The Court upheld a decision of local justices to dismiss an information that the defendant "did cruelly ill-treat, abuse, and torture a certain animal" contrary to the Cruelty to Animals Act 1849, s. 2 (1). The Act made it an offence to ill-treat, abuse, or torture an animal, and thereby established three separate offences from which the prosecutor should have elected. Note: Although the 1949 Act has been repealed, similar language appears in the Protection of Animals Act 1911, s 1(1)(a), and presumably the same reasoning applies to that statutory provision.
I am of opinion that we ought not to interfere with the decision of the justices. All the evidence had been taken. When a summons is issued under s. 2 of the Cruelty to Animals Act 1849, the justices cannot decline to proceed merely on the ground that the summons is irregular in form or is open to objection on the ground of an alleged defect. They should hear the evidence, but when it has been given they must make up their minds whether an offence under the summons has been proved, and at that stage it is not placing too great a burden on the prosecutor to ask him to specify the offence which he alleges the evidence supports. But the present application practically amounts to a contention that there ought to be a conviction in the words "ill-treat, abuse, and torture." That raises the question whether the words "abuse, or torture" in s. 2 of the Cruelty to Animals Act 1849 are only descriptive of the consequences of the ill-treatment and are not to be construed as creating separate offences. On behalf of the appellant it was contended that a conviction in the words "ill-treat, abuse, and torture" would be good upon the ground that these words create only one offence. It is impossible to come to that conclusion. In my opinion it was not the intention of the Legislature that the words "abuse, or torture" should be coupled with the word "ill-treat" so as to create only one offence. The intention was that it shall be an offence either cruelly to ill-treat or to abuse or to torture an animal. It would be contrary to the principles of our criminal law to say that a conviction for "ill-treating, abusing, and torturing" would be good on the ground that it is for only one offence. The decision in R. v. Totnes Justices , The Times , May 9, 1979, cannot be treated as an authority in support of the contention that a conviction for "ill-treating, abusing, and torturing" would be a good conviction. In that case no question arose as to what the conviction ought to have been for upon the evidence, and therefore no question arose as to the election by the prosecution as to the charge upon which they would proceed. In the present case, as the appellant asked for a conviction in the terms "ill-treat, abuse, and torture," and was not content with a conviction for one of the offences of ill-treating or abusing or torturing, the justices were right, and this appeal cannot succeed.