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Relevant procedural history, etc.IN THE SHERIFF COURT at EDINBURGH CASE for the Opinion of the High Court of Justiciary at Edinburgh
STATED by James Peterkin Scott, Advocate, Sheriff in the Sheriffdom of Lothian and Borders at Edinburgh
in causa Julian George Morrison, Appellant, Versus Procurator Fiscal, Edinburgh, Respondent Relevant procedural history, etc. The appellant was charged that, being the responsible person, between dates in March and August 2009 at stables occupied by him at Gorebridge he caused (by act or omission) unnecessary suffering to four Shetland ponies and a donkey by failing to provide them with appropriate veterinary, farrier or dental care, contrary to the Animal Health and Welfare (Scotland) Act 2006, section 19 (2).
After sundry procedure the case called before me for trial. Having heard evidence and submissions over five days in all, I found the accused guilty as amended and under certain deletions. The practical effect was that I found the accused guilty of causing unnecessary suffering by failure to provide veterinary and farrier care in respect of a pony called Starri and failure to provide farrier care in respect of the remaining three ponies and the donkey. I acquitted the appellant of all allegations concerning dental care.
The appellant did not challenge the special capacity in which he was charged. At the close of the Crown case, the appellant’s solicitor did not submit that the appellant had no case to answer.
Two of the ponies had been destroyed prior to trial. At a sentencing diet on 22 July 2011, having heard the appellant’s solicitor and the respondent’s depute, I made an order in terms of section 40 of the Animal Health and Welfare (Scotland) Act 2006 (a) applicable to horses and donkeys and (b) disqualifying the appellant for life from owning or keeping more than a maximum of one donkey and 2 ponies. I note that the disqualification order refers to “more than one the donkey or 2 ponies". Since the appeal, prima facie, relates to sentence as well as conviction, I have refrained from amending the order.
Findings in fact
(i) a receipt (marked ‘Paid’) for £125 dated 5th May 2009 addressed to ‘Mr Morrison’ from R & I Farrier Services Ltd. of Dalkeith in respect of payment for ‘5 trims’; and (ii) a cheque dated 31st March 2009 (marked “paid") in the amount of £38, drawn on the appellant’s account in favour of “R. Robb" (a farrier).
On examination by Mr Elliot and Mr McNaughton, the pony had collapsed heels; exceptionally long, overgrown, mud-caked hooves; and very severe laminitis, a painful disease involving separation of the distal hoof bone from the hoof wall. When laminitis is left untreated for extended periods of time the hoof grows abnormally upwards and backwards, causing the hoof to resemble curly-toed elf shoes, commonly known as ‘laminitic slippers’. Starri had developed ‘laminitic slippers’ and it was obvious that the laminitis had not been treated appropriately. The hoof abnormality was obvious to the untrained eye and was so severe that the animal could barely walk and was in extreme discomfort even when standing still. The animal was in so much pain that the farrier had great difficulty in lifting its feet. When he lifted one foot off the ground more pressure was placed on the other three feet, causing more pain. After not much more than a minute with one of its feet off the ground the pony began to collapse with pain. The digital pulses were also increased in all four feet, which is another indication of foot pain. Starri’s hooves were exceptionally long and had not been trimmed for about six months. Laminitis is a disease that requires appropriate and timeous veterinary treatment. The disease in Starri was so far advanced that there was no realistic hope of recovery. Consequently, on Mr Elliot’s advice, the animal was destroyed humanely.
On examination the pony had badly neglected, overgrown hooves, one of which was slightly deformed due to the neglect. The animal was unbalanced. Its hooves were caked with mud on the outer walls and they had not had the attention of a farrier for several months. Mr McNaughton, the farrier, gave the animal emergency treatment. He worked on the pony for about 30 minutes, trimming its hooves, trying to balance its feet, and trying to make it more comfortable. Goldie was blind. On the advice of Mr Elliot, the veterinary surgeon, Goldie was destroyed humanely because the animal was unable to cope with his new surroundings, he was anxious and distressed, and Mr Elliot considered that it was inappropriate to return him to his old surroundings.
On examination the pony had badly neglected, overgrown, mud-caked hooves and was unbalanced. Its hooves were badly in need of treatment from a farrier. Mr McNaughton, the farrier, gave the animal emergency treatment. He worked on the pony for about 30 minutes, trimming its hooves, trying to balance its feet, and trying to make it more comfortable. The animal had not received farrier care for at least eight weeks.
On examination the pony’s hooves were all badly neglected, overgrown and caked with mud. The animal was unbalanced and the right fore hoof was deformed. It had not received farrier care for four to six months. Mr McNaughton, the farrier, gave the animal emergency treatment. He worked on the pony for about 30 minutes, trimming its hooves, trying to balance its feet, and trying to make it more comfortable.
The donkey’s hooves were all badly neglected, overgrown, and caked in muck. It had not received farrier care for four to six months. Mr McNaughton, the farrier, gave the animal emergency treatment. He worked on the animal for about 30 minutes, trimming its hooves, trying to balance its feet, and trying to make it more comfortable.
NOTE Crown evidence
For background information, photographs of the animals, their appearance and identification, etc., the Crown relied, in the first instance, on the testimony of three SSPCA inspectors, Jennifer Scott, Heather Anne Lawson and Paul Anderson. I found them all to be perfectly straightforward, honest and reliable witnesses. Jennifer Scott, aged 33 years, is a senior inspector with the Scottish Society for the Prevention of Cruelty to Animals, based at Balerno. She has 6 years’ service. Heather Anne Lawson, aged 27 years, is an inspector with the SSPCA, based at Balerno. She has three years’ service. Paul Anderson, aged 56 years, is a chief inspector with the SSPCA based at Balerno. He has 19 years’ service.
The Crown also relied on the testimony and report [Crown Production 7] of a veterinary surgeon, Christopher Elliot, aged 26 years. He qualified in Queensland, Australia in 2007. Before coming to the UK in March 2009, he was in a practice that dealt with horses (70%), small animals and cattle. I found him to be credible and reliable. I accept his testimony to the effect that the lack of farrier care (and, in the case of the pony named Starri, lack of veterinary treatment for laminitis) caused avoidable suffering. In relation to the condition of the animals’ hooves and his decision to put down the pony Starri, he was supported by the farrier, Donald McNaughton.
Donald McNaughton is 65 years old. He served in the Royal Army Veterinary Corps, tending mainly to horses, but also to donkeys. He is a registered shoeing smith and he has been a farrier for 45 years. I found him to be an honest, thoroughly reliable witness whose testimony was utterly compelling. I have no hesitation in accepting as sound his testimony as to fact and opinion. Findings in fact 4 to 8 and 13 to 15, inclusive, are based on his testimony and the testimony of the veterinary surgeon, Christopher Elliot.
Defence evidence
The appellant,Julian George Morrison is 68 years old. He described himself as being ‘semi-retired.’ He subsists on state benefits of about £152 per week. Until he was injured in a road accident in 1989 he was in practice as a solicitor. He has been interested in animals for many years. He is registered as an animal trainer under the Performing Animals Act 1955. He leases stables at the locus. I am sorry to say that from his demeanour and the way in which he responded to questions (including questions put to him by his own solicitor) I do not regard him as a credible witness, nor do I accept him as reliable on the disputed facts in issue. During his testimony I found him to be reluctant to admit the obvious, evasive and very unconvincing.
David Mackie, aged 48 years, is a veterinary surgeon. He has been in practice since 1986. He was the partner of the defence witness Robert Brechin until Mr Brechin’s retirement in December 2001. I cannot regard him as a reliable witness and I regret to say that I have substantial doubt about his credibility. In cross-examination he conceded that no veterinary care had been provided to the appellant's animals between March and August 2009. He said that the appellant was in the habit of seeking veterinary advice by telephone. He had last seen the appellant and his animals in 2008, or possibly 2007. It follows that he was not in a position to comment on the condition of the appellant's animals on 21st of August 2009, or to draw any inferences from their condition. Nevertheless, he was willing to express firm opinions, pointedly adverse to the SSPCA. In a letter to the appellant’s solicitors dated 9th August 2010 [Defence Prod.7, second paragraph] he wrote: “The subsequent actions by the SSPCA have left me somewhat bemused. From having 4 apparently healthy happy ponies and a donkey, Starri and Goldie are now dead after being removed from their home of 20 years. I feel that rather than preventing cruelty this organisation has caused more problems than they have solved. I know from previous experience of the SSPCA that some of their actions are taken with crass disregard of the consequences. One of the main complaints was lack of foot care, this was done on a regular basis by a qualified farrier who was due to make a routine visit soon after the ponies were taken.” He suggested that severe laminitis might be treatable by veterinary care. No doubt this is so, but in the first place the keeper of the animal would have to consult a veterinary surgeon. The appellant did not do so. In cross-examination he testified that he was “just going on what I remember, what I saw at the time that I last saw them." He admitted that he had not seen the animals since 2008 or possibly 2007. My overall impression was that Mr Mackie attempted to slant his testimony in favour of the appellant. I reject his testimony except insofar as unchallenged and supported by evidence that I accept.
Robert Brechin, aged 71 years, is a retired veterinary surgeon. He had been in practice from 1964 until his retirement in December 2001. Witness David Mackie was his partner. He has known the appellant from about 1969. Obviously, the witness did not examine the appellant's animals anywhere near the period libelled. He deponed that if a horse is in pain from laminitis it should not be transported. Laminitis should be treated by a veterinary surgeon. Under reference to photographs comprising Crown production number 1, he deponed that he could not see laminitic changes in the pony called Starri. I cannot regard this witness as wholly reliable. I found him to be evasive in part of his testimony. In cross-examination, having been asked to look at photographs of the animals, the procurator fiscal suggested that their hooves were badly in need of attention. The witness replied, “They are definitely at the stage of needing attention." I reject his testimony insofar unchallenged and coinciding with other evidence, which I accept.
The appellant called five other witnesses. I had no reason to doubt their credibility or reliability regarding the limited issues to which they testified. Their testimony was unchallenged.
Gary Edmunds, aged 54 years, is employed by Midlothian Council as a council operations officer. He spoke to arrangements for removing manure from the locus. This testimony was not relevant to the disputed issues.
William Hunter, aged 60 years, is a “semi-retired gamekeeper.” He has known the appellant for about 30 years. He testified concerning the assistance given by various persons in looking after the appellant’s animals. As ked bout the animals’ condition, he replied, “I don’t know about neglect.” He deponed that the appellant has refurbished the stables at the locus.
Ronald Scally, aged 69 years, is an auto breaker. He has known the appellant for about 30 years. He deponed that the appellant loves his animals: that was his life. He deponed that the appellant has made big improvements to the stables at the locus.
Dawn Sneddon, aged 25 years, is a delivery driver. She has known the appellant since June 2010 (i.e., some 10 months after the animals had been removed from the stables at the locus). She deponed that the appellant adores his animals. He has a lot of patience with them. The appellant has refurbished the stables.
George Michael Lawrence, aged 58 years, is a coach works proprietor. For about 14 years he has lived approximately 600 yards from the stables at the locus. He has known the appellant for about 14 years. He deponed that sometimes the appellant slept at the stables in order to care for the animals. The appellant loved his animals. Asked about hoof care, the witness replied, “I'm not really up to that." The animals appeared to be reasonably healthy. He visited the ponies and donkey with his grandchildren, probably about two or three times per week. His grandchildren moved to England about two years ago. He could not remember the last time he saw the animals. He said that, “I haven't seen the ponies and donkey for a long time."
Submissions on the evidence
For the Crown Mr Drugan, procurator fiscal depute, asked the Court to find that the Crown witnesses Scott, Lawson, Anderson, Elliot and McNaughton were credible and reliable. Having referred to parts of the evidence for the Crown (which I do not find necessary to repeat) he submitted that although the appellant loved his animals he was not able, physically, to provide necessary and appropriate care to each animal. From the waste in the stables and on the animals’ hooves it appeared that the appellant was not coping.
At one stage the appellant asserted that the SSPCA had substituted another pony for Starri. Mr Drugan asked me to dismiss that assertion as incredible.
For the appellant Mr Harley, solicitor, submitted that the appellant had cared for his animals in the same premises for some 28 years. He referred to a passage in defence production 7, a letter bearing the date ‘09/08/10’, addressed to Mr Harley, in which the author, defence witness David Mackie writes, ‘The subsequent actions by the SSPCA have left me somewhat bemused.’ Mr Harley submitted that it is impossible and unrealistic to divorce the allegations from the destruction of the animals.
The evidence concerning laminitis (Starri) and farrier treatment (the other animals) comes essentially from the vet, Mr Elliot. There is no attack on his professionalism but, compared to the vets called for the defence, there is a wide gap in experience. He is 26 years old; he qualified in 2007; and at the time of the alleged offences he had less than two years’ experience. He may have slanted his testimony to underpin the decision to destroy Starri. While it is fair to say that he is supported by the farrier, Mr McNaughton, the vets called for the defence, Mr Mackie and Mr Brechin, do not support him.
The accused says that the pony shown in photo 1 of Crown Production 1 is not the same animal as in the other photos in that Production. He founded on its bodily condition; the condition of its feet; and absence of marking. While conceding that this seems a little far-fetched, Mr Harley submitted that it does not look like the same horse. Mr McNaughton testified that the feet look different in the photos. Mr Mackie testified that the front feet look completely different. Mr Brechin did not think that it was the same horse. The procurator fiscal relied on coloured hoof spray seen in photo 1 and other photos, the hoof spray having been purchased by the accused on 26th March 2009. The accused admitted that the spray ran out about five months later. If the court accepts that the animal in photo 1 and the other photos is Starri, then the use of the spray is a contraindication of neglect.
The accused testified (and said when interviewed) that a farrier was due to attend to the animals in August 2009. Mr Brechin estimated that it would have taken about three months for Starri’s hooves to get into the state seen in the photos. The hooves were at the stage of needing something done, which is not neglect. There was nothing to suggest that the animals were suffering pain. Moreover, if Starri was in such a bad state, it should not have been transported. The accused testified that he was not aware of Starri being in pain.
The accused has no other family. Effectively, the animals are his life. Defence witness George Lawrence testified that he would have reported any neglect.
The only real evidence of neglect relates to hoof care. A farrier was due to visit. The timing of the ‘raid’ by the SSPCA was unfortunate for the accused.
Mr Harley submitted that the farrier, Mr McNaughton, would have done whatever the vet, Mr Elliot, suggested. The accused’s vets were not given the opportunity to ‘come in and sort matters out for themselves.’ The pony ‘Goldie was also destroyed. The accused was surprised that he was unable to cope with the new surroundings and was agitated and distressed.
The prosecution has outraged the accused. There is sufficient material upon which to acquit. If the Court took the view that the neglect was so blatant that the accused should have seen it, the Court would have to convict. But the accused submits that there is reasonable doubt about alleged failures and omission to obtain treatment. The Court is urged to acquit.
Conclusions on the evidence
As I understood it, the appellant's defence fell into two main parts. First of all, no suffering was caused to any of the animals. Secondly, the pony Starri did not have laminitic slippers. The SSPCA substituted another animal for the pony Starri. Photograph 1 of Crown Production 1 is of Starri. Photograph 2 is of a different animal.
I rejected the defence in both its parts. Insofar as the crucial facts were disputed, I preferred the testimony of the Crown witnesses to the testimony of the appellant and his witnesses.
1. Farrier and Veterinary Care Defence production number 6 comprises 2 documents. The first is a receipt from a farrier dated 5th of May 2009 in respect of payment to the farrier for “5 trims." The receipt does not specify the date or dates on which the work was carried out. The farrier was not called as a witness. The second document is a cheque (marked “paid") drawn on the appellant’s account in favour of “R. Robb" (a farrier) dated 31st March 2009 in the amount of £38. The appellant claimed that the last visit by a farrier was on 5th of May 2009. He deponed that he arranged for the farrier to return “in about 3 months" (i.e. in August 2009). He accepted, eventually, that the animals required farrier care as at 21st August 2009. The farrier was not called as a witness.
The appellant deponed that he had employed the firm of Mackie and Brechin, veterinary surgeons, since 1983. He claimed that the veterinary surgeons visited the stables at the locus “fairly frequently." He attempted to found on a printout of invoices from Mackie and Brechin [Defence Production 12] which disclosed that the first visit to one of his horses in 2009 was made on 7 September 2009, a fact which the appellant was reluctant to admit. There is no record of any other visit by a veterinary surgeon in 2009. Mr Mackie deponed that he had last seen the animals in 2007 or 2008. By 2009 his partner, Mr Brechin, had long since retired.
I accept without hesitation the testimony of the SSPCA inspectors, Mr Elliot (the vet) and Mr McNaughton (the farrier) concerning the condition of the hooves of all the animals, and the obvious need for the “emergency” farrier treatment given by Mr McNaughton. In the case of the pony called Starri, I also accept the evidence concerning the advanced laminitis observed and the need to destroy Starri humanely. I also accept that the proper inference to be drawn from the Crown evidence is that the lack of farrier care for all the animals extended over many months; the lack of veterinary care for Starri, extended over many months: and that unnecessary suffering so caused.
2. Alleged substitution of another pony for the pony Starri In effect, the appellant’s contention came to this: the pony Starri not having suffered from laminitis, and having been removed from the locus on 21st August 2009, overnight the SSPCA personnel found and substituted another (almost identical) pony for Starri. The substitute pony had laminitis. It was photographed on 22nd August 2009. This explains certain alleged differences in photographs 1 and 2 of Crown production 1. I reject the appellant’s contention as untrue and ridiculous.
Inspector Jennifer Scott deponed that on 21st August 2009 Mr Elliot, the vet, recommended that the animals be taken to the SSPCA premises at Balerno. She seized the pony Starri under statutory powers. Starri is the pony in both photographs 1 and 2 of Crown Production 1. On 21st August 2009 Chief Inspector Paul Anderson transported Starri and another pony, from the locus to SSPCA premises in Balerno. The animals were transported in a trailer, drawn by a Land Rover. Starri did not die on the way to Balerno. Another pony was not substituted for Starri. I accept these witnesses as truthful and wholly reliable.
At the top of page 3 of a letter of complaint (dated ‘April 2010’) sent by the appellant to the Royal College of |Veterinary Surgeons in London, the appellant asserted, inter alia: ‘…Another pony has been substituted for Starri who I believe may have died in transportation…’ Later, on the same page, the appellant wrote: ‘What happened to Starri’s body? Presumably the second pony was destroyed.’ Pressed on this matter in cross-examination the appellant became hesitant and evasive. Eventually he said, inter alia: ‘I don’t know if Starri’s dead. Starri could be alive.’ I reject the appellant’s testimony as untruthful and fantastic.
The ground of appeal
Conviction Given the ground of appeal [‘The Sheriff was wrong in finding me guilty of neglect.’] I am unable to report on any particular issues that the appellant wants to have brought under review. I have restricted my report to the facts and arguments concerning the two elements of the charge that led to conviction. Sentence At page 2 of the application for a stated case the appellant has not deleted the words: ‘The appeal is also against sentence.’ It seems likely that the appellant has omitted to delete these words inadvertently. But, in any event, given that no ground of appeal against sentence is specified, I am unable to comment.
QUESTION of LAW for the COURT
(i) On the facts stated was I entitled to convict the appellant of causing unnecessary suffering by failure to provide care by a farrier? (ii) On the facts stated was I entitled to convict the appellant of the charge as amended and under deletions?
This Case is stated by me,
J.P. Scott Edinburgh, 8th November 2011 Proposed adjustment for the Appellant rejected on 3rd November 2011
‘3. The appellant produced documentary evidence that about March 2009 and May 2009 farriers were paid for work involving attention to the hooves of the appellant’s animals.’ ‘4. Those documents were unchallenged and demonstrated a care regime by the appellant.’
Date: 2015-12-11; view: 1115
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