Queen's Bench Division (Divisional Court)
Rowley v. Murphy
United Kingdom: England & Wales
 2 QB 43
A deer being hunted with a pack of hounds jumped onto a road and fell under a stationery vehicle. Members of the hunt dragged the deer from under the vehicle to a nearby enclosure, whereupon the Master of the hunt slit the deer's throat and killed it. Local justices acquitted the master of an offence of cruelty under the Protection of Animals Act 1911 because the deer had not been a captive animal at the time it had been killed. The Divisional Court dismissed the prosecutor's appeal, holding that, for the purposes of the 1911 Act, a mere temporary inability to escape did not amount to a state of captivity, and that something more than mere captivity, some period of time during which acts of dominion are exercised over the animal, is necessary before the animal can be said to be in a state of captivity.
Opinion of the Court:
Lord Parker, Chief Justice:
[After stating the facts, the learned judge continued:] The suggestion of the prosecution was that the method of killing was such as cruelly terrified the stag. Let me say at once, because feelings sometimes run high on these matters, that this court is in no way concerned whether what was done was cruel or not. The sole question is whether this stag, in all the circumstances, came within the protection of the Protection of Animals Act 1911.
That Act provides by section 1 (1) that "If any person - (a) shall cruelly ... terrify any animal, ... such person shall be guilty of an offence. ..." "Any animal" is defined by section 15 (a) of the Act of 1911 as meaning "any domestic or captive animal." There is no question but that this wild stag was not a domestic animal, and the only question is whether it was a captive animal. Section 15 (c) goes on to define a "captive animal" as meaning "any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any bird, fish, or reptile, which is in captivity, or confinement. ..." The sole question therefore, is whether, in the circumstances of this case, the stag, once it had fallen and was being dragged into and kept in the enclosure, was in captivity or confinement.
For myself, I have found this by no means an easy question. What the difference between captivity and confinement is no one has been able to say. Confinement, no doubt, contemplates some outside barrier confining the animal, while captivity may or may not mean much the same. It is argued by Mr. Wrightson, for the prosecution, that an animal is in captivity from the moment when it is captured. I confess that at first blush there is a good deal to be said for that argument. It has, at any rate, the virtue of simplicity, that you just look and see. Were hands laid on this animal and was it being kept from escaping, for however short a time? If so, then it was in captivity. On the other hand, it is maintained by Mr. McCreery, for the defendant, that "in captivity" denotes a state of affairs in which dominion is exercised over an animal beyond mere capture.
In favour of Mr. Wrightson's argument, I personally would attach importance to two matters. The first is that in the further definition of "captive animal" in section 15 (c) of the Act of 1911, these words occur: "... or which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement." It seems to me that those words are capable of dealing with the position of a wild animal which is captured and is then maimed or pinioned, etc., to prevent it from escaping from the capture; in other words, "captivity" in that context looks as if it is referring to mere capture.
Again, even if an animal is a captive animal, there is an exception in regard to coursing or hunting. That exception is to be found in section 1 (3) (b) of the Act, which provides that: "Nothing in this section ... shall apply ... to the coursing or hunting of any captive animal, unless such animal is liberated in an injured, mutilated, or exhausted condition; but a captive animal shall not, for the purposes of this section, be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or hunted, or after it has been recaptured, or if it is under control." It is to be noted there that the exception ceases to apply in the case of a captive animal when it is recaptured; in other words, Parliament is using "recapture" as signifying the state when the animal is again in captivity. Those, as it seems to me, are powerful arguments in favour of Mr. Wrightson's submission.
So far as the cases are concerned, there is really no case to which this court has been referred which is of any real assistance. Steele v. Rogers (1912) 28 T.L.R. 198; 106 L.T. 79 concerned whales which were stranded on the foreshore and were surrounded by a crowd of people. One was cut with a knife by a member of the crowd. The crowd exercised no acts of dominion over the whale and its inability to get away was in no sense due to the crowd, but due to the fact that it was stranded above the waterline. In that case Pickford J. said: "I think 'in captivity or close confinement' means something more than merely temporarily being unable to get away from the spot upon which they are."
The question here, however, is whether something more than capture, in other words, some further acts of dominion, are necessary before it can be said that the animal is in captivity.
Mr. McCreery, for the defendant, invokes the history of the matter, and, in particular, the Wild Animals in Captivity Protection Act, 1900. By the earlier Acts of 1849, and 1854, domestic animals came under protection, and the Act of 1900 for the first time dealt with wild animals, whether they were birds, beasts, fishes or reptiles. Section 2 of the Act of 1900 provides:
"Any person shall be guilty of an offence who, whilst an animal is in captivity or close confinement, or is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from such captivity or confinement, shall, by wantonly or unreasonably doing or omitting any act, - cause or permit to be caused any unnecessary suffering to such animal; or cruelly abuse, infuriate, tease, or terrify it, or permit it to be so treated."
It seems to me that certainly when one looks at the title to that Act, namely, an Act for the Prevention of Cruelty to Wild Animals in Captivity, the natural meaning is that the Act applies to animals who are reduced to a state of captivity in the ordinary sense of the word or to a state where there is something more than mere capture.
It is to be observed that section 15 of the Act of 1911 follows exactly the words of section 2 of the Act of 1900 in regard to its definition of "captive animal" save only that the words "close confinement" in the Act of 1900 have become merely "confinement." To that extent, there has been a change in the meaning. If, however, I am right in thinking that the Act of 1900 is clearly referring to something more than a merely captive animal, but to an animal reduced to a state of captivity in consequence of some further act or acts of domination, then it would seem that there is no reason to give the words in section 15 of the Act of 1911 any different meaning.
As I have said, I think it is a matter of difficulty. I think that, looking at section 15 of the Act of 1911 alone, I should uphold Mr. Wrightson's submission; but bearing in mind the history of this matter, and in particular the Act of 1900, I think that, on the whole, just as in Steele v. Rogers, a mere temporary inability to get away did not amount to a state of captivity, so here something more than mere captivity, some period of time during which acts of dominion are exercised over the animal, is necessary before the animal can be said to be in a state of captivity.
I would only add that, if the true view be that the words are ambiguous, then this section being a penal one must be strictly construed in favour of the defendant. On the whole, though not without some difficulty, I have come to the conclusion that the justices were right and this appeal should be dismissed.
Mr Justice WINN:
I agree with the conclusion that Lord Parker C.J. has proposed and, in particular, I agree with the reason that he has given that mere captivity is not to be equated with the expression "in captivity." The mere fact that an animal has been captured does not by itself make that animal one which is in captivity. I would add that I myself think that the words "which is in captivity," in section 15 of the Act of 1911 and the words which occur after the intermediate phrase "or confinement" point to a state of captivity not necessarily still continuing. When I look at the provision in section 1 (3) (b) of the Act, it seems to me that it is impossible to say that "any captive animal" in that context has the same meaning as "an animal which is in captivity" in the ordinary sense of those words. Ex hypothesi, an animal which is being hunted is not then a captive; at that moment no one has hands upon it or ropes upon it or is in a position physically to restrain its movement. If then, it is impossible to read the words "any captive animal" in section 1 (3) (b) as meaning an animal which is then captive or in a state of restraint arising from captivity, it seems to me that, construing the Act as a whole and having regard to the history of the legislation and, in particular, to the title and scope of the Act of 1900 to which Lord Parker C.J. has made reference, a clear distinction is drawn between "in captivity" meaning a state of captivity and the fact of being a captive, i.e., subject temporarily to restraint by human beings.
In my judgment, the meaning of the words "any captive animal" in section 1 (3) (b) is any animal which has been subjected to but subsequently released from a state of captivity. I agree with what Lord Parker C.J. has said about the meaning of "state of captivity" for the purposes of this Act. I would dismiss this appeal.
Mr Justice FENTON ATKINSON:
During the course of the argument it seemed to me that there was very much to be said for the view that, once a wild animal had been captured it was in captivity on the plain meaning of the word and did not cease to be in captivity at that stage because the captor did not intend to keep it in captivity for any length of time but, in fact, intended to kill it. However, in the result, for the reasons given by Lord Parker C.J., I agree that this appeal fails.