Barnard v. Evans
United Kingdom: England & Wales
 2 KB 794
This was an appeal against the acquittal of a person who had shot at, and wounded, a dog which had been trespassing. The magistrates had found that it had not been necessary to shoot the do, but acquitted the defendant, apparently because there was no evidence that he knew that his actions were unnecessary. Allowing the appeal, the Divisional Court held that the expression "cruelly ill-treat"" in s 1(1)(a) of the Protection of Animals Act 1911 means to "cause unnecessary suffering" (per Shearman J)and "applies to a case where a person wilfully causes pain to an animal without justification for so doing" (per Avory J). It is sufficient for the prosecution to prove that the animal was caused to suffer unnecessarily. The prosecution does not have to prove that the defendant knew that his actions were unnecessary.
Opinion of the Court:
Lord Hewart LCJ:
I have no doubt that this appeal ought to succeed. The justices found that the respondent shot at the dog with intent to kill him, and that as the result of the shooting he was cruelly ill-treated, and that it was not necessary to use a shot gun to drive the dog away. In these circumstances the justices would have convicted, but they thought or they were induced to think that judicial decisions prevented them from so doing. The law in such a case is stated in Vere v. Lord Cawdor 11 East, 568, 570, where it is laid down, as in many other cases, that the question is whether there was necessity for the shooting. Lord Ellenborough says in that case:
"The question is, whether the plaintiff's dog incurred the penalty of death for running after a hare in another's ground? And if there be any precedent of that sort, which outrages all reason and sense, it is of no authority to govern other cases. There is no question here as to the right to the game. The gamekeeper had no right to kill the plaintiff's dog for following it."
It should be observed in that case that it had been argued by eminent counsel for the defendant that the justification need not allege that the killing was a necessary means of preserving the hare. That case decides that to shoot an animal in such circumstances without justification is to commit an offence.
Apparently undue stress was laid on the decision in Hooker v. Gray 71 J. P. 337, which turned upon special facts, and was said to come within Powell v. Knight 42 J. P. 597, where the question was not argued and decided, but assumed. A distinction is to be drawn between such a case and a case where the person is charged with unlawfully and maliciously destroying another's property. As was said by Channell J. in Miles v. Hutchings  2 K. B. 714, 717:
"The existence of a malicious intention would be negatived if the appellant wrongly, but honestly, believed that it was necessary to shoot at the dog in order to drive him away; but while the justices have found that the shooting was unnecessary, they have found nothing as to the appellant's bona fide belief."
In my opinion the justices were led by a true instinct when they desired to convict, and they were misled when they were induced to believe that there was any decision of this Court or any other Court which prevented them from so doing.
The case must go back to the justices with a direction to convict.
I am of the same opinion. I think the expression "cruelly ill-treat" applies to a case where a person wilfully causes pain to an animal without justification for so doing. In this case it is not proved, nor is it stated in the case, that the dog was in fact chasing fowls; it is only said that it was alleged that when the respondent saw it, it was chasing fowls. There is no distinct finding in the case that there was any necessity, even if it were chasing fowls, to resort to this extreme measure.
I agree that the case should be remitted with a direction to convict.
I am of the same opinion. I think the case is of considerable importance, because the opinion has got abroad that if dogs are shot when trespassing, that does not come within the Protection of Animals Act, 1911, though it may come under other similar statutes. The Protection of Animals Act, 1911, s. 1 (a), under which this respondent was summoned, is directed against any person who "shall cruelly ill-treat," and it also goes on to say: "who shall by wantonly or unreasonably doing any act cause any unnecessary suffering." No doubt those offences are described a little differently. It appears to me that upon a summons under this first limb of the sub-section one has to consider what is cruelty. I do not think it can be better defined than as "causing unnecessary suffering." It is necessary in some operations to cause suffering. It seems to me that what the justices have to look at, when a man is charged with cruelly beating or ill-treating, is whether he is doing something which it was not reasonably necessary to do. They have found that the respondent was not justified in doing this act, and therefore he caused unnecessary suffering and did "cruelly ill-treat" this dog. The case must go back to the justices with a direction to convict.