R v Knightsbridge Crown Court, ex parte Dunne ; Brock v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,MR. JUSTICE CRESSWELL |
| Judgment Date | 02 July 1993 |
| Judgment citation (vLex) | [1993] EWHC J0702-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-33993/CO-204092 |
| Date | 02 July 1993 |
[1993] EWHC J0702-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Crown Office List
Before: Lord Justice Glidewell Mr. Justice Cresswell
CO-33993/CO-204092
MR. W. LOCKE (MR. M. JACKSON) (Instructed by Winstanley-Burgess, London EC1) appeared on behalf of the Applicant Dunne.
MR. ADER (MR. C. GEEKIE) (Instructed by the CPS, Northern Branch) appeared on behalf of the Respondent in Ex parte Dunne.
MR. J. H. TRUMPINGTON (Instructed by Landau & Cohen, London N3) appeared on behalf of the Applicant Brock.
MR. BRIERLEY (MISS BROADBENT) (Instructed by the CPS, Wood Green) appeared on behalf of the Respondent in Brock v. DPP.
Friday, 2 July 1993
In these two cases, although somewhat
different questions are raised, essentially the same point is in issue, namely, the proper interpretation of the phrase "any dog of the type known as the pit bull terrier" in section 1(1)(a) of The Dangerous Dogs Act 1991. We heard argument in the two cases consecutively. It is convenient to deal with them both in this one judgment.
Mr Dunne
The Applicant, Mr Gary Dunne, was charged that on 26 November 1991
"Being the owner of a dog to which s. 1 of The Dangerous Dogs Act 1991 applied, namely a dog of the type known as the pit bull terrier, allowed such dog to be in a public place without being muzzled"
contrary to section l(2)(d) of the Act of 1991. He was convicted in Wells Street Magistrates' Court on 30 December 1991. He appealed to the Crown Court at Knightsbridge.
On 5 June 1992 that Court (H H Judge Mendl and magistrates) decided that:
1.Mr Dunne had failed to prove that his dog was not of the type known as the pit bull terrier; but
2.The prosecution had failed to prove that the dog was unmuzzled.
The court therefore allowed Mr Dunne's appeal.
Mr Dunne has been advised that he cannot appeal against the Crown Court's conclusion that he had failed to prove that the dog was not of the type known as the pit bull terrier. He therefore seeks Judicial Review of that decision, for which he has been given leave. The relief he seeks is
"A declaration that in its judgment of 5 June 1992 the Crown Court erred in its interpretation of the phrase "any dog of the type known as the pit bull terrier", and that on a proper construction of the Statute the word "type" in the phrase should be defined in its technical sense —the equivalent to "breed" —rather than given a broad, popular meaning."
The procedure
For the determination of this question procedure by way of Judicial Review is not wholly satisfactory. In particular, we do not have any clear findings of fact by the Crown Court upon which it based its conclusion. Moreover, I am not satisfied that Mr Dunne did not have a right of appeal by way of case stated. So far as is material, s.28(1) of the Supreme Court Act 1981 provides
"… any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court."
It is in my view arguable that the interpretation placed by the Crown Court on the meaning of the words "of the type known as the pit bull terrier" was a decision which could properly have been the subject of a case stated.
However, both parties were agreed that procedure by way of Judicial Review was appropriate in the circumstances, and we therefore assumed jurisdiction to hear Mr Dunne's application.
The legislation
The Dangerous Dogs Act 1991 was brought into force by a commencement order made by the Secretary of State for the Home Department on 12 August 1991. The long title is
"An Act to prohibit persons from having in their possession or custody dogs belonging to types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dogs which prevent a serious danger of the public; to make further provision for securing the dogs are kept under proper control; and for connected purposes."
The provisions of the Act which are relevant to this application are as follows:
"Section 1: Dogs Bred for Fighting
(1) This section applies to -
a)any dog of the type known as the pit bull terrier; …
(2) No person shall —…
d)allow such a dog of which he is the owner or of which he is for the time being in charge to be in a public place without being muzzled and kept on a lead; …
(3)After such day as the Secretary of State may by order appoint for the purposes of this sub-section, no person shall have any dog to which this section applies in his possession or custody …"
The date appointed for the purposes of this sub-section was 30 November 1991 …
"(5)The Secretary of State may by order provide that the prohibition in sub-section (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 arrangement (including provision for the payment of charges or fees) as he thinks appropriate."
The order made under this sub-section by the Secretary of State provides that a certificate of exemption may be issued in respect of a dog of the type known as the pit bull terrier, or any other dog coming within section l(l), whose owner satisfies certain conditions in relation to the dog. …
"(7) Any person who contravenes this section is guilty of
an offence …
"4(1)Where a person is convicted of an offence under section l or 3( 1) or (3) above … the court
a)may order the destruction of any dog in respect of which the offence was committed and shall do so in the case of an offence under section l …
"5(5)If in any proceedings it is alleged by the prosecution that a dog is one to which section l … applies, it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers sufficient; …"
It is agreed between counsel, in my view entirely correctly, that the burden placed on the accused by this sub-section is to prove the contrary on the balance of probabilities.
The issues before the Crown Court
These were
i)Had the Appellant proved, on the balance of probabilities, that his dog was not of the type known as the pit bull terrier;
ii)If not, had the prosecution proved that on 26 November 1991 the dog was not muzzled?
On 26 November 1991 Mr Dunne said that, in case his dog were to be found to be of the type known as the pit bull terrier, he was about to take the necessary steps to obtain a certificate of exemption for it. It is common ground that at that date he had not done so.
We have a note of the judgment given by Judge Mendl in the Crown Court. It starts by posing the two questions set out above. In considering the first question, the Judge properly started by deciding the proper interpretation of the phrase "any dog of the type known as the pit bull terrier". He said:
"With regard to s.l(l)(a), if it were intended that it should refer to the particular breed, there would have been no difficulty in defining the breed by saying "any American pit bull terrier", even though that breed is not accepted by the British Kennel Club. We therefore find that the meaning in the Concise Oxford English Dictionary is appropriate —a general meaning, not a technical one. The words means that a dog "of the type known as a pit bull terrier" is an animal approximately amounting to, near to, having a substantial number of the characteristics of the pit bull terrier."
Having so defined the phrase, the court went on to consider whether the evidence established that the applicant's dog was not of the type known as the pit bull terrier. The Judge summarised the evidence of Dr Mugford, an expert witness called on behalf of the applicant, and of witnesses called on behalf of the prosecution. He then said:
"Considering all the evidence that we have heard and the burden of proof, we conclude the appellant has not discharged the burden of proving that Judd is not a dog of the type known as the pit bull terrier."
The court however then concluded that the prosecution had not satisfied the burden of proving that at the relevant time the dog was unmuzzled. Thus the appeal was allowed.
The issue for this court
The issue for us to decide is did the Crown Court err in law in its interpretation of the phrase "any dog of the type known as the pit bull terrier"? The submission of Mr Locke, for the applicant, is that the word "type" in the 1991 Act has the same meaning as the word "breed".
Before expressing my conclusion on this application, I think it right to turn to the appeal of Miss Brock, which raises wider issues.
Miss Brock's appeal
This is by way of case stated by the Crown Court at Wood Green which dismissed the appeal from Justices for the Petty Sessional Division of Barnet. On 4 August 1992 those Justices convicted Miss Karen Brock of having in her possession or custody a dog called "Buster" to which s.1 of The Dangerous Dogs Act 1991 applied, namely a dog of the type known as the pit bull terrier, contrary to s.1(3) of the Act. The Crown Court (H H Judge Zucker QC (and magistrates) heard the appeal over three days and gave its judgment on 9 December 1992.
Facts admitted and proved
The case stated:
"3.The appellant admitted that:
a)she had...
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