L v Crown Prosecution Service [2010] EWHC 341 (Admin)

Case No CO/133342/2009[2010] EWHC 341 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 10th February 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE CALVERT SMITH
Between
LClaimantv
Between
THE CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MISS E DAYKIN (instructed by MCLARTY & CO.) appeared for Claimant for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an appeal by way of Case Stated from the decision of Gott DJ acting for the Newham Local Justice Area, who found the defendant guilty of being in charge of a dog, namely a Staffordshire Terrier, which was dangerously out of control in a public place and whilst out of control caused injury to Toby Rajit. It was an offence contrary to section 3(1) and 3(4) of the Dangerous Dogs Act. He was also convicted of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The co-defendant, Louie Green, was also convicted of the same offence. He entered a defence of duress alleging he was scared of the appellant, but the defence was rejected.[2]The appellant pleaded guilty to a separate charge of being in charge of a dog which was dangerously out of control in a public place, again contrary to sections 3(1) and 3(4) of the Dangerous Dogs Act.[3]With respect to the two charges which the appellant contested, the judge in the Case Stated made the following findings of fact:(1) The appellant was not the owner of the dog;(2) The appellant handed the dog lead to the co-defendant Louie whilst he tied his shoes;(3) Louie then ran at Toby Rajit shouting, "get him, get him" and deliberately released the dog off the lead;(4) The dog bit Toby on the upper thigh causing an injury that later became infected and required an operation;(5) Louie was in physical control of the dog at the relevant time when the dog attacked Toby.[4]The issue in dispute before the judge was whether the appellant was in charge of the dog despite having transferred physical control to Louie, the co-defendant. Section 3(1) of the Dangerous Dogs Act provides:
"If a dog is dangerously out of control in a public place— (a) the owner; and (b) if different, the person for the time being in charge of the dog Is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection."
[5]The appellant was of course found guilty here of the aggravated offence. He submitted before the judge that he was not in charge of the dog at the material time - louis then had control. There could not be two persons in control. Section 3(1)B refers to the person, and there is no basis for treating two persons as potentially in charge of the dog at the same time. Whether someone is in charge, it is accepted, is a question of facts and degrees, as the Court of Appeal said in a different context in Rawlings1994 Criminal Law Reports 433. It was accepted that the appellant was in charge of the dog up until the point when he gave physical control to Louie, hence the reason why he accepted that he was guilty under count 1. The submission was that at the time of the assault it was Louie and not the appellant who was in physical control and therefore he must be the person in charge of the dog. The judge rejected that submission, and he found the appellant guilty for reason as follows:(1) The appellant was this charge of the dog when it was chasing Tekkai - that is a reference to an earlier victim who was not in fact physically injured but was chased by the dog on an earlier occasion.(2) The appellant was in close proximity to the dog at all times;(3) The appellant knew the dog. It responded to his commands and he took control of the dog after it chased Tekkai;(4) After the dog attacked Toby it was the appellant who took back physical control of it and walked away with it.(5) The dog was physically out of the appellant's control for a very brief period of time at the point when it was handed over;(6) Both Louie and the appellant knew clearly that the dog was dangerous because they had both been present when it had bitten a person on a recent previous occasion;(7) Case law indicates that being in charge is a matter of fact and degree;(8) It is clear from the facts that the appellant was in effective control of the dog,and in charge of it at all times;(9) When Louie was in physical, control the appellant was still in charge of the dog. In short, the view of the judge was that both were in charge, Louie had physical control, but the appellant retained effective control

The judge posed the following question for the court:

"Was I wrong in law to find that the appellant could remain in charge of the dog despite the transfer of physical control to Louie and to find that both defendants could be in charge of the dog at the relevant time?"
[7]In my judgment there was no error by the judge in this case. It seems to me that the crucial finding is that at all times the dog responded to the commands of the appellant and he was in charge, both before and after Louie took physical control. The appellant would plainly remain in charge of the dog if it were let off its lead in the park, and I see no reason in principle why he does not remain in charge if albeit for a very short, temporary period he puts the dog in the physical control of Louie. In my judgment the judge is entitled to conclude that a short and temporary transfer of actual physical control did not prevent the appellant from remaining in charge. He had the right and power it take the dog back at any time and was able to control the dog.[8]Miss Daykin, who has made submissions this morning most attractively on behalf of the appellant, submits that there is an analogy with the case of DPP v Watkins 1989 Queen's Bench 821, which was concerned with the question the whether somebody was in charge of a motor car. She said that if somebody has ceased driving and handed the keys to a third party they can no longer be said to be in charge of the motor car, but with respect I do not think that is an appropriate analogy. The point here is that the appellant was, as the judge found, at all times in a position where he was able to issue commands to the dog and the physical control did not preclude that. As Miss Daykin says, there was plainly no reason why the singular count precludes the plural, as section 6C of the 1978 (inaudible) Act makes the presumption it will do so.[9]Miss Daykin accepts that if the answer to the question is as I have found, that the judge was not wrong in law to reach the conclusion that he did, then in those circumstances the conviction for the section 47 assault must stand also. It follows that the appeal is dismissed.

MR JUSTICE CALVERT SMITH: I agree.