Henderson v Commissioner of Police for the Metropolis, Court of Appeal - Administrative Court, March 28, 2018, [2018] WLR(D) 194,[2018] EWHC 666 (Admin)

Issuing Organization:Administrative Court
Actores:Henderson v Commissioner of Police for the Metropolis
Resolution Date:March 28, 2018
 
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Case No: CO/2823/2017

Neutral Citation Number: [2018] EWHC 666 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/03/2018

Before :

LORD JUSTICE TREACY

MR JUSTICE MALES

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Between :

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Ms Cathryn McGahey QC and Ms Pamela Rose (instructed by Parry and Welch Solicitors LLP) for the Appellant

Mr George Thomas (instructed by Metropolitan Police Directorate of Legal Services) for the Respondent

Hearing date: 7th February 2018

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JudgmentLord Justice Treacy:

  1. This is an appeal by way of Case Stated from the decision of District Judge Jabbitt, sitting at Willesden Magistrates' Court on 9 February 2017. The matter was before the court as the result of an application by the respondent, the Commissioner of Police for the Metropolis, under s.4B(1)(a) of the Dangerous Dogs Act 1991 for the destruction of a dog named Olive.

  2. S.4B provides as follows:

    4B Destruction orders otherwise than on a conviction

    (1) Where a dog is seized under section 5(1) or (2) below or in exercise of a power of seizure conferred by any other enactment and it appears to a justice of the peace, or in Scotland a justice of the peace or sheriff -

    (a) that no person has been or is to be prosecuted for an offence under this Act or an order under section 2 above in respect of that dog (whether because the owner cannot be found or for any other reason); or

    (b) that the dog cannot be released into the custody or possession of its owner without the owner contravening the prohibition in section 1(3) above,

    he may order the destruction of the dog and, subject to subsection (2) below, shall do so if it is one to which section 1 above applies.

    (2) Nothing in subsection (1)(b) above shall require the justice or sheriff to order the destruction of a dog if he is satisfied -

    (a) that the dog would not constitute a danger to public safety; and

    (b) where the dog was born before 30th November 1991 and is subject to the prohibition in section 1(3) above, that there is a good reason why the dog has not been exempted from that prohibition.

    (2A) For the purposes of subsection (2)(a), when deciding whether a dog would constitute a danger to public safety, the justice or sheriff -

    (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.

    (3) Where in a case falling within subsection (1)(b) above the justice or sheriff does not order the destruction of the dog, he shall order that, unless the dog is exempted from the prohibition in section 1(3) above within the requisite period, the dog shall be destroyed.

    (4) Subsections (2) to (4) of section 4 above shall apply in relation to an order under subsection (1)(b) or (3) above as they apply in relation to an order under subsection (1)(a) of that section.

    (5) Subsections (2) and (3) of section 4A above shall apply in relation to an order under subsection (3) above as they apply in relation to an order under subsection (1) of that section, except that the reference to the court in subsection (2) of that section shall be construed as a reference to the justice or sheriff.

  3. The appellant in these proceedings is described as Gill Henderson, who originally sought to be a respondent to the police application. At the hearing below, Debra Case appeared through counsel as a proposed respondent to the application in place of Ms Henderson. We understand that Ms Henderson was not before the court, or if she was, she took no part in the proceedings.

  4. As the Case Stated records, the district judge heard oral submissions from advocates for the Commissioner and Ms Case on a preliminary issue of law ``whether Ms Case has any locus in this case, in plain language, whether she is entitled to be a respondent in these proceedings''. It appears that Ms Henderson and Ms Case are individuals with an interest in giving shelter or sanctuary to dogs. Ms Henderson lives in Scotland and Ms Case in Liverpool. Apart from their common interest they are not connected.

  5. The dog Olive was asserted by the Commissioner to be a pit bull terrier or a pit bull type, and thus a prohibited dog, pursuant to s.1(3) of the Act. The dog was found as a stray and taken into possession of the Hillingdon Borough Council on 10 April 2016. A chip implanted in Olive showed that the registered owner was a Mr Flynn who, when contacted, said that he had sold the dog some time before, but could not recall details of the individual concerned. The local authority referred the animal to the Metropolitan Police and the dog was seized under s.19 of the Police and Criminal Evidence Act 1984. On examination by the police, the dog was confirmed to be a pit bull terrier type. Subsequently, solicitors acting for Ms Henderson caused the dog to be examined and an expert, Ms Shepherd, concluded that Olive did not possess sufficient features to be considered a pit bull terrier type. Her report was sent to the Commissioner. The dog was further examined by dog legislation officers, both of whom concluded that Olive was a pit bull terrier type. This led to the application.

  6. The Case Stated states:

    ``There are no criminal proceedings because, in this case, the owner cannot be traced, therefore s.4B(1) applies, which enables the court to order destruction of the dog. Section 4B(2) qualifies this power and states that, inter alia, the court need not order destruction if satisfied that the dog would not constitute a danger to public safety.''

  7. As will be seen, there is an issue as to when s.4B(2) applies. When it does apply, it enables the court to make a contingent as opposed to an immediate destruction order if satisfied that the dog would not constitute a danger to public safety. S.4B(2A)(a) provides that in deciding that question, the court 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. In addition, under subsection 2A(b) the court may consider any other relevant circumstances (the italics are mine). If the court concludes that the dog does not pose a danger to public safety, then it shall make a contingent destruction order requiring destruction of the dog unless a certificate of exemption is issued under clause 9 of the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 within a period of two months - see s.4B(3).

  8. The issue of the standing of Ms Case as someone said to be prepared in the future to offer the dog a home was the...

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