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 WC2A 2LL
		31 January 2017

1. THE DEPUTY JUDGE: In this claim, the claimant applies for judicial review of the refusal of the defendant to state a case on the ground that it was frivolous. Holman J gave permission limited to the issue whether on the reasons given by the court below the court had properly applied the considerations under section 4(1A) of the Dangerous Dogs Act 1991 for the purpose of considering destruction, and, under section 4(1B), other considerations. The dog in question was a pit bull terrier.
2. Section 4(1A) provides:

"(1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied—

(a) that the dog would not constitute a danger to public safety;

[...]

(1B) For the purposes of subsection (1A)(a), when deciding whether a dog would constitute a danger to public safety, the court—

(a) Must consider—

(i) The temperament of the dog and its past behaviour, and

(ii) Whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and

(b) May consider any other relevant circumstances."

3. The approach to be taken was considered in R v Flack [2008] 2 Cr App R (S) 70, where Silber J set out principles as follows at paragraph 11:

"(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.

(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4A(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed ('a suspended order of destruction').

(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4A(5) of the 1991 Act.

(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made."

4. In that case, the court was considering an offence under section 3. However, the approach was applied in the subsequent case of R v Baballa [2011] 1 Cr App R (S) 50, which concerned a case under section 1(3). In my judgment, the same principles apply in the present case under section 4.
5. In giving the reasons of the court below, the learned judge said as follows:

"The statute, however, is very clear: the court shall order destruction of the dog unless, having considered the temperament of the dog, its past behaviour and whether the person in charge of it is a fit and proper person, the court can be satisfied that the dog will not constitute a danger to the public safety. So, effectively, whilst it provides a statutory discretion, it is obligatory unless, considering the two things, the dog's temperament and the character of the person, the dog will not constitute a danger to public safety.

That has to be considered; the question of fit and proper person is not something that is done in isolation. We liked Miss Grant as a person, she's a nice person, but that is only a part of the story. As a matter of law, we have to consider her in the context of the situation which exists, that is to say, she, with two very young children, the dog who has been away for almost a year and is now about 2 years old, and is effectively a breed that is an illegal breed in this country, and the regular presence, at least twice a week, of the gentleman whose character is a poor one, and who himself is undoubtedly not a fit and proper person. And we have to look at that in the overall context and in that overall context, we have considered it carefully, we are satisfied that Emily Grant is not a fit and proper person. Accordingly, the order of the magistrates' court is confirmed, and the dog will be destroyed. The appeal is dismissed."

6. It appears from the reasons given that the judge did not refer to the opportunity to consider any other relevant circumstances under section 4(1B), but the main point raised by the complainant is how he applied the approach he set out earlier in the judgment. On the reasons given, it is arguable that here the court failed to continue to ask the fundamental question whether the court was satisfied in the light of those considerations taken as a whole that the dog would not constitute a danger to public safety. On that basis, there would be an arguable question of law to be considered, as effectively accepted by Holman J in granting permission.
7. The question then arises what relief should be granted at this stage. The matter could be remitted to the defendant with an order to state a case on the point of law on which permission was granted. However, in this case a fully reasoned judgment has been given. In Sunworld Ltd v Hammersmith & Fulham London Borough Council [2000] 1 WLR 2102, Simon Brown LJ, as he then was, gave guidance at page 2106 as follows:

"Although it is impossible to lay down principles which will apply in every case, and this court should retain the flexibility to deal with unusual situations as they arise, I would suggest the following approach:

(1) Where a court, be it a Magistrates' Court or a Crown Court, refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review, either (a) to mandamus it to state a case and/or (b) to quash the order sought to be appealed.

(2) If the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all.

(3) If the court below has stated a case but in respect of some questions only, as here, the better course may be to apply for the case stated to be amended unless again, as here, there already exists sufficient material to enable the Divisional Court to deal with all the properly arguable issues in the case.

(4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings. Whether, as in Thames Magistrates' Court ex parte Levy, it will be possible to proceed at once to a substantive determination of the issues must inevitably depend in part upon whether all interested parties are represented and prepared, and in part upon the availability of court time."

8. In this case, Miss Rose, who appears for the claimant, has not adopted the approach recommended by the Divisional Court in that case, in that the proceedings for judicial review were simply to require a case to be stated, not actually specifying the alternative to quash the order sought to be challenged. However, in this case, in my judgment, the reasons in the judgment of the court below set out the reasoning of that court and there is no need for the additional administrative step of requiring the court to state a case.
9. However, in contrast to Sunworld where the prosecution was represented and ready to proceed, here the interested party is not in court and has not entered an acknowledgement of service on the judicial review in respect of the refusal to state a case. Given that Holman J has, in effect, given permission for judicial review on the grounds that there is an arguable case in respect of the issue he identified, to which I have referred above and upon which I have concluded there is an arguable question of law to be considered, I consider that the least expense and delay will be achieved commensurate with the overriding objective if I direct that the judicial review is to proceed as a judicial review in respect of the decision of the court, limited to the issue identified by Holman J and as set out above.
10. Accordingly, the claimant shall file and serve -- I was going to allow 14 days for the amended ground, Miss Rose; is that sufficient?
11. MISS ROSE: Yes, that would be. I would also appreciate if we could have, in case there is any further documents to put in the bundle --
12. THE DEPUTY JUDGE: I am going to give more directions, of course. The claimant to file and serve within 14 days amended grounds to be restricted to the permitted ground and a statement of facts and grounds in support of that ground. Directions will then follow the standard directions as are set out in the order of Holman J granting permission for this case.
13. I hope that is sufficient guidance, Miss Rose, for you and the court to draw up the relevant order? They are standard directions.
14. MISS ROSE: Yes. (Pause). I am just looking. I did not know if they were actually standard.
15. THE DEPUTY JUDGE: Well, they are normal in any event. Perhaps if you are happy that I read them I will do so:

"The defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence, within 35 days of service of the amended claim and grounds in support.

Any reply and any application by the claimant to lodge further evidence must be lodged within 21 days of the service of detailed grounds for contesting the claim.

The claimant must file and serve a trial bundle not less than 4 weeks before the date of the hearing of the judicial review.

The claimant must file and serve a skeleton argument not less than 21 days before the date of the hearing of the judicial review.

The defendant and any interested party must file and serve a skeleton argument not less than 14 days before the date of the hearing of the judicial review.

The claimant must file an agreed bundle of authorities, not less than 3 days before the date of the hearing of the judicial review."

16. How much time will it take to deal with what is a pretty limited point of challenge?
17. MISS ROSE: Well, my arguments will be there, really.
18. THE DEPUTY JUDGE: If I put 2 hours?
19. MISS ROSE: Yes, I would have thought (Inaudible).
20. THE DEPUTY JUDGE: The application is to be listed for 2 hours. The parties to provide a written time estimate within 7 days of service of the amended grounds if they disagree with this direction. Is there anything else that you need?
21. MISS ROSE: No, nothing. It is just I am just surprised simply because often these hearings can revert to the decision under the Sunworld principle. Is that not always the case? So if you have a judicial review hearing and the court takes a view that there is a point --
22. THE DEPUTY JUDGE: Well, if you had sought that relief in your claim, it might have been different. That is what Sunworld says. But you did not.
23. MISS ROSE: No. I sought an order not to have the dog destroyed pending.
24. THE DEPUTY JUDGE: That is interim relief.
25. MISS ROSE: Yes, that is interim relief.
26. THE DEPUTY JUDGE: All right. Anything else?
27. MISS ROSE: Sorry. Forgive me. I just took the view, I believed it was automatic that the court could then go on and make a decision.
28. THE DEPUTY JUDGE: I do not want to enter into a debate on this.
29. MISS ROSE: No. I am most grateful. 7 days for amended grounds.
30. THE DEPUTY JUDGE: I said 14 days.
31. MISS ROSE: 14 days. Will there be a typed-up order?
32. THE DEPUTY JUDGE: I hope you will submit a minute, unless the court is happy to draw up the order itself? (Aside to the clerk of the court). The court will draw it up. I am very grateful.
33. MISS ROSE: I am most grateful.