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Country of Origin:  United Kingdom Court Name:  Queen's Bench Division (Administrative Court) Primary Citation:  EWHC 1642 Date of Decision:  Thursday, May 19, 2011 Judge Name:  The Honourable Mr Justice Keith Attorneys:  Mr J Edwards (instructed by O'Garra's) for the Appellant. Mr J Boumphrey (instructed by MBA Solicitors) for the Respondent. Docket Num:  CO 1010/2011
Summary: Defendant was charged with unnecessary suffering towards three horses found in terrible conditions. It was held that where a protected animal is found in distress, a veterinarian's certificate need not be in writing for a constable or inspector to exercise powers under Section 18 of the Animal Welfare Act 2006 (namely seizure and detention). Oral certification of suffering will suffice in certain circumstances, for example where the protected animal requires urgent treatment and there is not sufficient time to produce a written certificate.

Mr Justice Keith:

On 8 April 2010 at Goole Magistrates' Court, the appellant, Yvonne James, 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. Four weeks later on 6 May 2010, she 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 the 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 £38,644.56.

Mrs James appealed against her sentences and the order for "costs". The appeal was heard at Hull Crown Court by Judge Swanson and two justices on 26 August 2010. The appeal was dismissed, and Mrs James now appeals to the High Court by way of case stated against the dismissal by the Crown Court of her appeal against the order for "costs".

The first ground of appeal is that the order for "costs" should have been reduced by the Crown Court to reflect the contention advanced on behalf of Mrs James that the seizure and detention of the horses had been unlawful. That contention is based on section 18(5) of the Animal Welfare Act 2006 ("the Act"), which provides:

"An inspector or a constable may take a protected animal into possession if a veterinary surgeon certifies—

(a) that it is suffering, or

(b) that it is likely to suffer if its circumstances do not change."

The unchallenged facts were that a veterinary surgeon went to the stables where the horses were found at the request of the RSPCA. She examined the horses, and 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. The critical point is that the veterinary surgeon's certificate that the horses were suffering was not in writing. It was just what she said, and the first ground of appeal is that only a certification in writing amounts to a sufficient certification for the purposes of section 18(5).

The Crown Court rejected that contention. Judge Swanson said in the case stated:

"We considered that this oral opinion was sufficient certification."

Accordingly, the first question which the Crown Court has stated for the opinion of the High Court is:

"Is it lawful under section 18(5) of the Animal Welfare Act for an inspector or constable to take a protected animal into his possession if a veterinary surgeon present at the scene states orally that the animal is suffering?"

The issue as to whether the certification required by section 18(5) needs to be in writing had been considered by the Crown Court on other occasions. In Rumachic (Appeal no. A2008/0123, 23 October 2008), Judge Waddicor and two justices at Lewes Crown Court held that it had to be in writing. But in Shine (Appeal no. 2009/0202, 6 October 2010), Judge Tain and two justices, coincidentally again at Lewes Crown Court, held that it did not have to be in writing. Judge Tyrer in Gray is said to have also held that it did not have to be in writing, but a copy of his judgment has not been provided to me and its citation is unknown.

The word "certifies" in section 18(3) is not defined in the Act. Mr Jonathan Edwards for Mrs James acknowledges that the issue is one of construction as to whether the word "certifies" means certifies in writing. The word "certifies" has to be construed, of course, in accordance with its ordinary meaning, subject to the context of the statutory provisions in which it appears. The word connotes a degree of formality, and the proposition that the degree of formality which is necessary is that the certification be in writing is, in my view, supported by section 18(10) of the Act, which provides, so far as is material:

"A veterinary surgeon may examine and take samples from an animal for the purpose of determining whether to issue a certificate under subsection … (5) with respect to the animal."

If "a certificate" under section 18(5) is to be issued, that is more consistent with the certificate having to be in writing, because it is documents which tend to be issued rather than expressions of opinion.

The RSPCA argues that, when it comes to the context, including the need to give effect to what Parliament must be regarded as having intended, a different approach should be adopted. Two points are made. First, where it is proposed that a certificate required by the Act should have a degree of formality about it, the Act says so explicitly. An example of that is said to be section 6(4) of the Act, which provides:

"For the purposes of subsection (3), a dog is a certified working dog if a veterinary surgeon has certified, in accordance with regulations made by the appropriate national authority, that [certain specified conditions] are met."

I do not think that the language of section 6(4) is persuasive at all. Section 6 relates to the docking of dogs' tails. Sections 6(1) and 6(2) identify the circumstances in which the docking of a dog's tail is made a criminal offence. Section 6(3) provides that sections 6(1) and 6(2) do not apply "if the dog is a certified working dog that is no more than 5 days old". So section 6(4) requires the certification to be in accordance with regulations made by the appropriate national authority because it proceeded on the assumption that there were or would be regulations in existence in various countries relating to the certification of working dogs. Such a qualification was unnecessary in section 18(5), because there are no regulations governing the kind of certification required by section 18(5).

However, the RSPCA's second point is a far more compelling one. The aim of the Act, as is apparent from its title, is to promote animal welfare. That is achieved, in part, by preventing, or at least reducing, animal suffering. Indeed, that is the explicit aim of section 18 of the Act, which is headed "Powers in relation to animals in distress". It is said, therefore, that section 18(5) should be construed as far as possible in a way which does not subject an animal in distress to further suffering. The RSPCA contends that an animal might well be subjected to further suffering if a veterinary surgeon who is called to the scene is not in a position to produce a written certificate of the animal's condition immediately. That might happen, for example, if there are a large number of animals, some of whose seizure is necessary because they need urgent treatment, and some not, and there is not sufficient time to produce a written certificate covering only those animals whose seizure is necessary. It might also happen, for example, if the circumstances at the time made the production of a written certificate impracticable, for example, if the weather was too bad for the appropriate documentation to be raised on site, or if the site was dangerous and the veterinary surgeon as well as the animal had to leave the site as soon as possible.

It is true that section 18(6) caters for those occasions when animals have to be put out of their suffering quickly. It provides that:

"An inspector or a constable may act under subsection (5) without the certificate of a veterinary surgeon if it appears to him –

(a) that the condition of the animal is such that there is no reasonable alternative to destroying it, and

(b) that the need for action is such that it is not reasonably practicable to wait for a veterinary surgeon."

But section 18(6) is concerned with taking steps to put an animal out of its distress before the veterinary surgeon has arrived. It does not apply when the veterinary surgeon has arrived, and something needs to be done then to put the animal out of its distress. I have not overlooked the consequences of the issue of a certificate for the owner of an animal, which may result in the seizure of a well-loved pet. But it would, I think, be very surprising if section 18(5) were to be construed in a way which permits a police officer to act so as to put an animal out of its distress before the veterinary surgeon arrives, but does not permit the animal to be relieved of its suffering after the veterinary surgeon arrives, even though the veterinary surgeon thinks that the animal is suffering, but for one reason or another does not put that into writing.

For these reasons, I have concluded that section 18(5) does not require the certification to be in writing, and that the seizure and detention of Mrs James's horses was not unlawful. Accordingly, the answer I give to the first question posed for the opinion of the High Court is "Yes".

The "costs" which were comprised in the order for "costs" of £38,644.56 included £491.16 for the RSPCA's investigation of the offences and £2,250 for the RSPCA's legal costs. The balance of the "costs" related to the cost of transporting the horses to where they were cared for (£879.37), the veterinary costs (£4,064.39), and the cost of looking after the horses (£30,959.64). Orders for the payment of legal costs by persons convicted of offences before a magistrates' court are permitted by section 18(1) of the Prosecution of Offences Act 1985 to the extent that the magistrates' court considers them just and reasonable. In the light of R v Associated Octel Co Ltd [1997] 1 Cr App R (S) 435 and Balshaw v Crown Prosecution Service [2009] EWCA Crim 470, no point has been taken that an order for costs could not include the RSPCA's costs of investigating the offences. Orders for the reimbursement of expenses incurred by someone acting under section 18 of the Act are permitted by section 18(13) of the Act. It was presumably pursuant to those sections that the magistrates' court made the order for "costs" which it did.

The magistrates' court did not make a collection order, i.e. an order which, amongst other things, identified how the order for "costs" should be paid. That was because the RSPCA requested the magistrates' court not to make such an order. Para. 12(1) of Schedule 5 to the Courts Act 2003 required the court to make a collection order "unless it appears to the court that it is impracticable or inappropriate to make the order". The magistrates' court was satisfied that it was impracticable or inappropriate to make a collection order, given (a) the large amount and (b) the RSPCA's intention to enforce the order for "costs" as a civil debt. The RSPCA was entitled to do that by virtue of section 41(3) of the Administration of Justice Act 1970, which provided that sums required to be paid as a result of orders in criminal proceedings are enforceable in the High Court or the county court as if the sum was due as a result of a judgment of the High Court or the county court, though certain methods of enforcement such as the issue of a writ of fieri facie are excluded.

The Crown Court accepted that Mrs James was not in a position to pay the sum of £38,664.36 in the foreseeable future. However, it was told by the RSPCA's counsel 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. It was in those circumstances that the Crown Court dismissed the appeal against the order for costs, and the second question which the Crown Court has stated for the opinion of the High Court is:

"Is it appropriate to make an order for costs without a collection order, when the court accepts that a defendant cannot satisfy the order within a period of time certain, but may be able to satisfy such an order at some time in the future, such order being enforceable in the civil jurisdiction."

Mr Edwards argues that the Crown Court should not have agreed with the magistrates' court that a collection order should be dispensed with. Making a collection order, he says, was neither impracticable nor inappropriate. I do not agree. If the court thought it appropriate for orders for costs and reimbursement of expenses in the amounts sought by the RSPCA to be made, and if the court thought that Mrs James had, either then or in the foreseeable future, the means to pay such amounts, I would have agreed that it would have been neither impracticable nor inappropriate to make a collection order. But this was a case in which the court thought that Mrs James did not have the means to pay such amounts in the foreseeable future. In those circumstances, it was entirely inappropriate to make a collection order which purported to identify a date by when Mrs James was to pay those amounts.

The real question which this appeal raises is whether, having decided that it was inappropriate to make a collection order in respect of any order which it might make for the payment of costs or the reimbursement of expenses, a court can then make orders for costs and the reimbursement of expenses when the defendant does not have the means to pay the amounts ordered in the foreseeable future, but may have the means to do so at some date in the more distant future. Unlike a fine which is a punishment, an order for the payment of costs or for the reimbursement of expenses is entirely compensatory. Accordingly, the issue is whether the interest of the prosecutor in being compensated for its outlay outweighs the fact that a defendant may have the prospect of eventually having to pay out a large sum hanging over their head for years. In my opinion, that is the judgment call which it is for the sentencing court to decide on the facts of any particular case.

It goes without saying that orders for the payment of costs and reimbursement of expenses should not be made for amounts which a defendant is unable to pay. But I do not see why a defendant should be treated as unable to pay such amounts if there is a real basis for saying that there could well come a time when he or she is able to pay such amounts. If there comes a time when a defendant could pay the amounts for costs and the reimbursement of expenses which the court thinks appropriate, and if the court thinks that it is an appropriate case for that possibility to be hanging over the defendant until such time as the court realistically thinks that the defendant would have the resources to pay the sums awarded, then in my view it would be unfair for the prosecutor to be denied recovering those amounts.

In that connection, the critical fact to remember is that once a collection order has not been made, the order is enforceable as a civil debt. If an attempt is made to enforce such a debt in the county court, the county court has the power to stay its enforcement: see section 71(2) of the County Courts Act 1984. No doubt the county court will exercise that power if (a) an attempt to enforce the debt is made at a time when the defendant does not have the means to pay it, and (b) the debt arises 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 the assets which might be capable of being realised to pay the amounts ordered.

In the present case, the Crown Court concluded, in the light of Mrs James's evidence about her means, that she had an equitable interest in her husband's half-share with his brother in the house in which they lived. Mrs James wishes to challenge that finding, and Mr Edwards wanted to address me on that issue, but the correctness of that finding was not one of the topics on which the Crown Court sought the opinion of the High Court, and I have to proceed on the basis that the Crown Court's finding is correct. Of course, if the house is not sold, Mrs James will not be able to realise that equitable interest, but if the house is sold, she will have an equitable interest in half 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.

For these reasons, the answer I give to the second question posed for the opinion of the High Court is "Yes". But the question was posed in the abstract. It did not relate to Mrs James, and the question which the Crown Court needs to address in her case is whether it is appropriate for the possibility of her having to pay these sums to be hanging over her head until such time as the Crown Court realistically thinks that she would have the resources to pay them. It follows that her case has to be remitted to the Crown Court for that issue to be considered in the light of this judgment.

MR JUSTICE KEITH: Are there any consequential applications?

MR BOUMPHREY: My Lord, I would ask you to consider that I have succeeded in asserting my position in this court, and I would seek costs.

MR JUSTICE KEITH: You have had the two questions posed for the consideration of the court answered in the way that you wanted them.

MR BOUMPHREY: Yes, and in those circumstances, I would submit that I am, looking at it as a whole, the victor or the person who has gained.

MR JUSTICE KEITH: The answer to that is yes, but that does not mean that the order which the court made will necessarily stand, because it has to be reconsidered in the light of the principles which I have laid down in this judgment.

MR BOUMPHREY: Yes. The difficulty of course arises in a reservation of costs by the High Court to be effectively determined –

MR JUSTICE KEITH: I am not suggesting that -- perhaps I am. Perhaps I am suggesting that the costs of this appeal should be reserved to the judge who decides at Hull Crown Court, when it reconsiders the issue.

MR BOUMPHREY: I wonder whether that is the correct approach to matters, or whether this court ought to reserve the matters for a taxation in this court once the outcome of the further hearing in the Crown Court is known.

MR JUSTICE KEITH: When you say "reserved for a taxation", a taxation only arises if there is an order for costs. We have to determine whether or not there should be an order for costs.

MR BOUMPHREY: Yes, of course. I suppose there is no reason why a less superior court should not make a determination of costs in this case, but you or this court will be in the best position to know how its time has been spent today and --

MR JUSTICE KEITH: Well, the court will have the High Court's judgment, and so it will see the issues that were addressed and the conclusions which the court reached, and the Crown Court can be told that the hearing began at 10.30 am and finished at 1.15 pm, and that the court had the benefit of skeleton arguments from both sides. So I do not really see how it is in any lesser position.

MR BOUMPHREY: Would your Lordship excuse me a moment? My Lord, I apologise, and thank you, that is all I seek.

MR JUSTICE KEITH: What do you have to say about the appropriate order for costs?

MR EDWARDS: My Lord, I do not want to seem ungrateful, because I am very conscious that we have not got the answers we wanted on the two questions, and the respondents have. But the reality is that we wanted this order looked at again, and it is going to be, and the respondents tried to prevent that. So to that extent my respectful submission is that we, in the respect which matters, won.

MR JUSTICE KEITH: So what is the order for costs that you are suggesting I should make?

MR EDWARDS: That the costs should follow the event here.

MR JUSTICE KEITH: Then it is a matter of defining what the event is, and on one view the event is that I have answered the questions in a way in which the RSPCA --


MR JUSTICE KEITH: I have answered the questions that have been posed to me in a way that the RSPCA wanted them to be answered.

MR EDWARDS: My Lord, yes.

MR JUSTICE KEITH: So I think it may be a bit counter-productive, if you want to avoid an order for costs against you, for you to argue that the costs should follow the event.

MR EDWARDS: I meant in very simple stark terms before your Lordship, we have won, but I am conscious of the --

MR JUSTICE KEITH: So you are asking for your costs of the appeal?

MR EDWARDS: My Lord, yes I do --

MR JUSTICE KEITH: There are other alternatives: the other alternatives are that they should have their costs; that I should make no order as to costs --

MR EDWARDS: My Lord, yes.

MR JUSTICE KEITH: -- or that I should order that the costs of the appeal be reserved to Hull Crown Court when it reconsiders this issue. Do I as a matter of fact have jurisdiction to do that?

MR EDWARDS: I was just wondering that.

MR JUSTICE KEITH: I am not convinced that I do.

MR BOUMPHREY: You certainly have the jurisdiction to leave such matters to a Taxing Master or --

MR JUSTICE KEITH: Taxing only arises once an order for costs --

MR BOUMPHREY: Once there is actually an order, yes.

MR JUSTICE KEITH: I have to decide the issue of principle.


MR JUSTICE KEITH: All a Taxing Master decides is how much, but I have to decide the principle. I do not think that is helpful.

MR BOUMPHREY: Yes. Unless of course you were to reserve the issue itself until the outcome in the Crown Court --

MR JUSTICE KEITH: That is another alternative. I could reserve the issue to myself until the outcome is known.



MR BOUMPHREY: And that then gets rid of any jurisdictional problems about transferring matters to the Crown Court.


MR BOUMPHREY: And it allows you to make a reasoned decision on the basis of what the Crown Court ultimately does.

MR JUSTICE KEITH: It does. Is there anything else you want to say?

MR EDWARDS: Might the court agree with this, that this case cries out for robust simplification in the light of reality, and that if at all possible a further hearing before this court should be avoided. In other words the court should not --

MR JUSTICE KEITH: Oh yes, I could decide that on paper.

MR EDWARDS: Yes, that is so, my Lord. But anything that goes to simplicity, and there is a lot of attraction perhaps in there being no order for costs between the parties. It reflects the rough justice of the result before your Lordship.

MR JUSTICE KEITH: Yes, thank you very much, indeed. I have come to the conclusion that this is a case for no order as to costs, not quite for the reasons that you have just indicated, but because the appeal has resolved differing views by the Crown Court on the issue as to whether or not a certificate needs to be in writing for the purposes of section 6(5) --


MR JUSTICE KEITH: -- and it has also resolved the perhaps more difficult question as to the extent to which a court when it comes to deal with compensatory orders rather than penal orders can take into account the possibility of an order hanging over defendants over many years. So I think one can say that this is the sort of case that could be brought and could be defended, and the interests of justice means in those circumstances there should be no order as to costs.

MR EDWARDS: Thank you, my Lord. May we have a legal aid taxation direction, please, my Lord?

MR JUSTICE KEITH: Your client is publicly funded?


MR JUSTICE KEITH: You call it legal aid taxation. That is what it was called prior to 2000.

MR EDWARDS: Yes, I am sorry.

MR BOUMPHREY: My Lord, I apologise, I put the words into my friend's mouth.

MR JUSTICE KEITH: I think you were just reminding him what he had to ask me for, rather than telling him about the language that he had to use.

MR EDWARDS: Yes, that is right.

MR JUSTICE KEITH: I am not sure that you do need it, actually, in the High Court on an appeal by way of case stated. You say you need a specific order, do you?

MR EDWARDS: I would feel happier, my Lord, if the court would indicate it.

MR JUSTICE KEITH: Can I take it you have not looked it up to see whether you need it?

MR EDWARDS: Yes, I am afraid that is right.

MR JUSTICE KEITH: All right, then, well let us proceed on the basis that I will order that there be a public funding assessment if such an order is required; if no such order is required, I make no order.

MR EDWARDS: Thank you very much, my Lord.

MR JUSTICE KEITH: Is there anything else?

MR BOUMPHREY: My Lord, no, thank you.

MR JUSTICE KEITH: Thank you both for your help in a case which I found really rather interesting.


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