Killeen, R (on the application of) v Birmingham Crown Court & Ors, Court of Appeal - Administrative Court, February 02, 2018, [2018] EWHC 174 (Admin)

Issuing Organization:Administrative Court
Actores:Killeen, R (on the application of) v Birmingham Crown Court & Ors
Resolution Date:February 02, 2018
 
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Case No CO/5454/2016

Neutral Citation Number: [2018] EWHC 174 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

DIVISIONAL COURT

Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Birmingham

Date: 02/02/18

Before :

LORD JUSTICE HICKINBOTTOM

and

MR JUSTICE DOVE

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Between :

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Pamela Rose (instructed by Parry Welsh Lacey LLP) for the Claimant

The Defendant did not appear and was not represented

Brett Weaver (instructed by Staffordshire and West Midlands Police Joint Legal Services) for the First Interested Party

The Second Interested Party did not appear and was not represented

Hearing date: 2 February 2018

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JudgmentLord Justice Hickinbottom:

Introduction

  1. The Claimant, Abbie Killeen, owns a Bullmastiff cross Dogue de Bordeaux dog called Simba.

  2. On 2 February 2016 at Birmingham Magistrates' Court, the Claimant pleaded guilty to being in charge of a dog causing injury whilst dangerously out of control, contrary to section 3(1) of the Dangerous Dogs Act 1991 (``the 1991 Act''). On 17 May 2016, having heard evidence in relation to sentence, the magistrates sentenced the Claimant to a financial penalty, disqualified her from having custody of a dog for a period of two years and ordered the destruction of Simba. On 5 August 2016 in Birmingham Crown Court, before Mr Recorder Cooke and magistrates, the Claimant's appeal against the imposition of the disqualification and destruction orders was dismissed.

  3. In this claim, issued on 27 October 2016, the Claimant seeks to challenge the Crown Court's decision.

  4. Before us, Pamela Rose has appeared for the Claimant, and Brett Weaver for the Crown Prosecution Service. Neither appeared in the courts below, although Ms Rose appeared at the renewed application for permission to proceed in this claim.

    The Statutory Regime

  5. Under the heading ``Keeping dogs under proper control'', section 3(1)(a) of the 1991 Act as amended by the Anti-social Behaviour, Crime and Policing Act 2014 provides that:

    ``If a dog is dangerously out of control in any place in England or Wales (whether or not a public place)... [t]he owner... is guilty of an offence, or, if the dog while so out of control injures any person or assistance dog, an aggravated offence under this subsection.''

    For these purposes, by section 10, a dog is to be ``regarded as dangerously out of control on an occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so...''.

  6. Section 4 as amended provides for destruction orders, so far as relevant to this claim, as follows:

    (1) Where a person is convicted of an offence under section... 3(1) above... the court--

    (a) may order the destruction of any dog in respect of which the offence was committed and, subject to subsection (1A) below, shall do so in the case of... an aggravated offence under section 3(1) above; and

    (b) may order the offender to be disqualified, for such period as the court thinks fit, for having custody of a dog.

    (1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied--

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

    (1B) For the purposes of subsection (1A)(a), 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.''

  7. Section 4A(4) and (5) as amended makes provision for ``Contingent destruction orders'':

    ``(4) Where a person is convicted of an offence under section 3(1)... above the court may order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed.

    (5) An order under sub section (4) above -

    a) may specify the measures to be taken for keeping the dog under proper control, whether by muzzling, keeping on a lead, excluding it from specified places or otherwise; and

    b) if it appears to the court that the dog is a male and would be less dangerous if neutered, may require it to be neutered.''

    ``Muzzling'' and ``keeping on a lead'' are terms that are defined in section 7.

  8. The relationship between sections 4 and 4A (i.e. between immediate and contingent destruction orders) was considered by the Court of Appeal (Criminal Division) in R v Flack [2008] EWCA Crim 204; [2008] 2 Cr App R (S) 70. Having considered the statutory provisions, Silber J giving the judgment of the court said this (at [11(3)-(6)]):

    ``(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4A(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed (`a suspended order of destruction').

    (4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4A(5) of the 1991 Act.

    (5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

    (6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made.''

    Although, in describing an order made under section 4A(4), Silber J used the term ``a suspended order of destruction'', in this judgment, to reflect the 1991 Act itself, I shall refer to such an order as a ``contingent destruction order''.

  9. Therefore, in summary, where a dog who is dangerously out of control injures someone and the dog's owner is convicted of the aggravated offence under section 3(1) of the 1991 Act, the sentencing court must order the dog's immediate destruction, unless the court is satisfied that the dog will not constitute a danger to public safety. The burden of satisfying the court that the mandatory consequence of destruction should be displaced falls upon the person asserting that the dog would not constitute a danger to public safety (normally the owner of the dog or the person entrusted with the...

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