Arthur, R (on the application of) v RSPCA

For the purposes of a disqualification order concerning animals, “keeping” and “having custody of” are ordinary English expressions and, in the circumstances, involve no material legal distinction. A brief or genuinely transient intervention may not amount to keeping or custody. Transporting animals in a horsebox over a substantial, non-fleeting period does. The fact that the person owns the animals does not determine whether he has custody of them. An order using “keeping” rather than the statutory expression remains valid where “keeping” was intended to mean “having custody of”.

The claimant appealed to the Administrative Court against the dismissal by the Crown Court at Swansea of his appeal from convictions at Swansea Magistrates’ Court. He had been convicted of breaching a five-year disqualification order made under section 1 of the Protection of Animals (Amendment) Act 1954.

The order disqualified him from keeping equine animals, although the statute referred to having custody of animals. The alleged breach arose when he recovered three horses that he owned and drove them in a horsebox, intending another person to keep them. The central issues were whether keeping differed from custody, whether the conduct was too transient to constitute a breach, and whether the original order was invalid because it used “keeping”.

The appeal was dismissed. The court formally answered the questions posed by the Crown Court: in the circumstances there was no legal difference between “custody” and “keeping”; the Crown Court was entitled to find that the period of sole control in the vehicle was not so transient as to fall outside keeping or custody; and the original order was not invalid.

1. The statutory language in section 1 of the Protection of Animals (Amendment) Act 1954 had to be applied according to the ordinary meaning of the words. The claimant had custody of the horses, and was keeping them, while he alone drove them in the horsebox. That conclusion did not depend on his ownership.

2. The principle identified in Crawford v Coggan [1964] Crim LR 292, that a merely transient incident may not amount to keeping, could assist in relation to the events in the field. It could not apply to the substantial and non-fleeting operation of transporting the horses in the horsebox.

3. Ownership and custody were capable of being distinct. Section 3 of the Protection of Animals Act 1911 concerned deprivation of ownership, whereas the 1954 Act addressed custody. Owners subject to a custody disqualification should arrange for another person to have custody and should expressly prevent custody being returned during the disqualification. That was practical guidance, not a complete answer for every case.

4. The use of “keeping” in the order did not impose a different or wider requirement. The magistrates plainly intended it to express the statutory power, and there was no obvious contradiction between keeping and having custody of animals sufficient to invalidate the order. The claimant’s subjective belief and proposed analogies concerning rescue or absence of risk did not alter the objective question whether he was keeping the horses.

5. Whether conduct is sufficiently transient is fact-sensitive. The court declined to give further general guidance. No order for costs was made.

1. Crown Court at Swansea: on 12 November 2004, dismissed the claimant’s appeal against conviction by Swansea Magistrates’ Court.
2. Swansea Magistrates’ Court: on 13 August 2003, convicted the claimant of breaching the disqualification order.
3. High Court (Administrative Court): dismissed the appeal and made no order as to costs.