From http://cheetah.webtribe.net/~animadversion/Attorney General versus The RSPCA The
Attorney General v The Royal Society for the
Prevention of Cruelty to Animals
Queen's Bench Division, (Crown Office List)
The Times 22 June 1985, CO/1354/84, (Transcript: Marten Walsh Cherer)
HEARING-DATES: 17 June 1985
17 June 1985
COUNSEL:
Christopher Symons for the Applicant; Anthony Scrivener QC and R Daniel
for the Respondents
PANEL: Lloyd LJ, Macpherson J
JUDGMENTBY-1: LLOYD LJ
JUDGMENT-1:
LLOYD LJ: This is an application by Her Majesty's Attorney General for an
order under Order 52, Rule 9 against the Royal Society for the Prevention
of Cruelty to Animals. Order 52 Rule 9 provides as follows: "Nothing
in the foregoing provisions of this Order shall be taken as affecting the
power of the Court to make an order requiring a person guilty of contempt
of court, or a person punishable by virtue of any enactment in like manner
as if he had been guilty of contempt of the High court, to pay a fine or
to give security for his good behaviour, and those provisions, so far as
applicable, and with the necessary modifications, shall apply in relation
to an application for such an order as they apply in relation to an application
for an order of committal".
This application arises out of certain disciplinary proceedings brought
by the Society against one of their inspectors, Mr Barrymore Roland Hill,
in July, 1984.
The Society is a voluntary society founded in 1824. It was granted royal
patronage in 1840 and it was incorporated in 1932 by the Royal Society for
the Prevention of Cruelty to Animal Act of that year. It is a registered
charity. It has limited funds and is entirely dependent on subscriptions
from members and on gifts from members of the public.
Section 4 of the 1932 Act describes the objects of the Society as follows:
"The objects of the Society shall be to promote kindness and to prevent
or suppress cruelty to animals and to do all such lawful acts as the Society
may consider to be conducive or incidental to the attainment of those objects".
In pursuance of those objects the Society investigates some 35,000 to 45,000
complaints a year of alleged cruelty to animals. Arising out of those investigations
the Society institutes criminal proceedings, the number of such proceedings
being about 1,800 year. They are not in any [ sense? ] a prosecuting authority.
They prosecute as would any other private individual The facts of the case
can be very briefly stated. On 10th October, 1983 a Mr and Mrs Retallick
pleaded guilty at the North Walsham Magistrates' Court in Norfolk to charges
brought against them by the RSPCA under the Protection of Animals Act, 1911.
They were fined £60 each and were disqualified from keeping a dog for a
period of five years. They appealed against their disqualification. On 14th
December, 1983 their appeals were dismissed by the Crown Court sitting at
Norwich.
Mr Hill gave evidence for the defence in the course of mitigation in both
courts, that is to say, in the Magistrates' Court and the Crown Court. On
16th April, 1984 Mr Hill was served with a form in which he was charged
with a number of alleged irregularities. Two of the charges -- and by far
the most serious from our point of view -- arose directly out of the evidence
which Mr Hill had given in the Magistrates' Court and in the Crown Court.
Another four charges related to the same proceedings.
Charge 2 reads as follows: "That you did on the 10th October, 1983"
-- that is the day of the hearing in the Magistrates' Court -- "act
in a manner reasonably likely to bring discredit on the reputation of the
Inspectorate by giving supporting evidence voluntarily for the defendants
in respect of a prosecution being brought against them by the Society, contrary
to Rule 10 of the Rules and Instructions for Inspectors and Chief Inspectors."
Rule 10 reads as follows: "Discreditable Conduct: An Inspector who acts in
a disorderly manner or in a manner prejudicial to discipline and good order
or reasonably likely to bring discredit on the reputation of the
Inspectorate or of the Society or prejudice any of its policies will be
guilty of a disciplinary offence"
Charge 3 relates to the proceedings in the Crown Court, and reads as follows:
"That you did on the 14th December 1983 act in a manner reasonably
likely to bring discredit on the reputation of the Inspectorate by giving
supporting evidence for the defendants in respect of a prosecution being
brought against them by the Society, contrary to rule 10 of the Rules and
Instructions for Inspectors and Chief Inspectors".
Charge 4 relates to the Magistrates' court. It reads: "That you did
act in a manner likely to bring discredit on the reputation of the Inspectorate
by supplying copies of photographs taken from the society's publications
for an improper purpose in an attempt to minimise the seriousness of the
case under consideration, contrary to Rule 10 of the Rules and Instructions
for Inspectors and Chief Inspectors". I need not Charge 5, which makes
the same allegation but in relation to the Crown Court.
Charge 6 reads: "That you did make a statement available to the defendants'
solicitors in respect of a confidential complaint investigation carried
out by yourself on the 29th March, 1983 in respect of Mr and Mrs Retallick,
without submitting the documents to this office for approval, contrary to
Circular Instruction A 76"
I need not read Charge 7 which made the same allegations in relation to
the Crown Court. Those were the six charges which, among others, Mr Hill
faced.
The disciplinary hearing took place on 19th July, 1984. It was presided
over by the Chief Superintendent, F Milner, as the adjudicating officer.
The presenting officer was Superintendent S Bellingham, and Inspector Hill
was represented by his union representative, Mr Sheppard. At the conclusion
of the hearing the Tribunal found Mr Hill guilty on all six charges and
sentenced him to a severe reprimand on each charge.
The Attorney General's case is set out in a statement pursuant to Order
52, Rule 2, dated 26th October, 1984. In brief it is that by bringing these
charges against Mr Hill and by sentencing him to a severe reprimand, the
RSPCA were punishing him for giving evidence in a court of law and were
thereby guilty of contempt of court.
It is sometimes thought that the doctrine of contempt of court only applies
in respect of pending or future proceedings in court. That that is not so
is shown by the decision of the Court of Appeal in the case of Attorney
General v Butterworth [1963] 1 QB 696, [1962] 3 All ER 326. It is sufficient
to cite from a passage in Lord Denning's judgment in that case as follows:
"There can be no greater contempt than to intimidate a witness before
he gives evidence or to victimise him afterwards for having given it. How
can we expect a witness to give his evidence freely and frankly, as he ought
to do, if he is liable, as soon as the case is over, to be punished for
it by those who dislike the evidence he has given? Let us accept that he
has honestly given his evidence. Is he to be liable to be dismissed from
his employment, or to be expelled from his trade union, or to be deprived
of his office, or to be sent to Coventry, simply because of that evidence
which he has given? I decline to believe that the law of England permits
him to be so treated. If this sort of thing could be done in a single case
with impunity, the news of it would soon get round. Witnesses in other cases
would be unwilling to come forward to give evidence, or, if they did come
forward, they would hesitate to speak the truth, for fear of the consequences".
Having cited that passage I am tempted to say in this case that when one
looks at the charges, and in particular Charges 2 and 3, the case falls
so clearly within the principles stated by Lord Denning that it is really
unnecessary to investigate the case any further. But it is said on behalf
of the RSPCA that when one looks at the wider picture, not just at the charges
but at what actually happened, then, in truth, the RSPCA is not guilty of
any contempt at all.
It is admitted that the charges -- and in particular Charges 2 and 3 are
ineptly phrased. That is the language of Mr Marshall who has sworn an affidavit
on behalf of the RSPCA. But looking at the transcript of the proceedings
as a whole, the matter is said to take on a different complexion. I must,
therefore, refer to the proceedings in somewhat greater detail, which I
now do.
On 29th March, 1983 Mr Hill visited Mr and Mrs Retallick to investigate
a complaint relating to some dogs kept at their premises. He decided, on
that occasion, to take no action. On 9th May, 1983 -- some six weeks later
-- another inspector from the RSPCA visited Mr and Mrs Retallick. He formed
a different view. He formed the view that Mr and Mrs Retallick ought to
be prosecuted under the Protection of Animals Act, 1911.
On 12th May there was a discussion between Mr Hill and Superintendent Hardcastle
in which Mr Hill mentioned the possibility of him having to give evidence
in the case against the Retallicks. Superintendent Hardcastle told him,
on that occasion, to do what his conscience decreed. On 6th July there was
further discussion between Mr Hill and Superintendent Hardcastle relating
to the same matter. The following day, the 7th July, the RSPCA decided to
bring proceedings against the Retallicks under the Protection of Animals
Act, 1911.
On 9th July Mr Hill sent a memorandum to his superior making it clear that
he might be required to give evidence in those proceedings. The memorandum
read as follows: "I shall be reporting further if I am summoned to
give evidence on the Retallick's behalf. Should this be so I will need my
notebook and copy of the relevant buff complaint form to enable me to get
the details correct".
On 13th July Superintendent Bellingham -- whom I have already referred to
as the presenting officer at the hearing -- replied as follows: "Please
note your pocket book will be returned to you in due course before the court
proceedings date, but I should be obliged if you would please not make reference
to your complaint form enquiries should you be requested to attend on behalf
of the defence. All being well, I shall attend the court hearing but will
advise you of any late change in plans".
The complaint form referred to there is the buff form to which Mr Hill referred
in his memorandum, and is the form on which complaints from members of the
public are recorded. Such complaints are, for obvious reasons, treated as
confidential. Pausing there, it is obvious from the memorandum dated 13th
July that Superintendent Bellingham knew that Mr Hill might be called to
give evidence in the proceedings, and he did not raise any objection to
him doing so.
On 19th July the summonses were duly served on the Retallicks. On 29th July
Superintendent Bellingham sent Mr Hill the pocket books for which he had
asked and which he needed for the purposes of giving evidence on behalf
of the Retallicks. Superintendent Bellingham wrote: "Please note your
three pocket books have this day been forwarded to you by recorded delivery
in separate post and I shall be obliged if you will please acknowledge safe
receipt of the notebooks in due course".
There the matter rested until 3rd October, 1983, when Mr Hill visited the
Retallicks' solicitor. They prepared a statement based on the answers which
Mr Hill had given to certain questions the solicitor had asked. The statement
which the solicitor prepared reads in part as follows: "On the 28th
March, 1983 I received a complaint as a result of which the following day,
the 29th March, 1983, I visited the home of Mr and Mrs Retallick at 4 High
View, Skeyton. At the house I saw a Great Dane puppy said to be 4 months
of age, a Collie bitch said to be 2 years of age with seven puppies aged
2 to 3 weeks also a Labrador crossbred dog said to be aged 3 years. In addition
to these dogs and puppies, there were 2 cats. At the time of my visit all
the dogs, puppies and cats were in good condition but I did advise that
the Collie bitch was a bit on the thin side and would need ample food to
produce enough milk for the puppies."
On 4th October a witness summons was issued requiring Mr Hill to attend
the court hearing on 10th October, 1983. On 10th October the hearing duly
took place. The Retallicks pleaded guilty to all the charges against them.
Mr Hill was then called as a witness in mitigation.
That night Mr Hill telephoned Mr Bellingham. Apparently Superintendent Bellingham
had not received a copy of the statement prepared by the Retallicks's solicitor
in advance of the hearing. In due course of his evidence Mr Hill was asked
by Mr Sheppard: "What did you say to Superintendent Bellingham? (A)
I apologised for him not seeing a copy of the statement and I said 'I though
you already had one'. He said he was extremely displeased about the whole
situation and would probably be taking some form of disciplinary action
in the future".
During the course of October or November, 1983 the Retallicks appealed against
their sentence of disqualification. On 10th December Mr Hill was served
with a subpoena to attend the appeal at the Crown Court. On 14th December
the appeal was heard and again Mr Hill gave evidence in mitigation. The
appeal was dismissed.
On 16th April, 1984 the RSPCA served on Mr Hill the document to which I
have already referred, in which they set out the 9 alleged irregularities
including the six charges with which we are particularly concerned. On 9th
July -- again as I have already mentioned -- the disciplinary hearing was
held and Mr Hill was found guilty of those six charges.
At the very commencement of the disciplinary hearing Mr Sheppard drew the
Tribunal's attention to the risk of contempt of court. I quote from the
transcript as follows: "Before we start, perhaps I could advise you
of some potential legal problems in connection with this case. We have been
advised by solicitors that the RSPCA may be getting themselves into hot
water by proceeding with these charge, that there could be contempt of court
on the basis of taking action against an individual who appeared in a Magistrates'
Court and in a County Court, and the action you are taking is as a result
of when he is appearing as a witness . . . I ask you to very seriously consider
that before you go ahead".
In the face of that clear warning Chief Superintendent Milner adjourned
the proceedings for 10 minutes, during which time he consulted the assistant
to the legal officer. Unfortunately the legal officer was not available
at the time. The assistant to the legal officer was Mrs Katherine Muriel.
She said she was not shown any of the charges which had been brought against
Mr Hill. She told Chief Superintendent Milner that she did not know a great
deal about the law of contempt. The only book she had got was Stones Justices
Manual. She read through the Contempt of Court Act, and having done that
she said she could not see how there could be any question of contempt of
court as the proceedings were already concluded.
On the basis of that advice Chief Superintendent Milner decided to go ahead
with the proceedings. I do not propose to go through the transcript in any
great detail. I shall content myself with referring to one or two extracts
from the transcript in order to give the flavour of the proceedings. I start
with the evidence of Superintendent Hardcastle, who was the gentleman who
had attended the proceedings at the Magistrates' Court on behalf of the
RSPCA.
In the course of his evidence-in-chief he said, when being asked questions
by Superintendent Bellingham: "May I just come back, please. Can I
just refer you to the conduct of Inspector Hill at the court, being aware
now that he was served with a subpoena, summons, would you say he was a
hostile witness in respect of the prosecution case or not? (A) I have already
said, he spoke in a confident and willing manner on behalf of the defence.
(Q) Prior to the court hearing was Mr Hill standing with his colleagues
or was he with the defendants' solicitors? (A) He was with the defending
solicitors - a confident and willing manner. (Q) So you wouldn't say he
was classed as a hostile witness? (A) No, no."
Then comes the evidence of Inspector Goodenough, who was the gentleman who
attended the Crown Court on behalf of the RSPCA. He said, when giving his
evidence-in-chief: "Inspector Hill gave his evidence quite freely,
he was in no way hostile or obstructive; I will clarify that by saying that,
Mr Hill, as we know, with a knowledge of law, you can be declared a hostile
witness, instead of which he was freely giving evidence for the defence
against the Society".
The implication of those passages -- they are only illustrative of other
passages in the transcript -- seems to be that there was something in the
manner or perhaps in the content of the evidence given by Mr Hill to which
those gentlemen took objection. Inspector Goodenough perhaps explains why
in a little more detail at a later state of his evidence when he was asked
in the course of cross-examination: "You said he went freely with the
defendants. What would you have expected him to have done? (A) Stayed with
his fellow officers. (Q) Why? (A) And act as a hostile witness. (Q) Why?
(A) Because this was a case brought properly by the RSPCA as has been shown
by the lower court and supported by the higher court and I would therefore
expect him to support the Society and to show as little assistance as possible
to the defendant." A little later he said: "But I certainly wouldn't
have gone with them under any circumstances. (Q) Even if the interests of
justice had dictated it? (A) The interests of justice, Mr Sheppard, is
dictated,
organised and deeply gone into by the judge himself in the chamber of the
court".
In the course of his opening of the case for the defence Mr Sheppard put
the alternatives very clearly to the Tribunal when he said this: "If
in fact he did have a witness order, as we have accepted, and he did attend
because he was required to attend, he was required to give evidence which
by the nature of his being called, was part of his supporting evidence;
in other words, the defence thought that by calling this witness as a defendant,
it was going to help their case by nature and definitions of supporting
evidence, then if you are saying that an RSPCA Inspector who has a witness
order cannot attend and give supporting evidence, then obviously that matter
has to be referred to the Law Society and the Attorney General. If,
however,
what you are saying is that if he does attend under a witness order and
does answer truthfully, then he is open to disciplinary charges that is
a terrible state of affairs".
Mr Hill gave evidence at the hearing, and he said that he found he was extremely
embarrassed and distressed by the position he found himself in, and he would
not have been in that position for anything in the world. I quote one short
passage from his evidence-in-chief: "Let's look at the evidence you
did give. What sort of attitude did you take at the tribunal to the questions
that were asked of you, by the prosecution and the defence? (A) I answered
them to the best of my ability, as truthfully as I could, but the atmosphere
when I was being cross-examined by the prosecution was such that I am afraid
I tended to be prickly in as much as I felt that I was being criticised
and in fact blamed for the whole situation; in fact I felt far from it being
my fault, I was there because I had to be and that was all. (Q) You answered
both sides to the best of your ability and as truthfully as you could? (A)
Yes." A little later: "Did you see yourself as acting against
the interests of the Society? (A) No, I did not. I saw myself there because
I had to be, answering questions as truthfully as I could, I could see no
way that I could support the Society. I was purely answering questions on
what I had done and what I believed and that was it."
At the conclusions of Mr Hill's evidence the tribunal retired, and after
a period of about 15 minutes Superintendent Milner returned and announced
that all six charges had been proved. Then came this very revealing remark
from Chief Superintendent Milner in which he addresses Mr Hill as follows:
"I can only express my extreme disappointment at finding an established
inspector doing such a thing, that you should in fact consider it correct
to join the defence in a case against the Society and I earnestly stress,
Inspector, that you must look at yourself carefully and the working system
you have adopted and you must put your priorities in order."
On the following day Mr Hill was given formal notice of his sentence, which,
as I have already mentioned, was a severe reprimand on all six charges of
which he had been found guilty.
On 13th August the Assistant Director of Public Prosecutions wrote to the
Royal Society for the Prevention of Cruelty to Animals saying that they
were making inquiries into the proceedings at the disciplinary tribunal
and drawing the Society's attention to the case of Attorney General v Butterworth
[1963] 1 QB 696 [1962], 3 All ER 326 to which I have already referred. On
23rd August the legal officer replied. I quote from two or three paragraphs
of his letter: "Having now studied the file in more detail and considered
the case of AG v Butterworth and subsequent cases where that case has been
cited, I believe the Society was justified in its action and that no contempt
has occurred. I propose to set out at length circumstances which may not
be known to you and which I feel are relevant.
"First, it is the case that on the 17th March, 1983 Mr Hill attended
a formal interview at Headquarters to discuss his standards of work with
particular reference to the total absence of any case form reports (i.e. inquiries
which might lead to a prosecution) in eight years service in various stations.
This is a unique record and one which compares unfavourably with Inspectors
who have preceded or succeeded him in the same station. The Society is not
hell bent on prosecutions but his performance and general attitude has made
such an interview long overdue and you will note that it preceded the circumstances
of the case under review".
Then the letter deals with Mr Hill's part in the Retallick case. I will
quote one paragraph: "Although a witness summons was served on Inspector
Hill to attend the Magistrates' Court it is our information that this was
taken out after a statement had been made by him quite voluntarily to the
defendants' solicitors. Additionally, Inspector Hill voluntarily supplied
them with material in the form of Society reports and photographs of other
prosecution cases which were used by the defence before both Courts in an
attempt to minimise the offences charged against Mr and Mrs Retallick .
. . After the Crown Court proceedings the Society's solicitor felt compelled
to comment on the nature of the evidence given by Inspector Hill and in
particular the manner in which it was given"
The letter then turns to the disciplinary proceedings, and it contains
these paragraphs: "The disciplinary issues raised by the Society referred
to a number of matters. First, that as a result of information obtained
by another Inspector investigating the same animals under similar circumstances
Inspector Hill had not carried out a thorough investigation on 29th March.
That in my submission was a perfectly properly action which the Society
took as a prudent employer. It may be that aspects of his performance were
emphasised as a result of the evidence he chose to give but no contempt
was in my view committed. The voluntary provision of material and attendance
at the defendants' solicitor's office were matters which were cause for
concern to the Society as the employer and in particular no authority was
sought to attend the solicitor's office as required by Standing Orders.
His action appeared to be a deliberate attempt to question the Society's
decision to take proceedings which were supported by a strong veterinary
opinion."
There is this paragraph, finally: "It is appreciated that the case
referred to in your letter" --- Attorney General v Butterworth -- "confirms
that a contempt is not confined to pending cases and that the court is concerned
to protect the administration of justice. In that case and others which
I have considered there was no personal involvement by the employee with
the subject matter being enquired into by the court. In this case it appeared
that an attempt was being made by Inspector Hill to minimise or excuse his
own earlier conduct. There is a pertinent observation by LJ Denning in the
Butterworth case which supports the view that circumstances may well arise
where an employer may legitimately enquire into the activities of any employee
as revealed in court proceedings and not commit any contempt. It is my opinion
that this is one of those situations and indeed was but a continuation of
enquires."
Mr Scrivener who appears here for the RSPCA does not seek to support the
attitude taken in that letter. It is obvious that this case has got nothing
whatever to do with Mr Hill's previous shortcomings, whatever they may have
been.
There is an affidavit from Mr Marshall, who is the Chief Officer Inspectorate
of the Royal Society, and is the most senior officer who has provided evidence
for the benefit of this court. In the first 30 paragraphs of his affidavit
he comments on Mr Hill's previous shortcomings, which, as I have already
said, have nothing whatever to do with this case, and also refers to Mr
Hill's part in the proceedings in the Magistrates' Court and in the Crown
Court.
In paragraph 32 he says: "It is axiomatic that there is no rule of
the Society expressed or otherwise and no practice or understanding which
requires an Inspector or other officer of the Society not to give evidence
for the defence". One reads that paragraph, if I may say so, with relief.
"The policy of the Society is not to prevent or penalise any Inspector
for giving evidence for the defence. The policy is that information which
it is thought might be of assistance to the defence will be supplied to
the defence but as with the policy the decision to do so is made by the
person actually conducting the prosecution."
From paragraph 36 I read this: "I can quite understand from reading
the charges that it would appear at first sight that Inspector Hill was,
in the case of two charges, being charged with giving supporting evidence
for the degence simpliciter. The rules and practices of the Society are
well-known and explicit and as can be seen from the detailed facts of the
present case it is not and never has been the policy of the Society to prevent
an Inspector or any officer from giving evidence for the defence or punishing
him for doing so. From my detailed knowledge of the facts which I have now
acquired I believe the trouble has been caused by the inept wording of the
two charges.
From all the circumstances there did seem grounds for belief that rather
than giving impartial evidence at the request of the defence Inspector Hill
had actively taken part in the defence which if successful could have led
to the defendants being able to keep the dogs. He knew that his evidence
was at variance with that of the veterinary surgeon which he could not contest.
He knew also that in view of this and the warning he had received 13 days
before that the Society could well take the view that this was further evidence
that he was not performing his duties properly. However, the two charges
were worded as the court can see simply on the basis of giving voluntary
supporting evidence for the defendants. It is unfortunate that no particulars
were sought or given of these two charges but the Defence are not to blame
for this.
No such charges have ever been preferred before nor will they ever be again.
I have discovered that this was the first time that disciplinary proceedings
have followed on criminal proceedings in Court."
Mr Marshall then refers to certain precautions that will be taken to ensure
that no such charges will ever be brought again. Finally he expresses his
regret to the court that these proceedings have been taken against the Society.
Superintendent Bellingham has also sworn an affidavit. He says, in paragraph
15: "The disciplinary charges were not based simply on the fact that
he had given evidence for the defence as the evidence adduced at the hearing
demonstrated.
"I agree in retrospect that the lack of particulars in Charges 2 and
3 does give that impression. This was not intended nor was the evidence
presented in that way. There were various disquieting features relating
to the content of Inspector Hill's evidence when compared with the other
evidence and the active role he had appeared to have played in assisting
the defence, including emphasis to the Magistrates' Court that he was appearing
quite voluntarily and also the fact that he did not follow the laid down
and well-known procedures before giving evidence for the defence.
It was not a question of simply reporting that Inspector Hill had given
evidence on behalf of the defence as if that was the case against him. This
in itself could not possibly establish any breach of the discipline code."
Again one reads that paragraph with relief.
Finally, paragraph 29: In retrospect I realise that I should have given
proper particulars of the two charges which would then have reflected the
true nature of the allegations being made and the evidence which was subsequently
adduced in support. I can only say that the circumstances were entirely
novel so far as I was concerned and I had to improvise as best I could.
I should mention that I have had a great deal of experience over the years
in drafting informations for use in Magistrates' Courts but I could find
no useful precedent.
If, despite my explanation, the court considers I have done wrong in any
way I can only apologise and express my regret. No officer of the RSPCA
believes that it is improper to give evidence for the defence. The memoranda
exhibited shows clearly the practice in this regard". That is the only
apology which has been tendered, apart from the regret expressed by Mr Marshall
at the conclusion of his affidavit.
How then does the matter stand? Mr Scrivener summarises the case for the
RSPCA under six heads. First, that Mr Hill did not tell anybody that he
was going to give evidence at the Magistrates' Court. Secondly, that he attended
the defendants' solicitor prior to the hearing in the Magistrates' Court
quite voluntarily in order to give a statement. Thirdly, he did not supply
a copy of that statement to his superiors before giving evidence. Fourthly,
that at the Magistrates' Court he said that he was giving evidence voluntarily:
in fact he was subject to a witness order, but he said that he was giving
his evidence voluntarily -- so the argument goes -- in order to lend extra
weight to his evidence and to show that he was not a reluctant witness.
Fifthly, that he gave his evidence in uniform. Sixthly, that he actively
assisted the defence by giving photographs of other animals that had been
the subject of cruelty proceedings to the defence in order to minimise the
seriousness of the offences committed by the Retallicks.
I am bound to say that having perused the transcript, I find that, so far
from improving matters from the RSPCA's point of view, it only serves to
confirm my initial reaction. I am, of course, glad to know that it is not
now and never has been the policy of the RSPCA to prevent inspectors from
giving evidence for the defence in court proceedings brought by the RSPCA
or to punish them for having done so, but for my part I can see no difference
between punishing a man for giving evidence and punishing him for the content
of his evidence or for the manner in which he has given his evidence. If
the one is contempt so is the other. Both are calculated to interfere with
the course of justice and to deter witnesses from coming forward and telling
the truth plainly and frankly as they see it. At the very least Mr Hill
was being punished here for not appearing to be a reluctant witness. That
in itself would in my view, have been bad enough. However, having looked
at all the background material and at the transcript of the evidence, I
am satisfied that the matter went beyond that, as appears not least from
the observation of Chief Superintendent Milner, which I have already mentioned
and which, since it is important, I will repeat: "I can only express
my extreme disappointment at finding an established inspector doing such
a thing, that you should in fact consider it correct to join the defence
in a case against the Society and I earnestly stress, Inspector, that you,
must look at yourself carefully and the working system you have adopted
and you must put your priorities in order."
Whatever may be the policy of the Society -- and I am glad to think that
the policy is as has been stated -- Inspector Hill was in my judgment being
punished not only for the manner and content of his evidence, but also for
giving evidence at all. I give full weight to the six points which Mr Scrivener
has made and made as well as could be made on behalf of the Society, and
I am, of course, aware of the seriousness of this matter from the RSPCA's
point of view and of the burden that rests on the Attorney General in a
case such as this to prove the case beyond reasonable doubt. Nevertheless,
having looked at the transcript of the proceedings and hearing Mr Scrivener's
explanation I am satisfied that the Attorney General has amply made out
a serious case of contempt in accordance with his statement of 26th October,
1984.
We recognise that Mr Scrivener has now apologised to the court for the contempt
and apologised handsomely. Secondly, we recognise that this is the first
and only occasion that proceedings of this kind have been brought against
the RSPCA since its foundation in 1824. Thirdly, we bear in mind that the
Society carries, as Mr Scrivener says, a huge burden of responsible work,
and work which we are perfectly prepared to accept is well done. Fourthly,
we bear in mind that the Society is dependent -- so far as this may be relevant
-- on public support for its funds.
However, for the reasons my Lord and I have attempted to give, this was
a serious contempt. There seriousness of that contempt will, in the view
of this Court, be marked sufficiently by a fine of £10,000.
JUDGMENTBY-2: MACPHERSON J
JUDGMENT-2:
MACPHERSON J: I wholly agree with my Lord's judgment that this contempt
of court is proved beyond any doubt and is a serious contempt Since the
decision in the Attorney General v Butterworth [1963] 1 QB 696, [1962] 3
All ER 326, the law upon this aspect of contempt has been perfectly clear.
Mr Scrivener himself accepted at the start of his submissions that this
is so.
I add a few confirmatory sentences simply because we will both have to deal
with the case by way of penalty and it is right that I should shortly indicate
that, for my part, I do regard the case as clear and serious. I see it as
a case in which the necessary intent in the respondent, through its officers,
is, in my judgment, fully established upon the evidence.
Furthermore, in my judgment also, since the charges were laid in the unequivocal
words used by the respondent and unamended, the matter has been compounded.
At the hearing the respondent was warned by Mr Sheppard accurately and at
the outset of the risks that it ran, yet its officers did no more than take
the instant advice of their assistant solicitor, who had -- as she frankly
says in her affidavit -- no knowledge at all of the charges against Mr
Hill nor of the decision in the Attorney General v Butterworth. She can
hardly be criticised for the fact that full advice was not taken, and that
Mr Sheppard's warning was ignored.
After the case was all over -- as my Lord has indicated -- Mr Jarvis wrote
what Mr Scrivener accepts to have been the inept letter of the 23rd August,
1984 referring once more to the irrelevant and, in my judgment, unfair criticisms
of Mr Hill outside the confines of this case and saying that the Society
was justified in its action and that in his view no contempt had occurred.
So the Society then, and until now, persisted and persists in saying that
it was right and was not to be criticised for what had happened.
The affidavits filed by the Society -- and in particular Mr Bellingham's
affidavit -- expressed regret only in the alternative to their theme, which
is that there should not be a finding of guilty of contempt against the
respondent, and right up to the present time there is no acceptance of guilt
and apology, which I am bound to say I personally would have hoped to have
been the attitude adopted even up to the last minute when the applicant's
moderate but telling submissions were made to us.
This is, in my judgment, in spite of all that Mr Scrivener has said to us,
therefore, an unmitigated contempt for which the respondent is, unfortunately
for itself and its members, liable to face the consequences.
(Speech in mitigation by Mr Scrivener follows)
DISPOSITION:
Application allowed
SOLICITORS:
The Director of Public Prosecution; Sharpe Pritchard & Co, agents for
PJ Jarvis, Horsham