Guest article by Alison Howey Barrister at Law, Quartz Barristers Chambers, Nottingham
This article relates to a recent appeal case before the Crown Court where the Magistrates’ Court had made what they termed ‘Orders’ against the relevant dogs. The persons involved have sought anonymity for obvious reasons.
The Background
The appeal was that a dog walker had been walking more than 1 dog when they approached a blind corner and suddenly came face to face with a person walking a small dog. The facts were disputed but, suffice to say that the dogs came into contact with each other and it was alleged that the dogs caused the subsequent injury and death of the small dog.
The dog walker was charged under Section 3(1) of the Dangerous Dogs Act 1991 with being in charge of a dog dangerously out of control, and the respective owners were charged under the same Act with being the owner(s) of a dog dangerously out of control. All persons appeared before their local Magistrates’ Court. The charges against the owners were dropped at Court and the dog walker allegedly pleaded Guilty upon the basis that the dogs had been dangerously out of control but, had not caused any injury to a person (the non-aggravated offence).
It is a statutory defence for a dog owner to prove that, at the material time, the dog was in the charge of a person who they reasonably believed to be a fit and proper person to be in charge of it (Section 3(2)).
What followed is where this case becomes interesting…
The owners of the dogs were not allowed to enter the courtroom at the Magistrates’ Court and were given no opportunity to make representations in relation to their respective dogs. They were approached in the Court waiting area and asked if they would agree to an Order to muzzle their dogs but, they did not agree to this.
Some weeks after the hearing the owners received through the post a Court document titled ‘Order’ and a list of 3 conditions as follows :
1. The dogs must be muzzled in a public place;
2. The dogs must be walked on a lead in public places;
3. The dogs must not be walked all together by 1 person.
The ‘Order’ made no reference to the legal provision under which it had been made and provided no details of the penalty for any breach thereof. This is when the owners contacted me for advice.
Upon perusal of the Orders received by the owners it was unclear exactly what the Orders were. There was no reference to which legal provision the Orders had been made under or what the penalty would be for a breach.
I advised the owners to appeal and they sought the paperwork from the relevant Crown Prosecution Service (CPS).
The CPS case summary referred to their intention to seek Dog Control Orders in relation to the dogs and listed the 3 conditions that appeared in the Orders sent to the owners.
Dog Control Orders (DCO)
Dog Control Orders replace the previous system of byelaws for the control of dogs under Dog Control Orders (Prescribed Offences and Penalties, etc) Regulations 2006 and Dog Control Orders (Procedures) Regulations 2006. The bodies able to make DCOs are defined in the Clean Neighbourhoods and Environment Act 2005. They are as follows : a District Council, County Council, London Borough Council, Common Council of the City of London and the Council of the Isles of Scilly. The Secretary of State can designate other bodies as secondary authorities to make DCOs.
A DCO is made in relation to an area of land and there are only 5 offences that can be provided for in a DCO. These are
a) Failing to remove dog faeces;
b) Not keeping a dog on a lead;
c) Not putting a dog on a lead when directed to do so by an authorised officer;
d) Permitting a dog to enter land from which dogs are excluded;
e) Taking more than a specified number of dogs onto land.
Before a DCO can be made the Local Authority must consult with other primary and secondary authorities within that area, they must publish a notice describing the proposed order, and that notice must identify the area of land to which the Order applies, summarise the order, refer to a map (if appropriate) and provide for representations to be made regarding the Order. The authorities must be satisfied that a DCO is justified and they must follow the necessary procedures. To justify the making of a DCO the Local Authority must show that this is a necessary and proportionate response to problems caused by the activities of dogs and those in charge of them. A failure to give consideration to the rights and interests of the dog owners, balanced against those affected by the activities of dogs, would make any DCO vulnerable to challenge in the Court system.
A failure to adhere to the procedure set out in Regulation 3 of the Dog Control Orders (Procedures) Regulations 2006 will invalidate any DCO.
As can be seen from the above, a DCO is not made against a specified dog but, placed on a specified area of land and anyone who fails to obey that Order is guilty of a breach of the DCO.
The penalties are a maximum fine of level 3 (currently £1000), or Local Authorities may issue Fixed Penalty Notices.
It therefore appears that the Orders imposed in this case are not Dog Control Orders as neither the CPS not the Court has the power to make such an Order and a DCO is not the relevant nor appropriate Order in such circumstances.
It is not for an appellant to attempt to ascertain what the Orders are or under what legal provision they are made, that is the role of the prosecution. However, in this case, due to the state of uncertainty as to the Orders, I felt the need to research what orders the Court could have made.
Dogs Act 1871
If the offences had been brought by way of a formal complaint under the Dogs Act 1871 then the Magistrates’ Court would have the power to make an Order that the dog(s) be kept under proper control by the owner or face destruction. This didn’t happen in this case as the charges were brought under the Dangerous Dogs Act 1991.
Criminal Behaviour Order (CBO)
The CBO replaces the previous ASBO on conviction. A CBO can prohibit a person from doing anything described in the Order to prevent specific acts which cause harassment, alarm and distress. The Court must first be satisfied that the offender has engaged in behaviour that caused, or was likely to cause distress to any person. The second test to be satisfied is that the Court must consider that making the Order will help in preventing the offended from engaging in such behaviour. The sentencing council guidelines make no reference to a CBO in any other terms than against the ‘offender’. The Order must specify the period for which it has effect and cannot be made where an absolute discharge is given.
It therefore appears that the Orders in question were not CBO as the owners of the dogs were not convicted of any offence.
Community Protection Notice (CPN)
The Police, the Council or a registered social landlord can issue a CPN where a dog’s behaviour is persistent, unreasonable, and negatively affects the quality of life of people or animals. The notice can order the responsible person to do specific things, refrain from doing specific things or take reasonable steps to get specific results. There must be a written warning prior to issue. The case in question was accepted as a one-off incident and therefore a CPN would not be an appropriate measure in the circumstances.
Civil Injunction
A Civil Injunction can be issued where behaviour causes harassment, alarm or distress in public places. This must be applied for in the County Court. This matter was brought under criminal charges heard in the Magistrates’ Court.
Public Spaces Protection Order (PSPO)
Councils can use a PSPO to impose restrictions regarding dogs on a designated public area. As with a CPN the dog’s behaviour must be persistent and affecting the quality of life of people in the area. As with the CPN above this type of Order would not be appropriate due to this being a one off incident.
What about the Dangerous Dogs Act 1991 does that allow for a ‘control order’?
Dangerous Dogs Act 1991 (DDA)
The 3 charges originally before the Court were all contrary to Section 3(1) and (4) of the DDA. The charges against the owners were presumably dismissed/discontinued due to the statutory defence under Section 3(2) that the owners left the dogs in the charge of a person who they reasonably believed to be a fit and proper person.
Under Section 4 of the DDA there is provision for the Court to make a destruction order or a contingent destruction order.
Section 4(1) Where a person is convicted of an offence under Section 3(1)
a) Non aggravated offence (no injury caused to a person) the Court MAY order destruction of the dog, and
b) MAY order the offender to be disqualified from having custody of a dog.
Section 4(1A) The Court are not required to order destruction of the dog if satisfied –
(a) That the dog would not constitute a danger to the public safety.
Section 4(1B) When deciding whether a dog would constitute a danger to the public safety the Court –
(a) MUST consider –
(i) the temperament of the dog and it’s past behaviour;
(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.
Section 4(2) Where the Court makes an Order under subsection (1)(a) for the destruction of a dog owned by a person other than the offender…the owner may appeal to the Crown Court against that Order.
In the case in question, the Magistrates had stated in open Court that they were not considering a destruction order.
The Appeal before a Recorder and 2 Lay Magistrates
I had submitted a full skeleton argument detailing the relevant law on the subject.
The Prosecutor asked for an adjournment to make enquiries with the relevant Prosecutor and Legal Advisor from the hearing at the Magistrates’ Court when the Orders were made.
I objected to that on 2 limbs:
1. The appellants were privately paying and couldn’t afford further delays and legal costs; and
2. The appeal notice, containing full details of the grounds of appeal, had been served over 8 weeks prior to the appeal hearing date, and thus the CPS had had ample time to make any relevant enquiries.
The appeal progressed with the advancement and discussion of the above possibilities in relation to the Orders.
The Prosecutor accepted that the law as detailed above was correct and conceded that the Magistrates’ Court had no power to make a DCO.
Verdict
The Recorder and the 2 Lay Magistrates were unanimous in their decision that it was unclear as to what Orders had actually been made and under what Statute they had been made. They added that it was not clear what the penalty would be for any breach of the Orders. The Recorder congratulated me on my thorough skeleton argument detailing the relevant law and pointed out to the Prosecutor that it is not for the Appellants to have to question and research what the Order is and what the penalty for a breach may be. The owners had not been given any opportunity to make representations as to their dogs or any possible Orders.
The appeal was successful and the Orders were declared as unlawful and quashed.
The appellants recovered their legal costs via the Central Funds process.
This is a salutary lesson to all those involved in the investigation, prosecution and enforcement process relating to dangerous dogs.
NB: Law correct at time of writing