What the Tortoise taught us....

August 10, 2015

A recent Administrative Court ruling provides useful guidance on the duty of local authorities when they are alerted to possible unlawful activity, writes Nicholas Dobson.

Charles Lutwidge Dodgson, the 19th century Oxford mathematics and logic don, was apparently a painfully shy man afflicted by a stammer in adult company. But as Lewis Carroll, his literary alter ego, he could undam reservoirs of surreally creative energy to offer some absurd structure to what he may have felt to be an illogical, arbitrary and cruel world.

So in Carroll’s 1865 work, Alice's Adventures in Wonderland, his heroine, Alice, encounters the Mock Turtle ‘sitting sad and lonely on a little ledge of rock’ and ‘sighing as if his heart would break’. As the Mock Turtle explained to Alice, the cause of his sadness was that he had once been a real rather than a Mock turtle. And when a little turtle, at ‘school in the sea’ he explained that the teacher had been ‘an old Turtle — we used to call him Tortoise —’. But:

‘Why did you call him Tortoise, if he wasn’t one?’ Alice asked.

‘We called him Tortoise because he taught us,’ said the Mock Turtle angrily (emphasis added): ‘really you are very dull!’

‘But what,’ you may well think, ‘has any of this to do with local authority law?’

The answer may lie in a recent decision of the Administrative Court, where claimants included The Portsmouth Reptile and Amphibian Society (the Society) and the Chairman of the Federation of British Herpetologists (herpetology being the area of zoology dealing with reptiles (of course including tortoises)). The claimants sought judicial review of a decision of Arun District Council for allegedly prohibiting or cancelling a Private Breeders' Meeting to be held at the Fontwell Park Racecourse (the Racecourse) on 27 October 2013.

The case in question was Kent and Newman v. Arun District Council and others [2015] EWHC 2295 (Admin), judgment in which was given on 31 July 2015 by Mrs Justice McGowan in the Administrative Court. There the Court offered (or perhaps ‘taught us’) some useful guidance on the duty of local authorities when they are alerted to the possibility of criminal activity. And also provided some insight as to why it had declined to ‘determine what future conduct might amount to the commission of a criminal offence’.

Brief background

The Pet Animals Act 1951 makes it an offence to keep a pet shop otherwise than in accordance with a local authority licence. ‘Pet shop’ is widely defined to include ‘carrying on at premises of any nature (including a private dwelling) of a business of selling animals as pets’.

The council had been concerned (in the light of material received from the Animal Protection Agency - APA) that there was a substantial risk of unlawful sales of live animals at the event scheduled to be held by the Society at the Racecourse on 27 October 2013. This was bearing in mind (as the APA had indicated) that sales outside the 1951 Act had taken place at previous similar shows.

The council therefore wrote to the Society as event organisers informing them that: (i) the council believed that there was "a substantial risk of unlawful activity taking place at the scheduled event"; (ii) the Management team at the racecourse had consequently been advised to cancel the event and (iii) this advice had been accepted.

The claimants sought judicial review and a quashing order of "Arun District Council’s decision to cancel a breeders’ meeting scheduled to take place at Fontwell Racecourse on 27 October 2013" in the light of the following submissions:

(i) That the council had no power to prohibit or procure the cancellation of the event;

(ii) Whether or not criminal offences are committed at such an event is a matter for a criminal court to determine and the council has no pre-emptive powers and;

(ii) The council was wrong to form the view that offences might have been committed.

In any event, argued the claimants, the council’s approach was based on an error of law.

However, the council as defendant argued (amongst other things) that it was entitled to view the evidence of the conduct of other shows as demonstrating the substantial risk of offences occurring at this show. Furthermore, it had properly warned the Racecourse of that risk and that the decision taken by the Racecourse was made independently of the council.

Court’s view

The first question, said McGowan J was "whether the council, if alerted to the risk of unlawful activity, should investigate the matter and pass on its concerns to an organisation" such as the Racecourse. In her view the "answer must be in the affirmative". This is because the council as a public body has "a duty to do what it properly can to prevent the commission of offences by legitimate means". And to warn "an organisation such as the racecourse that its premises might be hosting an event at which unlawful activity might take place is an entirely proper course to have taken".

As to "whether the council acted reasonably and properly in fearing that there was a substantial risk that such activity might occur", the Court considered that on the material available that was a reasonable conclusion to have reached. But "in any event it was not arguably so unreasonable as to be the proper subject of review".

However, did the council actually ‘procure’ the cancellation of the event as alleged? Most significant, the Judge noted was the "uncontradicted evidence"’ of the Racecourse Executive Director who said that his staff "took the decision on behalf of the racecourse to cancel the event after taking into account advice from the council". If that decision was wrong, said the Judge then the claimants were entitled to bring a private law claim against the Racecourse.

In the circumstances since there was no "arguable basis upon which this claim, even if properly brought, could succeed", permission was refused.

However, there was an additional issue. The APA as Intervener invited the Court to interpret section 2 of the 1951 Act to enable enforcement to be more obviously and readily available. This section provides that if "any person carries on a business of selling animals as pets in any part of a street or public place, [or] at a stall or barrow in a market, he shall be guilty of an offence".

The Judge declined to do so since (in the absence of exceptional circumstances of which this was not one): "it is not for this court to legislate or to determine in advance of a course of conduct what would or would not amount to the commission of a criminal offence".

Comment

Local authorities often seem to be seen by prospective claimants as soft and well-resourced judicial review targets. So in this case it was the authority which was subject to action in the shape of judicial review rather than the Racecourse in a private law claim. But the Court’s comment that the council as a public body "has a duty to do what it properly can to prevent the commission of offences by legitimate means" will assist and encourage authorities seeking in a litigious age properly to discharge their functions in the public interest.

And, as was made clear in June 2015 by the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599, courts don’t do academic. They are there to deal with real issues arising between the parties in specific legal proceedings. So McGowan J in ruling that "it is not for this court to determine some act to be criminal which may not currently be in breach of the criminal law" nor "to determine what future conduct might amount to the commission of a criminal offence", was acting consistently with this principle as well as being guided by the propositions set out by Walker J in R (Haynes) v. Stafford Borough Council [2006] EWHC 1366 (Admin) (as detailed in paragraph 29 of McGowan J’s judgment).

Nicholas Dobson is a Consultant with Freeths LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government. Nick can be contacted on 0845 017 7620 or This email address is being protected from spambots. You need JavaScript enabled to view it..