R Hooker v Ipswich Crown Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Foskett |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWHC 2899 (Admin) |
| Docket Number | CO/12885/2012 |
| Date | 30 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 2899 (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 Foskett
CO/12885/2012
Miss P Rose (instructed by Direct Access and Intermediaries) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
This claimant, Kenton Hooker, pleaded guilty on 4 May 2012 before the Bury St Edmunds' Magistrates' Court to an offence of allowing a dog to be dangerously out of control on 2 November 2011. The dog in question was a 3 year old German shepherd dog. It was a rescue dog which had been in the custody and care of Mr Hooker for about 5 or 6 months prior to the time of the incident which brought him before the court.
The offence to which the claimant pleaded guilty was an offence contrary to S.3(1) of the Dangerous Dogs Act 1991. The justices made an immediate destruction order in relation to the dog under S.4(1)(A) of the 1991 Act.
The brief circumstances of the offence were that the dog, whilst out walking with the claimant, went out of control and bit and injured a woman cyclist. The history of events showed that a few weeks prior to the matter giving rise to the charge before the Magistrates there had been a previous incident in which man had been bitten and injured. Both incidents took place in the same general area. On the occasion of the first incident, Mr Hooker's wife was walking the dog.
The claimant appealed to the Crown Court against the order for immediate destruction. He sought to persuade the court that the imposition of a contingent destruction order pursuant to section 4A of the 1991 Act was the appropriate order to make. After a hearing at which the claimant was represented by counsel the Crown Court at Ipswich on 13 August 2012 confirmed the immediate order.
The next step was that the claimant applied to the Crown Court to state a case. However, the judge presiding over the hearing at Ipswich Crown Court declined to do so and initially judicial review was sought on that basis.
The matter came before the single judge, Holman J, and he granted permission to seek judicial review. He followed the decision in Sunworld Ltd v London Borough of Hammersmith and Fulham [2000] 1 WLR 2102. That enabled a judicial review to take place in circumstances where the court below had given a reasoned judgment containing all the necessary findings of fact, and/or had explained its refusal to state a case in terms which clearly raised the true point of law in issue. The single judge considered that the matter was arguable and accordingly granted permission for a substantive judicial review to take place.
The materials available to us in relation to the proceedings below consist of a transcript of counsel's submissions together with the court's judgment; and in addition, we have the responses made by the judge when he declined to state a case for this court in the course of which he makes specific responses to a series of eight questions which the claimant at that stage was submitting were fit for consideration by this court.
The Court of Appeal in this type of case has set out certain principles in relation to the 1991 Act which govern the approach to be taken by a court in considering the imposition of a destruction order following a conviction under S.3(1) of the 1991 Act. The case is R v Flack [2008] EWCA Crim 204. The principles can be set out as follows:
(a) The court has a power under S.4(1) of the 1991 Act to order the destruction of a dog where there is a conviction of a S.3 offence.
(b) S.4.1(A) of the 1991 Act provides that nothing in section 4.1 shall require the court to order the destruction if it is satisfied that the dog would not constitute a danger to public safety.
(c) Before ordering immediate destruction the court should normally consider whether to exercise the power under S.4A(4) of the 1991 Act to order that unless the owner of the dog keeps it under proper control it shall be destroyed.
(d) A contingent destruction order under S.4A(4) of the 1991 Act may specify measures required of the owner for keeping the dog under control; whether by muzzling, keeping it on a lead, excluding it from a specified place or otherwise. The words "or otherwise" plainly indicate a wide range of other measures available to the court to impose if it sees fit.
(e) A court shall not order destruction if satisfied that the imposition of such a condition would mean that the dog would not constitute a danger to public safety. It is for a person in the position of this claimant to satisfy the court on the balance of probabilities.
(f) In deciding what order to make the court must consider all the relevant circumstances including the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned."
The material before the court below showed that this claimant had been a dog owner for over 30 years and that his prior keeping of dogs had not given rise to problems or complaints.
The claimant is a man in his early 50s, he is retired on health grounds. He is registered disabled. He apparently has difficulty getting up and down stairs and uses the dog in this case to assist him in doing that. He had shown a responsible and indeed apologetic attitude towards those who had been bitten by the dog concerned. At the time of the incidents he appears to have been aware of the dog's aggressive tendencies.
The function of this court is not to act as a court of appeal rehearing the merits of this case for a third time after an investigation of those matters by the Magistrates' Court and then the...
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