Webb v Avon and Somerset Constabulary & Anor [2017] EWHC 3311 (Admin)

Case No CO/3085/2017

[2017] EWHC 3311 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/12/2017

Before

LORD JUSTICE BEATSON

MRS JUSTICE WHIPPLE

Between

JOSHUA WEBBAppellant

CHIEF CONSTABLE OF AVON AND SOMERSET CONSTABULARYRespondent

THE SECRETARY OF STATE FOR FOOD ENVIRONMENT AND RURAL AFFAIRSIntervener

Cathryn McGahey QC and Pamela Rose (instructed by Wheldon Law) for Appellant

Mark Ley-Morgan and Aaron Moss (instructed by Avon and Somerset Constabulary Legal Services) for Respondent

Ned Westaway (instructed by Government Legal Department) for Intervener

Hearing Hearing date: 10 November 2017

Judgment

[1]This is the judgment of the Court to which we have both contributed.

I. Overview:

[2]This is an appeal by way of case stated pursuant to section 28 of the Senior Courts Act 1981 by the Bristol Crown Court, Mr Recorder Maitland and lay justices, on 11 August 2016. It concerns the correct interpretation of the statutory scheme, set out in the Dangerous Dogs Act 1991 as amended See [12] – [16] below (“the Act”) and the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 SI 2015 No. 138 (“the 2015 Order”).

[3]In broad terms, the issue before us is the power of a court under section 4B of the Act to make a contingent destruction order (“CDO”) in relation to a dog prohibited under the Act including those of the type known as pit bull terriers where the court considers that the dog would not constitute a danger to public safety and other conditions are satisfied. Section 4B of the Act makes provision for CDOs in respect of dogs which have been seized otherwise than on a conviction, for example where, as in the present case, the requirements in a prohibited dog’s certificate of exemption are not complied with so that the dog ceases to be an exempt dog. A CDO is an order that the dog is to be destroyed unless within two months it becomes and thereafter remains an exempted dog. The order thus enables the dog to be entered on the Index of Exempted Dogs, an executive agency run by the Department for Environment, Food and Rural Affairs. We were informed during the hearing that there are some 3,000 prohibited dogs on the Index as exempt.

[4]The precise issues before this court are whether Magistrates’ and Crown Courts have power to make a CDO naming a person other than the owner of a dog or, in the words of the Act, “the person for the time being in charge of it”, and the meaning of the term “the person for the time being in charge of”. The term “keeper” is used in this context as a synonym for “the person in charge of” in the explanatory memoranda to the legislation, in other cases, R (Sandhu) v Isleworth Crown Court

[2012] EWHC 1658 (Admin)

at [21] and [24]; R (Ali) v Chief Constable of Merseyside

[2014] EWHC 4772 (Admin)

, (2015) 179 JP 333 at [12], [21] and [26]. and in the case stated, and we shall so use it.

[5]The Appellant is Joshua Webb. He is the owner of a pit bull terrier type dog called “Sky”. Sky was entered on the Index of Exempted Dogs in 2013, but ceased to be exempt in 2015 when Mr Webb went to Australia and placed Sky in kennels, and later failed to renew the dog’s insurance. Mr Webb appeals against the decision of the Crown Court to make a CDO under section 4B of the Act, when the court allowed his appeal against the decision of Bristol Magistrates Court on 16 June 2016 ordering the destruction of “Sky”. The Respondent is the Chief Constable of Avon and Somerset Constabulary, hereafter “the Chief Constable”, who resists this appeal.

[6]The history of these proceedings is not straightforward. In summary, the Appellant argued that since the Crown Court originally indicated that a Mrs Barbara McCann, who wishes to become the registered keeper of “Sky” was a fit and proper person to be in charge of the dog, it had the power to order that Mrs McCann should be the person to apply for a certificate. He further argued that alternatively the Crown Court could simply have found that Mrs McCann was a fit and proper person to be in charge of the dog but said nothing about the identity of the person who was to apply for the certificate and made a CDO, leaving it open for Mrs McCann to apply for the certificate of exemption. The Respondent argued before us, as he did before the Crown Court, that the Crown Court had no power to make a CDO at all because keepership could not be transferred to Mrs McCann in any event.

[7]The Secretary of State for Environment, Food and Rural Affairs (the “Secretary of State”) has intervened in this case with the permission of the court. The Secretary of State is the claimant in a judicial review against Warrington Crown Court (CO/1465/2017). It was about a CDO which purported to name a third party, Ms Stevie McGuinness, as “new owner” and a “fit and proper person” prospectively to be in charge of the dog in that case, called “Buster”. That case was listed to be heard by Kerr J in Manchester on Wednesday 8 November, two days before the hearing in this case. The hearing in Manchester was vacated by Kerr J on the afternoon of 6 November 2017 to enable this case to proceed first. An application for the Manchester case to be transferred to London to be heard together with this case was refused on the ground that the application, through no fault of the claimant in the Manchester case, came too late to enable the court to be adequately provided with bundles and reading time in advance of the hearing and because, to the extent that the two cases raised the same issues, resolution of these proceedings should in practice resolve the issues in the Manchester case.

[8]For completeness, we add that there is a second appeal by way of case stated (CO/2823/2017) about a prohibited dog called “Olive” currently awaiting hearing before a Divisional Court. The Appellant in that case, Ms Gill Henderson, appeals against the decision of the Willesden Magistrates’ Court that a person who has never owned or been in charge of a dog did not have standing to intervene in an application under section 4B of the Act for a mandatory destruction order.

[9]The court has been assisted by the oral and written submissions of Ms Cathryn McGahey QC and Ms Pamela Rose on behalf of the Appellant, those of Mr Mark Ley-Morgan and Mr Aaron Moss on behalf of the Chief Constable, and those of Mr Ned Westaway, on behalf of the Secretary of State. Mr Westaway filed a Skeleton Argument and a bundle of supplementary material on the afternoon before the hearing.

[10]The remainder of this judgment is organised as follows. Part II sets out or summarises the material primary and secondary legislation. Parts III and IV summarise the factual background and the evidence, and the decision below, both primarily from the case stated. Part V contains the questions of law posed by the Crown Court, Part VI contains our analysis of the legislation, Parts VII and VIII consider whether Mrs McCann was, at the material time “the person for the time being in charge of” Sky, and whether the Crown Court has power to order that any named person it decides is a fit and proper person should apply for a certificate of exemption. Part IX contains our conclusions on the questions posed by the Crown Court.

[11]For the reasons given in Part VI, we have concluded that the Crown Court erred in its approach in appearing to consider that it was enough that Mrs McCann was a fit and proper person to be in charge of Sky, and treated this as one of the “other relevant circumstances” in section 4B(2A)(b) of the Act: see in particular [50] – [53], [55], [69] – [71], and [77] – [78] below. It follows from this that the Crown Court should have made a finding as to whether Mrs McCann was “the person for the time being in charge” of Sky under section 4B(2)(a)(ii) and, for the reasons given in Part VII, we have concluded that the Crown Court erred in declining to hear evidence from Mrs McCann and her daughter as to whether Mrs McCann was “the person for the time being in charge” of Sky: see in particular [95] below. Accordingly, we consider that the case must be remitted to the Crown Court for this matter to be considered in the light of this judgment.

II. The Legislative Framework:

[12]The regime in the Dangerous Dogs Act 1991 was amended by the Dangerous Dogs (Amendment) Act 1997 and the Anti-Social Behaviour, Crime and Policing Act 2014. Save where otherwise stated, all references are to the Act as amended.

[13]Section 1(2) of the Act provides that it is an offence to breed, sell, exchange or make a gift of a prohibited dog; see section 1(2)(a) – (c). It is also an offence to allow such a dog to be in a public place without a muzzle or lead and to abandon such a dog or allow it to stray: see section 1(2)(d) and (e). A further offence, not material to this appeal, is created by section 3. It provides that the owner or person in charge of a dog which is dangerously out of control, is guilty of an offence.

[14]Section 1(3) of the Act provides that no person shall have any dangerous or dangerous type dog in his possession or custody except(i) in pursuance of a power of seizure under the Act or

(ii) in accordance with an order for its destruction made under those provisions.

[15]Section 1(5) of the Act provides for the Secretary of State to make a scheme of exemption. The scheme was originally that in the Dangerous Dogs Compensation and Exemption Schemes Order 1991 (“the 1991 Order”) which has been replaced by the 2015 Order.

[16]Sections 4(1A), (1B) and 4A of the Act provide for CDOs where a person is convicted of an offence under section 1 or 3. It is section 4B, which provides for CDOs otherwise than on a conviction, that is central to the issues in these proceedings. It provides:

“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) … (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.”

[17]The material provisions of the 2015 Order are: “4. Exemption scheme conditions and requirements(1) The prohibition in section 1(3) of the Act shall not apply to a dog provided that— (a) a court has determined that the dog is not a danger to public safety under section 4(1A) or 4B of the Act and has made the dog subject to a contingent destruction order under section 4A or 4B of the Act; (b) the conditions set out in paragraph (2) are met in respect of the dog within the time period set out in paragraph (3); and (c) the requirements attached to the certificate of exemption in accordance with article 10 are complied with throughout the lifetime of the dog.

(2) The conditions referred to in paragraph (1)(b) are that— (a) the dog is neutered in accordance with article 6; (b) the dog is microchipped in accordance with article 7; (c) third-party insurance in respect of the dog is obtained in accordance with article 8; and (d) a certificate of exemption is issued in accordance with article 9.

(3) Subject to any extension granted by the court under section 4A(2) of the Act, the conditions in articles 6 to 9 must be complied with— (a) in the case of an adult dog, within two months beginning with the date the court makes a contingent destruction order; (b) in the case of a dog under the age of six months on the date the court makes a contingent destruction order, within one month of the dog attaining six months. … 9. Issue of certificate of exemption The Agency must issue a certificate of exemption in respect of the dog if it is satisfied that— (a) the court, in determining that the dog is not a danger to public safety, has decided the person to whom the certificate is to be issued is a fit and proper person to be in charge of the dog and has made the dog subject to a contingent destruction order; (b) a fee of £77.00 plus Value Added Tax has been paid to the Agency; and (c) the conditions referred to in articles 6 to 8 have been met.

[18]Article 10 provides that a certificate issued under article 9 must contain the requirements set out in article 10(1), and may contain additional requirements. The mandatory requirements include a requirement in article 10(1)(a) to keep the dog at the same address as the person to whom the certificate is issued, save for any 30 days in a 12-month period.

[19]Article 5 provides that a dog will cease to be exempt if the conditions in article 4(2) (neutering, microchipping, insurance and the issuing of a certificate) are not met within the relevant time period, or if any requirements attached to the certificate under article 10 are not complied with.

[20]Provision for the substitution of the person in charge of an exempted dog is made in article 12. It provides: “12. Conditions for substitution of person in charge of exempted dog When a dog has been exempted from the prohibition in section 1(3) of the Act in accordance with Part 2 of this Order, a person (in this Part referred to as “the applicant”) may apply to a magistrates’ court to be substituted as the person in charge of the dog only if the person determined by the court under section 4(1B) or 4B(2A) of the Act or under this Part as being a fit and proper person is unable to continue to be in charge of the dog by reason of—(a) the death of that person; or

(b) serious illness rendering that person unable to be in charge of the dog.

[21]Articles 13 and 14 provide for the person who wishes to become the person in charge of the dog to provide his or her details and address to the police and details of the exempted dog. Article 15 provides that the magistrates’ court may only grant the application for substitution if it is satisfied that the dog does not constitute a danger to public safety. In determining this, the court is required by article 15(2) to consider the temperament of the dog, whether the applicant is a fit and proper person to be in charge of it, and any other relevant circumstances. The dog may be kept at the applicant’s address pending the outcome of the application for substitution so long as the requirements of article 10, other than the requirement to keep the dog at the registered person’s address, are met (article 16). Article 19 provides that the exemption will cease if there is a failure to comply with the relevant requirements, mirroring the effect of article 5, in the context of substitution of a person as the registered keeper of the dog.

[22]Part IV of the 2015 Order makes provision for an interim exemption scheme. Article 20 provides: “20. — Release of seized dog: general(1) This Part applies where a dog suspected of being a dog to which section 1 of the Act applies is seized under a power conferred by the Act or under any other enactment and prior to the court's final determination in respect of the dog under section 4(1)(a) or 4B(1) of the Act.

(2) The chief officer of police for the area in which the dog was seized may release the dog to the person intending to apply for exemption of the dog under Part 2 of this Order (in this Part referred to as “the person in interim charge”) only in accordance with this Part.

(3) Nothing in this Part requires a chief officer of police to release a dog to which this Part applies.

[23]Article 21 provides that the dog can only be released under article 20 if the chief officer of the police is satisfied that it does not constitute a danger to public safety, for which purpose the chief officer must consider whether the person in interim charge is a fit and proper person. Article 11 makes provision for the position when a dog has been released under the interim exemption scheme and is subsequently made subject to a CDO by the court.

III. The factual background and the evidence:

[24]The material facts set out below are primarily taken from the case stated, and the references in this part and Part IV of this judgment are to paragraphs in the case stated. Passages in square brackets summarise material not in the case stated, but which are either in the judgment or post-judgment correspondence and are helpful to understand the background to the appeal.(1) The Appellant is the owner of Sky, a bit-bull type dog born in 2012. Sky is of a breed prohibited by the 1991 Act (paragraphs 1 and 2).

(2) In 2013 the Appellant was prosecuted for an offence under section 1 of the 1991 Act on the basis that he owned a prohibited breed of dog. A contingent destruction order was made in respect of Sky providing that she would not be destroyed if the Appellant obtained an exemption certificate in respect of her and complied with its terms (paragraph 2).

(3) The Appellant obtained an exemption certificate for Sky. The certificate was subject to a number of conditions including requirements that the Appellant: (a) maintain third party liability insurance in respect of any injury that Sky might cause; and (b) keep Sky at his address save for any 30 days in a 12-month period. This condition was imposed retrospectively when the 2015 Order came into force on 3March 2015 (paragraphs 2 and 3).

(4) In 2015 the Appellant went to Australia and placed Sky in boarding kennels. The Appellant subsequently decided to remain permanently in Australia. Whilst Sky was at the kennels Barbara McCann and her daughter Eleanor McCann (“the McCanns”) acted as dog walkers for Sky and cared for her (paragraph 3).

(5) In March 2016 Sky’s insurance lapsed and was not renewed. As a result of this, and of Sky not being kept at the Appellant’s address, two conditions of the 2013 exemption certificate were breached. The Respondent became aware of the breaches and [the investigating officer, PC Hennys] seized Sky on 21 April 2016 (paragraphs 3 and 4).

(6) The Respondent applied to the magistrates’ court for an order that Sky be destroyed under section 4B of the 1991 Act. The Appellant was out of the jurisdiction and was unaware of the proceedings. Barbara McCann wished to become Sky’s keeper. The magistrates concluded that although Sky had the offer of a good home with the McCanns, they had no option in law but to order Sky’s destruction. A destruction order was made on 16 June 2016 in the Appellant’s absence (paragraphs 4 and 5).

(7) The Appellant became aware of the proceedings. He obtained legal representation and sought, unsuccessfully, to have the matter reconsidered by the magistrates. The Appellant then appealed the destruction order to the Crown Court. He wished Sky to be re-housed with the McCanns (paragraphs 1, 6 and 7).

[25]The evidence before the Crown Court consisted of statements of PC Hennys and Mr Webb.

IV. The decision below

[26]It was common ground that:a. Sky had ceased to be an exempted dog (paragraph 8) as a result of article 5 of the 2015 Order (i.e. because requirements attached to the 2013 exemption certificate had been breached); and

b. under the 1991 Act, the Appellant could not transfer ownership of Sky to any other person, because section 1 made it an offence to sell or give away a dog of a prohibited breed (paragraph 9).

[27]The Crown Court found that:a. The Appellant and Barbara and Eleanor McCann were fit and proper persons to be in charge of Sky.

b. Sky was not a danger to public safety.

c. The Appellant would remain the owner of Sky. (paragraphs 1 and 10). [The case stated contains no finding that Mrs McCann was the person for the time being in charge of Sky but the learned Recorder stated in the judgment (see Transcript 91G) that “[a]though the McCanns have never had either ownership or the status of being in charge of her [Sky], save for dog walking, they are fit and proper persons to be in charge of her”.]

[28]The Crown Court quashed the destruction order imposed by the magistrates’ court and made a CDO, stating that Sky should be destroyed unless she were placed within two months on the Index of Exempted Dogs. The time limit has been extended to cover the period of this appeal (paragraph 12).

[29]The Crown Court envisaged that the Appellant would make the application to the Index, and would state in his application that Barbara McCann would be in charge of Sky unless he wished to take Sky to Australia or return to England to be in charge of Sky. It was the hope of the Crown Court that Sky would live with Barbara McCann (paragraphs 10 and 11). [The Crown Court did not consider that article 12 of the 2015 Order applied because the application was by the Appellant, and was not an application by Mrs McCann for her to be substituted as the person in charge of Sky. An email from the Crown Court dated 26 August 2016 to a caseworker in the Legal Services department of Avon and Somerset Constabulary and forwarded to DEFRA on 30 August 2016records that Recorder Maitland stated that the court was not addressed on, nor did it have to decide, whether Mrs McCann could apply for an exemption certificate. It also stated that “[t]he court had no jurisdiction to influence DEFRA as to how it dealt with the new application for the exemption certificate which Mr Webb would have to make. We considered that the jurisdiction of the Crown Court was limited to allowing the appeal in the circumstances that, Mr Webb the Appellant, could make a new application for an exemption certificate relating to Sky.”]

[30]The order made by the Crown Court originally included an order that Barbara McCann was a fit and proper person to care for Sky. DEFRA, having seen that order, sent an application pack for an exemption certificate to Barbara McCann. The Chief Constable then made written representations to the Crown Court, copied to the Appellant’s solicitor. [Those representations stated that Recorder Maitland had anticipated that the Appellant would be making the exemption application and that it was the Chief Constable’s understanding that the indication that Barbara McCann was a fit and proper person was not part of the court’s decision and such an order was outside the Court’s power.] Following those representations, the Crown Court amended the order to remove the reference to Barbara McCann. DEFRA subsequently informed Barbara McCann that the application pack had been sent to her in error (paragraphs 13 and 14).

[31][It also emerged in correspondence between the DEFRA and the Crown Court after the hearing that although the learned Recorder had anticipated that where Sky was to be housed would be a matter of negotiation between the Appellant and DEFRA, DEFRA had no ability to negotiate about this because article 10(1)(a) of the 2015 Order requires that an exempted dog be kept at the same address as the person to whom the certificate is issued save for any 30 days in a twelve-month period.]

[32]Barbara McCann sought judicial review of DEFRA’s decision to refuse to consider her application for an exemption certificate. Her application for permission to do so was refused (paragraph 15). Accordingly, the Appellant applied to the Crown Court to state a case, and this appeal comes before us.

V. The questions of law for the opinion of this Court:

[33]This court is invited to provide an opinion on the following questions of law:(1) Whether the Crown Court had the power: i. To find that Barbara McCann was a fit and proper person to be in charge of Sky; ii. To order that Barbara McCann should apply for the certificate of exemption; and iii. To order that any named person should apply for the certificate of exemption.

(2) Whether the Crown Court erred by amending its original order dated 11 August 2016 to remove its finding that Barbara McCann was a fit and proper person to be in charge of Sky.

VI. Analysis:

[34](a) Introduction: In broad terms, the 1991 Act, as amended, provides that a dog which is a prohibited dog within section 1 is to be regarded as inherently dangerous. The Act makes provision for such a dog to be seized and destroyed. But, as a result of the 1997 and 2014 amendments to the Act and the provisions in the 2015 Order, it also makes provision for those dogs which a court finds are not in fact a danger to the public to be exempted and not destroyed. To avoid the destruction of the dog, stringent conditions as to their retention including neutering, microchipping, taking out third-party insurance, and about their owner or keeper must be met.

[35]Leaving aside cases where a dog has been seized because a person has been convicted of an offence under section 1 or section 3 of the Act, there are two basic factual scenarios. The first is the case of a dog which is not exempt. That may be because it has never been exempt or, possibly, because it has ceased to be exempt under article 5 or article 19 of the 2015 Order (e.g. following breach of a requirement attached to the certificate). The second is the case of a dog which is exempt, but the person in charge of the dog wishes another person to be in charge of it. As will be seen, the Chief Constable differs from the Appellant and the Secretary of State as to where the line falls between the two scenarios.

[36]In the first scenario, where the court finds that the dog is not a danger to the public, section 4B(2A) of the Act, set out at [16] above, empowers the court to make a CDO to provide time for the dog to be exempted (or, possibly, re-exempted). The court is required to consider the temperament of the dog and its past behaviour Section 4B(2A)(a)(i). and the fitness of the owner of the dog or the person for the time being in charge of it to be in charge of it. Section 4B(2A)(a)(ii). The court is empowered to consider “any other relevant circumstances”. Section 4B(2A)(b).

[37]R (Grant) v Crown Court at Sheffield

[2017] EWHC 1678 (Admin)

provides an illustration of how the magistrates or Crown Court should conduct that exercise. The Deputy Judge, Jonathan Swift QC stated at [46]:

“The meaning of fit and proper person to be in charge of the dog must be understood in its context. That context is the requirement that the dog should not constitute a danger to public safety. That requirement is a precautionary one. In that context, the conclusion that a person is not fit and proper does not necessarily say anything about that person's character.”

In that case, although, given the dog’s temperament, the risk from the dog was likely to be low, and although the proposed keeper was willing to control the dog to avoid danger to the public, it was held that it was open to the magistrates to conclude that, as a mother of two very young children, there could be occasions on which those heavy responsibilities would mean she would not be in a position to do so if the need arose.

[38]As we have stated, the issue in this case is not whether Sky has a good temperament and has in the past behaved well, nor whether Barbara McCann is a fit person to be in charge of Sky. Those matters were accepted before the Crown Court. It is whether section 4B(2A) applies only to those fit and proper persons who are alsoeither the ‘owner’ or ‘the person for the time being in charge’ of the dog. Barbara McCann is not the owner of Sky. So, if section 4B(2A) is to be read in this way, the question is whether Barbara McCann’s connection to Sky at the material time meant that she was ‘a person for the time being in charge of’ Sky so that the Crown Court had power to make a CDO. If, on the other hand, section 4B(2A)(a) and (b), taken together, enable the court to consider whether any person is fit and proper, whether or not that person is the owner or the person for the time being in charge of the dog, then any third party, including Mrs McCann, could in principle apply for an exemption certificate and there is no need to resolve whether her past connection to Sky makes her a ‘person for the time being in charge’.

[39]In the second scenario, where the dog is exempt, article 12 of the 2015 Order, set out at [20] above, applies. Article 12 permits substitution of the person in charge of an exempt dog only where that person has died or is seriously ill and unable to be in charge of it, creating a very narrow exception to the prohibition on the transfer of dogs which are exempt. But, where that exception applies, there is no restriction in article 12 on the identity of the person who may be substituted for the existing owner or keeper other than the requirement to consider whether the person who has applied to be substituted is a fit and proper person to be in charge of the dog. While article 15(2)(a)(i), which relates to the temperament of the dog, and article 15(2)(b), which refers to “any other relevant circumstances”, are in identical language to sections 4B(2A)(a)(i) and (b) of the Act, article 15(2)(a)(ii) differs from section 4B(2A) because there is no requirement that the applicant be the “owner” or “the person for the time being in charge of the dog”. Under article 12 read with article 15, it suffices if the applicant is a fit and proper person to be the keeper and that other requirements, such as an appropriate address, are met. There is, thus, no restriction on who may make the application. (b) The positions of the parties and the intervener: The position of the Chief Constable and the Secretary of State is that the express requirement in section 4B(2A)(a)(ii) to consider “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” means that a CDO can only be made where one of those persons, who has ownership or has been in charge of the dog ‘for the time being’ (whatever that means, which we address at [80] and [86] - [89] below) is to be in charge of the dog in the future. They relied on the expressio unius principle, that is that the explicit mention of one matter is the exclusion of another: see Bennion on Statutory Interpretation, Part XXIII, §389-390. They argued that by identifying two categories of person (the owner and the person in charge) which the court is required to consider, it is only those persons who are eligible for consideration and to whom, if they qualify, the Index is required under article 9 of the 2015 Order to issue a certificate of exemption. They also argued that, for a similar reason, the court was not entitled to consider the availability of such a third party as one of the “other relevant circumstances” in section 4B(2A)(b). They maintain that that provision did not entitle the court to widen the scope of those eligible under section 4B(2A)(a)(ii). Section 4B(2A)(b) concerned factors such as those considered in R (Grant) v Crown Court at Sheffield

[2017] EWHC 1678 (Admin)

: in that case whether the keeper’s practical ability to control the dog would be affected by the fact that she was a single parent of two very young children.

[41]The position of the Appellant is that a CDO can also be made when the court, having considered the “relevant circumstances”, as empowered to do by section 4B(2A)(b), has identified and named a person as a fit and proper person to be in charge of the dog in the future, whether or not that person is the owner or person for the time being in charge of the dog. Ms McGahey, on his behalf, submitted that there is nothing in the language of section 4B(2A) which prohibits the court from finding that a third party who is willing to take the dog is a fit and proper person to be in charge and that this must be a “relevant consideration”.

[42]Ms McGahey also submitted that the requirements of section 4B of the Act have been met in this case. The Crown Court found that Sky does not pose a danger to public safety, that her owner Mr Webb was a fit and proper person to take care of her and also considered all other relevant circumstances. She argued that those circumstances included the involvement of Barbara McCann and her daughter with Sky between the time she was placed in kennels in 2015 and her seizure by the police on 21 April 2016, the fact that Barbara McCann was willing to care for Sky and the police recognised that she and her daughter were fit and proper persons to be in charge of her, and that the Appellant wished her to live with the McCanns. Her primary submission was that, whether or not Barbara McCann was “the person for the time being in charge” of Sky within section 4B(2A)(a)(ii), these were “other relevant circumstances” within section 4B(2A)(b), which the court was entitled to take into account. Her secondary submission was that, on the facts of this case, the Crown Court found or should have found that Barbara McCann was “the person for the time being in charge” of Sky. She invited the court to so hold and allow the appeal or alternatively, to remit the matter to the Crown Court so that it could make a finding in the light of our decision. (c) The statutory scheme: The different interpretations advanced by the parties and the intervener each reflect an aspect of what the Act as amended seeks to achieve. The ultimate effect of the Act, as seen from the provisions requiring the destruction of dogs unless exempted and the neutering of prohibited dogs, is intended to be the elimination of such dogs from the United Kingdom. On the other hand, the amendments introduced in 1997 reflected a desire to enable dogs which were not in fact dangerous, in certain circumstances, to avoid destruction, and those circumstances were refined by the 2014 amendments and the 2015 Order. The circumstances and safeguards considered necessary are reflected in the strict controls about the conditions to be met to qualify as an exempt dog and as to the transfer of such dogs.

[44]The criticisms of the drafting of the 1991 Act are well known. Mr Westaway described it as difficult but not dysfunctional legislation. Parliament has revisited the regime for prohibited dogs on several occasions since 1991, most recently in the 2015 Order. Nevertheless, it is common ground that the provisions material to this case are not as clear as they could be. All parties sought to bolster their arguments at various points by submitting that, if Parliament had intended the interpretation which the other put forward, express provision would have been made by the legislation. We do not consider that such arguments give substantial assistance to their cases. Our starting point in considering the rival submissions is carefully to examine the statutory language and the background to, and the purpose of, the legislation. The background to the insertion of section 4B(2A) and the other provisions in section 4B is of particular relevance, but we also consider it important to consider the implications of the rival interpretations for other parts of the statutory framework.

[45](d) The language of section 4B(2A), and guidance from the purpose of section 4B and other parts of it: Taking the language of section 4B(2A) in isolation, it is not clear whether the court is permitted to consider the position of a third party willing to take charge of the dog and to find that third party to be a fit and proper person. Accordingly, we turn to examine the purpose of section 4B, the meaning of other provisions in the Act and in the 2015 Order, and the relationship of those provisions with section 4B(2A) in order to determine which of the rival submissions on the meaning of that provision is correct.

[46]It was common ground that section 4B of the Act was enacted to redress a problem identified in or caused by the decision of this Court in R (Sandhu) v Isleworth Crown Court

[2012] EWHC 1658 (Admin)

, although the parties disagreed about which parts of Sandhu’s case Parliament sought to overturn by inserting section 4B(2A) into the Act. In Sandhu’s case, the owner of two prohibited dogs had been sentenced to substantial sentences of imprisonment for offences unrelated to the dogs and his cousin applied for a certificate of exemption. Collins J (with whom Richards LJ agreed) stated at [19] that the character of the person who would be keeping the dog was “not a matter which at the stage of deciding whether the dog is a danger to the public can be… a material consideration”. He stated at [22] that the court could make a CDO if satisfied that the dog would not constitute a danger to public safety because it was not inherently dangerous, and then described the scheme of the 1991 Act in the following way:

“… if a dog is not to be regarded as a danger to the public, then it is prima facie wrong that the dog’s life should be brought to an end ... the whole purpose behind the destruction of dogs is that they are, or have shown themselves to be by their behaviour a danger to the public.”

He also stated (at [28]) that “there is no reason under the scheme why the application should not, in circumstances such as these, be made not by the owner but by the person who is to be, for the time being, the keeper of the dogs”.

[47]Ms McGahey submitted that the mischief the provision sought to address was the lack of control by the court over who would be in charge of the dog in the future. The problem identified by Sandhu’s case was that, once there was evidence that the dog itself was not dangerous, there was no requirement that the person (the cousin) who would be taking the dog on would be fit and proper. The difficulty with that submission is that section 4B(2A) does not state that the that the court must consider whether the person who will be taking the dog on is a fit and proper person; what it says is that the court must consider whether “the owner” or “the person for the time being in charge” is a fit and proper person, and that it may consider any other relevant circumstances. Ms McGahey sought to read the latter phrase as meaning that, if the court is considering a third party as a potential future keeper of the dog, it must consider whether that person is a fit and proper person. This would, however, amount to reading in by implication to section 4B(2A)(b) one part of a mandatory consideration which is expressly stated in section 4B(2A)(a)(ii) and which it is asserted was the reason for the provision’s enactment but which is not mentioned in section 4B(2A)(b).

[48]The Chief Constable and the Secretary of State agreed that the legislation was intended to deal with the problem identified by Ms McGahey following Sandhu, namely the lack of oversight of the person who would look after the dog in the future. But they submitted it went further: it was also intended to address the fact that Collins J had stated, see [46] above, that a person who would be the keeper of the dog in the future could apply for an exemption certificate. They argued that section 4B(2A) was intended to preclude that possibility. It did so by specifying that the court must consider the character of ‘the owner’ or ‘person for the time being in charge’ of the dog. This is a precisely specified and limited group. They submitted that only those persons could be considered.

[49]Ms McGahey answered that if Parliament had intended to overturn that part of Collins J’s judgment, it would have stated explicitly that only the owner or person for the time being in charge of the dog could apply for an exemption certificate. For the reason we have given, in the context of this Act, we do not consider that she is assisted by this submission.

[50]It does appear from the language and context of section 4B(2A)(a)(ii) that Parliament intended to limit the category of person who the court is required to consider to those specified:

‘the owner’ or the ‘person for the time being in charge’

. This would tend to suggest that the amendments reversed both aspects of the judgment in Sandhu. But Sandhu remains relevant to a limited extent: it sets out the purpose of the legislation (see [46] above). With one qualification, that explanation of the overarching purpose of the provisions remains good law, and we agree with it: the legislative aim is to protect the public by destroying dangerous dogs, while sparing those dogs which, subject to the specific requirements of the legislation, can be shown not to be dangerous. The qualification results from the fact that, as we have seen, one of the requirements in deciding whether a dog is dangerous concerns the owner of the dog or the person for the time being in charge of it. It is therefore not only the dog’s temperament which is relevant See also R (Grant) v Crown Court at Sheffield

[2017] EWHC 1678 (Admin)

discussed at [37] above. but who qualifies under the Act as the “person for the time being in charge” of the dog. We now turn to that requirement.

[51]Mr Westaway, supported by Mr Ley-Morgan, submitted that sections 4B(4) and 4B(1) support the narrow interpretation of section 4B(2A) they advanced on behalf of the Chief Constable and the Secretary of State. The support from section 4B(4), which provides that section 4(2) of the Act applies to an order under section 4B(1)(b) or (3), is that section 4(2) provides that only the owner of a dog may appeal against the making of a destruction order or CDO in respect of the dog. Mr Westaway argued that, if section 4B(2A) was intended to make a dog transferrable to third parties, why did the person intending to take on the dog, in this case Mrs Barbara McCann, not have a right of appeal? It was for that reason that this appeal is nominally brought by Sky’s owner, Mr Webb, although it is not apparent that he has played a significant role in it. There is some force in this submission, but it does not, in our judgment, get Mr Westaway home on its own. This is because it is clear that the person for the time being in charge of the dog qualifies under section 4B(2A)(a)(ii), but only the owner is given a right of appeal against a refusal to make a CDO.

[52]As to section 4B(1), the argument made on behalf of the Secretary of State and the Chief Constable is as follows. Under section 4B(1)(b), a CDO can only be made where a prohibited dog has been seized and “the dog cannot be released into the custody or possession of its owner without the owner contravening the prohibition in section 1(3)”; that is because it is no longer an exempt dog. By contrast, under section 4B(1)(a), if a dog is seized and “no person has been or is to be prosecuted for an offence… (whether because the owner cannot be found or for any other reason)”, a destruction order must be made. Mr Westaway submitted that there thus is no scope for a CDO where section 4B(1)(a) applies. That provision is largely designed to deal with the position where the owner cannot be found, although it could also apply in other circumstances, for example where the owner has purported to abandon the dog.

[53]Mr Westaway submitted that section 4B(1)(a) illustrates that the Act’s focus is on ownership and maintaining it. Where there is no owner, under section 4B(1)(a) the dog must be destroyed even if there is a person who qualifies as the person for the time being in charge of the dog, let alone any other third party who is fit and proper, because section 4B(2) only applies to section 4B(1)(b). Where there is an owner, in the majority of cases section 4B(1)(b) will apply so there is scope for a CDO. This, Mr Westaway argued, supported interpreting section 4B(2A) narrowly.

[54]Ms McGahey’s response was that section 4B(1) is not as limited as the Chief Constable and Secretary of State contend. In this case, both section 4B(1)(a) and (b) are met: no one has been prosecuted and Sky cannot be released without contravening section 1(3). It is not suggested in such a case that section 4B is not applicable, it plainly is. She submitted that section 4B(1)(a) and 4b(1)(b) are therefore not mutually exclusive, and that it is possible for a dog to be within section 4B(1)(a) and still to benefit from a CDO assuming the other conditions of section 4B(2) are met.

[55]We prefer the Secretary of State and Chief Constable’s arguments which follow the language of the statute more closely. But again, this is not conclusive because section 4B(1) could still be made to function using the Appellant’s broader interpretation, albeit with some awkwardness.

[56](e) Section 1(2) of the Act and article 12 of the 2015

[57]Article 10(a) provides that all exemption certificates must contain a requirement “to keep the dog at the same address as the person to whom the certificate is issued save for any 30 days in a 12-month period”. It is therefore not possible for an owner to obtain a certificate and then delegate keepership to someone who does not live with him, whether or not that person has been found to be “fit and proper” by the court.

[58]We stated at [39] above that article 12 of the 2015 Order creates a very narrow exception to the prohibition on transfer which applies to dogs which have been exempted. It permits substitution only where the person in charge of the dog has died or is seriously ill. Articles 13 to 19 create a complete scheme for substitution in such cases. They provide for an application to be made to the magistrates’ court within specified time limits. They set out details of the documentation and evidence to be provided with the application, and what information must be provided to the chief officer of the police of the relevant area. They specify the person(s) to be served, and those the court must notify, the criteria the court must consider, and what the position of the dog is in the interim period. It was common ground between the parties that article 12 is exclusive in the sense that, if it applies to a dog, there is no other way of transferring the keepership of that dog.

[59]Article 12 is very narrowly drafted. It applies where the person in charge of the dog is no longer capable of being in charge of it. The provision that a person may apply to the magistrates’ court to be substituted as the person in charge of the dog “only” where the person hitherto in charge of the dog has died or is seriously ill shows that its effect is that in no other circumstances can keepership of a dog which has been exempted be lawfully transferred. It addresses the practical problem of what happens when someone in control of a prohibited dog is no longer able to care for it by providing for the intended new keeper to be able immediately to take control of the dog without breaking the law, and without requiring the police to seize the dog. It also allows for a lawful formal transfer within strictly controlled time limits. Where it applies, the dog remains exempt throughout the process. The result is that the transferee is substituted on the existing certificate as the named person in charge of the dog; registration never lapses, and the dog is not liable to seizure during the process. It does not, however, apply in any circumstances in which the person in control of the dog could continue to care for the dog, but has chosen not to do so. In such circumstances, there is no possibility of transferring the dog under the existing certificate.

[60]The Appellant invites the court to read into the words “the justice or sheriff…may consider any other relevant circumstances” in section 4B(1) and 4B(2A) the existence of an additional scheme for the transfer of keepership of prohibited dogs. This would replicate in section 4B the possibility of transfer as it exists in article 12. The effect would be that any prohibited dog, whether exempt or not, could in principle be transferred to a third party, so long as that person met the fit and proper person test and all the other requirements of section 4B. There are difficulties in reading in additional provisions to a statutory scheme. In this case there is the additional difficulty that the legislative scheme as a whole is detailed and provides for a very restrictive regime on the transfer of keepership of exempt dogs. Thus, the Appellant’s invitation is a bold one. It must be considered in the context of the relationship between section 4B and article 12 more generally.

[61](f) The relationship of section 4B and article 12: We have stated that it is common ground between the parties that article 12 is exclusive in the sense that, if it applies to a dog, there is no other lawful way of transferring the keepership of that dog under the existing certificate. It is also common ground that article 12 does not apply to Sky because Mr Webb is alive and well. But there is a dispute about whether article 12 could in principle apply to Sky. The parties and the intervener seek to rely on article 12 in support of their rival interpretations of section 4B, so it is necessary to consider their submissions and whether they assist in the determination of the meaning of section 4B. There are two broad themes to those submissions: first, the scope and purpose of article 12; and secondly, the extent to which article 12, properly construed, assists in the interpretation of section 4B.

[62]On the first theme, the Appellant and the Secretary of State maintain article 12 could not apply to Sky’s case because it applies only to dogs which are currently exempt. Mr Ley-Morgan, on behalf of the Chief Constable, submitted that article 12 applies to all dogs that have ever been exempt, even if they are no longer exempt. He argued that because Sky was once exempt, the only possible basis for her transfer is under article 12, and because Mr Webb is alive and well, article 12 cannot apply. In consequence, the only possible outcome is an order for her destruction (as the magistrates ordered in the first instance). This was the argument advanced on behalf of the Chief Constable before the Crown Court, which the Crown Court rejected. The argument is renewed before us. The Chief Constable’s argument has the advantage of simplicity: because Sky is within article 12 as a dog which “has been exempted”, and because article 12 does not apply on the facts, there is no basis on which to make a CDO under section 4B in her case and she must (so it is argued) be destroyed.

[63]We are not persuaded that the Chief Constable’s simple solution is correct. It is not what the statute says, or can reasonably be taken to have intended. As the Appellant and Secretary of State (finding a unique area of common ground on this point) note, section 4B and article 12 deal with different situations. Article 12 deals with dogs which are exempt. Section 4B deals with dogs which are not exempt. The effect of the Chief Constable’s argument would be significantly to disadvantage those who have taken steps to comply with the legislation by obtaining a certificate of exemption. This is because even if that exemption has since lapsed, those owners’ dogs will, if the Chief Constable is right, be in the “exempt dog” category for all time and will only have the possibility of a transfer in the very narrow circumstances prescribed by article 12. Owners who have taken no steps at all to obtain exemption will have the prospect, at least, of obtaining a CDO under section 4B in a wide range of circumstances. That would make little sense.

[64]The better analysis, which fits the scheme and purpose of the legislation overall, is that put forward by the Appellant and the Secretary of State. Article 12 applies when a dog is exempt, which means the dog is the subject of a valid certificate. If exemption is lost (or has never been obtained), then section 4B becomes the operative provision upon seizure of the dog. Section 4B assists with regulating the position of an existing owner or keeper of a prohibited dog. In that way, the provisions work together in a more practical way. The owner who adheres to the conditions of exemption has the advantage of being able to transfer lawfully to third parties, admittedly only in very narrowly drawn circumstances permitted by article 12, but without risk of penalty or seizure of the dog. The owner or keeper who does not maintain exemption is at risk of penalty for breaking the law (section 1) and the dog may be seized (section 5), but has the possibility of obtaining a CDO if he or she can satisfy the justices (or the sheriff) that the dog is not a danger to the public, in the manner prescribed by section 4B.

[65]Our conclusion reflects the Secretary of State’s position set out in a document entitled “Transfer of “keepership” of prohibited type dogs”, published in September 2016 in response to an appeal under the Act from the magistrates to the Exeter Crown Court in relation to a pit bull terrier called “Stella”. The document now appears on the CPS website. That document does not amount to formal guidance by the Secretary of State about the interpretation of the Act and the 2015 Order. It is, however, published by the Secretary of State in order to assist the relevant prosecuting authorities, and so it is of some relevance. That document stated at [5]: “In the case of a dog that was previously exempted but has subsequently been found in breach of the conditions of exemption, or has never been exempted, section 4, section 4A or section 4B of the DDA will apply”.

[66]We are satisfied that article 12 applies only to dogs which are currently exempt. Where exemption has lapsed or was never obtained, it is possible to make an application under section 4B for a CDO if the dog is seized. That is Sky’s situation and section 4B is therefore in play. The Crown Court was correct to reject the submission of the Chief Constable.

[67]As to the second broad theme, Ms McGahey suggested that article 12 can and should be used to inform the construction of section 4B. She relied on the fact that, under article 12, control of a dog can pass to any fit and proper person, even if that person has no previous connection with the dog. She submitted that there would be no logic in a scheme under which, if the keeper of an exempt dog suffers from death or serious injury, a stranger who is a fit and proper person could take over the dog, but under section 4B a dog could only be taken over by the owner or person for the time being in charge. She asked why a dog which has never been exempt should be in a worse position than an exempt dog where the dog’s owner or keeper dies or becomes seriously ill. She submitted that it cannot be right that, if the owner or keeper of a dog who has never been exempt becomes ill that dog cannot be re-homed through a rescue centre. Her submission is that it is clear from article 12 that in principle the legislation has no problem with a third party who has had no previous involvement with the dog being named as the keeper, and that supported giving the term “or any other relevant circumstances” in section 4B(2A)(b) a broad meaning.

[68]Ms McGahey recognised that her interpretation would have what she referred to as the “doubtless unintended consequence” that dogs that had been exempt, but no longer were because the conditions of their exemption had been breached, would be in a potentially better position than dogs that had remained exempt throughout. She accepted that, on her interpretation, if in this case Mr Webb had continued to abide by all the conditions of Sky’s exemption certificate, there would be no route for the keepership of Sky to be transferred lawfully to Mrs McCann because article 12 would not apply to the facts of this case.

[69]Mr Ley-Morgan and Mr Westaway argued that such an outcome is not an “unintended consequence”, it is an indication that the Appellant’s interpretation of section 4B(2A) cannot have been intended by Parliament. Mr Westaway submitted that if the keepership of dogs being kept illegally could be transferred more flexibly than the keepership of legally kept dogs, that would be an incentive to keep one’s dog outside the exemption regime and therefore to commit a criminal offence. The broad interpretation for which the Appellant argued would promote the evasion of the statutory purpose of strictly controlling transfer. The presumption against such evasion (see Bennion on Statutory Interpretation, Part XXII, §319) is a further reason for rejecting that interpretation.

[70]Mr Westaway also submitted that the broad interpretation of section 4B for which the Appellant argued would make article 12 redundant. This is because, if the person in control of an exempted dog wanted to transfer keepership he or she could simply do so and, if the dog is then seized, rely on section 4B to formalise the new arrangement. Ms McGahey maintained that there would still be benefits in using article 12 where it applied: there would be no commission of a criminal offence and the dog would not be seized but could be taken directly into the care of the proposed new keeper.

[71]We accept the submissions on behalf of the Chief Constable and the Secretary of State. It is unlikely that Parliament intended to provide more flexibility in the transfer of keepership for illegally held dogs than for exempt dogs, and thereby to create an incentive to owners or keepers of prohibited dogs not to exempt their dogs, or to breach exemption conditions. It is more likely that Parliament, in enacting article 12, sought to provide an exception to the general prohibition on transfer of keepership for those in charge of exempt dogs who had complied with the law but who had, through no fault of their own, become incapable of continuing to care for the dog.

[72](g) The Interim Exemption Scheme in Part 4 of the 2015

[73]The only restriction as to the person to whom the dog may be released on an interim basis is that it must be “the person intending to apply for exemption of the dog under Part 2 of this Order”. On the Appellant’s interpretation of section 4B, the police would have the discretion, without any oversight by the court, to release a suspected prohibited dog to any fit and proper person intending to apply for an exemption, even if that person had no prior connection with the dog. On the Chief Constable and the Secretary of State’s interpretation of section 4B, a suspected prohibited dog could be released on an interim basis only to the owner or person for the time being in charge of the dog. Given the statutory framework as a whole, we consider it significantly more likely that Parliament intended the result produced by the interpretation of the Chief Constable and the Secretary of State.

[74]This assessment is supported by the explanatory memorandum produced for the 2015 Order which includes the following (emphasis added):

“2.2: The 2015 Order introduces additional provisions to the scheme … by “allowing suspected prohibited dogs to be kept by their owners or the person in charge of the dog at the discretion of the police …” “7.6: The 2015 Order will now allow these dogs [suspected prohibited dogs] to be returned to their keeper, where the police are satisfied that the dog does not constitute a danger to public safety. …. Return to the owneris better for the dog’s welfare… Returning the dog back to the owneris at the discretion of the police…. Return will be conditional on the owner having the dog neutered….”

[75]The reference in the explanatory memorandum to owners and the person in charge of the dog indicates that it was anticipated that only such people would be able to apply for exemption under Part 2 of the 2015 Order, which accords with the interpretation of section 4B advanced on behalf of the Chief Constable and the Secretary of State.

[76](h) Sentencing Guidelines:As this is not a criminal case, the Sentencing Council’s Dangerous Dogs Definitive Guideline (effective from July 2016) does not apply. The section of the guidance on compensation and ancillary orders about whether to make a destruction order or a CDO substantially tracks the statutory language by referring to the owner or the person ordinarily in charge of that dog at the time the court is considering whether the dog is a danger to public safety. But the last sentence states that “someone who has previously not been in charge of the dog should not be considered for this assessment because it is an offence under the Dangerous Dogs Act 1991 to make a gift of a prohibited dog”. That sentence is consistent with the interpretation of the Act advanced by Mr Westaway and Mr Ley-Morgan, who rely on it. In view of the conclusion to which we have come on the meaning of the legislation, it is not necessary to rely on the guideline. We observe only that we do not consider that the words used by the Sentencing Council in 2016 are relevant to the construction of section 4B of the Act which came into force over two years earlier on 13 May 2014. (i) Conclusion on the interpretation of section 4B(2A): We have referred to the criticisms of the 1991 Act. Ms McGahey argued her primary case about the meaning of section 4B(2A) of the Act with considerable skill. She was able to make a number of telling points about some of the factors relied on by the Chief Constable and the Secretary of State. We have carefully considered the statutory language, the background to, the purpose of, the legislation, and all the factors we have discussed above. Having done so and considered the legislative structure and scheme as a whole, we are entirely satisfied 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. We have concluded that 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 a fit and proper person to be in charge of it, with the result that only such a person can apply for a certificate of exemption under article 9. We are also satisfied, however, that because Sky is no longer exempt, it is section 4B(2A) and not article 12 which applies in this case.

[78]To the extent that the Crown Court considered whether Mrs McCann was a fit and proper person to be in charge of Sky as one of the “other relevant circumstances” in section 4B(2A)(b) it fell into error. We therefore reject the Appellant’s primary case. VII. Was Mrs McCann “the person for the time being in charge of” Sky?(a) Overview of the Appellant’s alternative case: The Appellant’s secondary case was that the material before the Crown Court sufficed to show that Mrs McCann was, at the relevant time, a person for the time being in charge of Sky. There are two parts to this case: first, a legal question as to what the phrase “for the time being in charge” means; and secondly, a factual question as to whether Mrs McCann meets that description. We can say immediately that it is not appropriate for this Court to determine the factual question in this case on an appeal by way of case stated. In this case (see [90] – [94] below), this question was also not determined by the Crown Court. Accordingly, in view of our conclusion on the Appellant’s primary case, this case must be remitted to the Crown Court to undertake that investigation and to consider whether Mrs McCann was the person “for the time being in charge” of Sky, whether, on the facts as they now stand, a CDO should be made.

(b) Meaning of ‘for the time being in charge’: Section 4B establishes a regime which is separate from article 12 and designed to deal with a different group of dogs which are not exempt. Both provisions form part of the same legislative scheme with the same fundamental aim of protecting the public (see [80] above). Both sets of provisions require the assessment of whether the dog is a danger to public safety to be undertaken by the justice or sheriff: section 4B(2)(a). The justice or sheriff is required to consider two factors, namely the character of the dog (section 4B(2A)(a)(i)) and the reliability of the owner or the person for the time being in charge of it, on the basis that such a person will be in charge of the dog if a CDO is made (section 4B(2A)((a)(ii) read with article 9(a)). The justice or sheriff may consider, additionally, any other relevant circumstances (section 4B(2A)(b)). For reasons discussed above, section 4B limits the persons who are entitled to make an application to the owner or the person for the time being in charge of the dog. No authority was put before us as to what is meant by the phrase “a person in charge for the time being”. The same phrase is found in section 3 of the Act, which creates the offence of having a dog dangerously out of control, and section 4, which creates a regime analogous to section 4B where a person is convicted of an offence under the Act.

[81]Ms McGahey argued that the term ‘in charge’ should not be construed narrowly. There is, she maintained, nothing in the legislation that requires ‘charge’ to mean ‘sole charge’, or even ‘principal charge’. She submitted that an offence may be committed under section 3 of the Act by a person who is ‘for the time being in charge’ of a dog even where the charge may have lasted only ‘a matter of moments’ and it would be inconsistent to take a different approach when considering the phrase as it appears in section 4B. She accepted that a practical approach must be adopted, and that some past association with the dog must exist, alongside the person having responsibility of some sort for the dog. She argued that it is enough, for example, that a person walked the dog regularly.

[82]Mr Westaway agreed that ‘in charge’ does not mean in sole charge but argued that in this context (applying for a CDO on behalf of the owner) the term could not sensibly extend to somebody whose charge may have lasted only a matter of moments. He accepted that the partner of an owner, for example, would be likely to be or have been ‘in charge’ of the dog, and be the sort of person the legislation envisages as an alternative to the owner. So, he accepted that if Mrs McCann had been Mr Webb’s partner, she may qualify; but he disputed that on the actual facts of this case, her contact and involvement with Sky was sufficient.

[83]As to what “for the time being” means, Ms McGahey submitted that this was another area where the legislation was unclear. But she said that the legislation, read sensibly, was in part retrospective, looking to see whether the person had had some contact with the dog, and in part prospective, to determine whether that person was a fit and proper person to look after the dog in the future. “For the time being” could not be construed to mean in charge at the time of the hearing because that would in most cases lead to a nonsensical result because the police will have seized the dog and be in charge at the time of the hearing. But nor could it be construed to mean at time of seizure because in some cases it would be apt to consider who was in charge at the time of the hearing, for example in the case of Stella, referred to at [65] above, where the applicant was the owner of the kennels in which Stella had been kept since her seizure. Ms McGahey argued that the term should be interpreted flexibly, to accommodate a range of possible factual circumstances which are, ultimately, for the justice or sheriff to assess as part of their statutory function.

[84]Mr Westaway submitted that “for the time being” means at the time of the seizure. This is not the same time as indicated by section 3, where “the time being” must mean at the time of the incident giving rise to the criminal charge, or section 4 where it must mean the time of the conviction. But, he says, the words must mean different things in the different provisions. In summary, Mr Westaway pressed the Court to adopt a narrow interpretation of the phrase “for the time being in charge” in section 4B consistent, he said, with the overall scheme of the legislation to protect the public from dangerous dogs and to minimise the scope for dangerous dogs to be the subject of transfers of keepership under section 4B.

[85]Mr Ley-Morgan’s position is that the fact that Mrs McCann may have regularly walked Sky and spent as much time with her as she could, did not make her the person “for the time being in charge of” Sky. He argued that under the expressio unius principle (see [40] above), volunteers such as Mrs McCann are clearly excluded from being a person “in charge”.

[86]The central proposition advanced by the Secretary of State and supported by the Chief Constable is that the phrase must be construed narrowly. We reject that proposition for two main reasons. First, it is important to achieve consistency, so far as possible, in the use of the phrase within that Act. As it is used in section 3, it should not be construed narrowly. This is because that would have the effect of narrowing the range of persons who may be liable under section 3, which cannot be what Parliament intended. The context in which the phrase is used in sections 4 and 4B is different, but the better approach is to seek to find some common ground in the meaning of the phrase, wherever it is used in the Act.

[87]Secondly, there is no need, even within the context of section 4B, to read the phrase narrowly in order to protect public safety: section 4B provides that the justice or sheriff can only make a CDO if satisfied that the dog would not constitute a danger to public safety. The justice or sheriff must take into account certain specified factors, and may take into account any other relevant circumstances. In this way, the statute directs the exercise of the discretion conferred on the justice or sheriff. The system of oversight by justices or sheriffs already protects the public; it is not necessary to strain to narrow the statute yet further in pursuit of the same goal.

[88]In our judgment, the words “in charge for the time being” should not be understood in a particularly narrow (or indeed particularly expansive) sense. These are ordinary words which are capable of applying to a range of situations. The judgment in any case is very fact-sensitive, and it is one for the justice or the sheriff to make. For the reasons we have given, we have concluded that the concept of being in charge relates to whether the person in question has responsibility for the dog. It follows from what we have said that we would consider that it is at least possible for a person who walks a dog on a regular basis, and who has responsibility for the dog during that time, to be ‘in charge for the time being’ for the purpose of section 4B. There are likely to be exceptions to that general proposition, for example, where the person is walking the dog purely as the agent of another, in which case that person may not be ‘in charge’ for the purpose of that provision. The language of the statute is broad enough to encompass anyone who, for whatever reason and in whatever way, is in charge of the dog for the time being. It also follows that we reject Mr Ley-Morgan’s submission that a volunteer cannot be a person in charge – such a person can be.

[89]So far as timing is concerned, we reject the Secretary of State’s submission that ‘for the time being’ must mean at the time of the seizure. Although that would, as a matter of timing, potentially include Mrs McCann who had contact with Sky while she was kennelled before she was seized, there are other situations in which it would not be appropriate to consider the person in charge at the moment of seizure. For example, it could be that the owner of the kennels where the dog has been housed since being seized wishes to apply (as in “Stella’s case”). Again, it may be that the erstwhile partner of the owner who had been the joint keeper with the owner seeks keepership where that person was not ‘in charge’ at the moment of seizure, perhaps because the relationship had recently broken down. Such a person may be able to demonstrate a track record of being in charge of the dog. There is no good reason, consistent with the statutory purpose, why such persons should be excluded from section 4B(2A)(a). There are, however, some temporal limits on what ‘for the time being’ means. We note that Ms McGahey did not submit that the phrase could be interpreted to include proposed future contact. She was right not to do so, because the concept involves contact in the past or present. It cannot extend to the future. (c) Mrs McCann’s situation: So far as the facts of this case are concerned, Ms McGahey acknowledged that the question whether Mrs McCann was a person for the time being in charge of Sky was not canvassed in detail before the Crown Court. This was because the primary issue under consideration was whether, as the Chief Constable argued, article 12 of the 2015 Order applied.

[91]The learned Recorder declined an offer by Ms Rose, the Appellant’s counsel, to call Mrs McCann because he did not consider the court needed to decide if the McCanns were fit and proper persons, that not being in dispute (see transcript 83C). The question whether Mrs McCann was entitled to apply for a certificate of exemption if article 12 did not apply was not considered. The point was touched on during the hearing but was not addressed in the judgment.

[92]The Recorder noted in the judgment, as set out at [25] above, that although the McCanns had never had the status of being in charge of Sky, save for dog walking, they were fit and proper persons to be in charge of her. The case stated does not, however, record a finding about whether the McCanns had ever been in charge of Sky, and we do not accept that this passage constitutes a finding on that point, which was simply not in issue.

[93]Ms McGahey submitted that the fact that the McCanns had taken Sky for walks between the time in 2015 when the Appellant placed her in the kennels and April 2016 when she was seized sufficed for them to be in charge of her. In witness statements dated 13 July 2017, that is since the decision of the Crown Court, Mrs McCann and her daughter state that the owner of the kennels where Sky was being kept, Mary, permitted them to come and go as they chose during opening hours to see Sky and that they frequently did so. Ms McGahey submitted that this degree of control and the care they gave by way of exercise and training was more than ample to show that Mrs McCann was a person in charge of Sky. Clearly the owner of the kennels was also in charge, but Ms McGahey argued that the owner and Mrs McCann took charge of different aspects of Sky’s life. If Sky had attacked someone while Mrs McCann and her daughter were walking her, she could have been prosecuted under section 3 of the Act as a person “for the time being in charge” of a dog that is dangerously out of control.

[94]We record the evidence in general terms, but as we have said, the Crown Court has not made any finding on whether Mrs McCann was a person “for the time being in charge of Sky”. This case must be remitted to the Crown Court for such a finding to be made.

[95](d) Conclusion on alternative case: The court appears to have declined to hear evidence from Mrs McCann and her daughter because it considered that it sufficed that it was accepted that Mrs McCann was a fit and proper person to be in charge of Sky as one of the “other relevant circumstances” in section 4B(2A)(b). For the reasons given in Part VI, summarised at [66] above, we have concluded that this was an error of law. In circumstances in which no evidence was heard from the McCanns and the case stated does not contain a finding of fact as to whether Mrs McCann was a person “for the time being in charge of” Sky, we consider that the case must be remitted to the Crown Court for this matter to be considered in the light of this judgment, and for a finding of fact to be made as to whether she was. In addition, it will be for the Crown Court to consider, if it is satisfied that she was a person in charge for the time being, whether it is satisfied more generally for the purposes of section 4B(2)(a) that the dog would not constitute a danger to public safety. Mrs McCann’s association with Sky ceased in April 2016 when Sky was seized; this is a factor the Crown Court may wish to consider, alongside all the other circumstances of the case, under section 4B(2A)(b). Part VIII. Does the Crown Court have power to order that any named person it decides is a fit and proper person should apply for a certificate of exemption?

[96]This section deals with the issues raised in questions (1)(ii) and (iii) posed by the Crown Court. Ms McGahey argued that the Crown Court did have such power. She relied on a particular reading of article 9 of the 2015 Order. Article 9 (set out at [17] above) provides that DEFRA must issue an exemption certificate if a number of conditions are met, including that “it is satisfied that the court, in determining that the dog is not a danger to public safety, has decided the person to whom the certificate is to be issued is a fit and proper person to be in charge of the dog”. Ms McGahey submitted that this should be read as giving the court the power to determine to which person the certificate is to be issued, as well as determining whether a person is a fit and proper person to be in charge of the dog. She argued that “this interpretation, as well as being the most natural, also has the advantage of giving effect to the clear intention of the Crown Court”.

[97]Mr Ley-Morgan’s skeleton argument does not specifically address this interpretation of article 9. But he suggests that the Crown Court understood correctly that it could go no further than to issue a CDO (transcript, 101G) and that the email dated 26 August 2016 to which we refer at [29] above shows that the learned Recorder understood, correctly, that he did not have the power to make an order specifying who could apply for an exemption certificate. We understood Mr Westaway to support Mr Ley-Morgan’s submissions on this point.

[98]We consider that the natural reading, particularly in the context of the related provisions of the Act and the 2015 Order, is that the court has been given the power to decide whether a particular person is a fit and proper person to be in charge of the dog, not whether a particular person should be issued with a certificate. Accordingly, we have concluded that the learned Recorder was correct to find that he had no power to make an order that Mrs McCann should apply for the certificate. It follows that he would not have had power to order that any named person should apply for the certificate. There is no express power for the Crown Court to order a particular person to apply for a certificate of exemption, and for the reasons given we do not consider that such a power can be read into article 9 by implication.

[99]We do not believe this to be a point of practical significance. Article 9 imposes a mandatory obligation on the Index to issue a certificate if satisfied that the court has concluded that the person to whom the certificate is to be issued is a fit and proper person. If Mrs McCann were found to be a person for the time being in charge who was also a fit and proper person to have charge of Sky she could then apply for a certificate. Assuming that she also met the requirements of article 9(2) and (3) the Index would be required to issue a certificate to her. Ms McGahey is therefore correct in her alternative proposition in relation to article 9: see above [6].

IX. Our conclusions on the questions posed by the Crown Court:

[100]In view of our conclusions on the interpretation of section 4B, the answers to questions (1)(i) and (1)(ii) depend on whether, on the evidence, Mrs McCann was “a person for the time being in charge of” Sky.

[101]Question (1)(i): This is whether the Crown Court had power to find that Mrs McCann was a fit and proper person to be in charge of Sky. The court appears to have declined to hear evidence from Mrs McCann and her daughter because it considered that it sufficed that it was accepted that Mrs McCann was a fit and proper person to be in charge of Sky as one of the “other relevant circumstances” in section 4B(2A)(b). For the reasons we have given, in Part VI, we have concluded that this was an error of law: see in particular [50] – [53], [55], [69] – [71], and [77] – [78] above. Because the court declined an offer to call Mrs McCann, no finding was made as to whether she was the person for the time being in charge of Sky under section 4B(2)(a)(ii). For the reasons we have given in Part VII (see in particular [95] above) we have concluded that the Crown Court erred. Accordingly, the case must be remitted to that Court for this matter to be considered in the light of this judgment. That will enable a finding of fact to be made as to whether Mrs McCann was the person for the time being in charge of Sky under section 4B(2)(a)(ii). If that is established, the Court will need to consider whether Mrs McCann is a fit and proper person to be in charge of Sky, taking all relevant considerations into account.

[102]Question (1)(ii) and (iii): For the reasons given at [96] – [98] above the Crown Court did not have power to order that Mrs McCann or any other person should apply for the certificate of exemption.

[103]Question (2): The Crown Court did not consider whether Mrs McCann was a person ‘for the time being in charge’ of Sky. The inclusion of Mrs McCann’s name in the original order was an error because no finding had been made as to whether she was a person for the time being in charge; but the removal of her name did not cure that error. If, when the matter is considered by the Crown Court in the light of this judgment, the Court finds that, in the circumstances of this case, Mrs McCann was “the person for the time being in charge” of Sky under section 4B(2)(a)(ii), it will be able to make a finding that she is a fit and proper person to be in charge of Sky (if appropriate) and include that finding in the order.

[104]For the reasons given, we have concluded that the appeal should be allowed on the alternative basis advanced on behalf of the Appellant, and the case should be remitted to the Crown Court to determine whether, in the circumstances of this case including the evidence of Mrs McCann and her daughter, Mrs McCann was “the person for the time being in charge” of Sky under section 4B(2)(a)(ii).

Order

We therefore turn to the provisions in the Act and the 2015 Order about the transfer of prohibited dogs. Section 1(2) of the Act prohibits the sale, exchange, gifting and abandoning of prohibited dogs, irrespective of whether they are exempt. As a result, the ownership of such dogs cannot be transferred lawfully. Order: Article 20 of the Order (set out at [22] above) empowers a chief officer of police to release a dog that has been seized to the person intending to apply for exemption of the dog, and to give that person interim charge of the dog prior to the court's final determination about the dog under section 4(1) or 4B of the Act. Article 21 provides that a dog can only be released if the chief officer of the police is satisfied that it does not constitute a danger to public safety, for which purpose the chief officer must consider whether the person to be in interim charge is a fit and proper person.

Webb v Avon and Somerset Constabulary & Anor [2017] EWHC 3311 (Admin)

I. Overview:

II. The Legislative Framework:

III. The factual background and the evidence:

IV. The decision below

V. The questions of law for the opinion of this Court:

VI. Analysis:

IX. Our conclusions on the questions posed by the Crown Court:

Order

Cited in 7 later judgments