Full Case Name:  James Henry Barrington v. Jeffrey Colbert, Keith Colbert and John Fleming

Lord Justice Pill:

This is a prosecutor's appeal by way of Case Stated from the decision of the New Forest Magistrates made on 14th September 1994.  It revolves around the meaning of the words: "captivity and confinement" in the Protection of Animals Act 1911 (as amended).
 
The Respondents were charged that: 

"On the 9th day of October, 1993 at Ocknells enclosure in the New Forest in the County of Hampshire, jointly by unreasonably doing an act, namely imprisoning a fox and a dog together in a water filled culvert did cause unnecessary suffering to the said fox.
Contrary to S. 1(1)(a) of the Protection of Animals Act 1911 as amended... [The 1911 Act. ]"

There was a separate charge under the Act, but, for present purposes, that is not material.

At the hearing of this appeal Mr Keith Colbert and Mr John Fleming are represented by counsel Mr Bebb. Mr Jeffrey Colbert is present in Court but did not apply to add anything to the submissions of counsel on behalf of the other Respondents.

The Magistrates heard the case in August and September 1994.  They found that on 9th October 1993 the Respondents formed part of a lawful hunt of the New Forest Fox Hounds in their capacity as Terriermen. 

In the course of the hunt the Respondents were requested to attend at Ocknells enclosure in the New Forest by the huntsmen.  A fox the huntsmen had been hunting, had entered a land drain (also known as a culvert) in the area and remained in that land drain.  It had gone to ground in the land drain at about 12.55pm.  The Master of the Hunt decided that the fox should be shot and killed.  This was thought necessary because the land drain was only about 30 yards from the A31 road, a busy dual carriageway linking the New Forest town of Ringwood and the M27 motorway.  If the fox was allowed to go free in that location it might cause danger to motorists as well as to persons and animals engaged in the hunt.  Further, the justices found the purpose of the hunt was to cull and reduce the population of foxes and the area had a high density of foxes.

One of the conditions of the licence, under which the hunt operated, was that if pursuant to the hunt any digging was necessary the person seeking to dig must obtain the permission of the New Forest Duty Keeper.  The keeper was duly contacted and told that the intention was that a Jack Russell Terrier dog would be introduced into the land drain to chase the fox from it so that it could be killed by shooting.  The Duty Keeper gave permission for that to happen, provided the water level at the bottom end of the land drain was shallow enough to allow the dog to be introduced safely.  There was a delay in the procedure because another dog entered the land drain and it was some time before it could be removed.  The drain was 48 yards long and 12 inches in diameter.  It followed the contour of the hill rising steadily at first and then steeply after ten yards.  At the bottom end, the land drain was 75 per cent filled with water and there were rocks and silting in the entrance.

Those obstructions were cleared with the result that the water level at the entrance dropped to six inches, a depth in which it was considered, by the Respondent, Mr Jeffrey Colbert, and the duty keeper, to be a safe level for the Jack Russell Terrier dog to be introduced.  After the first ten yards, due to the rising contour, the drain was clear of water except for a trickle.  Expert evidence was given from a vetinary surgeon, and accepted by the Justices, that it was safe to enter the Terrier into the land drain in the circumstances which then prevailed.

The Terrier selected, by the name of "Tosh", was an experienced dog.  The procedure which was expected to be followed was that the dog would travel up the land drain and when in close proximity to the fox would bark and growl at it thereby causing the fox to leave the drain at the top end.  At the top end a purse net was placed over the drain in such a way that the fox would be restrained when leaving the drain.  The fox would not see the net which would enfold around the animal as it left the drain.  Once in the net it was proposed that the fox would be shot.

A number of people gathered at the top end of the  drain.  There was a group of up to 18 people who were there to support the hunt and at least 8 people present were opposed to the hunt taking place.  At 13.22 the net was placed over the top end of the land drain and four minutes later Tosh was introduced.  A spade was placed near the bottom entrance of the land drain once the dog had entered. This, the Justices found, was a common hunting practice, the object being to slow the exit of the fox if, and when, it emerged from the drain.

At first the operation went well and at 13.28 the fox bolted from the top end of the land drain.  However, due, as the Justices found, to the crowd which had gathered at the top end of the land drain, the fox returned into the drain instead of being enfolded in the net.  At 13.40 the dog was heard to be baying in the land drain and one minute later it emerged pulling out the fox at the bottom end of the drain having locked on to the fox's jaw.  One minute later at 13.42 hours one of the Respondents, having hurried down the length of the drain from the top end to the bottom end, shot and killed the fox with a single shot.  The dog had not been injured and apart from the fatal shot to the head there were no serious injuries to the fox.

On the basis of those findings the Justices concluded that:

"The fox was not a captive animal for the purposes of Section 15 of the Protection of Animals Act, 1911.  We did not consider that the Protection of Animals Act, 1911, envisaged that an animal found in this way for this period of time would amount to 'captivity or confinement'.  We accepted that the Protection of Animals Act, 1911, required  captivity to mean something more than capture and necessitated 'further act of dominion".

Accordingly the fox was not entitled to protection under the 1911 Act.

The question posed for the opinion of this Court is:

"Were we entitled to conclude that in law the fox in question was not a captive animal to which Section 1 of the Protection of Animals Act, 1911 applied?"

Section 1(1) of the 1911 Act provides, in so far as is material:

"If any person-
 
(a)  shall... by... unreasonably doing or omitting
    to do any act, or causing or procuring the
    commission or omission of any act, cause any
    unnecessary suffering... to any animal...
 
such person shall be guilty of an offence of cruelty within the meaning of this Act..."

The wording of section 1(1)(a) permits of many permutations of charge, and I have read only those parts which relate to the charge actually preferred in this case. The word "animal" is defined in section 15 of the Act:   

"(a) the expression 'animal' means any domestic or captive animal;

[It emerges from (b) that the fox is not a domestic animal.]

(c) the expression 'captive animal' means any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any, bird, fish or reptile, which is in captivity, or confinement, or which is maimed, pinioned, or subjected to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement;"

Only two words in that definition are in issue, but I have read the whole of it so that those words can be  considered in context.

There can be no doubt that the fox was effectively restrained in the land drain for a significant period of time.  Once the spade was placed at one end, and the net at the other, the fox could not get out.  The Appellant puts the time of restraint at 45 minutes, time running from when the fox entered the land drain to the time of its death. The Respondent submits that the restraint began only when the net was placed over the top end of the land drain.  I am inclined to prefer the latter view, but do not find the difference in time between the parties critical for present purposes.

The Appellant is a former executive director of the League Against Cruel Sports and appears before this Court by Mr Bryan of counsel.  Mr Bryan submits that during the period of restraint the fox was in captivity or confinement within the meaning of those words in section 15(c) and was, therefore, a captive animal.  Mr Bebb submits that the inability of the animal for a period of time to get away was insufficient to place it within that definition.

We have been referred to a number of cases, but it is only in two of them that I find help for the present purposes.  First, Rowley v Murphy [1964] 2 Q.B. 43 was a case where a wild stag was being hunted and slipped and fell under a stationary van.  It was dragged out and then dragged into a nearby enclosure where it was killed.  When the case was heard in the Divisional Court Lord Parker, Chief  Justice, and Fenton Atkinson J found the case a difficult one.  Lord Parker stated that he had found it "by no means an easy question".

Fenton Atkinson J was clearly impressed by the arguments in favour of a broad definition of the word "captivity." Lord Parker, too, found persuasive the arguments on behalf of the prosecutor in that case.  The third member of the Court, Winn J, did not express any doubts upon the question.  He stated that:

"... mere captivity is not to be equated with the expression 'in captivity.'  The mere fact that an animal has been captured does not by itself make that animal one which is in captivity."

Reference was made by members of the Court, in the conclusion they reached, to the title of the predecessor of the 1911 Act: the Act of 1900, which was entitled: "An Act for the Prevention of Cruelty to Wild Animals in Captivity". Winn J referred to the provisions of section 1(3)(b) of the 1911 Act which he found helpful in construing the words in question:

S1(3)"Nothing in this section shall apply-
...
 
(b) to the coursing or hunting of any captive animal, unless such animal is liberated in an injured, mutilated, or exhausted condition; but a captive animal shall not, for the purposes of this section, be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or hunted or after it has been captured, or if it is under control...."

Winn J stated:

"...it seems to me that it is impossible to say that any 'captive animal' in that context has the same meaning as 'an animal which is in captivity' in the ordinary sense of those words... If then, it is impossible to read the words 'any captive animal' in section 1(3)(b) as meaning an animal which is then captive or in a state of restraint arising from captivity, it seems to me that, construing the Act as a whole and having regard to the history of the legislation and, in particular, to the title and scope of the Act of 1900 to which Lord Parker CJ has made reference,a clear distinction is drawn between 'in captivity' meaning a state of captivity and the fact of being a captive, ie, subject temporaily to restraint by human beings."

Lord Parker stated that:

 "...a mere temporary inability to get away did not amount to a state of captivity, so here something more than mere captivity, some period of time during which acts of dominion are exercised over the animal, is necessary before the animal can be said to be in a state of captivity."

Lord Parker also made reference to the principle that if:

"words are ambiguous, then this section being a penal one must be strictly construed in favour of the defendant.'"

The meaning of the words was also considered in this Court in Hudnott v Cambell (transcript 24th June 1986.) In that case the decision of Rowley was analysed in detail.  Watkins LJ stated:

"We are bound by the decision of this court in Rowley v Murphy which I have no reason to think... was wrongly decided.  The proper construction of section 15(c) of the Act is not, I agree, easy to achieve, but this court has pronounced upon it in the case mentioned, in a way which clearly, as I see it, prevents us from doing anything but follow that decision."

With respect, I find the construction difficult too, having regard to the ordinary meaning of the words concerned, but I am in no doubt that we are bound by the decision of this Court in Rowley .

In the course of argument the question was raised  whether the word "confinement" could be distinguished from the word "captivity" as being a state in which "acts of dominion" were, unlike the case of captivity, not required. Mr Bryan did not seek to make that distinction, and I think rightly.  He submitted that the difference was spacial rather than in relation to "acts of dominion".  There could be situations, for example, an animal restrained in a field or paddock, where the animal might, more appropriately, be described as in confinement than in captivity.  The point was raised in Rowley .  Lord Parker stated at page 49:

"What the difference between captivity and confinement is no one has been able to say.  Confinement, no doubt, contemplates some outside barrier confining the animal, while captivity may or may not mean much the same."

Whatever other difficulties the definition may create, it is clear that the Court was not in Rowley making a distinction on the basis that acts of dominion were required in one case, but not the other.

The present case is stronger than Rowley from the prosecution point of view in that the restraint was for a longer period and attention was drawn in Rowley to the length of restraint as a factor.  I accept that on the facts the restraint of the fox in this case was a complete restraint, was one contrived by human beings and was for a significant period of time.  The fox was captive in the sense that that word was used by Winn J in Rowley .

Mr Bryan submitted that the restraint, combined with putting the dog into the land drain, put the fox into a  state of captivity.  He submitted that the words should not be narrowly construed: an animal being taken to a zoo is not in captivity only when it passes through the gates of the zoo, but is in captivity when, under appropriate control and supervision, it is being taken there.  That situation is, however, different from the present case.

The continuing restraint in this case was incidental to the attempt at capture and the capture itself.  The fox was temporarily restrained with a view to it being killed.  In my judgment, it never passed into the state of captivity contemplated by the 1911 Act as construed in Rowley v Murphy .  I would answer the question posed by the Justices in the affirmative.  I would add that if the answer was in the negative there could be no conviction upon the facts in this case, having regard to the Justices' finding at paragraph 6:

"Further it could not have been foreseen that the actions of the people at the top end of the land drain would cause the fox to return to the land drain 'mask on' and thus the eventual dragging out of the fox from the bottom end of the land drain by the Jack Russell Terrier dog."

Clearly the Justices would not have found the conduct of the Respondents unreasonable as that word is used in the charge. This would not have been an appropriate case to remit to the Justices, in any event.

Before concluding I refer to the delay which has occurred in this case since the hearing before the Justices.  We have not declined to hear the case on that ground, but it is most unfortunate.  The Justices submitted  what was described as a draft case and then did not answer letters from the Appellant's then solicitors requiring progress.  They claim to have no record of some of the letters and they also asserted, contrary to what has now emerged, that the case, which had been submitted in 1995, was a perfected and signed case.  It would not be appropriate to say more in the absence of representations from the Justices, but it is to be hoped that the Justices and the parties will ensure that delays of this kind do not occur in the future.

For the reasons I have given, I would dismiss this appeal.

Mr Justice Garland:

I agree.  The difficulty in this case arises from the definition in section 15 of the word "animal" for the purposes of section 1 which creates the offence.  In paragraph 15(a) animal is defined as: "any domestic or captive animal" and in paragraph (c) captive animal is defined as: "any animal (not being a domestic animal)... which is in captivity, or confinement..."

There is no definition of captivity or confinement, but in  Rowley v Murphy [1964] 2 QB 43 there is a clear decision that some period of time, during which acts of dominion are exercised over the animal, is necessary before an animal can be said to be in a state of captivity. I see no logical reason for applying any different approach to the word "confinement".  In Steel v Rogers , [1912] 28 TLR 198; 106 LT 79, which was quoted with approval in Rowley v Murphy , Pickford J said:

"I think in captivity or close confinement means something more than merely temporarily being unable to get away from the spot upon which they are."

I take the view that we are constrained by the decision in Rowley v Murphy to answer the question posed by the Justices in the affirmative and I agree with the further matters with which my Lord has dealt.