Peter Gibson LJ
For some time it has been recognised that a local authority may seek the assistance of the civil courts to enforce the criminal law by way of an injunction to stop the flouting of that law. By these proceedings the Claimant, Worcestershire County Council ("the Council"), is seeking to go further than that to obtain an injunction restraining a breach of the criminal law. In circumstances in which the Defendants, Lionel Tongue and his sons David and Stephen (together "the Tongues"), have been convicted of offences of cruelty to some of their cattle and have been disqualified by the magistrates court from having custody of cattle for the rest of their lives, the Council asked the Chancery Division for an order authorising the Council to go onto the Tongues’ land and remove all the cattle there. Neuberger J. at the trial of the action held, with some regret, that the court did not have jurisdiction to make such an order. With the permission of the judge the Council now appeals. The Tongues seek an extension of time in which to cross-appeal on the order made by the judge on costs, viz. that there be no order for costs. We indicated that we would deal with that after we had given judgment on the appeal.
The Tongues farm 6 farms in the Redditch area of Worcestershire. Crumpfields Farm (where they live) and Boxnott, Emmerdale, Inkberrow, Pump House and White House Farms. Save for Boxnott Farm, which is rented by Lionel Tongue, the freeholds of the farms are owned by one or more of the Tongues. A large part of the Tongues’ farming activities has involved the keeping and rearing of cattle.
Cattle were kept on all the farms. The judge found that 110 were at Emmerdale Farm, 64 at Inkberrow Farm and 8 at Pump House Farm at the time of his judgment. About 60 more were at Crumpfields, Boxnott and White House Farms at the time when His Honour Judge Norris Q.C. made an interlocutory order on 27 March 2003. It was David Tongue’s case before Neuberger J. that the cattle at Emmerdale, Inkberrow and Pump House Farms were owned by him until shortly before 27 November 2002 when a disqualification order against him took effect. He claimed before the judge that he had made a gift of the cattle to his girlfriend, Allison Green, as evidenced by a manuscript document dated 7 November 2002 by which he certified that he had transferred ownership of his cattle to Ms. Green, and she signed a consent to having taken custody of animals and to their transfer.
David Tongue also granted a series of tenancies to Ms. Green of each of Inkberrow and Emmerdale Farms. Each of the first two tenancies was for a term of one month and for a rent of £500. The rent was never paid. The third tenancy of each farm was for three months from 26 January 2003 and the fourth for five months from 27 April 2003. No rent was reserved by the third and fourth tenancies of each farm.
A neighbouring farmer, Graham Hughes, agreed to purchase from Ms. Green 11 of the cattle at Inkberrow Farm. Six were transferred to Mr. Hughes for £4,185. Five remained at Inkberrow Farm. The judge found no other binding agreement for the sale of cattle to Mr. Hughes.
On 10 January 2002 each of the Tongues was convicted at Bromsgrove and Redditch Magistrates Court, on the prosecution by the Council, of the offence, contrary to s. 1 of the Protection of Animals Act 1911 ("the 1911 Act"), of causing unnecessary suffering to four of their cattle. They were fined and in addition each was disqualified under s. 1 of the Protection of Animals (Amendment) Act 1954 ("the 1954 Act") from having custody of animals (other than cats and dogs) for the rest of his life, but that order was stayed pending the appeal. That appeal was dismissed by the Crown Court on 23 December 2003.
On 30 October 2002, again on the prosecution of the Council, each of the Tongues was convicted at the same court of the offence of causing unnecessary suffering to between six and nine further cattle, and each received a disqualification order for life. That order was suspended but the suspension expired on 27 November 2002. Again the Tongues appealed. Again the Crown Court dismissed the appeal on 23 December 2003.
Officers of the Council’s Trading Standards Services have visited the Tongues’ farms on a number of occasions since 27 November 2002. As a result of what they saw the Council commenced two sets of proceedings. By the first, the Tongues were brought back before the Magistrates Court for failing to comply with the disqualification orders. On 30 April 2003 each of the Tongues was convicted. David Tongue was imprisoned for 12 weeks, Stephen Tongue for six weeks and Lionel Tongue was given a suspended prison sentence of 12 weeks. By the second, the Council on 21 March 2003 commenced civil proceedings in the Chancery Division, Birmingham District Registry. The Council pleaded that it was responsible for maintaining the welfare of animals in Worcestershire, and it pleaded the convictions obtained on 10 January and 30 October 2002 and the disqualification orders. It also averred that the Tongues continued to keep animals and had refused to give up any of them and that many of the animals in the keeping of the Tongues were in such condition that they were suffering unnecessarily. The relief sought was an injunction to permit the Council to remove the animals from the care of the Tongues, together with such ancillary orders as might be necessary for that purpose.
The Council applied for interlocutory relief until the disposal of the action. That without notice application came before Judge Norris on 27 March 2003. He made an order until 31 March 2003 which included that
the Council was permitted to enter onto the land of the Tongues for the purpose of removing livestock;
the Council was permitted to remove livestock from the land of the Tongues and to place that livestock with a competent owner;
the Tongues were forbidden from obstructing the removal of the livestock; and
the Tongues were forbidden from interfering with the keeping at a different location of livestock removed from their premises.
There was a with notice hearing of the application on 31 March. The Tongues in effect conceded that the cattle at Crumpfields, White House and Boxnott Farms were in their custody in breach of the disqualification orders. There was produced to Judge Norris what Neuberger J. was to describe as cogent evidence that the cattle were in a sorry state. However the Tongues did not accept that the cattle at Emmerdale, Pump House and Inkberrow Farms were in their custody or ownership and so Judge Norris directed that the Council’s claim in respect of those cattle should be heard at the trial. He made an order limited to those cattle in form similar to the order made on 27 March save that he included an injunction forbidding the Tongues from keeping or being involved in the keeping of any livestock at Inkberrow, Emmerdale or Pump House Farms.
The action was tried by Neuberger J. with witnesses giving oral evidence. On 6 August 2003 he gave judgment. He held that the cattle at Emmerdale, Pump House and Inkberrow Farms were kept in breach of the disqualification orders, one or more of the Tongues having custody of the cattle. He also held that none of the cattle was truly transferred to Ms. Green and that the purported transfer was "a put-up job". But on the question whether the court had jurisdiction to make the order sought by the Council, the judge, after reviewing the authorities, held that the court had no jurisdiction. He said that he would have jurisdiction to grant an injunction restraining the Tongues from having custody of any animals and in particular the cattle the subject of the action. However, he continued (in para. 71 of his judgment):
Nevertheless, in this case the Council is seeking more than an order enjoining the defendants from having custody of animals. It is seeking an order entitling agents of the Council to go onto the defendants’ land and remove their cattle. The fact that although the defendants may be committing an offence in that they are in breach of the order forbidding them to have custody of any animals, it remains the fact that the cattle are on the defendants’ land and are the property of the defendants. In my view, in the absence of the Council having some sort of right in respect of the cattle, whether under the Animals Acts, the order of the Magistrates Court, or on some other basis, there is simply no power in this court to order the cattle, which are the property of the defendants and on their land, to be taken into possession of a third party, even if it is the Council.
The judge also considered the Council’s argument that as a result of general powers and duties as a local authority with regard to animals and in the light of the disqualification orders it had sufficient power and duty in relation to any cattle in the custody of the Tongues to justify its present claim. However, after reviewing the authorities, the judge said that the claimant had to establish some sort of right or duty in respect of or over the property sought to be made the subject of injunctive relief. In the present case, the judge was of the view that the Council’s power as a prosecutor for an offence under the 1911 Act had to be governed by the statutory provisions. He rejected an argument for the Council that it could rely in this area on an implied right or duty to take in abandoned animals and to treat them appropriately. He did not think that a contention that an animal in the custody of a disqualified person should be treated as constructively abandoned could be justified without statutory authority. He said (in para. 82) about the Protection of Animals Acts:
Those Acts contain their own remedies, and provide for circumstances in which the prosecutor or anyone else can go onto the defendant’s land and take possession of animals. If those remedies or circumstances are inadequate in some way, it is for the legislature to put right any deficiency, and not for the civil courts to do so. It is one thing to say that the powers of the civil courts can be invoked to enforce the criminal law. It is quite another to suggest that the powers of the civil courts can be invoked to make good gaps in the criminal law.
The judge expressed the view that he should not order the return of the cattle removed by the order of Judge Norris as that would mean that the court would be sanctioning the commission of an offence while the disqualification order stood. However, he considered that Judge Norris was entitled to make the order which he did.
In case he was wrong on the issue of jurisdiction, Neuberger J. considered the exercise of his discretion. He concluded that it would have been appropriate to exercise his discretion in favour of the Council, because
the Tongues continued to have the custody of the cattle at Crumpfields, White House and Boxnott Farms in plain breach of the disqualification orders,
the Tongues were determined to do all they could to retain custody of the cattle,
most of the cattle had suffered significantly in the past, and
by making the order sought the court would not be imposing any onerous liability on the Tongues.
However, because of his conclusions on jurisdiction the judge dismissed the Council’s claim. He gave permission to appeal. He also gave liberty to the Tongues to apply to the court for directions as to the disposition of the animals the subject of the order of Judge Norris in the event, so far as relevant, of any appeal being dismissed by this court and of this court making no order or directions as to the disposition of those animals.
The statutory provisions
It is convenient at this stage to consider the statutory provisions relevant to this case.
Section 1(1) of the 1911 Act provides what conduct constitutes an offence of cruelty, conviction for which can lead to a sentence of imprisonment not exceeding six months or to a fine not exceeding level 5 on the standard scale or both. That conduct includes:
If a person –
The criminal court is given power by s. 2 to order the destruction of the animal whose owner is convicted of cruelty to the animal if certain conditions are satisfied, and by s. 3 to deprive a person, convicted of cruelty to the animal, of its ownership and to make such order as to its disposal as the court thinks fit.
A significant extension of the powers of the criminal court, when an owner has been convicted of cruelty to any animal under the 1911 Act, was made by the 1954 Act. By s. 1(1) it was provided that on such conviction the court might, in addition to or in substitution for any other punishment, order the owner to be disqualified for such period as it thinks fit from having custody of any animal, or any animal of a kind specified in the order. Section 1(3) provides for the removal of the disqualification on application to the court by the disqualified person. By s. 2 of the 1954 Act:
A further significant extension of the powers of the criminal court has recently been effected by the Protection of Animals (Amendment) Act 2000 ("the 2000 Act"). By s. 1(1) ss. 2 to 4 are to apply where a person mentioned in s. 1(3) and referred to as "the prosecutor" has brought proceedings for an offence under s. 1 of the 1911 Act against the owner of the animals to which the offence relates and the proceedings are still current. Section 1(3) includes among the potential prosecutors "(d) a local authority". By s. 2 (so far as is material):
By s. 3:
Thus Parliament has laid down in some detail the circumstances and the manner in which a power of entry onto the land of the owner may be exercised.
Local authorities are given further functions by the Agriculture (Miscellaneous Provisions) Act 1968 in relation to the welfare of livestock. Section 1(1) of the Act makes it an offence for any person to cause unnecessary pain or distress to any livestock for the time being situated on agricultural land and under his control or to permit any such pain or distress of which he knows or may reasonably be expected to know. By s. 2(1)(b) the Minister of Agriculture, Fisheries and Food and the Secretary of State for Scotland are empowered to make regulations for ensuring (amongst other things) the provision of balanced diets for livestock. By s. 6(2) a person duly authorised in writing by a local authority may at any reasonable time enter upon any land other than a dwellinghouse for the purpose of ascertaining whether an offence, consisting of a contravention of or failure to comply with provisions or regulations made pursuant to s. 2(1)(b), has been committed on the land. We are told that local authorities frequently act as prosecutors in respect of offences under this Act.
The power of a local authority to prosecute or defend legal proceedings is now contained in s. 222 of the Local Government Act 1972 ("the 1972 Act"). This provides (so far as material):
Finally, I should refer to s. 37 of the Supreme Court Act 1981 ("the 1981 Act") which, so far as material, provides:
The arguments on this appeal
Before this court Mr. Roger Henderson Q.C., who did not appear below, appears with Mr. David Watson, who did, for the Council. Lionel and Stephen Tongue appear in person. Mr. T. J. Clarke appears for David Tongue.
Mr. Henderson submits that Neuberger J. was wrong to conclude that the court had no jurisdiction to grant the order sought. He argues that it has such jurisdiction by reason of the fact that s. 222(1)(a) of the 1972 Act allows the Council, which considers it expedient for the promotion or protection of the interests of the inhabitants of its area, to bring these proceedings. Further, he argues that, quite apart from s. 222, the Council as a local authority with the duty of enforcing the law on animal welfare, has a sufficient right or interest to obtain relief from the civil courts to enforce compliance with the criminal law relating to the protection of animals. Under both heads he relies on the width of the language of s. 37 of the 1981 Act as to the relief which the court can grant.
Mr. Clarke submits that Neuberger J. was right for the reasons which he gave. He says that it is not the role of the civil courts to do what a criminal court has not done. He points to the unprecedented width of the order sought, contrasting that with the negative injunctions which have previously been granted in the decided cases.
Lionel and Stephen Tongue also addressed us. They supported what Mr. Clarke said, but they made clear their strong dissatisfaction with the orders made in the criminal proceedings and by Judge Norris as well as the decision of Neuberger J. on their custody of the cattle at Crumpfields, Boxnott and White House Farms. Lionel Tongue told us that he regarded the cattle as pets. They deny any cruelty to any of the cattle. I am afraid that much of what they had to say does not bear on any of the points which we have to decide. There is no appeal or cross-appeal from the factual findings of the judge. All that we are concerned with is the issue of jurisdiction.
I start with the order sought. That is in the following form:
This is not the conventional form of an injunction in aid of the criminal law such as the courts used to grant to enforce compliance with the laws on Sunday trading contained in the Shops Act 1950. Such injunctions were to restrain trading in breach of that Act. The form of the order sought contains nothing comparable. True it is that it commences in para. 1 with a mandatory order requiring the Tongues to permit the Council entry on their land and in para. 2 an order prohibiting the Tongues obstructing the Council from removing livestock. But those paragraphs are ancillary to paragraph 3 which is intended to confer permission on the Council to effect the removal of the cattle and the remaining paragraphs are intended to allow the Council to deal with the cattle so removed. The orders sought borrow heavily from the provisions of ss. 2 and 3 of the 2000 Act, but go beyond what the criminal court may grant under those sections, because the orders sought are not limited to the animals cruelty to which has been found perpetrated by the owners in a successful prosecution under the 1911 Act (see Cornwall County Council v Baker  2 All ER 178, a decision of Toulson J., the correctness of which was accepted by Mr. Henderson). Thus despite the significant further extension of the powers of the criminal court in this area by the recent 2000 Act, he is asking a civil court to go well beyond what the criminal court is now authorised to do. Parliament in the 2000 Act did not extend the sanctions imposed by s. 3 of the 1954 Act for breach of a disqualification order. That is an unpromising background against which to ask the court to make the order, and there come to my mind the cautionary words of Hoffmann J. in Chief Constable of Leicestershire v M  1 WLR 20 ("Leicestershire") at p. 23 (referring to statutory provisions conferring powers on criminal courts in respect of suspected proceeds of crime):
The recent and detailed interventions of Parliament in this field suggest that the courts should not indulge in parallel creativity by the extension of general common law principles.
For my part I readily accept that by s. 222 of the 1972 Act Parliament has given local authorities a special status to bring proceedings in their own name, thereby overcoming the difficulties which existed at common law in bringing civil proceedings in aid of public law. The Shops Act cases and in particular Stoke-on-Trent Council v B & Q Ltd  AC 754 confirm that that is so, although Lord Templeman emphasises at p. 776 the reluctance with which local authorities should seek, and the courts should grant, an injunction which if disobeyed may involve the infringer in sanctions more onerous than the penalty imposed for the offence. Lord Templeman, quoting the words of Lord Wilberforce in Gouriet v Union of Post Office Workers  AC 435 at p. 481 on the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, said that there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area. Mr. Henderson rightly accepts that and points to the repeated criminal orders obtained and to the injunction granted by Judge Norris but not obeyed by the Tongues. Mr. Henderson also draws attention to the fact that s. 222 has been used by local authorities to obtain injunctions from civil courts in circumstances other than the flouting of the Sunday trading laws, for example, to restrain nuisance by noise, breaches of town and country planning laws and of a tree preservation order.
I agree that there is jurisdiction for the civil courts to grant an injunction at the suit of a local authority acting pursuant to s. 222 to restrain a breach of the criminal law, but it does not follow that the court has jurisdiction to grant the local authority any order which is intended to prevent the continuation of a breach of the criminal law, even though the local authority brings the proceedings on the basis that it considers that to be expedient for the promotion or protection of the interests of the inhabitants of its area.
That must depend on the terms of the order sought. An injunction restraining continuation of the breach is one thing. It is quite another to grant an order to remove cattle belonging to others from land belonging to others and to seek ancillary orders such as one requiring the owners to permit the Council entry on their land and to deal with cattle as the Council thinks appropriate. What confers on the Council such rights, when Parliament has allowed the criminal court to give the prosecutor many rights but not those sought in the present circumstances? Whilst accepting that a local authority has functions in the area of animal welfare, I do not accept that the functions, which are spelt out by statute, go as far as to cover what the Council now seeks from the court.
Mr. Henderson submits that the question for the court is not one of jurisdiction but of discretion, and he relies on remarks made in this court in Broadmoor Special Hospital Authority v Robinson  QB 775. In that case the defendant, who after conviction for manslaughter had been ordered to be detained in a special hospital, wrote a book in which he identified and wrote about other patients. The hospital authority obtained ex parte injunctions restraining the posting of the book to others with specific exceptions and requiring the delivery of the book. On the defendant’s application the injunctions were discharged. On appeal by the hospital authority this court (Lord Woolf M.R. and Waller L.J., Morritt L.J. dissenting) held that it had jurisdiction, on the hospital authority’s application, to grant an injunction to prevent interference with its performance of its public responsibilities, and that the court, exercising its power under s. 37 of the 1981 Act, should grant such an application when it appears to the court to be just and convenient so to do. However, this court unanimously found that the activity of the defendant did not amount to an interference with the performance of the hospital authority’s public responsibilities and so the appeal was dismissed. A feature of the statutory regime relating to the functions of the hospital authority was the power in s. 134 Mental Health Act 1983 giving it specific power to seize postal packets addressed to any person by a detained patient if it considered the package likely to cause distress or danger, and Mr. Henderson drew our attention to the comment of Lord Woolf at p. 789, "I regard the existence of the power under s. 134 .... as being relevant to discretion and not jurisdiction."
I am not able to derive assistance from the Broadmoor case for the resolution of the issue in the present case, so very different are the circumstances, including the statutory regime, of that case from those in the present case. There is no question, to my mind, of interference by the Tongues with the performance by the Council of its public responsibilities. They have not complied with the disqualification orders or with Judge Norris’ injunction, but the Council has been able to perform its public responsibilities, even though the steps it has taken have not yet produced the desired result. The Council could have taken further measures, such as by taking the Tongues back to the civil court to obtain sanctions for the disobedience to the injunction of Judge Norris by contempt proceedings and by asking for sequestration, but it has chosen not to do so. In any event, unlike the relief sought in the Broadmoor case, the primary relief sought in the present case is not an injunction restraining the keeping of cattle by the Tongues but authority to permit the Council to remove cattle from the Tongues’ land and accompanying directions.
I conclude that Neuberger J. was right to hold that s. 222 does not confer jurisdiction on the court to grant the relief sought by the Council.
I turn therefore to the alternative argument of Mr. Henderson that independently of s. 222 the Council has a sufficient right or interest to obtain the orders sought through its function of enforcing the law on animal welfare. He drew our attention to the celebrated remarks of Lord Diplock in The Siskina  AC 210 at pp. 256, 7 that the applicant for an injunction must assert some legal or equitable right which he asks the court to protect.
Mr. Henderson argued that that comment made in a case involving a private law dispute does not provide an exhaustive definition of the circumstances in which the court has jurisdiction to grant an injunction. He referred to South Carolina Insurance Co. v Assurantie NV  AC 24 at pp. 39, 40 where Lord Brandon considered whether the circumstances of that case were such as to give the court power to grant an injunction at all, and stated certain basic principles governing the grant of an injunction. The first was that the power to grant an injunction was statutory (s. 37 of the 1981 Act). The third related to injunctions to restore proceedings in a foreign court, with which we are not concerned. The second was this:
The second basic principle is that, although the terms of section 37 (1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. The nature of the limitations to which the power is subject has been considered in a number of recent cases in your Lordships' House: Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A.  A.C. 210; Castanho v. Brown & Root (U.K.) Ltd.  A.C. 557; and British Airways Board v. Laker Airways Ltd.  A.C. 58. The effect of these authorities, so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable.
At p. 41 Lord Brandon refused to define unconscionable conduct but said that it included conduct which is oppressive or vexatious or which interferes with the due process of the court.
As I read those remarks of Lord Brandon, he was supporting what Lord Diplock had said but extending the circumstances apt for the grant of an injunction to include unconscionable behaviour. Mr. Henderson made the bold submission that the Tongues by their behaviour were behaving unconscionably and that this gave the court jurisdiction to grant an injunction. I am afraid that I regard that submission as fanciful. I cannot believe that Lord Brandon was using the term unconscionable, which to equity lawyers has a connotation far removed from mere breaches of the criminal law, to cover the present circumstances. It appears from Lord Brandon’s remarks at p. 41 that he had in mind some procedural misbehaviour by a party to proceedings.
The real question under this head is whether the Council has a sufficient interest in the subject matter of the order sought such as would enable the court to have jurisdiction to grant the relief claimed. In this context we were referred to the decisions of this court in Chief Constable of Kent v V  QB 34 ("Kent") and Chief Constable of Hampshire v A Ltd.  QB 132 ("Hampshire"). The former case has caused difficulty because it was decided by a majority (Lord Denning M.R. and Donaldson L.J., Slade L.J. dissenting) and it is not easy to discern a single underlying ratio in the majority judgments. However the interpretation by Oliver L.J. in Hampshire of the earlier decision has won general acceptance. Oliver L.J. said at p. 137:
Both Lord Denning M.R. and Donaldson L.J. were, however, agreed to this extent, that jurisdiction to grant an injunction on the application of the Chief Constable in that case existed only if he could be found to have a sufficient interest in making the application, and they appear broadly to have been in agreement as to the foundation of the interest which they held to exist and to be sufficient. That was found to be in the duty of the Chief Constable to seize and detain goods stolen or unlawfully obtained and to restore them to their true owner, a similar duty being applied by analogy to intangible assets such as a credit in a bank account.
Clearly Kent shows that a type of interest different from a legal or equitable right can be enough for an applicant to obtain an injunction. But courts subsequent to the Kent decision have not been prepared to extend the applicability of the principle which it decided more widely (consider, for example, Hampshire and Leicestershire). Further the relief granted in Kent was an injunction to restrain the disposal of the assets in question.
I cannot see how this line of authority avails the Council in the present case. Whilst fully accepting that local authorities have powers and duties to enforce the law relating to animal welfare, the problem for the Council remains that it is not seeking mere injunctive relief to restrain the breach of the disqualification order but it is asking for authority to remove animals belonging to others from land belonging to others. Under the existing statutory provisions the Council does not have a sufficient interest to obtain that relief.
In truth what the Council is doing is to point to deficiencies in the present criminal law and to ask the court to make an order overcoming those deficiencies. I do not doubt that local authorities have real problems when disqualified defendants continue to keep custody of animals and I have sympathy with the Council, but I do not accept that this court has jurisdiction to make the order which it seeks. I prefer not to comment on whether the Council can invoke the assistance of the civil courts in other ways such as by seeking a receivership as was mentioned in argument.
What is to happen to the cattle removed pursuant to Judge Norris’ order is not a question raised on this appeal. I have already noted the liberty given to the Tongues in Neuberger J.’s order.
I would be prepared to grant an injunction to restrain the Tongues from having custody of any livestock on the basis that this court does have jurisdiction to make such an order and that it is just and convenient to do so. Mr. Clarke indicated that David Tongue would accept the making of that order. But beyond that I would not go. For the reasons which I have endeavoured to express in this judgment I would dismiss the appeal.
Lord Justice Chadwick
This is an appeal from the refusal of Mr Justice Neuberger to make an order in the form which is set out at paragraph 28 of the judgment of Lord Justice Peter Gibson. The judge held that he had no jurisdiction to make an order in that form. In my view he was correct to reach that conclusion, for the reasons which he gave and which Lord Justice Peter Gibson has expanded and endorsed. It follows that I, too, would dismiss this appeal.
The respondents are each the subject of disqualification orders made under section 1(1) of the Protection of Animals (Amendment) Act 1954. The disqualification orders require that none of the respondents have custody of any animal (other than a cat or dog). I would accept – as the judge accepted (at paragraph 70 of his judgment) – that a civil court has power, in aid of the criminal law, to make an order by way of injunction in the same terms; that is to say, to grant an injunction restraining each defendant from having custody of cattle or other farm animals. I agree with Lord Justice Peter Gibson that this is a case in which it might well have been just and convenient to grant an injunction in those terms. But that is not the order which the appellant local authority has sought.
It would have been open to the local authority, at a time when proceedings leading to the disqualification orders were pending, to seek orders under section 2 of the Protection of Animals (Amendment) Act 2000. As Lord Justice Peter Gibson has pointed out, orders under section 2 of that Act would have enabled the local authority to do – in relation to "the animals in question" – most, if not all, of what it seeks powers to do in the present proceedings. Paragraphs 5, 6 and 7 of the order sought in these proceedings are encompassed within section 2(2)(a) of the 2000 Act; and paragraph 8 of the order sought is in terms which are indistinguishable from those of section 2(2)(b) to (d) of that Act. And, for my part, I would accept that, if an order under section 2 of the 2000 Act had been made against the respondents, the civil court would have had power to grant an injunction in terms which enabled that order to be enforced by civil remedies.
In those circumstances the civil court might well have made an order in the terms sought in the present case; but with one important qualification. An order under section 2 of the 2000 Act would be made, if at all, in relation to the "animals in question"; that is to say, in relation to the "animals to which the offence relates" – see section 1(1)(a) of that Act. In that context "the offence" is the offence in respect of which the proceedings leading to the disqualification orders were brought – see section 1 of the Protection of Animals Act 1911, section 1(1) of the 1954 Act and section 1(1)(a) of the 2000 Act. As Mr Justice Toulson pointed out in Cornwall County Council v Baker  2 All ER 178 – a decision which the appellant does not challenge – the only animals in relation to which an order can be made under section 2(2) of the 2000 Act are the animals which are said to have been treated cruelly in the context of proceedings under section 1 of the 1911 Act. It would not have been possible for the criminal court to make an order under section 2(2) of the 2000 Act in relation to "any livestock [on] the land of the Defendants or any of them" unless it had been established, to the standard of proof applicable in criminal proceedings, that all animals then on the defendants’ lands had been treated cruelly within the meaning of section 1 of the 1911 Act.
It appears that the local authority did seek and obtain orders under section 2(2) of the 2000 Act at the time when the proceedings leading to the disqualification orders made on 30 October 2002 were pending. But it must be assumed that, in order to obtain those orders, the local authority did not need to establish (and did not establish) that all animals then (or now) on the defendants’ lands had been treated cruelly within the meaning of section 1 of the 1911 Act. What it needed to establish, for that purpose, was that there were grounds to think that the animals which were the subject of those proceedings had been treated cruelly. It must be open to doubt whether it could have established more. The order which Mr Justice Neuberger was asked to make is not an order in aid of the criminal law. It is an order which goes beyond what the criminal court was asked to do; and (as it seems to me) beyond what the criminal court could have been asked to do. And, given that proceedings under section 1 of the 1911 Act are no longer pending, it goes beyond what the criminal court could now be asked to do, without a further charge of cruelty being made. As the judge put it, at paragraph 82 of his judgment:
It is one thing to say that the powers of the civil courts can be invoked to enforce the civil law. It is quite another to suggest that the powers of the civil courts can be invoked to make good gaps in the criminal law.
Although I am in no doubt that, in seeking the order which it now pursues, the local authority is asking the civil court to take a step too far, the defendants should not be encouraged to think that the disqualification orders made in 2002, and confirmed on appeal on 23 December 2003, can be flouted. They have already been convicted and sentenced to imprisonment, under section 2 of the 1954 Act, for failure to comply with those orders. It has not been suggested that further criminal proceedings could not be brought for further breaches of the disqualification orders. And, as Lord Justice Peter Gibson has pointed out, the local authority could seek an injunction from the civil court restraining the defendants from having custody of any animal in breach of those orders. I do not accept that, if such an injunction were granted, the civil court would be powerless to enforce it by appropriate sanctions, including committal and sequestration; nor that, if an order for sequestration were made, it might not confer on sequestrators the powers which the local authority now seeks. But, before a party is exposed to those sanctions, he is (save in exceptional cases) entitled to the protection of procedural safeguards.
I reject the suggestion, implicit in the submissions made on behalf of the local authority that, if this appeal is dismissed, the Court will be condoning the continued ill-treatment of farm animals. I am satisfied that the civil court has powers to ensure compliance with disqualification orders made under section 1 of the 1954 Act. It is for the local authority to invoke those powers (if it thinks fit) in the manner for which the Civil Procedure Rules provide. It has not yet chosen to do so.
Sir Martin Nourse
For the reasons given by Lords Justices Peter Gibson and Chadwick, I agree that the appeal should be dismissed.
The essence of the matter is that the Council seek relief, not only in respect of "the animals in question" within section 2(1) of the Protection of Animals (Amendment) Act 2000, i.e. "the animals to which the offence [of cruelty under section 1 of the Protection of Animals Act 1911] relates" (see section 1(1)(a) of the 2000 Act), but also in respect of livestock on the defendants’ land in relation to which no offence has been established in criminal proceedings. Livestock falling into that category cannot be made the subject of an order under section 2(2) of the 2000 Act. So the Council is seeking relief, not in aid of the criminal law, but, as Mr Justice Neuberger said, to make good gaps in that law. That is relief which no civil court can grant, and no authority cited is to the contrary.
Mr. Roger Henderson Q.C. and Mr. David Watson (instructed by Worcestershire County Council Legal Services) for the Appellant.
Mr. Timothy Clarke (instructed by Messrs Sampson & Co of Redditch) for the 1st Respondent.
Stephen Tongue and Harold Tongue were unrepresented and appeared in person.
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