The majority of the cases I deal with are normally multi-animal households and normally the prosecution is in relation to one specific type of animal, but if convicted of any offence under section 4 or 9 of the AWA 2006, and you are subsequently disqualified under section 34(1), the Court can make other ancillary orders, which may catch you out. It is far better that you place your affairs in order, expecting the worst and therefore minimising post-conviction stress and emotional upheaval.
Disqualification orders under section 34(1) can be for life, with a minimum period of 1 year. Even though you have been convicted of say offences in relation to dogs only, the Court can (and the Derby case was an example of this) disqualify you from all animals for whatever period it thinks fit. Even though as the Derby case proves, although you own animals, cats, small furry things and you haven’t been prosecuted in respect of your care of the same, the Court can disqualify you from custody, care and control. It happened in the Derby case, we were prosecuted in respect of one dog, and we had 6 in the house, plus 4 cats and horses nearby. The Court disqualified us for a short period of time (namely 2 yrs) but in respect of all animals. This meant that from the time of the order made in Court, if we were found in possession of any animal, regardless of breed, which of course we had at home, and in the adjoining fields. Fortunately, we were appealing the conviction and at the same time, the sentence, we considered all animals to be totally unreasonable, which empowered the Court to suspend the activation of the disqualification until after the appeal was heard. You must be prepared for this and your Notice of Appeal in triplicate ready to serve upon the Court and the prosecution, which then allows you advocate to make an application to suspend the orders made.
Strangely, community based orders, such as unpaid work cannot be suspended. This is also very important if a period of custody has been imposed, filing a Notice of Appeal there and then on the sentencing Court enables your advocate to apply to the Court to make a bail application and effectively suspends the sentence until your appeal is heard.
Let’s say that you have been disqualified from all animals to take effect immediately, the Court can under section 36 AWA 2006:
1. Appoint a person to carry out the order immediately, this will be the RSPCA
2. Require any person who has possession of an animal, to which the order applies to deliver it up
3. Giving directions for the order to be carried out, confer any additional powers such as powers of entry, this will be the RSPCA which you will not want to see on your property again! And to add insult to injury, the Court can order you pay the costs effectively on removal and placement.
What you should do is to ensure that well before the trial, this should be weeks, not hours ownership and if necessary, responsibility, the animals be assigned to a willing friend, the animals should be removed from the home and then returned at the end of the disqualification period, if that can be agreed. If this is done well in advance, the Court cannot then enforce powers to the above, because effectively the order has been carried out and you are no longer in possession, ownership or control of an animal. Make sure that your advocate tells the Court of this and confirm in open Court that you no longer have any animals at the property. Please be aware that the Court can still make this order, notwithstanding your announcement that there are no animals at home and the RSPCA will turn up at your property to satisfy themselves that there are no animals there. You will have to allow them in, because that power has been conferred on them under section 36 AWA 2006, but once their inspection is complete, they must leave. If they are reluctant to go, be firm and ask them to leave, you can use reasonable force if they don’t, although I would not recommend that as a solution, just call the Police. If the RSPCA try to say that they are entitled to know the identities of the new owners, they are not entitled to the same, because the transfer of ownership and responsibility was made hopefully a considerable time before the section 36 order was made.
As you will have realised, this is an extremely complex area of the law, not only as far as the actual law involved with proving section 4 & 9 of the AWA 2006, but also the number of other orders that can be made, and if you do not plan ahead, you could end up losing all of your animals.
A last word about RSPCA – v – Patterson, I consider that the case of Patterson is an important case not used enough by lawyers in this area of the law. The RSPCA will try and say Patterson is a disqualification case and to some extent they are right. But there are important overture dicta in the judgement, which goes to the very heart of whether a person can be said to be responsible for an animal, in particular, does a person’s presence in a house where there are animals, automatically render him responsible for the animals under section 3 AWA 2006. This is the question the Divisional Court dealt with in the Patterson case. Mr Patterson was disqualified under section 34(1) & (2) (a, b, c d) of the 2006 Act from possession, care and control of animals. He lived with his partner in a house to whom he assigned ownership of his animals prior to his trial. He was convicted and disqualified and then prosecuted for possession of animals whilst disqualified. The RSPCA argued that because Mr Patterson resided in the house, he inevitably would come into contact with the dogs on a daily basis, which would involve touching, possibly feeding, walking, grooming. The Court to convict Mr Patterson had to decide whether he was responsible or not, as he clearly was not the owner before they could deal with the disqualification issue.
The Divisional Court found that mere proximity was not enough, that it would be inevitable that Mr Patterson would have contact with the dog, but there had to be in place between Mr Patterson and his wife an “arrangement under which he is entitled to control or influence the way in which the animals are kept, pursuant to 34(2)(d). Without this decision, it would mean that anyone disqualified under the AWA 2006 would be prevented from having a partner and/or children who owned animals residing in the same property, effectively punishing them for the misdemeanours of their husband/father.
So we submit therefore the prosecution must prove that the disqualified person by an arrangement is entitled to control the animals concerned.
I am sure that Patterson will come before the divisional Court again and in fact I argued it in the Derby case that in the absence of an arrangement between my clients and the father-in-law, responsibility could not be proved. Patterson can be found at R (Patterson) v RSPCA  EWHC 4531 (Admin) – S 34(2)(d) AWA
If you require any further help, information or explanation, don’t hesitate to contact Nigel and/or Alex Weller at the office.