Damian Dodsworth v Chief Constable of West Yorkshire Police
| Jurisdiction | England & Wales |
| Judge | Davis-White |
| Judgment Date | 20 February 2019 |
| Neutral Citation | [2019] EWHC 330 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C0/3344/2018 |
| Date | 20 February 2019 |
[2019] EWHC 330 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Row
Leeds LS1 3BG
HIS HONOUR JUDGE Davis-White QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: C0/3344/2018
Case No: C0/3345/2018
Ms Pamela Rose (instructed by Wheldon Law) for the Claimants/Appellants
Mr Oliver Thorne (instructed by Legal Services, West Yorkshire Constabulary) for the Defendant/Respondent
Hearing dates: 8 February 2019
Approved Judgment
His Honour Judge Davis-White QC:
This is my judgment in two appeals by way of case stated from the Crown Court at Leeds. They concern dog destruction orders made by the Magistrates Court which, on 27 October 2017, were affirmed on appeal to the Crown Court at Leeds (His Honour Judge Mairs and lay justices). The Orders were made under s4B of the Dangerous Dogs Act 1991, as amended (the “ 1991 Act”). Although the facts of the cases are different, some, but not all, legal issues are common to both of them. In particular, both appeals raise (among other matters) similar issues as to the meaning to be given to, and the effect of finding a person not to be, “ a fit and proper person to be in charge of the dog” under s4B(2A) of the 1991 Act and the relationship of Article 8 and the First Protocol to the European Convention of Human Rights to the making of dog destruction orders.
For convenience I refer to the proceedings involving Mr Dodworth and his dog “Oscar” as the “Dodsworth appeal” and the proceedings involving Mr Hayden Graham-Burrows and his two dogs, “China” and “Blue”, as the “Graham-Burrows appeal”. Each appeal is by way of case stated against the decision of the Leeds Crown Court. The Chief Constable of West Yorkshire (the “Chief Constable”) is the respondent in each case.
Given the overlap of the advocates representing the parties and the overlap of many common issues, both cases were listed and heard before me together.
Apart from problems about the respective case stated in each appeal, I was provided only with bundle B lodged by the appellant in each case. The Administrative Court in Leeds has never been provided with bundle A in either case. No bundle A was available at the hearing before me. I therefore had to proceed on the basis of the bundle Bs that were available. Ms Rose for the Appellant in each case kept referring to documents in Bundle A in each case but was unable to produce copies of the same for me.
Something appears to have gone wrong with the appeal by way of case stated process. The initial procedure is governed by the Criminal Procedure Rules 2015, Part 35. I do not have the papers to see what has gone on in the case in terms of the communications between the parties and the Crown Court. It may well be that, in each case, the initial identification of the respondent as the Crown Court rather than (as it should have been) the Chief Constable hampered the usual process whereby drafts of the case stated are to be served on the respondent. This is of course to enable the respondent to play a role in shaping the case stated. Quite apart from anything else, the case stated is in each case defective because the summary of the relevant contentions of the parties are limited to the contentions of the appellant, the appellant having been responsible for the original draft case stated as submitted to the Crown Court. The original case stated provided by the Crown Court failed to cover and provide the matters as set out in CPR Part 35 which led to the case being sent back for amendment. It is unclear to me whether the Chief Constable was properly served at the relevant stages and before me various submissions were made on his behalf as to the inadequacies of the case stated in each appeal. There was force in these submissions.
I did not have before me the original draft case stated put forward to the Crown Court on behalf of the appellant. However, my suspicion is that the Amended Case Stated is largely based upon that draft, albeit there may be some slight differences between the two. I note for example that Ms Rose referred in her skeleton to Mr Paul Shand as being Mr Peter Shand, an error also apparent in the Amended Case Stated.
Representation
I heard from Ms Rose from the appellant owners, and Mr Thorne for the respondent, the Chief Constable. Both Counsel had filed written skeleton arguments. In addition, Ms Rose filed a supplemental skeleton shortly before the hearing. I am grateful to Counsel for their skeleton arguments. In the course of the hearing, I regret to say that, at times, I found the oral submissions of Ms Rose difficult to follow and that on occasion she would answer a question from me on one issue by leaping onto and remaining with another issue.
The Relevant Legislation
The Dangerous Dogs Act 1991, as amended, recites that it was made “ to prohibit persons from having in their possession or custody dogs belonging to types bread for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dog which present a serious danger to the public; and to make further provision for securing that dogs are kept under proper control; and for connected purposes.”
The scheme of the 1991 Act is as follows.
Section 1(1) lays down the types of dog to which the basic prohibitions under the 1991 Act apply. There is power in the Secretary of State by statutory instrument to add to the list of dogs in question. For present purposes it is enough to know that the section applies to:
“ S1(1)(a) any dog of the type known as the pit bull terrier”.
In this case the dog destruction orders relate to three dogs each of which has been identified as being of that type.
Section 1(2) lays down various prohibitions in relation to the dogs covered by section. These include (and the following is a summary only): breeding or breeding from, selling or exchanging, making or offering to make gifts of, allowing to be in a public place without being muzzled and kept on a lead, and abandoning or allowing to stray, such dogs.
Section 1(3) lays down the basic prohibition on a person having a dog to which the section applies in their possession or custody, except in pursuance of relevant powers to seize or destroy under the 1991 Act.
The prohibition on possession or custody under section 1(3) does not apply to the extent that a relevant statutory instrument so provides and subject to compliance with the conditions set out in such statutory instrument. It is envisaged that the provision may be by way of a scheme of exemption. The original statutory instrument that was made was the Dangerous Dogs Compensation and Exemption Schemes Order 1991 SI 1991/1742 (the “1991 Order”). The current provision is the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015, SI 2015/138 (the “2015 Order”).
The prohibitions contained in section 1 are backed by criminal sanctions, it being an offence to breach the section. Liability on summary conviction is to imprisonment for a term not exceeding six months or a fine.
Section 2 of the 1991 Act empowers the Secretary of State to extend certain of the restrictions under s1(2)(d) and (e) to types of dog to which section 1 does not apply but which appear to the Secretary of State to present a serious danger to the public.
Section 3 of the 1991 Act creates a basic and aggravated form of offence arising from a dog being dangerously out of control. Liability attaches both to the owner and, if different, the person for the time being in charge of the dog. The aggravated form of offence arises where there is injury to a person or an assistance dog. The offence is not limited to dogs of the types identified by section 1, but applies to any dog which is dangerously out of control.
In the case of convictions for an offence under s1 or s3(1), section 4 confers powers, and in some cases a duty, on the court to order the destruction of any dog in respect of which the offence was committed. A power to order the offender to be disqualified from having custody of a dog is also provided for. Section 4 is complemented by section 4A, which makes provision for contingent destruction orders. In cases where there is a relevant conviction, a destruction order is not made and the offence is one under section 1 and the dog is subject to the prohibition in s1(3), then the court shall order that unless the dog is exempted from that prohibition within the requisite period it shall be destroyed. The requisite period is one of two months beginning with the date of the order.
I shall return to section 4B.
Section 5 provides the authorities with a number of powers to seize a dog which appears to be kept in breach of relevant prohibitions under the Act. It is the exercise of powers under that provision that commenced the processes leading to the destruction orders in this case.
So far as relevant to the cases before me, section 4B provides as follows:
“ 4B Destruction orders otherwise than on a conviction
(1) where a dog is seized under section 5( 1) or (2) below…. and it appears to a justice of the peace…
(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)...
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