THE QUEEN ON THE APPLICATION OF TIMOTHY HOUSEGO v CANTERBURY CROWN COURT [2012] EWHC 255 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2012] EWHC 255 (Admin)Case No CO/6425/2010Venue Royal Courts of Justice, Strand, London WC2A 2LL
Between
THE QUEEN ON THE APPLICATION OF TIMOTHY HOUSEGOClaimantCANTERBURY CROWN COURTDefendantTHE CROWN PROSECUTION SERVICEInterested Party
Before
Lord Justice MosesMr Justice IrwinMiss Pamela Rose (instructed by Messrs Cooper & Co, Canterbury, Kent CT2 7FG) appeared on behalf of the ClaimantMr James Boyd (instructed by the Crown Prosecution Service) appeared on behalf of the Interested PartyDate 3 February 2012
[1].LORD JUSTICE MOSES: I shall ask Mr Justice Irwin to give judgment.[2].MR JUSTICE IRWIN: This case concerns a dog called Kelly. Between October 2008 and February 2009 a number of incidents took place concerning the dog, episodes preceding charges, and episodes on which charges were based against Kelly's then owner, Timothy Housego.[3].Mr Housego pleaded guilty on 22 May 2009 to three charges of being the owner of a dangerous dog out of control in a public place, and there was an order that the dog Kelly should be destroyed.[4].The claimant, Mr Housego, appealed in October 2009. Before that appeal was heard, the police seized Kelly and placed the dog into the care of Mrs Margaret Todd MBE, who runs an animal sanctuary known as the Lord Whisky Sanctuary.[5].On 1 February 2010 there was an appeal from the destruction order that had been made by the magistrates. That was heard by Mr Recorder Byrne and justices in the Canterbury Crown Court. By then the claimant, Mr Housego, had renounced ownership and was asking for the dog to be permitted to stay at the Lord Whisky home. There was evidence about the owner of the home, and indeed from the owner of the home, Mrs Todd, and from an expert, a Dr d'Sa, all to say that that would be a satisfactory arrangement. Mrs Todd was said to be very experienced and she and the sanctuary staff well able to keep this dog safe.[6].The court, however, dismissed the appeal. We will come briefly to the reasons later.[7].On 19 February 2010 the claimant applied to the Crown Court to state a case. On 2 March 2010 Mr Recorder Byrne refused, on the grounds that the application was frivolous.[8].On 8 April a pre-action letter was sent to the Recorder, making the point that the dog was not going to be returned to the owner, that a suspended destruction order could properly be made and asking for that to be considered.[9].On 26 April the Recorder again replied in a response suggesting that the application to state a case was frivolous.[10].On 7 June there was an application for judicial review to compel the Recorder to state a case. No acknowledgement of service was entered on behalf of the Recorder, or the court. On 23 August 2010, on paper, permission was refused to compel the case to be stated. That was renewed on 13 September 2010.[11].On 2 October 2011 Collins J gave leave, on the basis that it was arguable that there had been a legal error by the Recorder.[12].After that considerable history, I return to the response by the Recorder of 26 April 2010. He recorded several conclusions that he and his fellow tribunal members, the magistrates, had reached. They were not impressed by some of the written evidence from Dr d'S. There had been no application to adjourn to get her oral evidence. The dog's response to exposure to the public was not tested. The written evidence was all concerned with the dog's behaviour in the sanctuary. The court was not impressed, apparently, by Mrs Todd's evidence. There was no evidence of retraining of the dog and Mrs Todd did not have expertise to assess the dog's dangerousness.[13].Then this was recorded:
"Whilst it is right to say that the Appellant suggested that Kelly could stay indefinitely at the animal sanctuary, the Court had no power under the Act to direct that the dog remain at a particular venue for the remainder of its life, or until such time as it no longer presented a danger to the public ..."
[14].That was, in my judgment, an error of law. It is an error of law which is conceded by Mr Boyd, appearing for the Crown Prosecution Service.[15].The Dangerous Dogs Act 1991, amended by the 1997 Dangerous Dogs (Amendment) Act, gives the court power to suspend a destruction order based on specific conditions. Under S4.A(5) an order for destruction may be contingent on measures for its control specified by the Court "whether by muzzling, keeping it on a lead, excluding it from specified places, or otherwise ". There is an open-ended potential for making such conditions because the Act in effect says that any conditions can be imposed.[16].It follows that this Recorder misdirected himself. Even if Mr Housego had remained an owner, the Court had power to make such a contingent destruction order. In fact the sensible outcome of this case was so to do. What we are asked today is to make such an order, as this court has power to do. The appropriate order sought is that the dog will remain for life in the Lord Whisky Sanctuary; that if the dog is ever taken from the grounds of the sanctuary that should only be when she is accompanied by Mrs Todd or a member of staff of the sanctuary; that Kelly should be kept on a lead at all times and should be muzzled at all times when she is removed outside the premises.[17].The Recorder failed to grasp that such an order was available to him. That was a material error.[18].Accordingly, we quash the refusal of the Crown Court to allow the appeal which was reached on 1 February 2010. We substitute an order in these terms pursuant to the powers of this court so to do, rather than remit the matter to the Crown Court.[19].After this dog has been kept on death row, so to speak, for more than two and a half years, it is time she was reprieved.[20].LORD JUSTICE MOSES: I agree. I only wish to express the gratitude of the court, both to solicitors acting in effect for the dog and to counsel and, of course, to Mrs Todd of the Lord Whisky Animal Sanctuary, all of whom are to be congratulated for their persistence in this appeal, faced with the erroneous approach of Mr Recorder Byrne.[21].And thank you also, Miss Rose.[22].MISS ROSE: My Lord, I am grateful. I am grateful to the Crown as well.[23].LORD JUSTICE MOSES: Yes. So are we. Thank you very much indeed.

Cited in 1 later judgment