The King (on the application of Kayleigh Dawson) v Preston Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 497 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1511/2022 |
and
[2023] EWHC 497 (Admin)
Mr Justice Fordham
Case No: CO/1511/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Cathryn McGahey KC (instructed by Cohen Cramer Solicitors) for the Claimant
The Defendant and Interested Parties did not appear and were not represented
Hearing date: 15.2.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
At the end of a one-day hearing at Preston Crown Court on 25 November 2021, HHJ Preston (“the Judge”), sitting with Justices of the Peace, dismissed an appeal by the Claimant for reasons given in an ex tempore judgment (“the Judgment”). The appeal with which they were dealing was against an immediate Destruction Order (“DO”) made on 4 May 2021 by Burnley Magistrates' Court, on the application of the Lancashire Chief Constable (“the Police”). The DO had been made pursuant to section 4B of the Dangerous Dogs Act 1991 (“the 1991 Act”) and ordered the destruction of the Claimant's pitbull terrier “Lightning”. Lightning, because he is a pitbull terrier, is a dog of “prohibited type” under section 1 of the 1991 Act. Section 1(3) of the 1991 Act contains a “prohibition” on a person having a pitbull terrier in their possession or custody, except “in accordance with an order for destruction” made under the provisions of the Act. Section 4B provides for a Contingent Destruction Order (“CDO”), by which the dog can be “exempted from the prohibition”. A CDO had been made by the Magistrates on 15 October 2019.
The appeal in the Crown Court against the May 2021 DO was by way of “rehearing”. The Claimant was the ‘appellant’ and was represented by Counsel, Ms Woods. The Police were the ‘respondent’, also represented by Counsel, Ms Kenny. By virtue of section 4B(2)(a), the test which the Magistrates – and now the Crown Court – were required to apply was whether the Court was:
satisfied that the dog would not constitute a danger to public safety .
As to the considerations to take into account when applying that test, by virtue of section 4B(2A):
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 Judgment
I am going to set out the entirety of the Judgment, breaking it down into sections. For ease of cross-referencing, I will insert paragraph numbers in square brackets. First, the Judgment gave this introduction, describing a June 2019 seizure of Lightning and his November 2019 return, making reference to the October 2019 CDO and the applicable conditions (“the Conditions”: as to which, see §9 below):
[1] This is or rather started as an appeal against an order made under the Dangerous Dogs Act 1991 for the destruction of two dogs belonging to the appellant, a male known as Lightning and a female known as Storm. On 29th June 2019 Lightning was seized under the Dangerous Dogs Act suspected of being a dangerous dog as defined by section 1, namely a Pit Bull Terrier and the dog was assessed by PC Carruthers about a week later and was found to have the characteristics of such a breed. The dog was returned to the appellant on 9th November 201[9] having been made the subject of a [CDO]. The order meant that Lightning was to be registered on the index of exempted dogs with conditions that it be neutered, microchipped, always on a lead and muzzled when in public, insured and kept by the appellant. As we have been told by Mr. Barnett during the course of his evidence, after two months from 15th October that order then became an exemption certificate with similar conditions as well as several more .
Next, the Judgment gave a description of the following: that a ‘breach’ incident took place on 7 February 2020 (“the Incident”), after which Lightning was seized; that he was (wrongly) returned to the Claimant in May 2020 (“the Return”); that he was reseized in December 2020 (“the Reseizure”); and that there were subsequently discovered to have been what everyone (including Ms Woods and Ms Kenny) were calling two ‘breaches’ (“the Further ‘Breaches’”):
[2] On 7th February 2020 Lightning was again seized following a breach of the [CDO] in that there was an incident where the two dogs escaped the house and Lightning attacked a dog being walked by the witness Mr. Symon, biting him by the neck, forcing him to the ground and then when Mr. Symon tried to protect the dog leaping up at him, biting at the dog's leg and actually seems whilst going for the dog, biting Mr. Symon. The attack was for him and no doubt for the dog frightening and went on for several minutes and it only ended when the police intervened with a debilitating spray. We have no doubt it would have carried on had that spray not been administered .
[3] On the same day the second dog, Storm, who escaped with Lightning was also seized. Storm played no part in the attack on the other dog, demonstrating in our view quite clearly a different set of characteristics. Storm was assessed by PC Carruthers and found to have the characteristics of a dangerous dog under the Act. However, the respondent now concedes that the application in relation to Storm was not made in time and so the order made by the Magistrates is an invalid order, it has no force and insofar as we can we set it aside pursuant to the powers under the Civil Procedure Rules. That will mean that other procedures have to be undergone in relation to the dog but hopefully it will find its way back home .
[4] Lightning was returned to the appellant once more in May 2020. That was to say the very least an unfortunate error found to be on flawed legal grounds and the dog was seized again in December 2020. In the meantime, the police discovered that the appellant had further breached the [CDO] by not notifying DEFRA of a change of address and by failing to provide insurance for the dog for six days in October of that year .
In the next part, the Judgment described the section 4B application made by the Chief Constable, certain aspects of common ground, and certain key aspects of the evidence:
[5] Application has been made therefore or was made therefore by Lancashire Constabulary under section 4B of the Act for a destruction order otherwise than on conviction for an offence and those orders were granted by the lower court as I have already said and the Crown have conceded that one of them was entirely wrong, but under that section where a dog cannot be released to its owner without contravention of section 1(3) of the Act as applies in this case, there must be a destruction order unless the court is satisfied to the civil standard, and the burden rests on the appellant, that the dog would not constitute a danger to public safety. In deciding whether the dog does or does not constitute a danger to public safety the court must take account of the temperament of the dog, of its past behaviour and whether the owner is a fit and proper person to be in charge of it .
[6] It is agreed by all parties that both dogs are of a Pitbull type and are therefore defined as dangerous dogs by section 1 of the Act. In this case we have heard about the history and the chronology which is broadly agreed and we have heard agreed evidence about the unfortunate incident on 7th February 2020. We have also heard from PC Carruthers about the assessment of the dogs and some of the history and we heard from the appellant and from the defence expert, Mr. Barnett .
[7] Mr. Barnett told us that in his examination conducted under circumstances of distress for the dog Lightning was excitable, he bit his lead for 6 1/2 minutes at the start of the examination and from time to time thereafter. Mr. Barnett says that that amounts to a mild canine compulsive disorder, not an act of aggression and he points out that he calmed down and was no threat to him or his assistant. It is common ground that Lightning has not shown any aggression towards any examiner or indeed anyone else save for the behaviour on 7th February 2020 and it is further common ground that the appellant has put safety measures in place at her home address .
The Judgment next described points made by the parties, together with some observations by the Court:
[8] The respondent raised concerns as to the appellant's fitness as an owner initially due to a number of issues, the incident in February albeit no direct blame was attributed to her for releasing the dogs but also the period where Lightning was not insured as well as the failure to notify DEFRA of the change of address. Finally, the respondent states that a reluctance to hand over the dog in December 2020 suggests an unwillingness to comply with rules, as do her previous convictions, they say .
[9] In response, the appellant pointed out that it was not her fault that the dogs were released in February 2020, there is no evidence that they have ever before or since been out unmuzzled or not on a lead. The failure to notify DEFRA and the short period without insurance were technical breaches, in particular she did not appreciate the need to inform DEFRA as she had told the police of the move and the insurance issue was simply a direct debit failure. Finally, she was understandably reluctant to hand the dog over given the history of...
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