Henderson v Commissioner of Police for the Metropolis

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.

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 30^th 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.

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.

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.

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.

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.”

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).

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 issue identified to be determined at the hearing below, and upon which the district judge ruled. Ms Case’s skeleton argument before the district judge in terms stated that she “should be nominated as being the person who will be in charge of the dog should the court be persuaded to make a contingent destruction order pursuant to s.4B of the Dangerous Dogs Act 1991”. In effect, it was being asserted that the court had a power to nominate Ms Case as the person for the time being in charge of the dog, under s.4B(2A)(a)(ii) for the purposes of arguing that Olive could then be considered for a contingent destruction order and re-housed under the exemption scheme. The Commissioner contended that the court had no power to nominate Ms Case as someone satisfying s.4B(2A)(a)(ii) and that she had no standing in the proceedings.

The Case Stated records that it was accepted that Ms Case had no proprietary interest in Olive and had never met her. The judge concluded that since the dog had been seized and there were to be no criminal proceedings, the court was enabled to order destruction of the dog pursuant to s.4B(1). He then went on to consider s.4B(2) and (2A) in considering whether he was satisfied that the dog would not constitute a danger to public safety, thus enabling him to make a contingent destruction order. He noted the distinction in subsection 2A between those factors which a court must consider and any other relevant circumstances which the court may consider.

He particularly addressed himself to subsection 2A(a)(ii), namely, 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 that context he found that Ms Case was not the owner of the dog, nor had she ever met her. He held that the section could not apply to a person who merely purports to be someone who may be in charge of the animal in the future. He rejected a submission that the non-mandatory consideration at subsection 2A(b) in relation to any other relevant circumstances could operate to give Ms Case standing. Ms Case was neither the owner nor a person for the time being in charge of the dog. Accordingly, he held that Ms Case could not be the beneficiary of a contingent destruction order and that she did not have standing to intervene in the application.

The question posed for the consideration of this court is:

Subsequent to the decision in the present case, this court decided Webb v Chief Constable of Avon and Somerset [2017] EWHC 3311 (Admin). This present appeal was listed previously but then vacated in order to await the judgment in Webb.

In Webb the court at [89-89] confirmed that the phrase “for the time being in charge” in s.4B(2A)(a)(ii) of the Act cannot extend to someone who has had no contact with or responsibility for the dog, but intends to be that person in the future. At [77-78] the court concluded that “other relevant circumstances” which may be taken into account under s.4B(2A)(b) do not extend to the existence, fitness and suitability of a person who is not “for the time being in charge”, but who intends to be, and who would be, a fit and proper person to be in charge of the dog.

The hearing before us took a somewhat unusual turn. Ms Henderson, who was shown as the appellant in the Case Stated and in the title of the proceedings, was represented before the court by Ms McGahey QC and Ms Rose, neither of whom had appeared below. Ms Case did not appear before the court and was not represented. It became apparent that the submissions to be made to the court were to be advanced solely on behalf of Ms Henderson, notwithstanding the fact that the submissions below had been directed to the court on behalf of Ms Case. Ms McGahey explained that, in the light of the decision in Webb, Ms Henderson wished to contend that she was a person capable of being considered a person “for the time being in charge” of the dog Olive. In particular, she relied on observations at paragraph 88 of Webb to the effect that the words “in charge for the time being” should not be understood in a particularly narrow or a particularly expansive sense. They were words capable of applying to a range of situations where the judgment in any case was fact-sensitive. The concept of being in charge related to whether the person in question has responsibility for the dog. Ms McGahey contended that in due course Ms Henderson could bring herself within the phrase as analysed in Webb by reason of financial arrangements she had made for the care or treatment of the dog whilst it was with the local authority prior to the seizure. Mr Thomas, for the Commissioner, took no point on the late re-emergence of Ms Henderson in these proceedings and was prepared to deal with the arguments on their merits.

Ms McGahey submitted that a court had no jurisdiction under s.4B to order the destruction of the dog which was not of a prohibited breed. In my view, that was too broad a statement and I will return to the point later in analysing s.4B. However, it is right that in this case the Commissioner’s application was made on the basis that Olive was a dog of a prohibited breed: there was no suggestion that she had been seized as a dog which was dangerously out of control, contrary to s.3(1). It was thus argued that in this case, where there was evidence in the form of a report from Ms Shepherd contradicting the assertion that Olive was of a prohibited breed, the court would have to decide whether Olive was a prohibited dog. That was a question which arose prior to any consideration of whether Olive was a danger to public safety and the eligibility of any person to be in charge of the dog if it were found to be of a prohibited breed.

If that was correct then the question arose as to what class of person or persons had standing to argue that a dog was not of a prohibited breed. Ms McGahey submitted that anyone with a legitimate interest in the dog, not only including someone who had been the owner or keeper of the dog in the past, but also someone who wished to be the owner or keeper in the future, must have standing to be heard. She submitted that the concept of legitimate interest would include anyone who wished to give a home to the dog if it was found not to be of a prohibited breed, as well as anyone entitled to give the dog a home as a “person for the time being in charge” if it were held to be of a prohibited breed.

It was submitted that it would be wholly undesirable for there to be no mechanism for challenge to an application brought by the police in circumstances such as the present where there was no owner before the court to make a challenge and when there was evidence available from a reputable source putting in issue the police assertion of prohibited breed. There was nothing in the Act which would prevent a person with a legitimate interest (in the sense defined above) from being heard on the issue.

As a fallback, and if this court were to conclude that neither Ms Henderson nor Ms Case had a right to be heard, then, whilst acknowledging that this was not a question that the district judge was asked to consider, it was submitted that logically this court should consider whether the Magistrates’ Court had power to call evidence of its own motion. The submission was that there was an inherent jurisdiction so to do when it was in the interests of justice. There was power in the court to issue a witness summons pursuant to s.97 of the Magistrates’ Court Act 1980 and that mechanism could be used to bring Ms Shepherd before the court. It was recognised that in civil cases this power may be exercised only in very unusual circumstances. The decision in Eckersley v Secretary of State for the Environment [1977] 34 P and CR 124 was cited as an example, although it was acknowledged that the factual circumstances there were very different.

No submission was made to us that on the facts as found Ms Case could be regarded as “a person for the time being in charge” for the purposes of sub-sections (2) and (2A). It was argued that in the light of Webb at [88], Ms Henderson might be such a person, but that that issue should not be resolved at this hearing since this court was not the appropriate forum.

It seems to me that the relevant starting point for a consideration of the issues raised begins with s.4B. Section 4B(1)(a) applies in two situations when a dog is seized. These are alternatives, and are:

A dog may be seized under s.5 of the Act as well as under other enactments. Seizure of a dog under s.5 may occur if a dog appears to be a pit bull and is in a public place, regardless of the dog’s behaviour. However, the power of seizure is not limited to pit bulls; it extends to any dog in a public place which appears to be dangerously out of control. In other words, to use the example cited in argument, it could apply to a dalmatian.

This distinction between prohibited breeds (pit bulls) and other dogs (dalmatians) is reflected in s.4B(1). Section 4B(1)(b) relates to pit bulls. Where such a dog has been seized, then the court must make a destruction order unless it is satisfied that the dog would not constitute a danger to public safety – see s.4B(2)(a). In these circumstances, s.4B(2A) requires the court to consider particular matters in deciding whether a dog would constitute a danger to public safety. The matters which the court must consider are set out at s.4B(2A)(a). In addition, the court may consider any other relevant circumstances – see s.4B(2A)(b).

If consideration of those matters led to the conclusion that the pit bull would not constitute a danger to public safety, then the court would apply s.4B(3) and make a contingent destruction order which would bring into play the exemption scheme contained in the Dangerous Dogs Exemption Schemes (England & Wales) Order 2015 S.1. 2015 No. 138.

The second situation arises under s.4B(1)(a) where there has been or is to be no prosecution. This provision could apply to pit bulls or dalmatians. In the latter case, it might arise where a dalmatian has been found in a public place, dangerously out of control. In such a case, as s.4B(1) makes clear in its concluding words, the court may order the destruction of the dog but is not required to do so. The court has a discretion in which all relevant factors may be considered. No doubt public safety would be a consideration, but that does not arise by reason of sub-sections (2) or (2A), which only apply to pit bulls. Since dalmatians do not come within s.1(3) there is no prohibition on custody or possession and thus on release of the dog to its owner.

Miss McGahey invited us to construe sub-section (2) as if the reference to (b) was omitted. I am clear that we should not do this. Firstly, it would be very surprising if (b) had been included by way of mistake or oversight in a section which was inserted by way of amendment to the original Act in 1997 and where that section was further amended in 2014 by the addition of sub-section (2A). Secondly, the reference to (b) is required to make sense of the distinction drawn in sub-subsection (1) between s.1 dogs (pit bulls) and non-s.1 dogs (dalmatians) as analysed above. Sub-sections (2), (2A) and (3) only apply to pit bulls. Those sub-sections do not apply to dalmatians, so that if the court exercises its discretion not to order the destruction of such a dog under sub-section (1) the dog can be returned to its owner. That situation differs from that of the pit bull which must be destroyed unless it would not constitute a danger to public safety, considering the matters specified in sub-section (2A).

In my judgment, the scheme under sub-sections (2) and (2A) shows that only the owner of the dog, or a person for the time being in charge of it, have standing to argue that it should not be destroyed in the light of matters considered under sub-section (2A). The court is required to consider the temperament of the dog and its past behaviour, and an owner or person in charge may have relevant evidence to give. Again, the court must consider whether the owner or person in charge is a fit and proper person to be in charge of the dog, so that they could have relevant evidence to give on that issue. These sub-sections implicitly exclude any wider class of person as having standing to object to the destruction of the dog. This is understandable because these provisions clearly envisage that if the dog is not to be destroyed it will be released either to the owner or the person in charge of it. In those circumstances, whether anybody else may be a fit and proper person to have charge of the dog does not arise.

In the present case, an issue has been raised as to whether Olive was a pit bull type. No point has been taken on the lawfulness of seizure, presumably because it is sufficient for seizure for the dog to appear to be a pit bull. However, the terms of s.4(B) make plain that a destruction order can only be made if the dog is one to which s.1 applies. A determination to that effect must be made by the court before any destruction order can be considered. That stage has yet to be reached in the present proceedings. The question therefore arises as to who would have standing to raise such an issue at a future hearing.

Mr Thomas, for the Commissioner, accepted that the owner of the dog has such standing. This court held as much as a matter of natural justice in R v Trafford Magistrates’ Court ex-parte Riley (Unreported), 16 March 1995. That decision preceded the Human Rights Act 1998. In addition to natural justice, Article 1 of the First Protocol to the European Convention on Human Rights would lead to the same conclusion, as destruction of the dog would constitute depriving the owner of his possession.

Mr Thomas also accepted, at least for the purposes of these proceedings, that in some circumstances an owner or other individual might have a relationship with the dog such that its destruction would be an interference with a right to family or private life under Article 8 of the Convention. In principle, that appears to be correct (albeit that destruction of the dog, if found to be a pit bull, will almost inevitably be justified under Article 8(2) unless the dog is found not to be a danger to public safety applying sub-sections (2) and (2A)) and I would proceed on that basis without deciding the point or defining the circumstances in which such a right might arise. If Article 8 was so engaged, (and there will be people who qualify as a person in charge but who have no conceivable Article 8 rights), such an individual would have standing to contest an application for destruction. It is difficult to think that anybody who did not qualify as the owner or person in charge of the dog could establish such a right. I cannot accept that Ms McGahey’s wide-ranging concept of “legitimate interest” can provide a basis for establishing standing. It is simply far too vague, and to extend standing to this wider class of individuals would run counter to the scheme adopted by the legislation.

Accordingly, in my judgment standing on the issue of whether the dog is a pit bull must be limited either to the owner or to those able to demonstrate an Article 8 right, which will include some persons in charge of the dog for the time being. It follows that I must reject Ms McGahey’s submission that standing can extend to anyone wishing to give a dog a home if no destruction order is made. That is a very general interest of a sort which falls well outside the legislative scheme. I do not accept the argument that a test by reference to Article 8 would be too vague. While some cases may present difficulty, it is a concept with which the courts are familiar, and with which as a public authority under the Human Rights Act they are in any event obliged to grapple.

My conclusion is supported by the terms of s.5(5) which provides that where there is a prosecution there is a rebuttable presumption that a dog is a pit bull “unless the contrary is shown by the accused by such evidence as the court considers sufficient”. The accused must give the prosecution 14 days’ prior notice if he is to be permitted to adduce such evidence. This sub-section demonstrates that in a prosecution only “the accused” has standing to challenge the allegation that the dog is a pit bull. Ordinarily, the person to be accused of an offence under s.1(2) or s.3(1) will be the owner or, if different, the person for the time being in charge of the dog. There are no circumstances in which an individual who has never owned, possessed or been in charge of the dog, or had anything to do with it before its seizure, could be accused under an offence under the Act.

This is not a case where a prosecution has been brought, but the sub-section shows that in criminal cases Parliament was content to limit the category of those with standing to contend that a seized dog is not a pit bull. It would be surprising if, in a civil case, a much wider category of individuals had such standing when in a criminal case, that category is limited to “the accused”, which in practice will almost always mean the owner or the person in charge of it at or before the time of seizure.

As stated earlier, no submission has been made before us to argue that Ms Case was a person in charge or who had such standing. It is no doubt because of the conclusions reached in Webb that Ms McGahey sought to focus on the position of Ms Henderson. When the case was conducted below it focussed entirely on the position of Ms Case and not that of Ms Henderson. The facts do not show that either Ms Case or Ms Henderson had any proprietary interest in Olive, or that they had ever met her. Each of them had merely wished to look after Olive in the future. On that basis, neither would have standing to contend that Olive is not a pit bull since they were neither owners nor possessed any article 8 rights in relation to her.

However, Ms Henderson has submitted a witness statement in which she describes how she came to hear of Olive as a member of a group opposed to breed-specific legislation and that this led her to communicate with the local authority, leading to the group of which she was part agreeing to be responsible for payment of vet’s fees since Olive was suffering from septicaemia. In addition, she had arranged for Ms Shepherd to conduct an examination to see whether Olive was a pit bull.

Ordinarily, we would not have regard to this new material (which, in any event, is disputed by the Commissioner). However, it is contended that the facts asserted by Ms Henderson are sufficient to bring her within the meaning of “person for the time being in charge” as determined in Webb. It seems to me that the parties would be put to unnecessary expense and prolonging of this litigation if we said nothing at all about the position of Ms Henderson. She is not and never has been the owner of Olive. She does not assert any facts which could conceivably rise to any right under Article 8. In those circumstances, it is clear that she has no standing to contend that Olive is not a pit bull as I have already held.

Ms Henderson wishes to submit that her involvement with Olive in the limited way set out in her witness statement nonetheless qualifies her as “a person for the time being in charge” of Olive who can make submissions on the question of destruction. That question can only arise for determination once a decision has been made as to whether Olive is or is not a pit bull. If she is a pit bull, the Magistrates’ Court will need to consider the matters set out in sub-sections (2) and (2A). That would include a consideration of who is “the person for the time being in charge” of Olive and whether they are a fit and proper person. If Olive is not a pit bull the court will have a more general discretion to exercise under s.4B(1), and sub-sections (2) and (2A) do not apply. As to the question of whether Ms Henderson is a “person for the time being in charge”, that will be a matter for the Magistrates’ Court to decide on the facts. In that respect, Webb has given relevant guidance at [77], [78], [88] and [89].

Reverting for a moment to the question of standing to address the court on whether or not Olive is a pit bull, we heard some submissions on possible courses to be taken if Ms Henderson did not have such standing. This was a very long way from the matters canvassed below and in any event, we sensed that submissions were incomplete, given the emergence of the point at a late stage in the evolution of the case. I do not think it appropriate to get involved in the detail of a matter which has yet to be canvassed before the court below, beyond recording that Mr Thomas accepted that the prosecutor had a responsibility to draw the attention of the court to Ms Shepherd’s report. How the court below proceeds thereafter in the light of that must be a matter for it to determine in the light of submissions made to it.

Finally, I come to the question posed by the Case Stated as set out at paragraph 11 above. Examination of the question posed and consideration of s.4B earlier in this judgment shows that it does not draw a distinction between the separate questions of whether a dog is a pit bull and the exercise of a judgment as to whether it would constitute a danger to public safety, which would be required if it is. As framed, it contains a number of different questions and assumes that the issue of standing to oppose an application for destruction depends solely on whether the individual in question falls within the definition of a “person for the time being in charge” of the dog.

In order to answer the question posed, I would reformulate it and answer as follows:

Having broken down and answered the question in the Case Stated in this way, I would remit the matter to the Magistrates’ Court for a further hearing.

I agree.