Two women, who had been disqualified from keeping horses by a court, transferred ownership of the horses to their niece, but had continued to make arrangements for the accommodation of the horses and to provide food and water for them. The women were convicted in the Magistrates' Court of the offence of "having custody" of the horses in breach of the disqualification order, and appealed. Dismissing the appeal, the Divisional Court held that, what amounted to "custody" was primarily a matter of fact for the lower court to decide, and that the local justices had been entitled to conclude that, notwithstanding the transfer of ownership, the two women had continued to be in control, or have the power to control, the horses.
Lord Justice Brooke:
1. This is an appeal by Jacqueline Linda Taylor and Sandra Carol Taylor by way of case stated against their conviction by justices sitting at Thetford Magistrates Court on 23rd August 1999 for offences of having custody of horses at Diss, Norfolk on three separate occasions in January and February 1999, when they were persons disqualified from having custody of horses contrary to section 2 of the Protection of Animals Amendment Act 1954, as amended by the Protection of Animals Amendment Act 1988. The defendants had been disqualified from having custody of horses for ten years at the same court on 16th July 1998 pursuant to an order made under section 1 of the 1954 Act as amended.
2. The case is of some interest because so far as the researches of counsel could reveal there is only one earlier decision of this court on the interpretation of this provision of the Act. That case has never been fully reported, and there is only a very short summary of it in the Criminal Law Review.
3. By way of background it is necessary to say something about the statutory structure. As is well known the Protection of Animals Act 1911 provides for criminal sanctions to be imposed on people who are cruel to animals. It provides for a term of imprisonment not exceeding six months on summary conviction or a fine (section 1(1)). The 1911 Act was bolstered in 1954 by the Protection of Animals Amendment Act of that year which provided by section 1 that:
"1(1) Where a person who has been convicted under the Protection of Animals Act, 1911...of an offence of cruelty to any animal...the court by which he is convicted...may, if he thinks fit, in addition to or in substitution for any other punishment, order him to be disqualified, for such period as he thinks fit, for having custody of any animal or any animal of a kind specified in the order."
4. Then there are provisions for the operation of the order to be suspended if the court thinks fit, or for a disqualified person to apply to the court, at any time after the expiration of 12 months of the date of the order, to remove the disqualification. The court may, if it thinks proper, having regard to the matters set out in section 1(3), direct that the disqualification be removed. Alternatively, it may refuse the application.
5. This was the background to the matters which were before the Justices in August 1999. The appellants had been convicted of cruelty to horses, indeed, the same horses as were the subject of the new proceedings, for ten years. The Justices seem to have taken such a strong view about the appellants' behaviour on that occasion that they disqualified them from having custody of horses for a period of ten years. That period of disqualification was still in force six months later when the matters which were in issue in the present proceedings occurred.
6. It appears that prior to the earlier proceedings arrangements were made so as to make it unnecessary for a police constable to exercise his powers under section 12 of the 1911 Act to take charge of those animals and to deposit them in some place of safe custody until the termination of the proceedings. What appears to have happened is that the horses were transferred in May 1998 from the farm premises in which they were based, when the acts of alleged cruelty took place, to a field owned by Mr Gaze, who gave evidence before the Justices in the later case. Although it does not appear in the case, we have been told by counsel that it would have been an essential part of any transaction of this nature, which would have been designed by agreement to prevent the police from taking the horses into safe custody, that the appellants, who were the defendants in the pending criminal proceedings, should not have the care of the horses while the proceedings were pending. In those circumstances it appears that they were said to have entrusted the care of their horses to their niece, Deborah Eaton. The appellants themselves made arrangements for the field to which the horses were transferred in May 1998, and after the disqualification orders were made, the ownership of the horses was transferred by gift by the appellants to Deborah Eaton. She lives ten minutes walk from the field where the horses are kept.
7. That, therefore, was the background. The Justices set out the brief facts in the case which is before us. As I have said, at all material times, both before and after July 1998, the horses were being kept in this field pursuant to an arrangement that the appellants had made with Mr Gaze. The Justices found that Mr Gaze, who gave evidence to them, had never dealt with anybody but the appellants in relation to the horses and that when he asked them to remove the horses they promised they would, but they never did. It appears from that finding that Mr Gaze's dealings at all material times, even after the disqualification orders were made, were with the appellants and not with their niece.
8. Coming on to the matters of which the RSPCA, who are the prosecutors in this case, made complaint, on three separate occasions, 11th January, 15th January and 9th February 1999, representatives of the RSPCA kept observation on the appellants. They entered the horses' field for between five and ten minutes at a time in order to feed the horses. This work involved spreading food in bales around the field. It did not require the appellants to touch the horses, and the appellants also filled the water trough if necessary. That was the end of the findings of fact before the Justices.
9. The appellants, apparently, gave evidence but they did not call Miss Eaton to give evidence. Counsel has drawn our attention to the arguments raised by the appellants before the Justices which are in these terms:
"On each occasion alleged in the informations, Deborah Eaton had delivered the food to the field earlier and then brought the appellants to actually feed the horses. She would then collect the appellants later.
On the 9th February 1999, Deborah Eaton came into the field just as the respondents were leaving, after having just served the summonses on the appellants.
What the appellants were doing did not amount to having custody of the horses and therefore did not breach the disqualification orders."
10. Counsel for the appellants frankly admits that the magistrates made no findings of fact in relation to this evidence which the appellants apparently gave. Counsel had the opportunity of considering the draft case, and he accepts that no suggestions were made that the magistrates should say whether or not they found as fact the matters about which the appellants gave evidence. For reasons which will become clear, however this unresolved mystery is not really relevant to what we or the Justices have to decide.
11. The case continues:
"4. It was contended by the respondents that the appellants were the only persons observed in the field on the three dates in the informations and what they were doing did amount to having custody thereby breaching the disqualification orders.
5. We were referred by the appellants and the respondents to the case RSPCA v. Miller (1994) Criminal Law Review page 516. The Queens Bench Divisional Court held that whether a person has custody (of an animal) will be a finding of fact dependent on the circumstances (of the case). The essence of custody was the control or the power to control.
6. We were satisfied beyond reasonable doubt that the appellants by their (admitted) actions did have custody of the horses and accordingly convicted them on all the allegations."
12. And then after referring to the sentences passed, the Justices set out the history leading up to the statement of the case. In paragraph 15 they said:
"The question for the opinion of the High Court is:
In the circumstances of this case were the justices entitled to find that the appellants did have custody of the horses, thereby breaching the disqualification orders?"
13. I have said that it did not matter whether the Justices had found the facts which the appellants had asserted, about Miss Eaton bringing them to the field where she had delivered the food earlier and collecting them later, because it is clear from paragraph 6 of the case that the Justices concentrated only on the matters which the appellants had admitted, which related to their actions when they were in the field being observed.
14. Because RSPCA v Miller has not been reported, except in the brief summary in the Criminal Law Review, it is necessary to say something about that case. It was a decision of Ralph Gibson LJ and Smith J sitting in this court on 9th February 1994. We have been able to obtain the transcript of their judgment. The leading judgment was given by Smith J.
15. In that case complaint was made that the respondent had been disqualified for three years for having the custody of dogs in June 1991 and that a year later he again had the custody of a dog contrary to section 2 of the 1954 Act. The facts were very different from the facts with which we are concerned. I read from the judgment of Smith J:
"In June 1991, the respondent had been disqualified for 3 years from having the custody of dogs. On 27th June 1992 a police officer on duty at the Sporrington Carnival saw the respondent holding a Newfoundland dog on a lead. He was with other people, one of whom was Mr Docherty, the owner of the dog. When the carnival procession began, it was led by Mr Docherty with another Newfoundland dog harnessed to a cart. The respondent followed behind still holding the dog on the lead. The respondent was never more than 4 to 5 yards from Mr Docherty. The procession finished in a field and the respondent then handed the dog on the lead to Mr Docherty. The magistrates found that he had had 'actual physical custody' of the dog for at least an hour. Mr Docherty had asked the respondent to hold and walk the dog during the procession, he being aware that the respondent was disqualified from having the custody of dogs. Mr Docherty's dogs were under his full visual supervision throughout. The Justices found that the respondent was 'acting as Mr Docherty's unpaid agent and had no rights, duties or power to make decisions in respect of the dog'."
16. At the Magistrates' Court the advocate for the RSPCA had referred the Justices to two dictionary definitions of the word custody. In the Collins Dictionary custody was defined as "an act of keeping safe or guarding" and in the Concise Oxford Dictionary as "guardianship, protective care".
17. The Justices had dismissed the information, saying that they were not satisfied that the respondent had custody of the dog. This court only heard submissions from the RSPCA, who had made it quite clear that they did not intend to secure a conviction if the appeal were to be allowed. They wished to pursue the appeal because the issue was of considerable importance to them. The court was told in 1994 that 400 disqualification orders were made every year under the 1954 Act resulting from RSPCA prosecution alone, and that proceedings for breach were brought by the society about 30 to 40 times a year.
18. The prosecutor was anxious to obtain a definition of the word 'custody' which did not appeal to this court. Smith J said at page 4:
"However, it seems to me to be undesirable that this court should attempt a general definition of the expression 'having custody' in relation to factual circumstances which are not before the court. Whether a defendant has custody of a dog in any particular case will be a finding of fact dependent upon the circumstances. The rather unusual facts of this case illustrate the need for the tribunal of fact to have the freedom to make their own decision, unfettered by the attempts of a superior court to lay down a detailed and comprehensive definition of the word custody."
19. At page 6 she came to the passage in her judgment which is largely summarised in the Criminal Law Review summary:
"In my judgment, the essence of custody is control or the power to control. It seems clear to me that a person with sole physical control of a dog, even for a short time, has custody of that dog. Physical control could be shared between two or more people, as for example, if the dog were shut into a closed pen which two people had the capacity to open. It would follow that those two people shared custody of the dog. So would two members of the same household, being joint keepers, have shared or joint custody of the dog. If one person has actual physical control subject to the direction, supervision or control by another, for example the owner or keeper of the dog, the one with actual physical control may or may not have custody of the dog, depending upon the degree and effectiveness of the direction, supervision and control which is exercised by the other person. There may be circumstances in which the supervision is so close that the person with actual physical control cannot be said to have custody. Take for example the case of a young child whose parent allows it to hold the dog's lead while out on a walk. The parental supervision and control might be such that one could not say that the [controlled] child had even a share of custody. On the other hand, if the owner of a dog entrusted its actual physical control to another person and relinquished the power to retake control, for even a short time, the person with actual physical control would have the custody of the dog although it would also be true to say that [the] owner still had custody too."
20. She then applied those principles to the facts before the court, and took the view that although it might have been a borderline case, the conclusion reached by the magistrates was entirely sensible and she dismissed the appeal.
21. In his supporting judgment Ralph Gibson LJ said:
"Parliament did not enact that a person disqualified, after conviction for an offence of cruelty, should be prohibited from having any contact with a dog or control of a dog. I agree that in many circumstances proof of control of a dog will be evidence from which custody of it will be proved. In this case the control was clearly nothing more: Mr Miller had the control of the dog under the immediate supervision of the owner and in circumstances in which control could be immediately and effectively resumed by the owner. The owner did not have to trust Mr Miller to care for the dog properly while Mr Miller had the dog in his control, because the owner could see what Mr Miller was doing at all times. If Mr Miller had left the procession with the dog he would, I think, have assumed custody of the dog."
22. I have read long passages of those judgments into my judgment today because there is no doubt that in today's society there is increasing anxiety about offences of cruelty to animals and the care of animals. It appears to me important that those who have the responsibility for prosecuting and defending in such cases and, more particularly, those who have the responsibility of adjudicating in cases of this kind where someone is brought to court for breach of a disqualification order, should have access to the full report of the judgment of Smith J or, at any rate, the parts of her judgment which I have read into the present judgment, and that they should not merely have to rely on the very brief summary in the Criminal Law Review.
23. Having set out the way in which this court has ruled that cases of this type should be considered, one looks at the facts of the present case. Although ownership of the horses was transferred to the appellant's niece who lived ten minutes walk away from the field, the Justices found that all the arrangements for keeping the horses in the field had been made between the appellants and Mr Gaze, and that Mr Gaze had never dealt with anybody but the appellants in relation to the horses. The Justices found as a fact that when he asked the appellants to move the horses they promised they would, but they never did. In other words, Mr Gaze, the owner of the field in which the horses were, had never had any dealings with Miss Eaton, the owner of the horses.
24. In my judgment, bearing in mind the way in which both members of this court in 1994 encouraged tribunals of fact to approach adjudications in cases of this type, what the RSPCA were watching on each of the dates when they observed what was happening in the field could quite properly have been taken as evidence that the appellants had custody of the horses. The appellants were there; they were responsible for the care of the horses; and they were making arrangements to feed and water them. There was no sign of the owner and the field in which the horses were based was a field in relation to which it was the appellants, and not the owner of the horses, who had always had dealings with the field's owner.
25. In those circumstances, given the emphasis that this court made in the case of Miller on the matter being fairly and squarely within the domain of the lower court, which was the tribunal of fact, I can see no reason for concluding that the tribunal of fact came to a decision on the facts which was so perverse that this court should interfere. In my judgment, the appropriate answer to the question posed to us,
"In the circumstances of this case were the justices entitled to find that the appellants did have custody of the horses, thereby breaching the disqualification orders?",
is unquestionably yes. I would, therefore, dismiss the appeal.
Mr Justice Potts:
28. I agree. In my judgment the justices plainly applied their minds to all relevant matters, in particular the degree of direction, supervision and control of the horses exercised by the appellants. I too, therefore, would answer the question posed in the terms identified by my Lord.