Full Case Name:  David Hopson v. Director of Public Prosecutions

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Country of Origin:  United Kingdom Court Name:  Queen's Bench Division (Crown Office List) Primary Citation:  [1997] C.O.D. 229 Date of Decision:  Tuesday, March 11, 1997 Judge Name:  Lord Justice Simon Brown Judges:  Simon Brown L.J.; Curtis J. Attorneys:  Miss T Bromley-Martin (instructed by Peters and Peters, London W1) for the Applicant. Mr C Morgan (instructed by the Crown Prosecution Service) for the Respondent. Docket Num:  CO/2293/96

The owner of a bird of prey had kept it in a wire aviary for at least six weeks, during which it had injured itself by repeatedly flying into the wire mesh. Having been convicted on these facts of an offence of cruelly ill-treating the bird contrary to the first limb of s 1(1)(a) of the Protection of Animals Act 1911, he appealed, contending that under that limb, unlike the second limb, he should only have been convicted if he was guilty of a positive act of deliberate cruelty. Dismissing the appeal, the Divisional Court held that a person could be guilty of cruel ill-treatment of an animal he was responsible for by allowing it to remain in a situation where it was continuing to injure itself, even if he did not desire to bring about the harm.

This is an appeal by way of case stated from the adjudication of the Norwich Crown Court consisting of Mr Recorder Daniel Worsley and Justices, on 28th June 1996, following a two-day hearing, dismissing the appellant's appeal against his earlier conviction by the North Norfolk Justices on 29th February 1996 upon an information against him under s.1(1)(a) of the Protection of Animals Act 1911. That section, under the heading "cruelty", provides:

"(1) If any person
(a) shall cruelly beat, kick, ill-treat, over-ride, over-drive, over-load, torture, infuriate, or terrify any animal, or shall cause or procure or, being the owner, permit any animal to be so used, or shall by wantonly or unreasonably doing or omitting to do any act, or causing or procuring the commission or omission of any act, cause any unnecessary suffering, or being the owner, permit any unnecessary suffering to be so caused to any animal; .... such person shall be guilty of an offence of cruelty within the meaning of this Act  ... and shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine ...
or both."

Amongst the salient facts found by the Crown Court were these. The appellant is a licenced zoo-keeper. He  is a man in his sixties, interested in birds of prey for over 50 years. He is now the owner of
The East Anglian Falconry Centre, a sanctuary for such birds which is open to the public.

On 13th February 1995 police officers with inspectors from the Department of the Environment and the RSPCA, together with a veterinary surgeon, Mr Forbes, who specialises in birds, particularly falcons and hawks, attended that centre with a warrant to inspect the appellant's aviaries. The aviaries had been refurbished and contained the appellant's collection of over 150 birds of prey.

Upon the inspection there was found a juvenile, male kestrel with an open wound consisting of a bloody cere, the area behind the top of the upper beak, with  raised inflammation beneath.  That had been caused by the bird flying repeatedly into the side of its cage for the last six or eight weeks. That, the court found, was something which the appellant knew was happening. He was not, they accepted, deliberately or wilfully maltreating the bird, but he had too many birds to care for properly. The court found that he was:

"Very seriously misguided in keeping the juvenile kestrel in that cage when it was repeatedly and obviously and to his knowledge harming itself in this way."

The court further found that there were other suitable types of aviary which could have coped with the bird's problem, two in particular, one with soft netting inside the wire and another with solid sides known as "an obtrusion skylight aviary", although the court accepted that different bird people (could) have different views on the effectiveness of other types of aviary for such a problem. All of this was in line with the evidence given by Mr Forbes to the court.

The final important finding of fact by the court was that:

"In any event, as a last resort, a bird such as this could be put down." 

The information which had been laid against the appellant was that:

"Between 1st January 1995 and 14th February 1995 at Kelling, Norfolk, he did cruelly ill-treat an animal, namely a juvenile male kestrel contrary to section 1(1)(a) of the 1911 Act."

I should perhaps note in passing that there were two additional informations laid against him.  Since, however, neither of those are the subject of this appeal, I need say no more about them.

The essence of the appellant's case before the Crown Court was that for an offence to be committed under section 1(1)(a) or, at any rate, under the first limb of that provision (the limb here charged), there had to be proved a positive act of deliberate and wilful cruelty. Here, it was submitted, on the Justices' findings of fact, based as they were squarely upon Mr Forbes' evidence, that was not the case.  The Recorder expressed the opinion that as a matter of law:

"If one chose to keep a wild animal in captivity and ... it was repeatedly injuring itself, there could be cruel ill-treatment by keeping it in the state in which it was injuring itself."

And that:

"There could be cruel ill-treatment without positive deliberate intention."

In arriving at its final conclusion the court, in the light of that opinion, asked itself this question:

"Are we sure on the evidence that, by keeping this particular bird, in this way, in this cage, over a period of not less than 6 weeks whilst it was traumatising itself in this way and flying repeatedly into the netting, was the Appellant, who it is not disputed had control of the bird, cruelly ill-treating it."

That question it then answered in the affirmative. Hence this appeal on which the central question posed for the opinion of this court is this:

"Was the Crown Court correct in finding that as a matter of law there can be an offence of cruelly ill-treating under the provisions of Section 1(1)(a) of the Protection of Animals Act 1911 where there is no deliberate or wilful ill-treating?"

In her helpful and able submissions on behalf of the appellant, Miss Bromley-Martin submits that the court was not entitled, as a matter of law, to reach the conclusion it did. She recognises, as she has little alternative but to recognise, that her case would have been altogether weaker had the appellant been charged under the second limb of section 1(1)(a), namely with doing or omitting to do an act which caused unreasonable suffering to this bird. Although not accepting that what the appellant had done or failed to do was to be regarded as unreasonable, she acknowledged that it would have been altogether more difficult to dispute the Crown Court's entitlement to reach an adverse conclusion upon that issue than with regard to the charge as actually laid. The essence of her argument is that, by contrast, the offence here charged of cruel ill-treatment under the first limb requires, as that second limb would not,  more in the way of moral opprobrium, more in the way of mens rea, more in the way of deliberate cruelty.

A number of authorities were drawn to our attention. Amongst them were Lewis v. Fermor [1887] QB 532, Bernard v. Evans [1925] 2 KB 794 and Duncan v. Pope [1889] 80 LT 120. Miss Bromley-Martin rightly recognises, however, that none directly addresses the factual situation which arose here and accepts that the law remains unclear as to the precise requirement for wilful acts of cruelty under this provision. She seeks to derive some support from the New Zealand legislation in this field, pointing to the statutory definition of the word 'cruelty' there as meaning:

"the wilful infliction upon the animal of pain or suffering that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary ...".

It seems to me however that that legislation begs rather than answers the question arising here namely whether, without the benefit of any equivalent provisions, our law is to be interpreted in the same way.

Had this offence been charged under the second limb of section 1(1)(a), two things are to my mind, clear. First, there could have been no possible answer to it: on any conceivable view the court would have been well  entitled to regard the appellant's conduct which caused this bird's unnecessary suffering as unreasonable. Secondly, such an offence under the second limb is properly to be regarded as an offence of cruelty, that being both the title to the subsection and also the description of the offence of which a person so acting is guilty.  The section provides that they:

"shall be guilty of an offence of cruelty within with meaning of this Act."

The question arising is whether that selfsame conduct is properly capable of sustaining a conviction also under the first limb upon a charge of cruel ill-treatment. In my judgment, it is. It is plain from consideration of this provision that there is a good deal of overlap between the various terms used in section 1(1)(a) and that the selfsame conduct could generally be charged (depending always on the circumstances) in more than one way.

I, for my part, accept that the offence committed here would have been more appropriately charged under the second limb, but I nevertheless conclude that it was capable of being charged and sustained also under the first limb. In my judgment, there is no need to establish that the appellant desired to bring about this bird's harm in order for him to be guilty of cruel ill-treatment. What he did in the way of allowing it continuously over a period of not less than six weeks to injure itself in this manner was indeed a sufficient basis for a finding of guilt under this provision. He may well have thought that there was no better sort of cage in which it could have been kept. If so, then, as the Crown Court pointed out, he should have the bird put down. The one thing that should not have been allowed to happen which in my view objectively constituted the offence of cruel ill-treatment was to allow this bird, for six weeks, to traumatise itself by repeatedly flying into the netting and thus creating this open wound.

I think it unnecessary, for present purposes, to consider in detail any of the authorities put before us. I merely note in passing the dictum of Shearman J in Bernard v. Evans that:

"I do not think that it [cruel, ill-treatment] can be better defined than as causing unnecessary suffering."

I do not suggest that that is to be regarded as a sufficient and comprehensive statement of the legal position in this field but undoubtedly, to my mind, it lends support to the view of the law taken by the Crown Court which, to my mind, was correct.

For the sake of completeness I ought just to note that the case stated poses two additional questions for the opinion of this court. One of them is, rightly recognised by Miss Bromley-Martin to be, in effect, subsumed within the central question to which I have already referred.  I need not read it. The other reads thus:

"Was the Court correct in holding that the decisions of law on the submission of no case to answer were for both the Recorder and the Justices?"

That question appears to have been prompted by the Recorder's observation during the hearing that the submission of no case to answer "including questions of law were for the whole court". It is perfectly apparent, however, from paragraph 26 of the case stated that the matter was approached entirely correctly. Paragraph 26 says this:

"At the close of the submission my view on the legal questions was as set out [he there refers to paragraphs in which his opinion is expressed as to the legal principles in play].  I expressed that view to the Justices.  They agreed and accepted it. We acted accordingly, rejecting the submission of no case, and in due course dismissing the appeal on the first information."

Miss Bromley-Martin rightly recognises that in the event the matter was correctly dealt with. It is of course for the Judge or Recorder to advise on any issue properly described as a point of law and then for the Judge or Recorder, together with the Justices, to reach a decision on the facts within the framework of the law as that has been explained to the Justices by the Recorder or Judge. That evidently occurred here. It follows that, in my judgment, the questions posed are all to be answered in the affirmative. The court was correct in respect of each of the matters raised. As a result, I, for my part, would dismiss this appeal.

[Mr Justice Curtis expressed his agreement with the judgment of Lord Justice Simon Brown.]

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