England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7 February 2003

1. MR JUSTICE MACKAY: This is an appeal by way of case stated by the justices for the County of Greater Manchester sitting in the Petty Sessional Division of Stockport. It relates to a hearing they conducted on 21 May 2002. On that date they were due to hear a summons issued and served upon the appellant, Neil Shufflebottom, who is the owner of a dog called Trigger. The complaint against him was in these terms:

"On 30 December 2001, at 5pm at Kirkcudbright, Dumfries and Galloway, you were the owner of a dog which was dangerous and not kept under proper control. An application is made for you to show cause why an order should not be made for the dog to be kept under proper control or destroyed pursuant to section 2 of the Dogs Act 1871".

2. That section reads as follows:

"2. Dangerous dogs may be destroyed. Any court of summary jurisdiction may take cognisance of a complaint that a dog is dangerous and not kept under proper control, and if it appears to the court having cognisance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed."

3. A preliminary point was taken before the magistrates as to whether they had jurisdiction to hear this complaint. The matter proceeded on the basis that the allegations which the prosecution were going to rely on in support of it were these, as the magistrates state them in their case:

"(a) The appellant lives at 78 Marlborough Avenue, Cheadle Hulme, Stockport. He is the owner of a dog which is ordinarily kept by him at that address.

"(b) In December 2001, the appellant and his wife went on holiday to Scotland [the case then names those with whom he went on holiday]. They stayed in a caravan in Kirkcudbright, Dumfries and Galloway.

"(c) On 30 December 2001 whilst in the caravan, the appellant's dog bit Charlotte Gabbittas causing her serious injuries . . . "

4. The point taken by the appellant at the preliminary hearing is recorded by the magistrates in their case in this way: that the jurisdiction of the Magistrates' Courts in England and Wales to hear complaints was dealt with by section 52 of the Magistrates' Court Act 1980 which I will have to set out below. Secondly, that the incident giving rise to the proceedings had taken place in a different country, namely Scotland, and that prohibited the magistrates from hearing the complaint since the act complained of was not done within the commission area for which they were appointed or indeed within England and Wales at all. Thirdly, that since criminal acts committed in Scotland cannot be tried in England, and that special provisions apply for the execution of English warrants of arrest in Scotland, there is no provision for cross-border hearing of a complaint. The magistrates had no jurisdiction. The respondent's answer was that the court had jurisdiction if the dog was ordinarily kept by its owner within the commission area, and secondly, that the order that was being sought was one to restrain the appellant so as to ensure the dog was kept under proper control. To fulfil the purpose of the legislation, the order must apply wherever the dog was kept by its owner and not simply when it was to be found within the commission area. Evidence that the dog had not in the past been kept under control should be admissible even if that had happened outside the commission area. The respondent invited the magistrates to consider the Divisional Court decision of Locket v Withey [1908] 72 JP 492. The magistrates were of the opinion that where the owner of the relevant dog keeps it within the jurisdiction of their commission area, then magistrates have jurisdiction under the section. They considered that was the case under section 52 of the Magistrates' Court Act 1980 since the keeping of the dog under proper control was, in that case, ordinarily done within the commission area; the appellant living at an address within their area and ordinarily keeping his dog there. They relied on the point expressed in the Locket case by Walton J, albeit those were obiter comments, and, accordingly, accepted that they had jurisdiction. The question framed for the opinion of this court is this:

"Were we right to hold that we had jurisdiction to hear a complaint under section 2 of the Dogs Act 1871 where the owner of the dog ordinarily keeps it within the commission area for which we have been appointed, notwithstanding that evidence in support of the complaint arises from an incident in Scotland?"

5. The starting point of this appeal must, therefore, be consideration of section 2 of the Dogs Act 1871 itself, leaving for one moment to one side the question of jurisdiction. This is not a criminal section but is an example of the magistrates' so-called civil jurisdiction. The end result of proof of a complaint under the section will be an order against a human being, not a dog. That human being will be the owner and it will take one of two forms: a direction to keep the dog under proper control or a direction to destroy it, and the later provisions of the Act contain penalties for non-compliance. Where that is proved, those penalties fall to be met by the owner.
6. The task of a court by which a complaint under this section is heard is, therefore; to determine whether the dog in question was, on the occasion complained of (or there may well be more than one of them) "dangerous and not kept under proper control". Where that is proved to have been the case, then one of the two consequences can follow. As I have said, both those consequences are directed at the owner of the dog. It is open to magistrates to infer from past conduct of a dangerous and uncontrolled nature that the dog in question remains at the date of the complaint dangerous, and as such, this is a legal recognition, perhaps, of the old adage that if you give a dog a bad name it sticks to it thereafter. The whole mischief against which this section is directed, Mr Cummings submits, I believe correctly, is that it is designed to achieve the prevention of a state of affairs whereby a person within the court's jurisdiction, where circumstances warrant it, should be encouraged by one of the two directions to take steps to avoid a dangerous dog causing the problems that dangerous dogs do cause.
7. Turning then to section 52 of the Magistrates' Court Act 1980, the terms of that section should now be set out.

"Where no express provision is made by any Act or the rules specifying what Magistrates' Courts shall have jurisdiction to hear a complaint, a Magistrates' Court shall have such jurisdiction if a complaint relates to anything done within the commission area for which the court is appointed, or anything left undone that ought to have been done there, or ought to have been done either there or elsewhere, or relates to any matter arising within that area."

8. The essence of the complaint that was before the magistrates here was that the dog is now dangerous and merits either being kept under proper control or destroyed. The evidence that will be led to justify that complaint, if it is justified, is of something which happened outside not only the jurisdiction of the court, but the jurisdiction of any English court.
9. The case therefore falls, in my judgment, in either the second or the third categories that section 52 lays down as being circumstances giving rise to jurisdiction. Miss Watson, looking at the words "or ought to have been done either there or elsewhere", says that they should be glossed in the context of a jurisdictional section giving direction to English courts by the addition of the words "within the jurisdiction of another English Magistrates' Court". I think there is force in that, given the context in which this section finds itself, and I am persuaded by her that that is so; but that leaves the third category of case where jurisdiction is to be found, namely the much wider catch-all provision, "or relates to any other matter arising within that area". The matter arising in the area of these magistrates, says Mr Cummings, is the matter of whether a person found within their jurisdiction, who is the owner of a dog which has exhibited past dangerous and uncontrolled behaviour, should be the subject of an order under section 2. The question is not entirely free of authority, though none directly on the point I have to decide.
10. In the case of Lockett v Withey to which I have referred, the Divisional Court considered this section under which a complaint had been made. The act in question, the biting of a young girl, was done within the area of the relevant Police Court in Longton. By the time the complaint was made, the owner had sent the offending dog away to stay with "the mother of the domestic servant of the appellant" at Stone, in the jurisdiction of a different court. The appellant was arguing that the Longton court only had power to exercise its section 2 powers where the dog was physically within its jurisdiction at the time the complaint was made. The magistrates were of the view that the appellant, who was evidently at all times within their jurisdictional area, was the owner at the time it did what it did and he had not, since that time, bona fide disposed of it, therefore he was, as they put it, "guilty of the offence" under the Act. Lord Alverstone CJ gave the leading judgment and the other two members of the court agreed with him and approved his reasoning. He was of course considering the Act without the benefit of section 52 of the Magistrates' Court Act, but he said this:

"Section 2 of the Dogs Act 1871 says that any court of summary jurisdiction may take cognisance of a complaint that a dog is dangerous and not kept under proper control. Speaking for myself I think that that means 'any court' within a reasonable distance. If a dangerous dog is to go about the country, and if the fact of its being sent out of the jurisdiction of one particular court is to oust the jurisdiction of that court, the object of the Act would be defeated. It has been decided that the court has the option of ordering the dog to be destroyed. It cannot be suggested here that there was no evidence on which there was jurisdiction to make the order. It would defeat the object of the Act if a temporary sending away of the dog were permissible to prevent the making of an order."

In agreeing with him, Walton J said this:

"Evidence that the dog is dangerous is not confined to evidence as to the behaviour of the dog within the jurisdiction. Evidence as to how it behaved outside the jurisdiction is admissible, and there must also be evidence that the dog is not kept by its owner under proper control. I am inclined to think, but it is not necessary to decide, that the section is confined to cases in which an owner within the jurisdiction fails to keep his dog under proper control, but I am clearly of the opinion that the magistrates have a jurisdiction when an owner within the jurisdiction fails to keep his dog under control outside the jurisdiction."

Those remarks that I have cited were not necessary to the decision of the Divisional Court and have to be read accordingly, but are of interest nonetheless.

11. The Divisional Court in that case focused, as I believe I must, on the mischief aimed at, with which I have already dealt, that is, dog owners within the court's jurisdiction who own dogs wherever they may be, or wherever they may have been, whose conduct, wherever it took place, evidenced the proposition that they were dangerous dogs, thus giving rise to a consideration of the appropriateness of one or other of the remedies available. To the extent that it is irrelevant to this case, a further decision of the Divisional Courtin in R v Leicester Justices ex parte Workman [1964] 2 All ER 346, confirms this view though on very different facts. There, the person to whom ownership of a dog had been transferred, that dog having exhibited past signs of dangerousness or absence of control, was held to be within the grip of section 2. It was justified by Lord Parker CJ in these terms:

"This is in the nature of preventive justice. It is quite right that if a man buys a dangerous dog, a court should be able to say 'you must ensure that for the future it is kept under proper control'."

12. In my judgment, where the past wrongdoing by the dog has occurred beyond the court's jurisdiction, that fact is not to the point in cases such as these magistrates had before them. I believe that they were right to hold that they had jurisdiction to hear this complaint, where the owner of the dog who ordinarily kept it within their jurisdiction was himself amenable to their jurisdiction; that was so notwithstanding the fact that the supporting evidence justifying the complaint arose from an incident outside their jurisdiction and, indeed, outside the jurisdiction of any English court. I would therefore answer the question cited for the opinion of this court in the affirmative. Mr Cummings?
13. MR CUMMINGS: My Lord, there is a costs application in consequence of that.
14. MR JUSTICE MACKAY: I have the claimant's.
15. MR CUMMINGS: Your Lordship has and on behalf of my side I apologise for the absence --
16. MR JUSTICE MACKAY: I never look at these things before deciding the case.
17. MR CUMMINGS: Could I hand up a copy?
18. MR JUSTICE MACKAY: You have seen it have you Miss Watson?
19. MISS WATSON: I have not.
20. MR JUSTICE MACKAY: If you are taken by surprise by it -- do you want a moment to take instructions on it?
21. MR CUMMINGS: My Lord, I should say the fault in terms of delay lies with my chambers in not providing information to those instructing me to complete the schedules.
22. MR JUSTICE MACKAY: Consider your clerk rebuked accordingly.
23. MR CUMMINGS: It will be my fault, my Lord. I have indicated this to my learned friend -- there are two matters I seek to add: one is VAT on counsel's fees, that is on the second sheet, and that works out to be £262.50. Also a figure for expenses, £100. The grand total, therefore --
24. MR JUSTICE MACKAY: £262.50 is VAT --
25. MR CUMMINGS: On the £1500, my Lord, yes.
26. MR JUSTICE MACKAY: I see, this has been added on mine in handwriting. I have a grand total of £2,644.05.
27. MR CUMMINGS: That is right, my Lord. That is with the manuscript additions.
28. MR JUSTICE MACKAY: That is the grand total that you claim, is it?
29. MR CUMMINGS: It is.
30. MR JUSTICE MACKAY: Miss Watson, have you had enough time to consider this?
31. MISS WATSON: I have taken instructions and I have been asked to point out that the schedule ought to have been served 24 hours before today.
32. MR JUSTICE MACKAY: It certainly should have been and if you want an adjournment to consider it, I will consider that request.
33. MISS WATSON: I do not think that is required. I have just been asked to make it plain in open court that that is the case.
34. MR JUSTICE MACKAY: Your instructing solicitor is making a valid point and there is a reason why these things should be served in advance. I am sorry he has been put to a disadvantage. Are there any items on it that you invite me to consider or reduce?
35. MISS WATSON: No.
36. MR JUSTICE MACKAY: Very well, I will answer the case stated in the way that I have indicated. The respondent's costs should be paid by the claimant and I assess those summarily at £2,644.05. Thank you both very much for your helpful argument.