QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE WHIPPLE
| JOSHUA WEBB
|- and -
|CHIEF CONSTABLE OF AVON AND SOMERSET CONSTABULARY
- and -
THE SECRETARY OF STATE FOR FOOD ENVIRONMENT AND RURAL AFFAIRS
Mark Ley-Morgan and Aaron Moss (instructed by Avon and Somerset Constabulary Legal Services) for the Respondent
Ned Westaway (instructed by Government Legal Department) for the Intervener
Hearing date: 10 November 2017
Crown Copyright ©
Lord Justice Beatson:
II. The Legislative Framework:
"4B Destruction orders otherwise than on a conviction.
(1) Where a dog is seized under section 5(1) or (2) below or in exercise of a power of seizure conferred by any other enactment and it appears to a justice of the peace, or in Scotland a justice of the peace or sheriff—
(a) that no person has been or is to be prosecuted for an offence under this Act or an order under section 2 above in respect of that dog (whether because the owner cannot be found or for any other reason); or
(b) that the dog cannot be released into the custody or possession of its owner without the owner contravening the prohibition in section 1(3) above,
he may order the destruction of the dog and, subject to subsection (2) below, shall do so if it is one to which section 1 above applies.
(2) Nothing in subsection (1)(b) above shall require the justice or sheriff to order the destruction of a dog if he is satisfied—
(a) that the dog would not constitute a danger to public safety; and
(2A) For the purposes of subsection (2)(a), when deciding whether a dog would constitute a danger to public safety, the justice or sheriff—
(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) Where in a case falling within subsection (1)(b) above the justice or sheriff does not order the destruction of the dog, he shall order that, unless the dog is exempted from the prohibition in section 1(3) above within the requisite period, the dog shall be destroyed."
"4. Exemption scheme conditions and requirements
(1) The prohibition in section 1(3) of the Act shall not apply to a dog provided that—
(a) a court has determined that the dog is not a danger to public safety under section 4(1A) or 4B of the Act and has made the dog subject to a contingent destruction order under section 4A or 4B of the Act;
(b) the conditions set out in paragraph (2) are met in respect of the dog within the time period set out in paragraph (3); and
(c) the requirements attached to the certificate of exemption in accordance with article 10 are complied with throughout the lifetime of the dog.
(2) The conditions referred to in paragraph (1)(b) are that—
(a) the dog is neutered in accordance with article 6;
(b) the dog is microchipped in accordance with article 7;
(c) third-party insurance in respect of the dog is obtained in accordance with article 8; and
(d) a certificate of exemption is issued in accordance with article 9.
(3) Subject to any extension granted by the court under section 4A(2) of the Act, the conditions in articles 6 to 9 must be complied with—
(a) in the case of an adult dog, within two months beginning with the date the court makes a contingent destruction order;
(b) in the case of a dog under the age of six months on the date the court makes a contingent destruction order, within one month of the dog attaining six months.
9. Issue of certificate of exemption
The Agency must issue a certificate of exemption in respect of the dog if it is satisfied that—
(a) the court, in determining that the dog is not a danger to public safety, has decided the person to whom the certificate is to be issued is a fit and proper person to be in charge of the dog and has made the dog subject to a contingent destruction order;
(b) a fee of £77.00 plus Value Added Tax has been paid to the Agency; and
(c) the conditions referred to in articles 6 to 8 have been met.
"12. Conditions for substitution of person in charge of exempted dog
When a dog has been exempted from the prohibition in section 1(3) of the Act in accordance with Part 2 of this Order, a person (in this Part referred to as "the applicant") may apply to a magistrates' court to be substituted as the person in charge of the dog only if the person determined by the court under section 4(1B) or 4B(2A) of the Act or under this Part as being a fit and proper person is unable to continue to be in charge of the dog by reason of—
(a) the death of that person; or
(b) serious illness rendering that person unable to be in charge of the dog.
"20. — Release of seized dog: general
(1) This Part applies where a dog suspected of being a dog to which section 1 of the Act applies is seized under a power conferred by the Act or under any other enactment and prior to the court's final determination in respect of the dog under section 4(1)(a) or 4B(1) of the Act.
(2) The chief officer of police for the area in which the dog was seized may release the dog to the person intending to apply for exemption of the dog under Part 2 of this Order (in this Part referred to as "the person in interim charge") only in accordance with this Part.
(3) Nothing in this Part requires a chief officer of police to release a dog to which this Part applies.
III. The factual background and the evidence:
(1) The Appellant is the owner of Sky, a bit-bull type dog born in 2012. Sky is of a breed prohibited by the 1991 Act (paragraphs 1 and 2).
(2) In 2013 the Appellant was prosecuted for an offence under section 1 of the 1991 Act on the basis that he owned a prohibited breed of dog. A contingent destruction order was made in respect of Sky providing that she would not be destroyed if the Appellant obtained an exemption certificate in respect of her and complied with its terms (paragraph 2).
(3) The Appellant obtained an exemption certificate for Sky. The certificate was subject to a number of conditions including requirements that the Appellant:
(a) maintain third party liability insurance in respect of any injury that Sky might cause; and
(b) keep Sky at his address save for any 30 days in a 12-month period. This condition was imposed retrospectively when the 2015 Order came into force on 3 March 2015 (paragraphs 2 and 3).
(4) In 2015 the Appellant went to Australia and placed Sky in boarding kennels. The Appellant subsequently decided to remain permanently in Australia. Whilst Sky was at the kennels Barbara McCann and her daughter Eleanor McCann ("the McCanns") acted as dog walkers for Sky and cared for her (paragraph 3).
(5) In March 2016 Sky's insurance lapsed and was not renewed. As a result of this, and of Sky not being kept at the Appellant's address, two conditions of the 2013 exemption certificate were breached. The Respondent became aware of the breaches and [the investigating officer, PC Hennys] seized Sky on 21 April 2016 (paragraphs 3 and 4).
(6) The Respondent applied to the magistrates' court for an order that Sky be destroyed under section 4B of the 1991 Act. The Appellant was out of the jurisdiction and was unaware of the proceedings. Barbara McCann wished to become Sky's keeper. The magistrates concluded that although Sky had the offer of a good home with the McCanns, they had no option in law but to order Sky's destruction. A destruction order was made on 16 June 2016 in the Appellant's absence (paragraphs 4 and 5).
(7) The Appellant became aware of the proceedings. He obtained legal representation and sought, unsuccessfully, to have the matter reconsidered by the magistrates. The Appellant then appealed the destruction order to the Crown Court. He wished Sky to be re-housed with the McCanns (paragraphs 1, 6 and 7).
IV. The decision below
a. Sky had ceased to be an exempted dog (paragraph 8) as a result of article 5 of the 2015 Order (i.e. because requirements attached to the 2013 exemption certificate had been breached); and
b. under the 1991 Act, the Appellant could not transfer ownership of Sky to any other person, because section 1 made it an offence to sell or give away a dog of a prohibited breed (paragraph 9).
a. The Appellant and Barbara and Eleanor McCann were fit and proper persons to be in charge of Sky.
b. Sky was not a danger to public safety.
c. The Appellant would remain the owner of Sky.
(paragraphs 1 and 10). [The case stated contains no finding that Mrs McCann was the person for the time being in charge of Sky but the learned Recorder stated in the judgment (see Transcript 91G) that "[a]though the McCanns have never had either ownership or the status of being in charge of her [Sky], save for dog walking, they are fit and proper persons to be in charge of her".]
V. The questions of law for the opinion of this Court:
(1) Whether the Crown Court had the power:
i. To find that Barbara McCann was a fit and proper person to be in charge of Sky;
ii. To order that Barbara McCann should apply for the certificate of exemption; and
iii. To order that any named person should apply for the certificate of exemption.
(2) Whether the Crown Court erred by amending its original order dated 11 August 2016 to remove its finding that Barbara McCann was a fit and proper person to be in charge of Sky.
"The meaning of fit and proper person to be in charge of the dog must be understood in its context. That context is the requirement that the dog should not constitute a danger to public safety. That requirement is a precautionary one. In that context, the conclusion that a person is not fit and proper does not necessarily say anything about that person's character."
In that case, although, given the dog's temperament, the risk from the dog was likely to be low, and although the proposed keeper was willing to control the dog to avoid danger to the public, it was held that it was open to the magistrates to conclude that, as a mother of two very young children, there could be occasions on which those heavy responsibilities would mean she would not be in a position to do so if the need arose.
"… if a dog is not to be regarded as a danger to the public, then it is prima facie wrong that the dog's life should be brought to an end ... the whole purpose behind the destruction of dogs is that they are, or have shown themselves to be by their behaviour a danger to the public."
He also stated (at ) that "there is no reason under the scheme why the application should not, in circumstances such as these, be made not by the owner but by the person who is to be, for the time being, the keeper of the dogs".
"In the case of a dog that was previously exempted but has subsequently been found in breach of the conditions of exemption, or has never been exempted, section 4, section 4A or section 4B of the DDA will apply".
"2.2: The 2015 Order introduces additional provisions to the scheme … by "allowing suspected prohibited dogs to be kept by their owners or the person in charge of the dog at the discretion of the police …"
"7.6: The 2015 Order will now allow these dogs [suspected prohibited dogs] to be returned to their keeper, where the police are satisfied that the dog does not constitute a danger to public safety. …. Return to the owner is better for the dog's welfare… Returning the dog back to the owner is at the discretion of the police…. Return will be conditional on the owner having the dog neutered…."
VII. Was Mrs McCann "the person for the time being in charge of" Sky?
Part VIII. Does the Crown Court have power to order that any named person it decides is a fit and proper person should apply for a certificate of exemption?
IX. Our conclusions on the questions posed by the Crown Court: