Toni Garrett v Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr,Mr Justice Robin Knowles |
| Judgment Date | 15 July 2020 |
| Neutral Citation | [2020] EWHC 1866 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/ 1184/2019 |
| Date | 15 July 2020 |
[2020] EWHC 1866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT SITTING IN BIRMINGHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Carr
and
Mr Justice Robin Knowles
Case No: CO/ 1184/2019
Ms Cathryn McGahey QC (instructed by Cohen Cramer Solicitors) for the Appellant
Mr Jamie C Scott (instructed by the Staffordshire and West Midlands Police) for the Respondent
Hearing date: 7 July 2020
Approved Judgment
Introduction
This is an appeal by way of case stated from a decision of District Judge (MC) Qureshi (“the Judge”) sitting at Birmingham Magistrates' Court on 16 April 2018 to order the destruction of a Rottweiler dog called Roxy (“the dog”) pursuant to s. 4B of the Dangerous Dogs Act 1991 (as amended) (“s. 4B”) (“the 1991 Act”) (“the Destruction Order”). The appellant (“Ms Garrett”) is the dog's owner.
The question posed for the Court is as follows:
“Does the six months' time limit for bringing a complaint under s.4B(1)(a) of the Dangerous Dogs Act 1991 run from the date of the incident which provides the grounds for the complaint, from the date on which the police become aware of the incident or from the date on which the police seize the dog in question as a result of that incident?”
The essential issue is one of jurisdiction and focusses on s. 4B and s. 127 of the Magistrates' Courts Act 1980 (“s. 127”). As will be seen in more detail below, unless time starts to run on (or after) the latest of the three dates identified in the question above, the complaint in this case was brought out of time and the court lacked jurisdiction to hear the case.
The background facts
In September 2014 the dog jumped up onto a five month old baby who was being carried by an adult at the time. Fortunately, the child sustained only minor injury in the form of reddening to his leg. The child's mother, who was not present at the time, was informed of the incident and called the police but did not wish to pursue the matter as she was a friend of Ms Garrett. The matter was dealt with by way of a local resolution under which Ms Garrett undertook to ensure that the dog would always be in a secure muzzle and lead when outside and be supervised if there were any children under 16 years of age present, and to obtain third party insurance for the dog. Whilst Ms Garrett duly insured the dog for a year, she then let the insurance lapse.
On 23 April 2017 the dog, despite being behind a baby-gate at the time, bit the forearm of a visiting adult cousin of Ms Garrett, Ms Haddon, causing two puncture wounds which became infected. In the end they required 18 stitches to heal. On 3 May 2017 the police were informed (either by Ms Haddon, who did not provide a witness statement, or by a “third party”).
On 12 May 2017 a warrant was issued (under s. 5(2) of the 1991 Act (“s. 5(2)”) and on 19 May 2017 police attended Ms Garrett's home and executed the warrant. The dog was seized, along with another Pit Bull type dog (“Storm”), also present at the home.
On 29 September 2017 Ms Garrett attended the police station but made no comment to every question asked of her in relation to both dogs. It was decided that there was no point in prosecuting her. Instead, on 14 November 2017, the Respondent (“the Chief Constable”) issued a complaint applying for an order of the destruction of both dogs pursuant to s. 4B (“the complaint”): in relation to Storm, he was a banned breed; in relation to the dog, she had now made two attacks and should be destroyed.
The hearing before the Judge
The hearing took place on 16 April 2018 before the Judge who rejected the preliminary submission that the complaint was out of time. PC Russell Martin gave evidence to the effect that Ms Garrett was not a fit and proper person to care for Storm; she also failed to see the aggressive side and danger posed by the dog. Ms Garrett did not give evidence or call any evidence about herself. Dr Kendel Shepherd, a veterinary surgeon, gave evidence on behalf of Ms Garrett about the dog, but the Judge did not find her evidence convincing.
The Judge went on to make a destruction order in respect of Storm, who was a banned breed and clearly constituted a danger to public safety even though she had not hitherto attacked anyone. As for the dog, his reasoning is recorded by him as follows:
“…because of her breed and not being a banned breed, the court had a discretion whether or not to order her destruction. I was not persuaded by the evidence of Dr Shepherd and Miss Garrett did not give evidence. The only compelling evidence before me was that Roxy had bitten a baby in 2014 and an adult in 2017. Thus, the risks posed by Roxy were real and not controverted by Miss Garrett, who I considered was not a fit and proper person to own and care for her. I therefore ordered the destruction of Roxy.”
Ms Garrett applied for a case to be stated on 3 May 2018. The application was granted on 6 August 2018. An appellant's notice was not filed until 25 March 2019 but the necessary extension of time was granted by Andrews J on 9 March 2020.
The Judge's ruling on jurisdiction
The Judge dealt with limitation as a preliminary issue. He stated that the time limit imposed in relation to summary proceedings within s. 127(1) of the Magistrates' Courts Act 1980 (“s. 127”) applied to applications pursuant to s. 4B. As between the parties, this was non-contentious.
He went on to rule that the time limit only commenced when the police seized the dog and not from any earlier date, either the incident itself on 23 April 2017 or when the police were informed of the incident. He recorded his reasoning as follows:
“I ruled that the time limit only commenced when the police seized the dogs since there could be no matter of complaint against anyone until the police found the relevant animal and ascertained who the owner was. If the police were to issue proceedings before the court within 6 months of the date of a report by a member of the public, it may well be that the police do not actually find the animal concerned and the proceedings would be ineffective. Equally, if an owner is not identified, the court cannot issue a summons to anyone to appear at court to deal with the complaint. It appeared to me a matter of common sense to interpret the legislation so that the time limit began only when the police had seized an animal in relation to which court proceedings might ensue.”
Thus he held that the complaint was brought within the relevant time limit.
On the eve of the hearing of this appeal, Ms Garrett served a supplemental bundle containing the warrant and a draft of the application in support, neither of which were before the Judge. Although this appeal proceeds by way of case stated, the Chief Constable did not object to the court considering the material. The draft application indicates that at the time of applying for the warrant the police were aware that Ms Garrett was the owner of the dog and where she lived, as well as the date, time and circumstances of the incident on 23 April 2017 (and also of the earlier incident in September 2014).
For what it is worth, I do not read the Judge's ruling on jurisdiction as set out above as being based on the specific facts of this case; rather he concluded, as a matter of legislative interpretation, that the date of seizure should be the date when the time limit in s. 127 should start to run.
The parties' respective positions
Ms McGahey QC for Ms Garrett submits that the Judge's interpretation was clearly wrong. The time limit in s. 127 runs from the date of the precipitating incident. The seizure of the dog was an action by a police officer in response to the “matter of complaint”, namely the incident on 23 April 2017, not the “matter of complaint” itself. The event or situation for which a person has to answer in court is the “matter of complaint”, not the date when evidence is gathered.
It is said that if the police seizure were “the matter of complaint”, it would mean that a complaint under s.4B could be brought years after the incident in question – simply because the police, for whatever reason, did not seize the dog until many years after a reported incident. Such a result would be wrong in principle and contrary to the clear intention of the statute, which was for complaints to be brought timeously. It is submitted that there is support for the approach set out above in the Magistrates' Court Rules 1981. Rule 66 provides for the register of convictions to include, not only the nature of the matter of complaint but also (at (2)(d)) “the date of…matter of complaint”. It would be meaningless if the register recorded the police seizure as the matter of complaint. Equally, Rule 98 requires that a summons to appear before a magistrates' court in respect of a complaint to specify “each…complaint in respect of which it is issued”. The complaint referred to cannot be the police seizure of the dog.
Further, Ms McGahey submits that even if the Chief Constable's approach, namely that time runs from the date of the “appearance of dangerousness”, is correct, the appearance of dangerousness on the facts here pre-dated the police seizure, as evidenced in the draft application for the warrant.
Ms McGahey also submits that it cannot have been Parliament's intention to have a longer period in which to bring proceedings under s. 4B than in which to prosecute a person for an offence under the 1991 Act. The regime in s. 4B is intended to be “more merciful” rather than “more draconian” than the regime for prosecution under s. 3 of the 1991 Act. There should not be different time limits.
Reference is made to a number of authorities: RSPCA v Webb [2015] EWHC 3802 (Admin) (“...
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