When can the courts rule on the legality of future behaviour?
4 August 2015
Kent & others v Arun District Council and others  EWHC 2295 – read judgment
Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.
This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.
This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.
For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.
Councils are responsible for enforcing the law in this area.
In brief, the claimants, a local reptile and amphibian society, had arranged a meeting at a privately owned racecourse. They subsequently received notification from the owners that the meeting was to be cancelled at the behest of Arun District Council. The council referred to “a substantial risk of unlawful activity taking place at the scheduled event”, in other words, the unlicensed selling “in the course of a business” of animals as “pets in any part of a street or public place”, which is a criminal offence under Section 2 of the Act.
The Animal Protection Agency, intervening in these proceedings, had intimated to the local authority that they were concerned about the impermissible sale of animals at other similar events. They provided substantive evidence to the court that such sales were taking place at previous similar shows.
The breeders’ society sought an order to quash the Council’s decision on the following grounds –
a. That the council had no power to prohibit or procure the cancellation of the event,
b. Whether or not criminal offences are committed at such an event was a matter for a criminal court to determine and the Council had no pre-emptive powers and
c. The Council had been wrong to form the view that offences might have been committed.
Permission to proceed with the application was refused.
Reasoning behind the decision
McGowan J acknowledged that the Council, as a public body, had a duty to do what it properly could to prevent the commission of offences by legitimate means. Warning an organisation such as the racecourse that its premises might be hosting an event at which unlawful activity might take place was “an entirely proper course to have taken.”
Whilst it was not for the court to decide that there had indeed been unlawful activity at earlier events, it was fair to reach the conclusion on the evidence that the Council had acted reasonably and properly in fearing that there was a substantial risk that such activity might occur. On the material available this was a reasonable conclusion to have reached; in any event it was not arguably so unreasonable as to be the proper subject of review.
In answer to the intervener’s argument that as part of its determination of the claim, the court should interpret s. 2 of the Pet Animals Act, the judge stressed that judicial review was not the normal route for a determination of criminal behaviour. She referred to the words of Walker J in the most recent authority on the matter, (R (Haynes) v Stafford Borough Council  EWHC 1366 (Admin).
the High Court has jurisdiction to make a declaration as to whether a criminal offence has been committed or may be committed in the future, but it is only to be exercised in exceptional circumstances.
The court should adopt an essentially flexible approach to the exercise of its declaratory jurisdiction in this field. The only rigid rule is that once criminal proceedings have begun the civil courts should not intervene. That said, other things being equal, criminal disputes, even upon pure issues of law, are best decided in criminal courts and between the parties most directly affected by their outcome.
Whilst the judge recognised the importance of the issues to the parties in this case, she was not prepared to grant the declaration sought. She understood the need for greater clarification to be made out in relation to the Pet Act, but this was not an occasion for the court to determine an act to be criminal which may not currently be in breach of the criminal law. She did suggest that efforts to persuade Parliament to “revisit this topic” could be reviewed.
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