R Grant v Crown Court at Sheffield
| Jurisdiction | England & Wales |
| Judge | Mr Jonathan Swift |
| Judgment Date | 20 June 2017 |
| Neutral Citation | [2017] EWHC 1678 (Admin) |
| Docket Number | CO/2434/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2017 |
[2017] EWHC 1678 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Jonathan Swift QC
(Sitting as a Deputy High Court Judge)
CO/2434/2016
Miss P Rose (instructed by Wheldon Law) appeared on behalf of the Claimant
The Defendant was not present and was not represented
THE DEPUTY JUDGE:
This is an application for judicial review of a decision of the Crown Court at Sheffield made on 15 January 2016 by His Honour Judge Moore sitting with two magistrates. The decision of the Crown Court was an appeal from a decision of the Magistrates' Court to make a destruction order under section 4B of the Dangerous Dogs Act 1991 ("the 1991 Act"). That decision was made by the magistrates following a hearing on 3 July 2015.
The material provisions of the 1991 Act are as follows. Section 1(1) applies the provisions of section 1 to specified types of dog. One specified type is "any dog of the type known as the pit bull terrier". By section 1(3), it is unlawful for any person to "have any dog to which this section applies in his possession or custody", save for the purposes of seizure or destruction under the provisions of the 1991 Act.
Section 1(5) provides an exception to the prohibition at section 1(3). Section 1(5) states as follows:
"The Secretary of State may by order provide that the prohibition in subsection (3) above shall not apply in such cases and subject to compliance with such conditions as are specified in the order and any such provision may take the form of a scheme of exemption containing such arrangements (including provision for the payment of charges or fees) as he thinks appropriate."
I note in passing section 3 of the 1991 Act. This creates a separate offence that is committed if a dog (any dog, not just a dog to which section 1 applies) is dangerously out of control.
There are two routes under the 1991 Act which lead to an order for the destruction of a dog. The first is under section 4 of the 1991 Act. By section 4(1), if a person is convicted of an offence under section 1 or section 3 of the Act, the court must, subject to sub-section (1A), order destruction of the dog. The obligation to make a destruction order is displaced if under sub-section (1A) the court is satisfied that "the dog would not constitute a danger to public safety".
If section 4(1A) applies such that the court is not required to make a destruction order, by section 4A(1) the court is required to make a contingent destruction order. This is an order for destruction contingent on the dog falling within the provisions of the exemption scheme made by the Secretary of State under section 1(5) of the 1991 Act.
Section 4A(4) is a separate, specific power to make a contingent destruction order in a case where there has been a conviction under section 3, i.e. the offence committed when any dog is dangerously out of control. If an order is made under section 4A(4), the dog is to be destroyed "unless the owner of the dog keeps it under proper control". If the court makes such an order, sub-section (5) permits it to specify the measures to be taken in order to keep the dog under proper control.
The second route to an order for destruction is provided for by section 4B of the 1991 Act. The present case is a case falling under section 4B of the 1991 Act. Section 4B of the 1991 Act provides for situations where there has been no conviction under section 1 of the 1991 Act. Section 4B provides as follows:
"(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…
(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 30th 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."
So by sub-section (1), if the dog is a section 1 dog, the court is required to make a destruction order. Sub-section (2) provides the exception to this in that a court is not required to order the destruction of the dog "if it is satisfied that the dog does not constitute a danger to public safety". Section (2A) sets out what it is the court must consider and may consider for the purposes of determining the danger to public safety issue.
I have also set out sub-section (3) of section 4B. The effect of that is that in the case of a section 1 dog, if the court does not make a destruction order under section 4B(1), it must make a contingent destruction order. This is an order that the dog is to be destroyed unless within two months the dog becomes and thereafter remains an exempted dog. An exempted dog refers to the scheme made under section 1(5) of the 1991 Act, which I have already read into the judgment at paragraph 3 above.
Pursuant to section 1(5), the Secretary of State has made the Dangerous Dogs (Exemption Schemes) (England and Wales) Order 2015. Article 4 of that order is as follows:
"Exemption scheme conditions and requirements
4. (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."
Drawing these points together and by way of summary: the present case falls under section 4B(1)(b); it is a case where a relevant dog has been seized; and it is a case where, if the dog were released to its owner, that would give rise to a contravention of the prohibition in section 1(3) of the 1991 Act. That being so, the Act requires a destruction order to be made unless the case falls within sub-section (2) of section 4B. By sub-section (2), the requirement to make a destruction order does not apply if the court is satisfied "that the dog would not constitute a danger to public safety". The public safety issue is to be determined in accordance with (2A) and for this purpose, the court must consider the two prescribed criteria, i.e. the temperament of the dog and its past behaviour and 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. The court may also consider any other relevant circumstances. If the court's conclusion was that the dog would not constitute a danger to public safety, then section 4B(3) would apply and would require a contingent destruction order to be made, i.e. an order requiring destruction of the dog unless the requirements of article 4 of the 2015 order were met within two months of the contingent order and continued to be met for the dog's lifetime.
In this case, based on the findings made by the court, on 6 February 2015, the dog, a dog of a pit bull terrier type named Blitz, escaped from the back garden of 12 Southey Hall Road, Sheffield. The dog was caught by the South Yorkshire police dog team. So, as I have said, the circumstances of this case are within section 4B of the 1991 Act. There was some dispute as to who was the owner of the dog. Was it Mr Kenton Campbell, who initially claimed it was his dog, or was it his then girlfriend, Miss Emily...
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