Jenner Stronge v The Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Roger ter Haar |
| Judgment Date | 29 March 2021 |
| Neutral Citation | [2021] EWHC 766 (Admin) |
| Date | 29 March 2021 |
| Docket Number | Case No: CO/1830/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 766 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Roger ter Haar Q.C. SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/1830/2020
The Queen on the application of
and
Cathryn McGahey Q.C. (instructed by Wheldon Law) for the Claimant
George Thomas (instructed by Metropolitan Police Directorate of Legal Services) for the Defendant
Hearing date: 17 March 2021
Approved Judgment
Roger ter Haar Q.C.:
This case concerns the question of the fate of “Bleu” a dog owned by the Claimant and to whom the Claimant is devoted.
As set out above, before me the Claimant was represented by Ms Cathryn McGahey Q.C., and the Defendant by Mr George Thomas. The Interested Party provided Grounds of Resistance settled by Mr Ned Westaway of counsel however the Secretary of State was not represented before me, the Government Legal Department having reiterated in a letter dated 5 March 2021 the Secretary of State's position that the claim should be refused.
For the avoidance of doubt, I recognise the Secretary of State as an Interested Party who opposes the claim.
The decision under challenge is the refusal of the Defendant to transfer Bleu to the kennels of the Dogs Trust, a large national charity specialising in the rescue and rehoming of dogs. As I have said, the Claimant is the owner of Bleu. Bleu has been seized by the Defendant and is currently being held in the kennels of private contractors appointed by the Defendant, pending the outcome of a Crown Court appeal against a destruction order imposed in respect of Bleu.
Factual Background
Bleu is a pit bull type dog, and so is a prohibited dog under section 1 of the Dangerous Dogs Act 1991 (“the 1991 Act”). It is common ground that he is of excellent temperament and is not known ever to have shown aggressive or dangerous behaviour.
On 5 January 2017 the Claimant was convicted of the offence of possessing a dog of a prohibited type, contrary to section 1 of the 1991 Act. The magistrates ordered that Bleu be made subject to a contingent destruction order pursuant to section 4A of the 1991 Act, under which Bleu was permitted to live with the Claimant, subject to a number of statutory conditions imposed by the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 (“the 2015 Order”). Bleu was put on the register of dogs exempted from mandatory destruction. This register is known as the Index and is administered by DEFRA.
The Claimant accepts that in order to comply with the statutory scheme he should have ensured that Bleu was on a lead and wearing a muzzle at all times while in public. On 23 February 2018 the Claimant was sentenced by Uxbridge Magistrates' Court for three offences under section 1(2) of the 1991 Act of having failed to keep Bleu on a lead and muzzled in public. An immediate destruction order was made in respect of Bleu. The Claimant was disqualified from keeping a dog for five years. The basis of the destruction order was that the Claimant was not a fit and proper person to be in charge of Bleu: the police did not suggest that Bleu's temperament or behaviour made him a danger to the public.
The Claimant was ordered to take Bleu to Wimbledon police station for destruction. It is the Claimant's case that because he was given incorrect and incomplete advice by his previous solicitors he did not appeal. In any event, whether that is right or not, he did not appeal, but instead, being desperate to save his dog from destruction, he did not surrender Bleu.
On 5 April 2019 the Claimant was convicted of an offence of failing to deliver up Bleu to the police. On 18 October 2019, Bleu was re-seized by the police.
The Claimant has now been advised by new solicitors, and the Crown Court has agreed to hear an appeal out of time against the order for destruction. However, in order to succeed on the appeal, the Claimant has to demonstrate that either he or another “person for the time being in charge” of Bleu is a fit and proper person to be Bleu's keeper: section 4 of the 1991 Act. The Claimant remains subject to the disqualification order, so, unless the Crown Court quashes the conviction, he will be ineligible to be Bleu's keeper. The Claimant accepts that his past conduct makes it unlikely that the Crown Court would, in any event, regard the Claimant as a fit and proper person.
Any person who has had responsibility for Bleu (and is not otherwise disqualified) before the Crown Court appeal hearing is eligible to be put forward as the “person for the time being in charge” of Bleu. The more recent the responsibility, the more likely it is that the Crown Court will regard the proposed keeper as a person “for the time being in charge”.
In January 2020 the Claimant's current solicitors asked the Defendant to enquire whether any carer at the kennels where Bleu is presently being held would be willing to put himself or herself forward as Bleu's keeper. The Defendant did not pass on that message.
The solicitors also raised with the Defendant the possibility of Bleu being moved from the kennels being used by the police to Dogs Trust kennels, with a view to a Dogs Trust staff member taking responsibility for Bleu and therefore being eligible to be Bleu's keeper and/or with a view to Bleu being exported to Dogs Trust kennels in the Republic of Ireland, where dogs of this type can be legally re-homed.
After further correspondence, on 20 February 2020 Ms Tina Wagon, of the Claimant's solicitors, sent an email to Detective Sergeant Keller. Her email read as follows:
“Dear Penny
You have not responded to my email of 7 th February regarding my above-named client and I am conscious that the appeal at Kingston Crown Court is now only 8 days away. I will be copying the crown court in on our correspondence as it is clear that this hearing is now going to have to be adjourned.
The onus is on us to satisfy the court that this dog does not pose a danger to the public, so I repeat my request for our expert, Jeff Turner, to be allowed to assess the dog. He will carry out a full behavioural assessment which will assist the court in its decision. It is a matter for us whether he also assesses the dog for type at the same time, but we are entitled to have access to the dog.
I note that you have not responded to my request for the dog to be moved to Dogs Trust staff or, which is more likely, for him to be exported to Eire where he can lawfully be rehomed by the Dogs Trust branch there. May I remind you that current government policy is that we should be doing everything possible to save these dogs (evidence given by David Rutley to the Efra committee) and that efforts should be made to explore the role that rescues can play in this regard. It is my understanding that this is a dog that has a nice disposition and Dogs Trust are a reputable rescue. You therefore have a lawful and practical alternative to euthanasia being proposed and I invite you again to consider this proposition.
Given the proximity of the appeal date, I must write to the court tomorrow. Would you please confirm to me by no later than 12 o'clock noon tomorrow whether the police consent to the appeal being adjourned?”
Within an hour D.S. Keller responded:
“Morning Tina,
I apologise, but I never received an email from you dated 7 th Feb and assumed you had not replied to my email of 4 th Feb. I have just checked my junk mail folder and found it in there for some reason, so apologies for that.
As I said before, the police are not arguing the temperament of the dog concerned, so a temperament exam is a waste of time and money all round, including police money, therefore I do not deem it necessary. We will happily say there is nothing wrong with the dog's temperament, and this has not been the issue. You're quite right, the dog has not done anything that we know of.
We will not move the dog, which is evidence of an offence, as it is our responsibility as a result. We cannot be expected to trust a public kennel to not let the dog ‘disappear’ and then you will hold us liable on behalf of your client should anything happen to the dog. I absolutely do not believe the police should have a hand in exporting dogs abroad to avoid the legislation in this country.
I am at a loss as to why people are so concerned about this one dog, when there are hundreds of dogs up and down the country who need homes; many of which get put to sleep because no home is found, and no-one seems to care about them as they are not S1 dogs.
My lawful and practical alternative to euthanasia is that you argue your client is fit and proper and the dog can be registered to him and he needs to comply with the conditions if he loves and wants his dog back.
I do not see why the hearing needs to be adjourned. PC Davies will be at the court and the court can decide how they wish the police to proceed on the facts. Adjourning it further seems a needless exercise when the dog can go back to his owner if the court agrees with you. Of note though, Mr STRONGE failed to appear at Willesden on 6 th Feb. You would need to get his disqualification overturned. Does Mr STRONGE know you are trying to get the dog a new owner, or does he want his dog back?”
It is the decision in this email to refuse to move Bleu which is the subject of challenge in these proceedings.
The relevant legislative provisions
Section 1 o...
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