Christopher Shepherd V. Procurator Fiscal, Dornoch
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Mackay of Drumadoon,Lady Paton |
| Neutral Citation | [2010] HCJAC 114 |
| Court | High Court of Justiciary |
| Docket Number | XJ1700/05; |
| Published date | 15 November 2010 |
| Date | 12 November 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Mackay of Drumadoon | [2010] HCJAC 114 Appeal Nos: XJ1700/05; XM16/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the petition to the nobile officium and bill of suspension by CHRISTOPHER SHEPHERD Petitioner; against PROCURATOR FISCAL, DORNOCH Respondent: _______ |
Appellant: Shead et MC Mackenzie; Drummond Miller WS (for Anderson Macarthur, Portree)
Respondent: Brodie QC, AD; the Crown Agent
12 November 2010
1. Initial Procedure
[1] On 10 November 2003, at Dornoch Sheriff Court, the petitioner was convicted of two charges prosecuted on summary complaint in respect of conduct occurring at his croft in Strathnaver in April 2001. The first was a contravention of sub-sections 1(1)(a) and (2) of the Protection of Animals (Scotland) Act 1912 whereby, as owner of a flock of sheep, the petitioner had caused a number of the sheep unnecessary suffering. Specifically, he had wantonly or unreasonably failed to provide adequate and sufficient feeding, supervision and sufficient veterinary care for the sheep whereby they became malnourished and emaciated and suffered from skin infestation or infection. The second was a contravention of article 5(1)(c) of the Animal By-Products Order 1999 and sections 1, 8(1) and 73 of the Animal Health Act 1981 by unduly delaying to dispose of a number of sheep carcasses, which lay unburied on open ground to which other animals and birds had access.
[2] On 8 December 2003, the Sheriff sentenced the petitioner to three months imprisonment on charge (1) and imposed a fine of £1,000 on charge (2) payable at £10 per week. A manuscript addition to the Minute records that: "The Court imposed the alternative period of imprisonment of 28 days in default of payment". The petitioner was also disqualified from keeping animals for ten years. Since the sentence imposed upon this summary matter occurred over seven years ago, an explanation for the passage of time which has now elapsed is undoubtedly called for.
[3] On the same day as the sentence was imposed, the petitioner's then law agent applied for a stated case. The matters which the petitioner wished to bring under review were handwritten as follows:
"(a) conviction charge 1 in respect that no evidence to support mens rea separatim evidence not sufficient to allow any court properly instructed to make a finding of fact that beyond reasonable doubt there was no reason to fail to provide feeding and veterinary attention.
b) conviction charge 2 in respect that there was insufficient evidence to convict or establish mens rea given that because of foot and mouth restrictions the appellant was unable to bury the animals et separatim had a reasonable excuse for not doing so.
c) sentence charge 1 (i) appellant has never before been sentenced to imprisonment and prison is not the only method of imposing sentence.
(ii) the sentence of 3 months is half the statutory maximum and the offence affected only some of the appellants animals and only due to the pressures of the foot and mouth restrictions
d) sentence charge 2 is excessive considering the number of animals and the foot and mouth restrictions that prevented the animals being buried et separatim the imposition of the alternative of imprisonment was not justified".
The application also sought interim liberation pending the appeal. This was granted by the High Court on 12 December 2003.
[4] On 31 December 2003, the petitioner's new law agent advised the Sheriff that a stated case would not be required as the petitioner intended to proceed by way of Bill of Suspension. The Sheriff accordingly returned his papers to the process. No Bill was presented. On 19 July 2004 an incidental application was presented by the respondent under section 134 of the Criminal Procedure (Scotland) Act 1995 to treat the appeal as abandoned. This application, together with the relevant warrant to arrest the petitioner, was granted on 21 July 2004 by a different sheriff. This appears to have caused a flurry of activity with the petitioner's agent explaining to the original sheriff that he had not after all intended to abandon his application for a stated case, even though the time for lodging such a case had long since expired. Rather, he had been advised by counsel that he should proceed by way of stated case and not by Bill of Suspension. The Sheriff agreed to state a case, notwithstanding the expiry of the statutory periods. He issued his draft on 17 February 2005 (i.e. over a year after the conviction). The respondent then lodged a Bill of Advocation complaining that the Sheriff's action, in issuing a draft outwith the statutory time period of three weeks set down in section 178(1) of the 1995 Act, was incompetent. Meantime, the Stated Case was adjusted and issued in final form on 11 April 2005.
2. The Stated Case
[5] In its final form, what was a very detailed stated case narrated a background whereby, between February and April 2001, the petitioner owned a flock of some 128 sheep. These were due to be culled, because of the foot and mouth disease outbreak, on 18 and 19 April 2001. When the slaughtermen arrived, a large number of the flock were seen to be malnourished and emaciated. Some were unable to stand. Most were classified, on a formal body count, as extremely thin and this had been caused by malnourishment and parasites. Notwithstanding the skin condition of the sheep, the appellant had not sought any veterinary advice or treatment. Rather he had treated a few sheep each day with "spot-on" for lice. This treatment was inadequate. The appellant did not provide the sheep with adequate supplemental feeding. The sheep had to compete with cattle for food at a ring-feeder. Several sheep were killed by the cattle in this competition. The feeding was in deep muddy ground rather than in troughs of concentrate on fresh ground. The Sheriff's findings in fact concluded:
"(9) The failure by the Appellant to provide adequate and sufficient feeding and supervision of said flock and his failure to provide veterinary attention was wanton and unreasonable.
(10) A large number of sheep carcasses were left unburied. One dozen had been killed by the cattle at the ring-feeder three to four days before the cull on 18 and 19 April. A further ten were left near the steading. Eighty four carcasses ranging from fresh to very old amounting to bones and wool were found by Mr [GC] on 18, 19 and 20 April throughout [the appellant's croft].
(11) These carcasses were of sheep owned by the Appellant and were not disposed of by the Appellant without undue delay. The majority of the carcasses would have been seen by a shepherd exercising reasonable animal husbandry".
The stated case posed three questions:
"1. Was I entitled to make finding-in-fact 9?.
2. Was I entitled to make finding-in-fact 11?
3. Were the sentences I imposed excessive?"
The state of the petitioner's flock had been described to the Sheriff by a very large number of witnesses, including: (i) two slaughtermen, who had been contracted to carry out the cull; (ii) at least two Animal Health Officers (AHOs) with the Department of Food and Rural Affairs, who had attended the cull; (iii) two AHOs, including Mr [GC] from Highland Council, who had also been at the cull; (iv) two AHOs from the Department of Agriculture, one of whom was also a vet and who had also been at the cull; and (v) an auctioneer and valuer, in attendance at the cull too. They all spoke to the flock being in what can only be described as an appalling condition and to the many carcasses lying on the petitioner's land at the time of the cull. A further AHO with the Council spoke to cautioning and interviewing the petitioner in July 2001, when he described the level of care which he had provided to the sheep.
[6] The petitioner had given evidence, stating that he was not working at the time of the trial and had been made bankrupt. He had accepted the presence of many dead sheep on his croft but made a number of excuses for their existence. He explained that he had experienced difficulties in obtaining concentrates for feed, but accepted that he had not obtained advice from the local vets, one of whom also gave evidence. The Sheriff reasoned as follows:
"I felt that the evidence submitted in respect of charge 1 by the Crown was overwhelming. I was impressed by the witnesses presented to me by the Crown who gave clear and unequivocal evidence regarding charge 1. I simply did not believe what the Appellant told me. His primary concern was the cattle and examination for foot and mouth disease. He did not handle the sheep and was not therefore able to comment on their body score...
Similarly I considered that the Crown had proved beyond reasonable doubt charge 2... Again I found the evidence of the prosecution witnesses very impressive and simply did not believe the Appellant. I found his explanation for the number of carcasses lying around, namely that neighbours with a grudge had dug up graves on his farm and littered his croft with carcasses simply so far fetched as to be totally unbelievable... ".
[7] In relation to sentence, the petitioner had two previous convictions, both dated 8 August 1997, for contraventions of sub-section 1(1) of the Dogs (Protection of Livestock) Act 1953. It had been explained to the Sheriff that the petitioner's financial position was very uncertain given his sequestration. Nevertheless, he was said to be in a position to pay a restricted fine. He was also in a position to perform community service. However, having considered the terms of the Social Enquiry Report, the Sheriff considered that there was no alternative to a custodial sentence on the first charge. He stated:
"The state of the sheep which had been brought about by the Appellant's lack of husbandry was appalling and I did not feel that any other punishment was appropriate...In respect of the second charge I again felt that...
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William Beggs V. Her Majesty's Advocate
... ... Reference was also made to Shepherd v Procurator Fiscal, Dornoch (17 March 2011, unreported) ... ...