Where a person has sent a dog into the earth of a fox or sett of a badger with the result that a confrontation took place between the dog and a wild animal, and the dog experienced suffering, it will be open to the tribunal of fact to find that the dog has been caused unnecessary suffering and that an offence has been committed under section 1(1)(a) of the Protection of Animals Act 1911.
Schiemann LJ:
Before the Court is an appeal by way of Case Stated from the Crown Court at Teeside, where the Appellants were convicted of cruelly ill-treating a Lakeland Terrier dog contrary to section 1(1)(a) of the Protection of Animals Act 1911.
That section, which has been amended many times over the years and has become really rather unwieldy, now reads as follows:
"If any person shall cruelly beat, kick, ill-treat, override, overdrive, overload, torture, infuriate or terrify any animal or shall cause or procure or, being the owner, permit any animal to be so used or shall by wantonly or unreasonably doing or omitting to do any act or causing or procuring the commission or omission of any act, cause any unnecessary suffering or being the owner permit any unnecessary suffering to be so caused to any animal, he shall be guilty of an offence."
The particular part of that long subsection of which the Appellants were convicted was, as I say, cruelly ill-treating the Terrier dog.
That section has often come before the Courts in all sorts of different contexts, and one of the authorities which is regularly referred to and cited in Stone's Justices' Manual is Barnard v. Evans [1925] 2 KB 794, a case in which Shermann J said this:
"The Protection of Animals Act 1911, section 1(a) under which this respondent was summoned is directed against any person who 'shall cruelly ill-treat'... [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 subsection, one has to consider what is 'cruelty'. I do not think it can better be defined than as 'causing unnecessary suffering'. It is necessary in some operations to cause suffering."
What then are the facts of the case upon which the Magistrates found the offence proved? They say this in paragraph 4 of the case:
"(i) On the afternoon of Sunday 16 November 1997 the Appellants... were on the bank of the River Tees at Thornby. They had 3 dogs with them. They had 2 spades, some purse nets and an electronic ferret finder, which is attached to a dog and used to track its position underground.
(ii)...[They found that the farmer had] no problem with foxes, which he liked...
(iii) [They found] in the vicinity of a badger set the Appellants.. dug a large hole in the field. It was about 2 yards in diameter and at least 6 feet deep. They put the purse nets over holes in the river bank which were part of the badger set. They repeatedly put the dogs down the hole. At one point the Appellant Brannigan was suspended upside down in the hole by his ankles by the others while holding a dog.
(iv) The Appellants... were using the dogs to try and catch a badger or a fox. Although there was the scent of a fox at the badger set we were of the opinion that they were seeking a badger because of its value in the practice of badger baiting.
(v) When the Lakeland terrier dog the subject of the informations was down the hole it was confronted by a badger or a fox. It had no room for manoeuvre. The badger and the fox are both larger than the dog, have sharp teeth and powerful claws. The dog suffered multiple lacerations to its face, nose, lips and mouth... its left upper incisor tooth was torn out."
They said in the case at paragraph 8 that:
"We were of the opinion that upon the above findings of fact the Appellants had deliberately exposed the dog to a confrontation with a badger or a fox in a confined space in circumstances where the wild animal's escape had been prevented and where there was a high risk of the injury to the dog which had ensued. We were of the opinion that this constituted cruel ill-treatment of the dog contrary to section 1(1)(a) of the Protection of Animals Act 1911."
They posed the following question for the opinion of this Court:
"Is a person who deliberately puts a dog into a set or earth or other habitation of a larger and more powerful wild animal which cannot escape and which is likely to and does cause injury to the dog, without lawful justification or excuse, guilty of cruelly ill-treating the dog under section 1(1)(a) of the Protection of Animals Act 1911?"
Mr Kilgour, who appears for the Appellants, says that dogs get themselves into all sorts of scraps - animals indulge in all sorts of activities, involving hunting, the Grand National and in a variety of other ways, all of which are activities which may, in certain circumstances, cause injury to the animal. He says it is wrong for the law to leave a wide spectrum of uncertainty as to what amounts to ill-treatment and what can be described as causing unnecessary suffering and suchlike, because this leaves the citizen with no idea of where he stands. He says, that the physical act, in which these two Appellants were engaged, amounted to no more than putting a dog's nose and feet at the beginning of a hole in the countryside, that dogs are always sniffing about doing things and, of course, may injure themselves, but that this cannot possibly be described as cruel ill-treatment.
As it seems to me, these questions are very much ones of fact for the Magistrates to decide. Life in the countryside is full of a whole variety of activities. Whether any particular thing amounts to ill-treatment in particular circumstances, whether or no it is unnecessary and whether or no any suffering which has been suffered by the animal has been caused by a human, is very much a question of fact for the Magistrates.
I would reject the submission of Mr Kilgour that if there is merely the risk that the animal will suffer injury, then it cannot be said that the human being has caused that animal unnecessary suffering, or can be regarded as ill-treating it.
As it seems to me, if the risk of injury is very high, then a finding of causation by the Magistrates is very likely. If the risk of injury is very low, then a finding of no causation by the Magistrates is very likely. One can conceive of circumstances where Magistrates arrive at a decision which is perverse. There is a spectrum or continuum between these two extremes and, no doubt there will be a position on that continuum where it is very difficult to say the one or the other. However, on the facts of the present case as set out in the Case Stated, and as I have read it, I see no problem at all about the finding to which the Crown Court came. It was open to them; it betrays no error of law and I would dismiss this appeal.
Astill J:
I agree. I add only this so as to emphasis what my Lord has said. This decision should not be used generally as a flag to wave at those who hunt with dogs or any other animals. The Crown Court question was set, having regard to the facts that are peculiar to this case, and it is those facts that are the basis for this decision.