R Grant v Crown Court at Sheffield South Yorkshire Constabulary (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Robin Purchas |
| Judgment Date | 31 January 2017 |
| Neutral Citation | [2017] EWHC 1073 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2434/2016 |
| Date | 31 January 2017 |
[2017] EWHC 1073 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Robin Purchas QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/2434/2016
Miss Pamela Rose (instructed by Wheldon Law Solicitors) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
The Interested Party did not attend and was not represented
THE DEPUTY JUDGE: In this claim, the claimant applies for judicial review of the refusal of the defendant to state a case on the ground that it was frivolous. Holman J gave permission limited to the issue whether on the reasons given by the court below the court had properly applied the considerations under section 4(1A) of the Dangerous Dogs Act 1991 for the purpose of considering destruction, and, under section 4(1B), other considerations. The dog in question was a pit bull terrier.
Section 4(1A) provides:
"(1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied—
(a) that the dog would not constitute a danger to public safety;
[…]
(1B) For the purposes of subsection (1A)(a), when deciding whether a dog would constitute a danger to public safety, the court—
(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."
The approach to be taken was considered in R v Flack [2008] 2 Cr App R (S) 70, where Silber J set out principles as follows at paragraph 11:
"(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.
(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.
(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4A(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed ('a suspended order of destruction').
(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4A(5) of the 1991 Act.
(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.
(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made."
In that case, the court was considering an offence under section 3. However, the approach was applied in the subsequent case of R v Baballa [2011] 1 Cr App R (S) 50, which concerned a case under section 1(3). In my judgment, the same principles apply in the present case under section 4.
In giving the reasons of the court below, the learned judge said as follows:
"The statute, however, is very clear: the court shall order destruction of the dog unless, having considered the temperament of the dog, its past behaviour and whether the person in charge of it is a fit and proper person, the court can be satisfied that the dog will not constitute a danger to the public safety. So, effectively, whilst it provides a statutory discretion, it is obligatory unless, considering the two things, the dog's temperament and the character of the person, the dog will not constitute a danger to public safety.
That has to be considered; the question of fit and proper person is not something that is done in isolation. We liked Miss Grant as a person, she's a nice person, but that is only a part of the story. As a matter of law, we have to consider her in the context of the situation which exists, that is to say, she, with two very young children, the dog who has been away for almost a year and is now about 2 years old, and is effectively a breed that is an illegal breed in this country, and the regular presence, at least twice a week, of the gentleman whose character is a poor one, and who himself is undoubtedly not a fit and proper person. And we have to look at that in the overall context and in that overall context, we have considered it carefully, we are satisfied that Emily Grant is not a fit and proper person. Accordingly, the order of the magistrates' court is confirmed, and the dog will be destroyed. The appeal is dismissed."
It appears from the reasons given that the judge did not refer to the opportunity to consider any other relevant circumstances under section 4(1B), but the main point raised by the complainant is how he applied the approach he set out earlier in the judgment. On the reasons given, it is arguable that here the court failed to continue to ask the fundamental question whether the court was satisfied in the light of those considerations taken as a whole that the dog would not constitute a danger to public safety. On that basis, there would be an arguable question of law to be considered, as effectively accepted by Holman J in granting permission.
The question then arises what relief should be granted at this stage. The matter could be remitted to the defendant with an order to state a case on the point of law on which permission was granted. However, in this case a fully reasoned judgment has been given. In Sunworld Ltd v Hammersmith & Fulham London Borough Council [2000] 1 WLR 2102, Simon Brown LJ, as...
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