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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Killeen, R (on the application of) v Birmingham Crown Court & Ors [2018] EWHC 174 (Admin) (02 February 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/174.html Cite as: [2018] EWHC 174 (Admin)

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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
		02/02/18

Lord 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 dog's care), by adducing expert evidence or lay evidence relating to such matters as the dog's character, demeanour and general past behaviour (see R v Davies [2010] EWCA Crim 1923 at [14] per Mackay J). One way in which that burden may be satisfied is by persuading the court that, although without conditions the dog might pose an unacceptable risk to the public, with conditions the dog would not; in which case the court should make a contingent (rather than an immediate) destruction order. Before making an immediate order, the court should consider whether a contingent order would be sufficient to reduce the risk that the dog poses to the public to an acceptable level.

The Factual Background

10. Simba has been owned by the Claimant since about October 2014, when he was a few weeks old. At the relevant time, the Claimant lived with her family and the dog in a terraced property in Balsall Common, Birmingham. The neighbouring property was occupied by Katie Sephton and her family, which included two very young daughters. The properties were separated by a fence, but this was insecure and, during 2015, Simba repeatedly entered Ms Sephton's back garden through the fence. Ms Sephton raised the issue on several occasions with the Claimant and other family members, but the Claimant's attempts at making the fence secure, such as they were, were singularly unsuccessful. The fence remained insecure and Simba continued to get through it. In the August and September 2015, there were several incidents when the dog entered the next-door garden and approached the patio doors of Ms Sephton's house, growling and snarling; and she photographed the dog jumping up at the back door. On at least one occasion, the dog physically chased her from her own garden, and she had sought refuge in the house with her two children. She called her partner, and asked him to come home. In early October, whilst her partner was trying to secure the fence, the dog put its head through it, barking and growling; and he had had to take refuge in the garden shed.
11. These incidents understandably frightened Ms Sephton. She reported the matter to the police a number of times, saying that she had spoken with the Claimant and her family who had said they would secure the fence; but they never did. PC Russell Martin, a Dog Legislation Officer and Dog Handler, tried to speak with the Claimant, but without success. The incidents, and the complaints, continued.
12. As a result, arrangements were made for a local authority dog warden, Paul Harding, to visit the Claimant and her dog on 27 November 2015. When he went into the house, the dog had been put into another room, but he asked to see him so he could examine him. However, when the dog was released, Mr Harding considered that neither the Claimant nor her mother (who was also present) appeared to have any control over the dog, who refused to obey simple commands, Mr Harding describing him as being very loud and aggressive, continually barking. While Mr Harding was filling out paperwork, the dog attacked him and bit the back of his left hand, causing reddening but not puncturing the skin. He continued to be aggressive towards Mr Harding, and had to be held back by the Claimant.
13. Mr Harding told the Claimant that he would report the matter to the police, which he did. The police applied for a warrant to enter the house and seize the dog; and, on 3 December 2015, several police officers including officers from the Dog Unit attended the house to execute the warrant on notice. In his statement dated 13 December 2015, PC Martin described what happened.
14. The Claimant was not in, but her mother, Mrs Killeen, was. She knew the officers had come to seize the dog. She was initially reluctant to let the officers into the house, because (she said) opening the door would "stress the dog out"; but she did eventually open a crack in the door. They asked her to put the dog on a lead, and in a muzzle, and then she could lead the dog to the police van to minimise the dog's stress. For some minutes, she made efforts to put a lead and muzzle on the dog, but then conceded defeat and asked the officers to come in to do it because she could not. The officers entered the house, and Mrs Killeen was secured in the front room with a shut door.
15. The dog was upstairs, and the officers went up and followed him into the bathroom, where the dog jumped into the empty bath. The dog was clearly very stressed and anxious. PC Martin managed to put a catchpole over his head. The dog jumped up and towards him, and was only restrained by the catchpole and use of canine control spray. The dog continued to try and run away, but a second catchpole was put in place. The dog then splayed its legs, and resisted being moved; although, with difficulty, he was manoeuvred down the stairs and into the front garden and finally into a police van where the dog was secured.

The Criminal Proceedings

16. As a result of the 27 November 2015 incident in which Mr Harding was bitten, the Claimant was charged with being in charge of a dog dangerously out of control and, whilst out of control, causing injury, i.e. the aggravated offence under section 3(1) of the 1991 Act. On 26 January 2016, at Birmingham Magistrates' Court, she pleaded guilty and the matter was adjourned for sentence.
17. In his statement of 13 December 2015, to which I have already referred, having set out what happened when the dog was seized and the more general history of his involvement with Ms Sephton's complaints, PC Martin concluded that the dog was a danger to the public and should be the subject of an immediate destruction order.
18. However, for the purposes of sentence, the Claimant obtained evidence from Dr Elizabeth Kendal Shepherd BVSc CCAB MRCVS, an expert in canine behaviour, in the form of two reports dated 11 April and 16 May 2016. As confirmed in the later report, Dr Kendal Shepherd concluded in her first report that she "felt Simba would not present a danger to the public providing certain conditions were met". She therefore accepted that, without at least conditions being imposed, the dog would be a danger to the public. The second report indicated that efforts had been made by Dr Kendal Shepherd and PC Martin to reach agreement on conditions for a contingent destruction order; but, she said, "PC Martin remained adamant that he believes Simba would be a threat to the public if returned to the Killeens".
19. Dr Kendal Shepherd asked PC Martin whether that meant that he considered the dog might not be a danger in another person's hands, a question he answered, if not before, at the appeal hearing before the Crown Court, in the negative, i.e. that he did not consider rehousing was a viable option because of the danger the dog would pose to any new family (see 5 August 2016 transcript, page 23G). Dr Kendal Shepherd does not appear to have pursued that option further.
20. As I have indicated, she considered that, in the hands of the Claimant and her family, the dog would not present a danger to the public "providing certain conditions were met". In his 13 December 2015 statement, PC Martin set out the conditions that might be appropriate if, contrary to his view, the court concluded that immediate destruction was not required because, with conditions, public safety could be appropriately maintained. In her second report, Dr Kendal Shepherd considered those, and set out her own recommendations for conditions. She did not consider that neutering or regular muzzling was necessary; but accepted that maintaining secure fencing round the garden would be required and a condition should be imposed that the dog should not be under placed under the control of anyone under 16 years of age in public. She also recommended the dog should be put on a fixed length lead when outside the home boundaries.
21. On 17 May 2016 – the day after Dr Kendal Shepherd's second report had been prepared – again at Birmingham Magistrates' Court, the Claimant was sentenced. A financial penalty was imposed, as were orders disqualifying her from owning a dog for a period of two years and for the immediate destruction of the dog.
22. The Claimant appealed to the Crown Court in Birmingham against the destruction order and disqualification order elements of the sentence, and the appeal came before Mr Recorder Cooke and magistrates on 5 August 2016. In the usual way, this was a full rehearing, with the court hearing evidence from (amongst others) PC Martin and Dr Kendal Shepherd. We have a transcript of the entire proceedings, and ruling. The Crown Court concluded that the magistrates were correct to make the orders they did make, and it dismissed the appeal.

The Judicial Review Proceedings

23. On 27 October 2016, the Claimant commenced this claim for judicial review, contending that the decisions of the Crown Court to impose the destruction order and the disqualification order were unlawful.
24. There were three grounds of challenge, namely:

i) The decision to impose an immediate destruction order was unlawful because the Crown Court failed to have proper (or, indeed, any) regard to section 4A(4) of the 1991 Act and the case of Flack, i.e. before imposing an immediate destruction order, the court failed properly to consider whether a contingent destruction order might adequately address the risk to the public posed by the dog.

ii) The decision to impose an immediate destruction order was, as a matter of law, irrational.

iii) The decision to impose a disqualification order was, as a matter of law, irrational.

25. On 7 January 2017, Holgate J refused permission to proceed. He did so on two bases. First, he held that the challenge ought to have been brought by way of case stated, within 21 days of sentence, the time limit required by the rules (since confirmed to be incapable of extension: see Mishra v Colchester Magistrates' Court [2017] EWHC 2869 (Admin)). Even if a claim for judicial review were justified, he considered the claim had not been brought promptly for the purposes of CPR rule 54.5(1)(a) and was thus late; and the Claimant ought not to be allowed to proceed on that ground alone. Second, and in any event, he concluded that none of the grounds was arguable, the claim in respect of the disqualification order being "hopeless".
26. The Claimant sought a reconsideration of that refusal at an oral hearing, which came before Garnham J on 18 May 2017. Having heard Counsel for the Claimant, he refused permission to proceed on all grounds, except ground (i) as I have described it above. Garnham J left the issue of form of challenge and delay to be dealt with at the substantive hearing. It is that substantive hearing that is now before us.
27. The Order of Garnham J, date 23 May 2017 and sealed on 25 May 2017, makes clear that the permission that he was granting was limited to the ground I have identified. Indeed, paragraph 2 of the Order expressly states that:

"For the avoidance of doubt, permission is refused in respect of all other grounds".

However, the Order also set out "case management directions", including, as paragraph (7), the following:

"Permission has been granted on some grounds but refused on others. The applicant may request that the decision to refuse permission on those grounds be reconsidered at a hearing by filing and serving a request on the court, the defendant and the interested parties a completed form 86B by 4pm on 25 May 2016. If such a request is made, the hearing of that application will take place immediately before the substantive hearing."

The Claimant's solicitors duly lodged a form 86B with the court.

28. Form 86B, on its face, is a notice of renewal of claim for permission to apply for judicial review under CPR rule 54.12, which is headed "Permission decision without a hearing" (emphasis added). Where an application for permission to proceed has, in whole or in part, been refused on the papers, that rule gives the applicant a right to have the application reconsidered at an oral hearing. Paragraph (7) of the case management directions in the Order of Garnham J is a standard paragraph used where an application has been granted in part, and refused in part, on the papers. It was a clear error to have included it in that Order in respect of the grounds for which permission had been refused at an oral hearing. Where an application for permission to proceed is refused at an oral hearing, the only recourse is by way of any route of appeal there might be. As this judicial review concerns a criminal cause or matter, any appeal would be to the Supreme Court (see section 1 of the Administration of Justice Act 1960) although, in pursuing an appeal against a refusal of permission to proceed, the Claimant would face the difficulty of the effect of Re Poh [1983] 1 WLR 2, the generally held view being that there is no such appeal and a refusal of permission to proceed by this court in a criminal cause matter is final (see paragraph 19.4 of the Administrative Court Office: Notes for Guidance).
29. After an oral hearing, unless under some specific provision of the rules, or there has been a change of circumstances, or there is some other good reason – and none is suggested here – a different judge (or different judges) of the same court cannot reconsider a determination made on an application. This court has no jurisdiction to reconsider the same application for permission to proceed as was considered and refused by Garnham J.
30. I should emphasise that the Claimant has not suffered any prejudice or unfairness by the court's error in wrongly including paragraph (7) of the case management directions: the error was obvious, and she has had her submissions considered, fully and properly, by the court at an oral hearing which is her right. If and insofar as it is necessary, I would amend the Order of Garnham J of 23 May 2017 under the slip rule by deleting paragraph (7) of the case management directions. For the sake of completeness, I should also say that, although of course we heard no further oral submissions on grounds (ii) and (iii), I have seen nothing which suggests they are arguable.
31. As a result, this court is only now concerned with the single ground upon which permission to proceed has been granted.
32. As I have indicated, Garnham J left the issue of the correct mode of challenge and delay to this court. However, I propose postponing consideration of those issues until after I have dealt with the merits of the remaining ground of challenge.

The Ground of Challenge

33. It is to that ground I now turn.
34. It is uncontroversial that, as emphasised in Flack, prior to an immediate destruction order being imposed, the statutory scheme requires a court to consider whether the safety of the public cannot be adequately protected by the imposition of conditions as part of a contingent destruction order. In this case, neither section 4A(4) nor Flack was cited by the Crown Court in its ruling – nor, indeed, does it appear that any reference was made to either during the course of the hearing. Ms Rose submits that the court was required to refer to both the relevant statutory provisions and Flack in its ruling, and it erred in law in not doing so. There is nothing, she submits, from which an inference can be drawn that the statutory requirement was met. There is therefore no basis upon which this court could be satisfied that that statutory requirement was met. The destruction order was thus made unlawfully, and we should quash it.
35. In support of that contention, she relies upon Davies, to which I have already referred (see paragraph 9 above). That case, too, concerned a successful prosecution for the aggravated offence under section 3(1) of the 1991 Act. The sentencing recorder was apparently initially under the impression that, the dog having been found to have bitten, a destruction order was absolutely mandatory. She was then referred to section 4(1A) of the 1991 Act which, as I have described (paragraph 6 above), provides that the destruction of the relevant dog after a conviction for the aggravated offence is not required where the court is satisfied that the dog would not constitute a danger to the public. The recorder responded that, by way of clarity, she was sure that the dog was a danger to public safety. However, she was not referred to Flack or to the obligation to consider a contingent destruction order under section 4A; nor was there any evidence that she did indeed consider such an order. In the circumstances, this court quashed the order for immediate destruction, and replaced it with a contingent destruction order that the dog be destroyed unless the owner kept it under proper control, and in particular kept the dog on a lead and muzzled when in public places. Ms Rose submits that the Claimant's case is indistinguishable from Davies.
36. However, I am unpersuaded by those submissions.
37. With regard to the failure of the court to refer to the relevant statutory provisions or Flack, the question is one of substance not of form. The statutory provisions require the court, prior to imposing an immediate order, to consider whether a contingent destruction order will be sufficient to address the risk to the public posed by the dog. Consequently, although (as Mr Weaver frankly accepted) it may have been better if the Crown Court had identified the statutory provisions and case law that it had considered in reaching its decision, the question is whether the court addressed that question properly, not whether they recited the sources from which the obligation to do so arose.
38. Davies is, in my view, easily distinguishable. In that case, the possibility of a contingent destruction order was never raised before the sentencing recorder, and there was no evidence that she ever considered it. The issue as to whether a contingent order was sufficient and therefore appropriate within the terms of the statutory scheme was an issue never raised or considered, yet alone determined. Here, there was no suggestion, even from Dr Kendall Shepherd, that the safety of the public required less than some form of destruction order. PC Martin considered that nothing less than an immediate destruction order would adequately protect the public. Dr Kendall Shepherd considered that the dog would not present a danger to the public "providing certain conditions were met". As I have indicated, what those conditions might be was a matter considered by Dr Kendall Shepherd in her reports, and the subject of debate between her and PC Martin. It was topic specifically considered in their evidence at the Crown Court hearing. In cross-examination, PC Martin was specifically asked why his recommendation was for an immediate rather than a contingent destruction order, and he responded saying that it was because he had no confidence in the Killeen family controlling or being responsible enough to deal with a dog like Simba: in his words, "absolutely, 100%, no" (see transcript, page 15C and following, especially at pages 22E-23D). Similarly, in her examination-in-chief, Dr Kendall Shepherd was asked about the measures that she considered should be imposed on the Claimant if she were to have the dog, to which she responded at some length (pages 47D-49C). The Claimant herself was cross-examined on conditions that might be imposed to ensure the dig was properly controlled (pages 61E-63B): it was her wish (and, before the Crown Court, her specific case) that the dog be returned to her on the basis of a contingent destruction order with conditions attached (page 22E-F). Thus, far from the issue of whether there should be a contingent destruction order rather than an immediate order not being raised or considered (as in Davies), before the Crown Court in this case it was the only live issue.
39. The Crown Court was only obliged to consider the issues raised before it, and there was only a single issue: would a contingent destruction order give the public an appropriate level of safety from a dog which, it was accepted, would be a danger to the public without, at least, some form of conditions. Unlike Davies and R v Navdeep Singh [2013] EWCA Crim 2416 (to which we were also referred), in giving the Crown Court's ruling here the recorder specifically addressed that issue. The court was unimpressed by the evidence of Dr Kendall Shepherd: it found her to be "a defensive and partisan witness, making repeated, pretty cheap shots at PC Martin; defensive of her own position; highly sensitive to any perceived criticism; and quite lacking in the objectivity that the court would wish to see in an expert", with the result that it concluded that "there [were] severe constraints to the assistance that she is able to bring to these proceedings" (transcript, page 71B-E). That was a conclusion, severe as it might seem, that the court was entitled to make on the evidence. On the other side of the scale, the court was impressed by the "woeful inadequacy and inability of Mrs Killeen to deal with the situation [on 3 December 2015]", when the dog was in her charge, in that she was unable to control the dog even to the extent of getting a lead or muzzle on him or getting it to sit, which the court considered "illuminating" and "telling" (transcript, page 70E-F). That, of course, was in addition to the evidence of the repeated incursions of the dog into Ms Sephton's garden and failure of the Claimant and/or Mrs Killeen to control the dog on 27 November 2015 which led to the criminal charge. It is also noteworthy that the dog cannot now be returned to the Claimant, as she is the subject of a disqualification order that is not currently the subject of any challenge; and the issue of re-homing the dog was not one pursued before the Crown Court.
40. Taken as a whole, I consider the Crown Court ruling provided an adequate explanation and reasons for why the court concluded – as it expressly did (see transcript, page 71D) – that the magistrates had been correct to impose an immediate destruction order "or rather a non-contingent destruction order". I should mark that, in my view, that phraseology in itself makes clear that the court had the option of a contingent destruction order well in mind. As I have indicated, whether to make such an order, rather than an immediate order, was the only issue the court had to consider.

Conclusion

41. I appreciate that the order imposed by the magistrates' court and the Crown Court for the destruction of the dog Simba is distressing for the Claimant and her family. However, for the reasons I have given, it is my firm view that the Crown Court did not err in its approach, as the ground of challenge suggests. As a result of that conclusion as to the merits, it is unnecessary for me to deal with the issues of forum and delay.
42. I would dismiss this claim on that basis.

Mr Justice Dove :

43. For the reasons given by my Lord Hickinbottom LJ, I agree that this claim be dismissed.