Kent & Ors v Arun District Council & Ors

A public authority alerted to a substantial risk that unlawful activity may occur at an event may investigate the concern and warn the premises operator. It need not await proof that an offence has been committed. A court reviewing the authority’s conduct considers whether the conclusion was reasonable and lawful, rather than deciding the underlying criminal liability in advance. The High Court’s declaratory jurisdiction concerning prospective criminal conduct is exceptional. Criminal issues are ordinarily best determined in criminal proceedings, particularly where the issue is fact-sensitive or an alternative remedy exists.

The claimants, representing organisations concerned with reptiles and amphibians, sought judicial review of Arun District Council’s involvement in the cancellation of a breeders’ meeting at Fontwell Park Racecourse. The Council had concluded, on evidence from similar events, that there was a substantial risk of unlawful sales of animals under the Pet Animals Act 1951, and advised the racecourse accordingly. The claimants argued that the Council had no power to prohibit or procure cancellation, that criminal liability was for a criminal court, and that the Council’s risk assessment was wrong. The Animal Protection Agency intervened and sought an interpretation of section 2 of the Act.

1. Judicial review claim refused. The Council, as a public body, was entitled and obliged to do what it properly could, by legitimate means, to prevent offences. Warning the racecourse of a possible risk of unlawful activity was a proper course.
2. The Council was entitled to investigate material indicating that impermissible animal sales might have occurred at comparable events. Absolute proof was unnecessary. Its conclusion that there was a substantial risk of unlawful activity was reasonable and was not arguably so unreasonable as to justify review.
3. The Council did not procure the cancellation. Its letter was advice, and the uncontradicted evidence established that the racecourse independently decided to cancel after considering that advice. Any private-law complaint arising from that decision lay against the racecourse.
4. The court declined to determine in advance whether particular conduct would constitute a criminal offence. Applying the guidance in R (on the application of Haynes) v Stafford Borough Council [2006] EWHC 1366 (Admin), declaratory jurisdiction in relation to criminal liability is exceptional.
5. The court therefore refused permission and did not interpret section 2 of the Pet Animals Act 1951.

First-instance judicial review claim. The judgment does not state any prior appellate decision.