Gray & Ors, R (on the application of) v Crown Court Aylesbury & Anor

The mental element of an offence under section 4 of the Animal Welfare Act 2006 is objective as well as subjective: liability may arise where the defendant ought reasonably to have known that the conduct would cause unnecessary suffering. Section 9 imposes a purely objective standard of care. A veterinary surgeon’s certification under section 18(5) must be in writing, but an urgent seizure may nevertheless be lawful under section 18(6). Convictions under sections 4 and 9 may arise from overlapping facts, although a separate section 9 conviction is inappropriate where the relevant conduct is entirely subsumed in the section 4 offence. Criminal costs are assessed by reference to all the circumstances, including complexity, conduct and time spent. There is no general rule preventing costs being paid from capital.

The claimants had been convicted in the magistrates’ court of offences under sections 4 and 9 of the Animal Welfare Act 2006 arising from conditions at their farm. The Crown Court dismissed most of their appeals, made or activated deprivation orders, and later made substantial costs orders.

Applications for judicial review challenged the Crown Court’s refusal to state a case, the interpretation of sections 4, 9 and 18, the deprivation orders, the alleged duplicity of overlapping convictions, and the costs decisions. Mr Gray challenged the substantive rulings and costs order. Mrs Gray challenged her costs order.

1. Sections 4 and 9. The expression “knew or ought reasonably to have known” in section 4(1)(b) requires no gloss. It includes an objective negligence standard. Section 9(1) likewise imposes a purely objective standard of care. The Crown Court’s construction of both provisions was correct (paras [24]–[31]).
2. Seizures. Certification under section 18(5) requires a written certificate. However, the police officers could lawfully act under section 18(6), because the circumstances made it impracticable to wait for a veterinary surgeon to issue a certificate. Alternatively, the Crown Court was entitled to admit the resulting evidence under the principle in R v Sang [1980] AC 402 (paras [33]–[41]).
3. Deprivation and duplicity. The Crown Court had jurisdiction to activate deprivation orders made by the magistrates’ court. Sections 4 and 9 create distinct offences. A separate section 9 conviction should not ordinarily be recorded where the neglect is no wider than the conduct constituting the section 4 offence, since it would be subsumed and potentially misleading. The convictions in this case were not wholly duplicative because the section 9 conduct concerned more animals and wider welfare failures (paras [42]–[48]).
4. Costs. The ordinary rule is that costs should not be grossly disproportionate to the fine, but exceptions may be justified. The court must consider all the circumstances, including the parties’ conduct, complexity, novelty, skill, time and costs already ordered. There is no general rule requiring costs to be payable from income rather than capital (paras [58]–[69]).
5. The Crown Court was entitled not to review the first-instance costs order against Mr Gray, given the limited information before it. It adopted the wrong approach to Mrs Gray’s costs by treating her as equally liable for half the overall costs. It should first have estimated the costs of prosecuting her alone, or made its own reasonable assessment if that could not be done. Her costs order was quashed and remitted for reconsideration (paras [70]–[80]).
6. Mr Gray’s claim was dismissed. Mrs Gray’s claim was allowed. Costs of the judicial review were reserved (paras [49], [50], [81]).

• Central Buckinghamshire Magistrates’ Court: convicted the claimants of offences under the Animal Welfare Act 2006 and made sentencing, deprivation and costs orders.
• Aylesbury Crown Court: allowed some appeals against conviction, dismissed the remaining appeals, activated deprivation orders and made further costs orders.
• High Court (Administrative Court): dismissed Mr Gray’s judicial review claim and allowed Mrs Gray’s challenge to costs, remitting the matter to the Crown Court.