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26 Jul 2019
Stuart Jessop represents Kent Police in judicial review of Dangerous Dogs Destruction OrderTweet
The owner of a pit bull dog has failed in a judicial review challenging the decision of Maidstone Crown Court, upholding an order made pursuant to section 4B of the Dangerous Dogs Act 1991 for the destruction of the dog. Stuart Jessop acted for the Interested Party and Cathryn McGahey QC represented the Claimant.
The Claimant’s principal ground was that the court’s decision on dangerousness wrongly failed to take into account mandatory conditions of exemption which require controls (including the use of muzzling and leads in public) over a dog of a prohibited type. The Claimant cited two cases in support, R v Flack  Cr App R (S) 70, and R v Baballa  EWCA Crim 1950. Both these cases were concerned with orders made on conviction whereas the case being heard was an order where there had been no conviction, refered to as a civil order. However the Claimant argued that the sections were identical and therefore the Court of Appeal cases should be followed.
The Interested Part argued that the approach in R v (Grant) v Sheffield Crown Court  EWHC 1678 was the correct one. It was submitted that when section 4B is considered with article 4A of the 2015 Exemption Order it is clear that the issue of whether the particular pit bull is a danger to the public safety is a prior question to be decided according to the matters specified in subsection 4B(2A) alone and without reference to the requirements of exemption, which come into play only once the court has determined that the dog is not a danger to public safety.
The Divisional court agreed with the Interested Party and dismissed the claim for judicial review.
At paragraph 36 the court held:
“In our judgment the only matters to be taken into account in determining the issue of danger to public safety in respect of a particular pit bull are those set out at section 4B(2A) of the 1991 Act. This subsection is aimed at matters touching on the dangerousness of the dog itself, not on matters which might control or minimise the risk it represents. The temperament of the dog, the way it has behaved in the past, whether its owner is a fit and proper person to have charge of it are all factors having to do with the nature and demeanour of the pit bull itself, they are inherent to the particular dog, its presentation and behaviour. The methods of control are conceptually distinct.”
At paragraph 38 the court recognised that the case of Grant was in conflict with the court of Appeal case of Baballa but noted that the latter case did not consider section 4B:
“We recognise the force of Ms McGahey’s argument that the approach to the destruction of pit bulls under sections 4/4A following a conviction should be the same as that under section 4B in the civil context. We accept that the approach adopted by the Court of Appeal (Criminal Division) in Baballa regarding applications for destruction orders of pit bulls made under sections 4 and 4A following a conviction under section 1 of the 1991 Act appears to require a consideration of mandatory controls required for exemption when considering public safety under section 4(1A). To this extent, the Baballa approach is in conflict with that in Grant and subsequent decisions on the approach to public safety under 4B(2)(a), which preclude any such consideration. However, the court in Baballa did not consider section 4B, it had no reason to do so. It cannot be said that the court purported to identify the proper approach to civil orders under section 4B.”
At paragraph 39 the court found it significant that subsection 4B (2A) had been inserted into the section after Baballa was decided:
“We regard it as significant that Baballa was decided before the introduction of specific provisions setting out what matters a court should (and, by implication, should not) take into account when considering whether a particular pit bull is a danger to public safety. Subsections 4(1B) and 4B(2A) were introduced into the 1991 Act by the Anti-social, Crime and Policing Act 2014. Prior to this there was no specific legislative guidance concerning matters bearing upon the assessment of danger to public safety. There is now. The cases to which we have referred above, discussing, approving and (in the case of Dodsworth) following Grant all post-dated the introduction of that specific guidance.
For the reasons given we find that HHJ MacDonald QC and the justices adopted the correct approach to the assessment of danger to public safety under section 4B of the 1991 Act. Accordingly, we dismiss the claimant’s challenge under the first and principal ground of review.”
The full judgment can be found here