The appellant was a keeper of livestock who had shot and injured a neighbor's dog that had strayed into the appellant's pig pen. He had been convicted of doing an act causing unnecessary suffering to the dog contrary to the Protection of Animals Act 1911, s 1(1)(a) (second limb). Dismissing the appeal, the Divisional Court held that the local justices were entitled to find as a matter of fact that it had not been reasonably necessary to shoot the dog.
Mr Justice Gage:
This is an appeal by way of case stated by the Appellant against a conviction of him by Justices sitting for the Petty Sessional Division Chichester on 17 February 1997 of an offence of causing unnecessary suffering to a dog. The offence charged was of "wantonly or unreasonably doing a certain act, namely discharging a firearm so as to cause unnecessary suffering to the dog contrary to Section 1(1) of the Protection of Animals Act 1911." For that offence he was fined the sum of £300 and ordered to pay costs of £120.
The facts are set out in the Case. So far as they are relevant for the purposes of this appeal they are as follows. The Appellant, Mark Isted, lives at premises in Linchmere in Sussex. On his property, at the material time, he kept pigs, fowl and other livestock. On a property, separated from the Appellant's property by a five-acre field, lived Mrs Ewen. Over the years Mrs Ewen kept on her property a number of dogs. At the time of this alleged offence one of the dogs kept by Mrs Ewen was a young cross-breed labrador retriever bitch called Lily. For some time before the alleged offence Mrs Ewen's dogs had roamed freely on her property and from time to time strayed onto the Appellant's property. This propensity of Mrs Ewen's dogs to stray onto the Appellant's property had been the subject of some disagreements between the two of them. On one occasion, the date of which is not specified in the Case, the Appellant had fired his shotgun over the head of Lily in order to frighten her off his property. In addition, the Appellant had complained to the local Dog Control Officer about sheep worrying incidents. The Justices found that there was no evidence to implicate any of Mrs Ewen's dogs in those incidents. On an occasion, some two weeks before the incident the subject of the alleged offence, the Appellant's lodger, Jason Parker, found Lily chasing geese on the Appellant's land. He shouted at the dog and she fled.
On 21 April 1996, the date of the alleged offence, Jason Parker discovered Lily in the pig pen on the Appellant's land. Lily was about a metre or a metre and a half away from a pig's face with teeth bared and barking. Mr Parker shouted at Lily but to no effect. Mr Parker reported the incident to the Appellant. What happened next is set out at paragraph J of the Case:
"Mr Isted went straight to the gun cabinet. He collected his shotgun. The cartridges used were in fact small sized cartridges designed for shooting rabbits or pheasants. Mr Isted accepted he should have picked up a larger shot. He proceeded to the pen. He made no attempt to drive the dog away. From twenty yards he opened fire. The shot peppered Lily's head. She yelped and ran off. Lily was seen limping by Mrs Helena Lang, a neighbour, as she made her way back to Mrs Ewen."
The dog survived the shooting and returned to Mrs Ewen. She was clearly injured. In the course of this appeal a point was taken on behalf of the Appellant that evidence from a veterinary surgeon about injuries sustained by the dog was not properly admitted by the Justices. This point was not raised either in the Magistrates Court or in the Case. It was not pursued before us by Counsel with any vigour, in my view rightly. It is perfectly clear that even in the absence of evidence from a veterinary surgeon the Justices would have been quite entitled to infer that the injuries to Lily caused by the shooting and seen by Mrs Ewen had also caused suffering to Lily.
On these facts the Justices convicted the appellant. The first question in the Case for this Court is whether on the evidence the Justices were entitled to find that it was not reasonably necessary for the appellant to shoot Lily. There are other questions raised in the Case but the principle point taken on this appeal by the Appellant is that the Justices wrongly convicted him of the offence because he was doing no more than was reasonably necessary to protect his pig.
It is necessary first to refer to Section 1(1) of the Protection of Animals Act 1911. So far as is material it reads:
"(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 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 not exceeding level 5 on the standard scale, or both."
It is agreed by both Counsel that the Court is solely concerned with the question of the reasonableness or otherwise of the Appellant's action. In the case the Justices refer to the advice received by them from their clerk, which was based on the case of Barnard v Evans  2 KB 794. That advice was that they should ask themselves the question:
"Whether there was any reasonable necessity to shoot the dog in order to drive it away?"
Neither Counsel challenge that as the correct test to be applied in this case. It is also agreed by Counsel that the Justices were correct to reject an argument placed before them on behalf of the Appellant that the Appellant was entitled to raise a defence provided by Section 9 of the Animals Act 1971. Accordingly the sole question in this appeal is whether on the evidence the magistrates were entitled to hold that is was not reasonably necessary for the Appellant to shoot Lily.
Before turning to the detailed facts found by the Justices and their opinion on that issue I must deal with a further point raised in the course of this appeal but not before the Justices. Initially counsel for the Respondent, Mr James Turner, submitted that in deciding the question of reasonable necessity the Justices should view what the Appellant did objectively but taking into account facts which he knew to be true but not matters which he believed to be true but were not true. Mr Simon Medland, appearing on behalf of the Appellant, contended that the test to be applied was the more conventional test namely that the justices should decide whether what the appellant did was reasonable based on their objective assessment of his actions in the light of the facts and circumstances at the time, as the Appellant genuinely believed them to be. In my judgment, Mr Medland's submissions on this point are to be preferred. In written submissions invited by the court following oral argument, Mr Turner indicated that he was prepared to concede that his submission on this point was wrong. As it happens, the difference is not of any real significance in this appeal.
Mr Medland's first submission on the main point was that although the Justices were given the correct advice by their clerk they failed to apply that advice correctly to the facts as they found them. He pointed to a number of passages in the Case which appeared to conflict with the Justices' stated finding that it was not reasonably necessary for the Appellant to shoot the dog. In particular Mr Medland relied on three short passages from the Case. They were:
"We found that the dog Lily suffered as a result of Mr Isted shooting her because she was not shot and killed immediately or outright";
"We found this suffering was unnecessary because she was not killed outright, by the single shot, but left in this state.";
"Had the dog been killed and had there been evidence to show that she had not suffered unnecessarily we would not have found the case proved under Section 1(1) of the Protection of Animals Act 1911. This was not the case on the evidence."
Mr Medland submitted, with some force, that the Justices appear to have concluded that if the dog had been killed outright no offence would have been committed. He submitted that such a conclusion could only be reached upon the basis that they found that it was a reasonably necessary for him to shoot to kill the dog.
On first impressions, the passages in the case, to which Mr Medland referred, do appear to be inconsistent with their finding expressed in question 1 submitted for the opinion of this Court, to which I have previously referred. However, in a careful analysis of other parts of the Case, Mr Turner pointed to passages which he submitted made it abundantly clear that the Justices were finding that in their view it was not reasonably necessary for the Appellant to shoot the dog. In particular he relied upon a passage where the Justices stated:
"Mr Isted chose to take no steps to chase off the dog. Instead we found on the evidence that his first action was to fetch a shotgun and shoot and injure her."
He pointed to the fact that the clerks advice specifically referred to the question of what was reasonably necessary "....to drive the dog away?" He submitted that the Justices had clearly applied their minds to the question of whether in their view the Appellant could have taken some other action rather than shooting at the dog and that having so applied their minds, they had found that he could have taken other action.
As with Mr Medland's submissions, I found Mr Turner's submissions cogent and forceful. However, the difficulty remained as to the apparent inconsistency between the passages relied upon by him and passages referred to by Mr Medland. During the course of argument the question was raised as to whether or not an offence would have been committed under Section 1(1) of the Protection of Animals Act 1911 if an animal was killed outright. On one view, if no suffering had been caused to the animal, an offence would not be committed. At first Mr Turner was disposed to argue that view of the Section 1(1) was incorrect. However, in his written submissions following oral argument, he was inclined to resile from that submission. Mr Medland also supplied written submissions following oral argument in answer to those of Mr Turner. Without making specific submissions on the question of whether or not an offence is committed, Mr Medland emphasised that the Justices' finding that no offence would have been committed if Lily had been killed outright, could not logically stand with a conviction when she had not been killed outright.
Whatever may be the correct view of the law - and having had the opportunity of reading in draft Brooke LJ's judgment on that point, I agree with his view - looked at from the perspective that the Justices' view was that no offence would have been committed if the dog had been killed outright their findings and opinion become understandable. If the Case is read on that basis the apparent inconsistency and illogicality disappears. I am persuaded that the Case must be read in that light. In particular it is noteworthy that in the passage of the Case where the Justices set out their view that no offence would have been committed if the dog had been killed outright they add the sentence: "This was not the case on the evidence ". On that basis I accept Mr Turner's submissions that the Justices' finding was that the Appellant's action in shooting Lily was not reasonably necessary. In my view, the passages in the Case referred to by Mr Turner show that the Justices found that there was no reasonable necessity for the Appellant to shoot Lily, whether he intended to kill her or not. Accordingly, in my judgment Mr Medland's first point fails.
Mr Medland's second point was that the Justices' finding was wrong on the facts of the case and judged against the background known to the Appellant. He submitted that judged against the background of dogs roaming onto his property and Lily's earlier excursion when chasing geese, the Appellant was quite entitled to take up his shotgun and shoot Lily when the dog was on the point of attacking his pig. In my judgment, the difficulty with this submission is that that was a matter for the Justices to decide and they decided it adversely to the Appellant. Others might have taken a different view but, in my judgment, on the evidence before them, the Justices cannot be said to have reached a conclusion which no Justices directing themselves properly and taking into account all the evidence, could have reached. In my view that submission fails as well.
Accordingly I answer the questions in the Case as follows :
2. They were correct in ruling that section 9 of the Animals Act 1971 was not relevant;
3. See 2 above;
In my view the appeal must be dismissed.
Lord Justice Brooke:
I agree, and I am only adding a few words of my own because the present state of the law is so unnecessarily confusing.
The magistrates were quite right not to be beguiled by a submission that the defence which is afforded in civil proceedings by Section 9 of the Animals Act 1971 has no relevance in criminal proceedings. That Act is based on the draft Bill annexed to the Law Commission's Report on Civil Liability for Animals (1967) Law Com No 13, and the Law Commission said in terms that in their opinion it would be inadvisable to deal with criminal charges, where different considerations might apply, in the context of that report, and that the matter would be better considered as part of a general review of the law relating to malicious damage (ibid, p 38, footnote 142).
The Law Commission returned to this topic in its Report on Offences of Damage to Property (1970) Law Com No 29. The Criminal Damage Act 1971 is based on the draft Bill annexed to this Report. The relevant passage of the report is at pp 18-20, and what has emerged in legislative form is the defence which is available in Section 5(2) of the 1971 Act. Thus if someone intentionally or recklessly (see s 1(1)) destroys or damages a dog belonging to another (a dog being property within the meaning of the Act: see s 10(1)), he will be treated for the purposes of the Act as having a lawful excuse if he did this act "in order to protect property belonging to himself or another ... and at the time of the act or acts alleged to constitute the offence he believed -
(i) that the property ... was in immediate need of protection; and
(ii) that the means of protection adopted ... were ... reasonable having regard to all the circumstances" (see s 5(2)(b)).
It is expressly provided that for the purposes of Section 5 it is immaterial whether a belief is justified if it is honestly held. Compare Miles v Hutchings  2 KB 714 per Channell J at p 717.
If in the present case the Appellant had killed Mrs Ewen's dog, he would have been liable to be convicted of an offence under Section 1(1) of the Criminal Damage Act 1971, and the Justices would no doubt have had to consider the language of Section 5 of that Act when determining, to the criminal standard of proof, whether he shot and killed the dog without lawful excuse. For my part, I agree with them that they could not have convicted him of an offence under Section 1(1) of the 1911 Act if the dog had been killed outright in circumstances where she did not suffer unnecessarily.
This appeal has highlighted an anomaly in the law, since the requisite mental element for an offence under the 1971 Act is framed in modern intelligible language of a type which the Law Commission is now urging the Government to introduce into our legislation for offences against the person, while the relevant part of Section 1(1) of the Protection of Animals Act 1911 is framed by reference to the antique law underlying words like "wantonly or unreasonably" which is bound to go on giving trouble to those concerned with the administration of the law.
Indeed, since there can be no doubt that the appellant intentionally damaged Lily, he could have been charged with an offence contrary to Section 1 of the Criminal Damage Act 1971 where the test of the mental element is different and the concept of a "lawful excuse" phrased in intelligible language which is more generous to a defendant.
While I am not suggesting that where the suffering of animals is in question the less generous policy articulated in the 1911 Act is not a reasonable one, it would in my judgment be desirable for the Law Commission to consider, when its resources permit, the relationship between the 1911 Act and the 1971 Act where damage to people's animals is in question. Even if the policy of the law may be different in cases of damage to animate property, it is surely high time that that policy was expressed [in] clear, intelligible modern language, which would avoid all the unnecessary legal expenditure that currently has to be devoted to cases like this.