Full Case Name:  Chalmers v. Diwell

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Country of Origin:  United Kingdom Court Name:  Queen's Bench Division Primary Citation:  74 LGR 173 Date of Decision:  Wednesday, October 8, 1975 Judge Name:  Lawson J. Judges:  Lord Widgery C.J. Lawson J. O'Connor J. Attorneys:  Counsel: Robert Meikle for the prosecutor; Daniel Robins for the defendant. Solicitors: K.M. Chalmers (Sittingbourne) for the prosecutor; Carter & Co. (Sittingbourne) for the defendant.

Defendant was an exporter of pet birds. He kept birds at a premises in the course of his business. Usually the birds remained on the premises for less than 48 hours before continuing their journey to their purchasers but on occasion birds had remained on the premises for up to 12 days. A magistrates' court acquitted him of keeping a pet shop without a licence (contrary to Pet Animals Act 1951, s.1). Prosecutor appealed. Result: appeal allowed. Held: even though the premises was being used as no more than a holding center, the defendant was carrying on from that premises a business of selling pets and the premises therefore required a pet shop license.

This is a case stated by justices for the petty sessional division of Sittingbourne in relation to an information preferred on 4 December 1974 by the prosecutor against the defendant, Mr Diwell. The information alleged that he kept certain premises known as 44 Larkfield Avenue, Milton Regis, Sittingbourne in the County of Kent as a pet shop without the authority of a licence granted by the local authority, the Swale District Council, contrary to section 1 of the Pet Animals Act 1951.

The offence created by section 1 of that Act is: "No person shall keep a pet shop except under the authority of a licence granted in accordance with the provisions of this Act."

The justices heard evidence and after argument formed the opinion that the defendant was not operating a pet shop, and accordingly the information was dismissed.

The question which is stated for the opinion of this court is

"whether on the evidence and on legal argument the defendant was operating a pet shop within the terms of sections 1 and 7 of the Pet Animals Act 1951, and accordingly whether or not a licence should properly have been applied for."

It is to be noted that the question does not in fact recite what the offence is. It is not operating a pet shop, and it may well be that the justices misled themselves by looking at the question whether a shop was being operated rather than the question of whether a shop was being kept.

The facts as found can be summarised in this way. The defendant carries on a business from premises at 44 Larkfield Avenue, Sittingbourne, and has carried on that business since September 1972. Amongst the activities he carries on at those premises is the business of exporting pet birds to buyers overseas, he having either bought the birds from a dealer to resell to a specific purchaser, or acting as agent for dealers in the United Kingdom who are desirous of selling pet birds of the parrot family overseas.

It is important in these findings of fact that the birds involved in these transactions, whether transactions as principal or as agent on the part of
the defendant were usually kept on the premises for 48 hours or less, but on occasions for a number of days, and in relation to a particular consignment which was made from the premises on 11 June 1974, 86 parrots had been kept on the premises for 12 days.

They found that the defendant did not sell birds to members of the public coming to the premises; nor, save on certain occasions which are not relevant for the purposes of this appeal, did he normally keep a stock of birds on the premises.

The submissions made by the parties are recited in the case, and it is not necessary for the purposes of this judgment to refer to them.

The relevant question really turns upon the meaning of the interpretation section, section 7(1), the first and relevant part of which reads:

"References in this Act to the keeping of a pet shop shall, subject to the following provisions"

and the following provisions do not contain anything which is relevant in the present case --

"be construed as references to the carrying on at premises of any nature (including a private dwelling) of a business of selling animals as pets, and as including references to the keeping of animals in any such premises as aforesaid with a view to their being sold in the course of such a business, whether by the keeper thereof or by any other person".

In my judgment on the facts found by the justices it is quite clear that the defendant here is in fact carrying on a business of selling animals and pets. He is in fact keeping those pets on the premises for the purposes of his business, even though it be for a limited time. In the circumstances I do not find it necessary to consider the submission as to whether the two separate parts to subsection (1) until one comes to the proviso should be construed conjunctively or disjunctively. Also we are not concerned in this case with what would be the situation were somebody carrying on a business of selling animals as pets from premises but not at any stage having those pets upon those premises. That is a matter which will have to be decided when the factual situation raises the question.

In my judgment therefore the justices were wrong in their decision and the case should be remitted to them with the appropriate direction that the offence should be found to be proved, and they should proceed from that point onwards.

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