kept, managed, or used, or [to]…receive, or cause or procure any person to receive, money for the admission of any person to such premises or place". Notably for present purposes, section 5A of the 1911 Act provided:
" Attendance at animal fights
A person who, without reasonable excuse, is present when animals are placed together for the purpose of their fighting with each other shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale."
The Act repealed, amongst other legislation, sections 1 to 3 and 5 to 5B of the 1911 Act. Section 8 of the Act replaces the offences under sections 1(1)(c), 5A and 5B of the 1911 Act. It provides materially as follows:
" Fighting etc
(1) A person commits an offence if he—
a) causes an animal fight to take place, or attempts to do so;
b) knowingly receives money for admission to an animal fight;
c) knowingly publicises a proposed animal fight;
d) provides information about an animal fight to another with the intention of enabling or encouraging attendance at the fight;
e) makes or accepts a bet on the outcome of an animal fight or on the likelihood of anything occurring or not occurring in the course of an animal fight;
f) takes part in an animal fight;
g) has in his possession anything designed or adapted for use in connection with an animal fight with the intention of its being so used;
h) keeps or trains an animal in connection with an animal fight;
i) Keeps any premises for use for an animal...
To continue reading
Request your trial