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K.C. Rule A43 Case Report
KC warns and censures Golden Retriever breeder
Wednesday 24th April 2002

Golden Retriever breeder Mr John Risk (Luamber) of Dereham, Norfolk appeared before a Kennel Club Disciplinary Sub Committee on Wednesday last week for a Rule A43 hearing, following his conviction, at North Norfolk Magistrates’ Court on October 12th 2001, of an offence under the 1968 Trade Descriptions Act. Rule A43 broadly relates to persons who have been convicted in the Courts of an offence relating to or appertaining to Cruelty or Dishonesty concerning dogs.

Rule A43 hearings do not concern themselves as to the rights or wrongs of any such conviction, but hear mitigation from the plaintive in relation to any such conviction. They have the same power to suspend and/or disqualify any such person as under Rule A42, with the exception for the imposition of a fine or an order for costs. Until fairly recently, the procedure for such hearings was to hear the case “in camera” with the plaintive only being able to submit written mitigation.

Following the introduction of the European Convention for Human Rights in the UK in 2001 and upon legal advice from the KC’s advisors, procedures have been brought more into line with Rule A42 hearings, where the plaintive is able to attend in person and bring witnesses. Members of the canine press are also invited to attend.

Mr Risk was charged with two offences under the Trade Descriptions Act, the first of which he was found not guilty, whilst on a second charge he was convicted. The two actions related to a Golden Retriever puppy (named Sandy) bred by Mr and Mrs Risk and sold to a Mrs Picton. The first dismissed charge was that between August 1st and September 17th 1999, in the course of trade or business, these being newspaper advertisements applied to goods, namely Golden Retriever puppies, a false trade description, namely “Pups Parents and Grand Parents KC/BVA Hip/Eye scheme”, whereas the said Puppies, Parents and Grand Parents had not been tested in accordance with the scheme. On this charge the court accepted that the adverts related to two other litters of Golden Retrievers that the Risks had bred, (which were fully tested) and not to a third litter from which Mrs Picton’s puppy came from.

Mr Risk explained in written submissions to the KC that Mrs Picton “was fully aware that the puppy was not from the advertised litters”. She was told, Mr Risk alleged, that it was from a litter of five, specifically bred to retain a line from Sh Ch Jobeka Jasper of Nortonwood, two of which the Risks intended to keep for themselves, with the other three going to people who had been waiting for puppies from that mating.

Delight

After much persuasion, Mr Risk agreed to sell one of the two four month old puppies to Mrs Picton in September 1999, despite the fact that he had intended to keep both till they were about 12 months old. In May 2000, the Risks received a letter from Mrs Picton expressing her delight with Sandy. As Mr Risk had been found Not Guilty on this charge, the hearing did not concern itself with it, but Mr Risk felt it relevant to his plea of mitigation following his conviction on the second charge.

The first (dismissed) charge related to advertising the puppy, but the second charge - which was upheld -related to the supplying of a puppy with a false trade description, namely “Pup’s Parents and Grand Parents KC/BVA Hip/Eye scheme”.

Effectively the Court ruled that Sandy had been supplied to Mrs Picton under a false trade description, despite the fact that the advertisements as charged did not in them selves apply a false trade description. The conviction was upheld under Section 4(1)(c) of the 1968 act, which was described to the KC hearing as a “catch all” section.

In written evidence, Mr Risk’s legal advisor stated that at first this may well appear to be a nonsensical conclusion, as if there was not a false trade description as per the adverts, how could Mrs Picton have bought Sandy under the misapprehension that this puppy was the one advertised in the Eastern Daily Press?

However, the Court ruled that although the trade description as charged under Section 1(1)(a) was not in itself false (because Sandy came from a litter not so advertised and because Mr Risk had for sale puppies which complied with the advertisement), by section 4(1)(c) Mr Risk had used a trade description in a manner likely to be taken as referring to Sandy.

Therefore although Mr Risk was not responsible for applying a false trade description to the Golden puppy supplied to Mrs Picton, the court found that he was guilty of supplying a puppy by that description. Furthermore, the Court found that an offence of supplying the puppy with a false description had occurred by virtue of section 5 of the 1968 act, which allows for a trade description to be taken as referring to all goods of a class. In other words, the Court found that Sandy had been implied sold as per the advertisements in the Eastern Daily Press. As a result of this conviction, Mr Risk was fined £650, with court costs being an additional £650 and an award for compensation to Mrs Picton was granted for £700, against an original demand of £3,000.

It was mentioned at the hearing by Mr Risk that Mrs Picton had written to him “several months later” to state that Sandy had gone lame. Whilst it was not effectively established at the hearing that the dog had indeed developed Hip Dysplasia, this was indeed the implication. Mr Risk replied to Mrs Picton that he felt that she was unduly worried and that with the correct treatment, the dog would be fine. It was shortly after this that a complaint was made to Norfolk Trading Standards, as a result, Mr Risk was interviewed by Trading Standards Officers for about an hour and a half and shortly after this a summons was issued.
Mr Risk initially went to court for a preliminary hearing but the second hearing of the case was adjourned as the chairman of the bench had previously acquired a dog from Mr and Mrs Risk. It was at the third and final hearing, which lasted two days, that the Court reached its decision in this matter.

In questions from the Sub-Committee Mrs Terry asked if Mrs Picton had been told that the Puppy was not from hip scored parents. “It would have been explained to her that they (Sandy’s litter) were not from hip scored parents. The ones that were advertised were, but these weren’t.”

Miss Lanning asked for confirmation that some of the Risk’s breeding stock was tested, whilst some were not. “That is correct” replied Mr Risk, “It is purely economics” Mr Risk answered further questions from Miss Lanning by stating that his wife had bred her first letter about 50 years ago and that he had been breeding with his wife for about 12 years.

“How many litters would you breed a year then?” asked Miss Lanning.
“About 10” was the reply.
“Quite a lot then?”
“Well it depends what you are comparing it with, it’s less than one a month” stated Mr Risk. “That is what we do, we don’t do anything else, we are retired and that is our life” added Mr Risk.
“It’s a business then really, isn’t it?”
“No it’s not a business, we don’t make enough money out of it to be a business, we both have pensions and other incomes so we can afford to do nothing else but the dogs. It’s just a hobby.”
Miss Lanning then asked about how many puppies they would expect to breed a year. “Well, when I had an altercation with the inland Revenue a few years ago it was decided that it averaged 5-6 puppies per litter.”
“What would the going rate be for a nice well reared Golden puppy be then?” asked Miss Lanning.
“£400, £450, where I come from, in Norfolk, in other parts of the country it could be more.”
“Really, I am surprised.” commented Miss Lanning.

Nothing wrong

In reply to a question from Mr Smethurst asking if the lady who complained still owned the dog, Mr Risk replied, “I have no idea, all I know is that I was fined costs to go towards her ongoing veterinary treatment, the fact that she had insurance was not taken into account.”
“And have you changed any of your advertising since?”
“Of course, our adverts are often changed. As well as Golden Retrievers, we also do Labradors.”
“I mean to take account of the court ruling.” asked Mr Smethurst
“No, because there was nothing wrong with the adverts, it was true and accurate, for the puppies that we were advertising at the time.”
Mrs Terry then asked about the adverts, 20 in total, which had appeared in the paper, did they refer to one specific litter? “No, we had two litters within about a fortnight, but all parents were hip and eye tested.”
“And are the dogs registered in your joint ownership with your wife or just yourself?”
“Joint ownership” was the reply.
Mr Smethurst then asked if the lady (Mrs Picton) found out about the puppy from the advertisement?
“Now that is a contentious point. She has since said that she did , but when she first rang us and when she visited us we were led to believe that she was there solely because she had seen other dogs of ours. We were firmly of the impression that she had visited us because she had seen other dogs of ours and she wanted one like it.”
“Is the dog all right now” asked Miss Lanning. “I have absolutely no idea, I didn’t feel inclined to find out.” Replied Mr Risk

Mr Risk then called Mr Peter Billington as a character witness on his behalf. He is a retired headteacher and he and his wife have a total of four Golden Retrievers they have had from the Risks over a period of time, with the oldest dog being six years. He stated that he felt the Court decision had been a travesty of justice and that he considered Mr and Mrs Risk to be of the utmost integrity, who he would trust implicitly, they are kind to a fault and will bend over backwards to do anything for any dog owner.

Mr Billington went on to confirm that he actually had a dog from the same litter as Mrs Picton and that he could verify that this litter was not advertised.

The sub-committee then retired to consider the matter and when recalled the following statement was read out

“The Committee, having carefully considered the submissions on the part of Mr J Risk with regard to the conviction of an offence under the Trade Descriptions Act 1968 from the North Norfolk magistrates Court, make the following comments:

“The members of this committee, having listened to the mitigating circumstances put forward by Mr Risk, have found that the Court findings highlight the ambiguities in the manner in which Mr Risk advertises his litters of puppies.

“The committee therefore impose the following penalties under Rule A 42j(1) and (2)

“1. To warn him as to her future conduct
“2. To Censure him

“It is the advice of this committee that Mr Risk be more specific with regard to health claims or any other claims made in future advertising.”

The Disciplinary Sub Committee was made up of Mrs Irene Terry as Chairman, Miss Jean Lanning, Mr Eric Smethurst.