Divisional Court
| Date | 01 February 1997 |
| Author | J A Coutts |
| DOI | 10.1177/002201839706100101 |
| Published date | 01 February 1997 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
THE RIGHTS OF OWNERS OF DANGEROUS DOGS
R v Walton Street MC. ex pCrothers
RvTrafford MC, ex pRiley
RvEaling
Me.
ex p Fanneran
What was described by Buxton J as a 'somewhat complex' history of
events relating to an allegedly dangerous dog led eventually, in R v Walton
Street MC, ex pCrothers (1996) 160 JP 427, to the magistrates making an
order for its destruction and to an application to the High Court for
judicial review of the decision to make that order. The dog's original
owner was prosecuted and the police seized the dog and, although the
prosecution was discontinued, they retained possession of the dog. The
justices made an order for its destruction under s 5(4) of the Dangerous
Dogs Act
1991
in proceedings of which the owner was not informed. On
his applying for judicial review, he obtained an order that he should be
heard. The proceedings had not been carried through to conviction and,
on that basis, it was argued that the magistrates had had no jurisdiction
to make the order. The dog was, however, re-seized, on the ground that it
was a dangerous dog, within the definition of the
1991
Act. But the
prosecution which was brought was against the original owner's son, to
whom, it was alleged, the dog had been given by that time. There was,
however, some confusion during the proceedings which followed as to
who was its owner.
Assuming the son to be the owner, the court considered several
procedural objections which he had taken to what had happened on the
occasion on which the order had been made for the dog's destruction. In
essence, the applicant was contending that it was plainly unjust that he
had not been permitted to put before the magistrates expert evidence that
the dog should not have been the subject of proceedings under the Act.
The court, while holding that the magistrates were wrong in giving the
reasons which they had stated to be the ground upon which they had
decided the question (that is the question of the admissibility of the
evidence), it could not be said that upon the substance of the matter they
had erred. In the exercise of its discretion, the court therefore held that
the relief sought ought not to be granted. The court accepted the dictum
of Lord Widgery CJ in R v Thames MC, ex p Polemis (1974) 138 JP 72
that
'no
one can come to this court and demand an order of certiorari as
of right'. In this case, the court exercised its discretion to refuse the order
because it was of opinion that there was no breach of natural justice and
that no useful purpose could be served by quashing the magistrates'
decision by certiorari. In view of the complexity, and at times the
inexplicable nature, of the facts and events in this case, it may be thought
that it may be unsafe to rely on the court's pronouncement upon the
principles involved in the decision, since, to be authoritative, they would
Journal
of
Criminal Law
have to be shown to be based on facts which were in some way unusual
and, in some instances, idiosyncratic.
The decision in R v Trafford MC, ex pRiley (1996) 160
lP
418 arose
out of an application for judicial review by the owner of a dog which had
bitten a police officer.
It
had been held on a leash by the owner's friend
immediately before the attack. The owner was summoned, but the
summons was withdrawn and costs were awarded against the police. The
friend was prosecuted under s 3(1)(b)
of
the Dangerous Dogs Act
1991
and, on a plea of guilty, received a discharge; but, by virtue of s 4(1) of
the Act, it was mandatory upon the court to order the destruction of the
dog, since it had injured someone. The owner attempted to appeal, but no
appeal was available (see s 4(2) of the
1991
Act) in cases in which the
making of the order was mandatory. She then applied to the High Court
for judicial review of the proceedings in which the destruction order was
made. The Divisional Court was
of
opinion that, although it was true that
the order was mandatory, this did mean that the applicant would have
been incapable of addressing an argument to the court; for instance, she
might have chosen to argue that the court ought not to have accepted the
defendant's plea of guilty, or that the proceedings were an abuse of
process. As the 'friend' had already had an argument with the owner on
the occasion of the dog's biting the police officer, the applicant might
have wished to argue that the decision to plead guilty was come to
maliciously, to ensure the destruction of the dog. In these circumstances,
the court held that the failure to give the owner notice of the proceedings
was a breach of the rules of natural justice. In these circumstances (which
the court described as being 'somewhat unusuaI'), the court permitted the
application for review to be made. The court accepted the conclusion
reached by Mann LJ in R v Walton Street
Me,
ex pCrothers (above) that
in any case entailing the destruction of property 'the rules of natural
justice require a known owner of the property at least to be given an
opportunity to be heard'.
It
will be observed that the application of this
proposition to the facts of the present case was in circumstances in which
the court had already rejected the claim that the presence of the owner in
court would inevitably have made no difference to the result, for 'it was
at least possible' that that would not have been so (see per Balcombe LJ,
at p 423F/G). In view of the court's opinion on this question, it cannot be
said that this case is within the situation in which the question may arise
whether it is a breach of natural justice to fail to inform the owner
of
the
proceedings even though no reason can be given for believing that that
failure could have had the slightest impact on the result. When once the
court had decided that on the evidence it did not accept that the presence
of
the owner would have been immaterial, the availability of judicial
review depended on whether the plea
of
guilty had been properly received
in circumstances in which there had been no answer to the charge brought
under s 3(1) of the
1991
Act. The court therefore quashed the conviction
(and the order for destruction) and remitted the case to the magistrates
with the direction that the owner must be given notice
of
any further
proceedings (although it hinted that it thought that no further proceedings
should be brought).
2
Divisional Court
The vital facts in RvEaling MC,
ex
pFanneran
(1996)
160 JP 409
made it a quite different case from either of the two cases discussed above,
for those facts gave rise to the question whether the owner of a dog
ordered to be destroyed has an absolute right to be heard, even though no
reason has been asserted (or, indeed, discovered) for believing that his
being heard could make any difference to the result of the proceedings.
Section I of the
1991
Act provides that the owner or person in charge of
a dangerous dog is guilty of an offence if he allows the dog to be in a
public place without a muzzle and not kept on a lead. The court may
order the destruction of the dog 'and shall do so in the case of an offence
under s I'. The order for destruction is, therefore, mandatory in those
circumstances. In any case in which it is postulated that the facts
conclusively establish that an offence has been committed, it is difficult to
see what purpose can be served by the assertion that natural justice
demands that the owner or the person in charge must be present in court
and must (if he so wishes) be heard, if, on the facts postulated, neither his
presence nor what he has to say could be relevant to the result. Does
natural justice require that a witness must be permitted to give evidence
postulated to be irrelevant? The existence of this theoretical difficulty is
indeed conceded in the judgment of Rougier J, who none-the-less warmly
supported the judgment of Staughton LJ which required the presence of
the relevant person and his right to be heard, before any order for
destruction is made, whatever the circumstances. In the present case, the
dog was said to have left home muzzled and on a lead, but, being afllicted
with kennel cough, its muzzle was removed, the person in charge being of
the opinion that it would be cruel to retain it. The police constable
asserted that there was no evidence to show that any of these statements
was true. Although the owner was told that she might be prosecuted, it
was the person in charge who was prosecuted, convicted and fined. The
owner was given no notice of the hearing. After the order for destruction,
the dog was handed over to the police, after
(it
was said) some duress.
Although there was an appeal to the Crown Court, that court had no
power to alter the destruction order. The ground of appeal by the person
in charge, namely necessity, was rejected and an application for leave to
appeal to the House of Lords refused. The owner then obtained an
injunction preventing the dog's destruction by the police; but it was
held in the county court that the police had the right to keep the dog
in their custody, as the magistrates had ordered it to be handed over to
them.
The owner applied to the High Court for judicial review of the
destruction order, on the ground that she had not been notified of the
hearing before the magistrates. Reliance was placed both on
Ex
pCrothers
and
Ex
pRiley (see above). In the present case, Staughton LJ observed
that in
Ex
pCrothers, the prosecution accepted that in proceedings in
which a dog may be ordered to be destroyed the owner has a right to be
present and that that must mean also a right to be represented and to be
heard.
In
Ex
p Fanneran (above), it was argued that there were a number of
points on which, there too, the owner might have wished to be
heard-
3
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