Animal - Protection - Cruelty

James v Royal Society for the Prevention of Cruelty to Animals [2011] All ER (D) 15 (Jul), [2011] EWHC 1642 (Admin)

The appellant pleaded guilty to three charges of causing unnecessary suffering to protected animals.

The charges related to three horses which were found to have been living in atrocious conditions.

The unchallenged facts were that a veterinary surgeon went to the stables where the horses were found at the request of the respondent Royal Society for the Prevention of Cruelty to Animals (RSPCA).

She examined the horses, said that they were suffering and in need of veterinary attention.

As a result, a police officer, who also had been requested to attend the stables by the RSPCA, assumed responsibility for the horses, and they were later cared for by the RSPCA.

In May 2010, the appellant was sentenced on each charge to a community order with supervision and unpaid work requirements.

Orders were also made depriving her of her ownership of three horses, and disqualifying her from keeping, dealing in and controlling horses for an unlimited period. She was also ordered to pay what was described as the 'costs' of the prosecutor, the RSPCA, in the sum of £38,644.

The justices were satisfied that it was inappropriate to make a collection order given the large amount and the RSPCA's intention to enforce the order for 'costs' as a civil debt.

The appellant appealed against her sentence and the order for 'costs'. She contended that the veterinary surgeon's certificate that the horses were suffering had not been in writing and that only a certification in writing amounted to a sufficient certification for the purposes of s 18(5) of the Animal Welfare Act 2006 (the 2006 Act).

The judge dismissed her appeal holding that oral opinion had been sufficient certification for the purposes of the 2006 Act.

The crown court accepted that the appellant was not in a position to pay the sum of £38,664 in the foreseeable future. However it was told by the RSPCA that she had a substantial equitable interest in a property which might satisfy that sum, and that it was only if her equity in that property became available that the debt would be enforced as a civil debt.

The appellant appealed by way of case stated against the dismissal by the crown court of her appeal against the order for 'costs'.

The questions that the court was required to give consideration to were: (i) whether it was lawful under s 18(5) of the 2006 Act for an inspector or constable to take a protected animal into his possession if a veterinary surgeon present at the scene stated orally that the animal was suffering; and (ii) whether it was appropriate to make an order for costs without a collection order, when the court accepted that a defendant could not satisfy such an order within a period of time certain, but might be able to satisfy such an order at some time in the future, such order being enforceable in the civil jurisdiction.

The court held:(1) The aim of the 1996 Act was to promote animal welfare. That was achieved, in part, by preventing, or at least reducing, animal suffering. Section 18(5) of the 2006 Act did not require the certification to be in writing, and in the circumstances the seizure and detention of the appellant's horses had been lawful (see [8], [10] of the judgment).

(2) Orders for the payment of costs and reimbursement of expenses should not have been made for amounts which a defendant was unable to pay.

However, there was no reason why a defendant should be treated as unable to pay such amounts if there was a real basis for saying that there could well come a time when he or she was able to pay such amounts.

If there came a time when a defendant could pay the amounts for costs and the reimbursement of expenses which the court thought appropriate, and if the court thought that it was an appropriate case for that possibility to be hanging over the defendant until such time as the court realistically thought that the defendant would have the resources to pay the sums awarded, then it would be unfair for the prosecutor to be denied recovering those amounts.

The critical fact to remember was that once a collection order had not been made, the order was enforceable as a civil debt. If an attempt was made to enforce such a debt in the county court, the county court had the power to stay its enforcement.

No doubt the county court would exercise that power if (a) an attempt to enforce the debt was made at time when the defendant did not have the means to pay it; and (b) the debt arose from an order made by a criminal court and was enforceable as a civil debt because the criminal court took the view that it should not be enforced while the defendant did not have the means to pay it from the realisation of those assets which the crown court had identified as assets which might be capable of being realised to pay the amounts ordered (see [16]-[17] of the judgment).

In the circumstances, the court held that it was appropriate to make an order for costs without a collection order, when the court accepted that a defendant could not satisfy such an order within a period of time certain, but might be able to satisfy such an order at some time in the future, such order being enforceable in the civil jurisdiction (see [19] of the judgment).

In the instant case, the crown court concluded, in light of evidence about her means, that the applicant had an equitable interest in a property.

If the house was not sold, the appellant would not be able to realise the equitable interest, but if the house was sold, she would have an equitable interest in half of the net proceeds of sale, and it would be for the county court to decide whether it was appropriate for the debt to be enforced in those circumstances.

The question posed was in the abstract.

It did not relate to the appellant and the question which the crown court had to consider whether it was appropriate for the possibility of her having to pay those sums to be hanging over her head until the crown court realistically thought that she would have the resources to pay them.

It followed that the instant case had to be remitted to the crown court for that issue to be considered (see [18]-[19] of the judgment).

R v Associated Octel Co Ltd (costs) [1997] 1 Cr App Rep (S) 435 considered; Balshaw v Crown Prosecution Service [2009] All ER (D) 184 (Mar) considered.

John Edwards (instructed by O'Garra's) for the appellant. John Boumphrey (instructed by MBS Solicitors) for the respondent.