The Chief Constable of Avon and Somerset (R on the application of) v Bristol Crown Court & Ors.

On 26 March 2021, the Crown Court at Bristol (“the Crown Court”) made a contingent destruction order (“the Order”) in respect of Jago, a dog belonging to the First Interested Party, Mr Gary Randall. That order was made on Mr Randall’s appeal against sentence from the Magistrates’ Court. This application for judicial review is brought by the Chief Constable of Avon and Somerset Constabulary (“the Chief Constable”) who contends that the Crown Court erred in law and acted irrationally, in making the order.

Permission to bring this claim was granted by Eyre J on 24 November 2021.

The Defendant has acknowledged service but, as the Court, has indicated it does not intend to make a submission. Mr Randall indicated when contacted by the Claimant that he did not want to be involved in these proceedings and he has not engaged in them at any stage. The Second Interested Party, the Crown Prosecution Service, filed Detailed Grounds supporting the Chief Constable’s grounds 1 to 4 and 6. The only ground the Crown Prosecution Service contested was ground 5, which the Chief Constable no longer pursues. In light of the withdrawal of ground 5, the Crown Prosecution Service indicated that it no longer intended to play an active part in these proceedings.

Accordingly, the only party appearing or represented at the hearing before me today has been the Claimant. I am grateful to Mr Goss, counsel for the Claimant, for his assistance.

On 17 June 2020, Mr Randall’s dog, Jago, was off the lead and unmuzzled in Netham Recreation Grounds. Jago mauled another dog, causing injuries that resulted in that dog having to be put down, and Jago also bit the other dog’s owner, causing a laceration requiring six stitches. The statement of Inspector Kathryn Tillitson states:

I note that although Jago is described as a large ‘Pitbull or Staffordshire Terrier dog’, he has not at any stage been formally assessed as being a dog to which section 1 of the Dangerous Dogs Act 1991 (“the 1991 Act”) applies and he has never been dealt with by the Courts as a dog to which that provision applies.

On 15 September 2020, Mr Randall entered guilty pleas at Bristol Magistrates’ Court to both an aggravated offence contrary to section 3(1) of the 1991 Act and a public order offence. The hearing was adjourned for sentencing. On 20 January 2021, Bristol Magistrates’ Court sentenced Mr Randall to a community order with an unpaid work requirement. He was ordered to pay compensation of £783.21 and he was disqualified from owning a dog for a period of a year. In addition, the Magistrates’ Court ordered Jago’s destruction under section 4(1) of the 1991 Act (“the destruction order”).

The Magistrates’ Court gave the following reasons for the destruction order:

Mr Randall appealed the destruction order to the Crown Court. He sought to have the order disqualifying him from owning a dog for 12 months overturned, and to have Jago returned to him. In the alternative, he sought an order transferring the dog into the ownership of his then 15-year-old nephew, Leyland Randall.

On 26 March 2021, the Crown Court refused Mr Randall’s appeal against the disqualification order. The Court stated:

However, the destruction order was revoked, and the Order made instead. The Order reads:

The drafting is imperfect but making allowance for that, it is apparent that the intention was to make a contingent destruction order, such that the dog is to be destroyed only if conditions of castration, muzzling and being on a lead in public are not met. The rider to the order places the dog in the Chief Constable’s custody until a ‘suitable owner’, who may or may not be Mr Randall’s nephew, can be identified. On a natural reading of the Order, the rider does not appear to be part of the contingent conditions.

I note that the order does not say that the dog must be kept under control, and it also does not address what is to happen if the dog cannot be placed with a suitable owner.

The transcript of the appeal hearing before the Crown Court shows that the possibility of a contingent destruction order with provision for rehousing was discussed. It is fair to say, as the Chief Constable (who was not a party to those proceedings) submits, and as the prosecution who were a party have acknowledged, that the Crown Court did not receive the assistance that it needed at that hearing on what are complex statutory provisions which are not easy to apply.

The Crown Court stated:

The Chief Constable does not consider that Mr Randall’s young nephew is an appropriate person with whom to re-home Jago. I should emphasise that this conclusion does not in any way reflect on the young man’s character. The Chief Constable submits that it was not rationally open to the Crown Court, on the facts before them, to conclude that the dog would not constitute a danger to public safety and more fundamentally, the Crown Court erred in imposing the responsibility for identifying a suitable owner for the dog on the police.

Following receipt of the order, the Chief Constable approached the Crown Prosecution Service with a view to obtaining clarification from the Court, if necessary. On 27 April 2021, the CPS indicated that they proposed to take it back to the Crown Court under the slip rule. In the event, unfortunately, the matter was not then brought back to the Court until 22 June 2021, which was outside the 56 days available for a correction or amendment under the slip rule. On that occasion, the learned Recorder observed that the order as it stands does not prevent the police from placing the dog with any suitable person or legal person, including a dog charity, but it does not give the police the power to destroy the dog.

At present, Jago remains in the Chief Constable’s custody, kept in kennels at public expense. This has now been the situation since June 2020. The Chief Constable submits the order is unworkable, unlawful and irrational.

Section 3 of the 1991 Act provides so far material:

Section 4 provides so far as material:

Section 4(A) provides so far as material:

A contingent destruction order under section 4A(4) is an alternative to an order for immediate destruction under section 4(1)(a). It nevertheless remains an order for destruction, albeit one which is contingent upon a dog not being kept under proper control. For this reason, by section 4A(6) subsections 2 to 4 of section 4 are applicable to such an order.

The drafting of section 4A(1) insofar as it relates to aggravated offences under section 3(1) in relation to dogs which are not subject to the prohibition in section 1(3), was considered by Collins J in Kelleher v Director of Public Prosecutions [2012] EWHC 2978 (Admin). He observed a paragraph 8:

Unfortunately, when Parliament amended this subsection in 2014 it merely removed the words “or (3)” rather than dealing with its inherent unworkability. The position remains that it can have no meaningful application to an aggravated offence under section 3.

In Webb v Chief Constable of Avon and Somerset Constabulary [2017] EWHC 3311 (Admin), [2018] 1 WLR 5001, the Divisional Court considered the phrase “owner of the dog or the person for the time being in charge of it” as it appears in the section 4B(2A). That subsection is in materially identical terms to section 4(1B). The same phrase appearing in the same Act should be interpreted consistently.

The Divisional Court held in Webb that section 4B(2A) does not permit a Court to make a finding that someone who is not “the owner” or a “person for the time being in charge of [a dog]” is a fit and proper person to be in charge of it. It “only enables the Court to consider whether someone from a limited class, namely the owner or a person for the time being in charge of the dog, is fit and proper person to be in charge of it”.

At paragraphs 88 to 89 the Divisional Court held:

In Webb, the Divisional Court also addressed the purpose of the legislation observing at a paragraph 50:

Decisions of the Crown Court, other than in connection with matters relating to trial and indictment, are subject to the High Court’s supervision by way of judicial review, including for error of law and on rationality grounds: R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) and R (Crown Prosecution Service) v Crown Court at Bolton [2013] 1 WLR 1880.

The Chief Constable relies on five grounds (omitting the withdrawn ground 5):

Ground 1: No reasonable Crown Court could have concluded that a dog which had attacked another dog and a person, where the owner was not a fit and proper person to be in charge of him and where no other fit and proper person could be identified to be his keeper, would not constitute a danger to public safety.

Ground 2: The Crown Court failed properly to apply the statutory scheme for orders arising from aggravated offenses under section 3(1).

Ground 3: The Crown Court failed to take into account whether the owner or the person for the time being in charge of Jago was a fit and proper person.

Ground 4: The Crown Court erroneously adopted an approach that contradicted the decision in Webb as to who can be the owner or person for the time being in charge of Jago.

Ground 6: No reasonable Crown Court could have made an order which required another public body to engage in conduct which was unlawful. Alternatively, the Crown Court had no jurisdiction to do so.

The Crown Prosecution Service supports each of these grounds. Although no party has engaged in these proceedings opposing the claim, it remains necessary for the Court to consider carefully whether each of the grounds is made out. I am grateful to Mr Goss for his assistance in considering what matters could potentially have been put forward by the defendant or by the first interested party if they had attended or engaged in these proceedings.

The underlying offence was an aggravated one under section 3(1) of the 1991 Act. It follows that the Crown Court had to make a destruction order unless satisfied that the dog would not constitute a danger to the public: see section 4(1)(a) and section 4(1A) of the 1991 Act. In deciding this question, first, the Crown Court had to consider the dog’s temperament and past behaviour: see section 4(1B)(a)(i) of the 1991 Act. In this case the dog had savaged another dog so badly that it had to be put down and bitten that dog’s owner. The animal behavioural consultant had advised that he was a very well socialised dog so far as people were concerned, but he was reactive towards other animals. Such behaviour entailed a risk to any person who might seek to protect their animal from attack as the facts of the offence made clear. The consultant reported that appropriate control measures, such as castration, muzzling, a harness and being on a lead at all times in public could prevent Jago from causing injury, but she emphasised that he required extremely responsible and competent ownership and control.

The second factor the Crown Court was required to consider in deciding whether the dog constituted a danger to the public was 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: see section 4(1B)(a)(ii) of the 1991 Act. The owner was Mr Randall and the Court concluded he was not a fit and proper person to be in charge of the dog, finding that he should remain disqualified from owning a dog for 12 months. The only other person put forward by Mr Randall as being fit and proper to be in charge of the dog was his nephew. The Court did not consider whether Leyland Randall was “a person for the time being in charge” of the dog within the meaning of that phrase as addressed in Webb, and there does not appear to have been any evidence to suggest that he was. However, even assuming he was capable of being found to be such a person on the limited information that Mr Randall adduced about his nephew, the Court was not satisfied that Leyland Randall was a fit and proper person to be in charge of Jago. On the Crown Court’s findings, it necessarily followed that the answer to the question, 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, was ‘no’.

It was also open to the Court in deciding whether the dog constituted a danger to the public to consider any other relevant circumstances: see section 4(1B)(b) of the 1991 Act. In this case the only other circumstances that the Court considered in deciding to make a contingent destruction of order were that:

“The police will be in a position to assess the circumstances more fully and if it is appropriate that the dog is rehoused with Leyland Randall then that course remains open”; and

“for now the dog will remain in the care and custody of the police”.

In my judgment, the Crown Court’s conclusion was not one that was open to the Court, properly applying the statutory provisions.

First, it is clear from the transcript that the Court failed to decide whether Jago was a danger to public safety. The discretion in section 4(1A) or in section 4A(4) to make a contingent order only arose if the Court was first satisfied that the dog did not constitute a danger to public safety. Yet, the approach of the Crown Court was in effect to delegate to the police the decision as to who should be put in charge of the dog and, therefore, whether the dog was a danger to the public. That was an error of law. It was not open to the Court to foist onto the Chief Constable the responsibility for identifying someone with the skills to be an extremely responsible and competent owner of the dog.

Secondly, the Crown Court failed to take into account whether the owner or the person for the time being in charge of Jago was a fit and proper person. That is a mandatory consideration. Although it follows from the Court’s findings that the only conclusion open to it was that the owner or the person for the time being in charge was not a fit and proper person, the Court did not expressly acknowledge this or go on to consider what impact that answer had in deciding whether the dog was a danger to public safety.

I agree with the Chief Constable that this criterion carries the same meaning as the identical words in section 4B(2A) that were considered in Webb. The term “for the time being in charge” relates to whether the person in question has responsibility for the dog; it ‘involves contact in the past or present. It cannot extend to the future’. It would not have been an answer to the question posed by section 4(1B)(a)(ii) for the Court to find that someone who is neither the owner nor a person for the time being in charge of a dog is a fit and proper person to be in charge of it. Although if Mr Randall had identified such a person to whom he was content to pass ownership, and who was willing to commit to taking responsibility for and caring for the dog, if the Court accepted they were fit and proper it seems to me that would be a matter the Court could take into account pursuant to section 4(1B)(b) (this not being a section 1 case).

However, that was far from the case. No fit and proper person who was willing and able to take responsibility for the dog was identified. No one to whom Mr Randall was content to pass ownership was identified. Moreover, there was not even a condition that ownership of the dog would pass to whoever the police identified as a fit and proper person to take charge of the dog, assuming such a condition could have been imposed. Although it was ordered that Jago ‘be housed with a suitable owner’, and it was presumably intended that this third party would have all the rights of ownership, no change of ownership was in fact mandated as part of keeping Jago under proper control. The police do not own Jago and so cannot pass on ownership to anyone else. As a matter of law, no one may give better title than he himself possesses.

Thirdly, it is impossible to see how the Court could have been satisfied that the dog was not a danger to public safety, given the uncontested evidence that it required extremely responsible and competent ownership and control to avoid an incident such as had occurred on 17 June 2020 reoccurring, and there was no identified fit and proper owner or person for the time being in charge of him. In determining whether a dog is a danger to the public, it is not only the dog’s temperament and past behavior that must be taken into account, but also who is for the time being in charge of the dog: see Webb at paragraph 50. The consultant’s report made especially clear how important the identity of the person in charge of the dog was on the facts of this case. By adopting an approach which relied on some as yet unidentified person, who was neither the owner nor the person for the time being in charge of Jago, being treated as his future keeper, the Crown court erred in law and reached an irrational decision.

The Chief Constable could not be treated as a fit and proper person to take charge of the dog in circumstances where the Chief Constable had not expressed willingness to take ownership in charge of the dog and that was not the effect of the order made. As I say, it was not open to the Crown Court simply to delegate the task of determining who would be a fit and proper owner. For these reasons, and in agreement with the submissions made on behalf of the Chief Constable, I agree that the five grounds relied on are well-founded. It follows that I should quash the order.

I am bound to consider whether I should nonetheless make a contingent destruction order or remit the matter for further consideration of whether a contingent destruction order should be made. Mr Goss has helpfully drawn my attention to the case of R v Devon [2011] EWCA Crim 1073] in which the Court of Appeal made a contingent destruction order transferring ownership of a dog to a kennels and rehousing centre. As the Court of Appeal observed at paragraph 13 of that judgment, “They are more than able and willing to rehouse the dog with a suitably qualified family within 21 days”. However, first, that judgment was given prior to the amendment of the 1991 Act.

Secondly, in this case, the Chief Constable is not able and willing to rehouse the dog. The reality is that there was no fit and proper person before the Crown Court, and it remains the position before me, there is no fit and proper person who is able and willing to take the dog and keep it under control.

As I have concluded that on the evidence and findings that the Crown Court made, given the strictures of the statutory scheme, there was only one decision which the Crown Court could have reached, namely that the dog constituted a danger to public safety and must be destroyed, it is appropriate to quash the order and for this Court to take the decision for itself under section 31(5)(b) of the Senior Courts Act 1981. That is not an order that the Chief Constable seeks lightly, or that the Court makes likely, but for the reasons that I have given, it is the inevitable result of the proper application of the statutory provisions.