Gill Henderson v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,Lord Justice Treacy |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWHC 666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2823/2017 |
| Date | 28 March 2018 |
[2018] EWHC 666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Mr Justice Males
Case No: CO/2823/2017
Ms Cathryn McGahey QC and Ms Pamela Rose (instructed by Parry and Welch Solicitors LLP) for the Appellant
Mr George Thomas (instructed by Metropolitan Police Directorate of Legal Services) for the Respondent
Hearing date: 7 th February 2018
This is an appeal by way of Case Stated from the decision of District Judge Jabbitt, sitting at Willesden Magistrates' Court on 9 February 2017. The matter was before the court as the result of an application by the respondent, the Commissioner of Police for the Metropolis, under s.4B(1)(a) of the Dangerous Dogs Act 1991 for the destruction of a dog named Olive.
S.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 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
(b) where the dog was born before 30 th November 1991 and is subject to the prohibition in section 1(3) above, that there is a good reason why the dog has not been exempted from that prohibition.
(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) Subsections (2) to (4) of section 4 above shall apply in relation to an order under subsection (1)(b) or (3) above as they apply in relation to an order under subsection (1)(a) of that section.
(5) Subsections (2) and (3) of section 4A above shall apply in relation to an order under subsection (3) above as they apply in relation to an order under subsection (1) of that section, except that the reference to the court in subsection (2) of that section shall be construed as a reference to the justice or sheriff.
The appellant in these proceedings is described as Gill Henderson, who originally sought to be a respondent to the police application. At the hearing below, Debra Case appeared through counsel as a proposed respondent to the application in place of Ms Henderson. We understand that Ms Henderson was not before the court, or if she was, she took no part in the proceedings.
As the Case Stated records, the district judge heard oral submissions from advocates for the Commissioner and Ms Case on a preliminary issue of law “whether Ms Case has any locus in this case, in plain language, whether she is entitled to be a respondent in these proceedings”. It appears that Ms Henderson and Ms Case are individuals with an interest in giving shelter or sanctuary to dogs. Ms Henderson lives in Scotland and Ms Case in Liverpool. Apart from their common interest they are not connected.
The dog Olive was asserted by the Commissioner to be a pit bull terrier or a pit bull type, and thus a prohibited dog, pursuant to s.1(3) of the Act. The dog was found as a stray and taken into possession of the Hillingdon Borough Council on 10 April 2016. A chip implanted in Olive showed that the registered owner was a Mr Flynn who, when contacted, said that he had sold the dog some time before, but could not recall details of the individual concerned. The local authority referred the animal to the Metropolitan Police and the dog was seized under s.19 of the Police and Criminal Evidence Act 1984. On examination by the police, the dog was confirmed to be a pit bull terrier type. Subsequently, solicitors acting for Ms Henderson caused the dog to be examined and an expert, Ms Shepherd, concluded that Olive did not possess sufficient features to be considered a pit bull terrier type. Her report was sent to the Commissioner. The dog was further examined by dog legislation officers, both of whom concluded that Olive was a pit bull terrier type. This led to the application.
The Case Stated states:
“There are no criminal proceedings because, in this case, the owner cannot be traced, therefore s.4B(1) applies, which enables the court to order destruction of the dog. Section 4B(2) qualifies this power and states that, inter alia, the court need not order destruction if satisfied that the dog would not constitute a danger to public safety.”
As will be seen, there is an issue as to when s.4B(2) applies. When it does apply, it enables the court to make a contingent as opposed to an immediate destruction order if satisfied that the dog would not constitute a danger to public safety. S.4B(2A)(a) provides that in deciding that question, the court 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. In addition, under subsection 2A(b) the court may consider any other relevant circumstances (the italics are mine). If the court concludes that the dog does not pose a danger to public safety, then it shall make a contingent destruction order requiring destruction of the dog unless a certificate of exemption is issued under clause 9 of the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 within a period of two months – see s.4B(3).
The issue of the standing of Ms Case as someone said to be prepared in the future to offer the dog a home was the issue identified to be determined at the hearing below, and upon which the district judge ruled. Ms Case's skeleton argument before the district judge in terms stated that she “should be nominated as being the person who will be in charge of the dog should the court be persuaded to make a contingent destruction order pursuant to s.4B of the Dangerous Dogs Act 1991”. In effect, it was being asserted that the court had a power to nominate Ms Case as the person for the time being in charge of the dog, under s.4B(2A)(a)(ii) for the purposes of arguing that Olive could then be considered for a contingent destruction order and re-housed under the exemption scheme. The Commissioner contended that the court had no power to nominate Ms Case as someone satisfying s.4B(2A)(a)(ii) and that she had no standing in the proceedings.
The Case Stated records that it was accepted that Ms Case had no proprietary interest in Olive and had never met her. The judge concluded that since the dog had been seized and there were to be no criminal proceedings, the court was enabled to order destruction of the dog pursuant to s.4B(1). He then went on to consider s.4B(2) and (2A) in considering whether he was satisfied that the dog would not constitute a danger to public safety, thus enabling him to make a contingent destruction order. He noted the distinction in subsection 2A between those factors which a court must consider and any other relevant circumstances which the court may consider.
He particularly addressed himself to subsection 2A(a)(ii), namely, 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. In that context he found that Ms Case was not the owner of the dog, nor had she ever met her. He held that the section could not apply to a person who merely purports to be someone who may be in charge of the animal in the future. He rejected a submission that the non-mandatory consideration at subsection 2A(b) in relation to any other relevant circumstances could operate to give Ms Case standing. Ms Case was neither the owner nor a person for the time being in charge of the dog. Accordingly, he held that Ms Case could not be the beneficiary of a contingent destruction order and that she did not have standing to intervene in the application.
The question posed for the consideration of this court is:
Was the court correct to conclude that an “interested party”, an individual who has never owned, possessed or been in charge of the dog, cannot fall within the definition of a person “for the time being in charge” of a dog, and therefore did not have standing to intervene in an application under s.4B(1)(a) for the mandatory destruction of a dog, which is asserted to be a prohibited dog, under the terms of s.1( 1) or 2 of the Dangerous Dogs Act 1991?
Subsequent to the decision in the present case, this court decided Webb v Chief Constable of Avon and Somerset [2017] EWHC 3311 (Admin). This present appeal was listed previously but then vacated in order to await the judgment in Webb.
In Webb the court at...
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