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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Slade, R (on the application of) v Liverpool Magistrates' Court [1997] EWHC Admin 529 (6th June, 1997)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/529.html
Cite as: [1997] EWHC Admin 529

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LIVERPOOL MAGISTRATES' COURT ex parte NOEL SLADE, R v. [1997] EWHC Admin 529 (6th June, 1997)

IN THE HIGH COURT OF JUSTICE CO3450/96
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand
London WC2

Friday, 6 June 1997



B e f o r e:

LORD JUSTICE PILL

and

MR JUSTICE ASTILL

- - - - - -


R E G I N A


-v-

LIVERPOOL MAGISTRATES' COURT
Respondent

ex parte

NOEL SLADE

Applicant

- - - - - -

Handed down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
(Official Shorthand Writers to the Court)

- - - - - -

MR G BELLIS and MR T PETTS (Instructed by Messrs Jackson & Canter, Liverpool L1 8BN) appeared on behalf of the Applicant.

THE RESPONDENTS were not present and were not represented.

_____________

J U D G M E N T
(As approved by the Judge )

____________


Friday, 6 June 1997
J U D G M E N T

1. LORD JUSTICE PILL: This is an application to quash the decision of the Stipendiary Magistrate for the County of Merseyside, P J Firth Esq, made on 8 July 1996. The learned stipendary magistrate declined to stay an information laid against Mr Noel Slade, the applicant, alleging an offence under s 1 of the Dangerous Dogs Act 1991 ("the 1991 Act").


2. S 1 of the 1991 Act provides, insofar as is material, that:


"(1) This section applies to¾
(a) any dog of the type known as the pit bull terrier
(2) no person shall¾
(d) allow such a dog of which he is the owner or of which he is for the time being in charge to be in a public place without being muzzled and kept on a lead
(7) any person who contravenes this section is guilty of an offence."


3. S 5(5) of the 1991 Act provides:



"If in any proceedings it is alleged by the prosecution that the dog is one to which s 1...applies it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers sufficient;..."

4. An information was first laid against Mr Slade with respect to the dog in early 1995. A plea of not guilty was entered on 17 March and the case listed for pre-trial review. At a hearing on 4 May 1995 it was made clear that the sole issue was whether the dog was a pit bull terrier and the defence indicated that they intended to call an expert witness. The trial was fixed for 16 June but the defence requested, and were granted, an adjournment because their expert witness was unable to attend court on that day. The prosecution also intended to call an expert witness as was made clear at the further pre-trial review held on 29 June 1995. The case was listed for hearing on 7 September.


5. On that date, and due to an administrative error, the expert witness for the prosecution could not attend because of a commitment at Doncaster Crown Court. The learned magistrate refused to adjourn the case whereupon the prosecution indicated that, in the absence of the witness, they had decided to call no evidence. The information was dismissed. On the following day, the dog, which had been in police possession, was returned to the applicant. In February 1996, another information was laid against the applicant with respect to the dog alleging that he was in charge of the dog in a public place on 8 September 1995. That information came before the learned magistrate on 10 June 1996. The defence sought to stay the information first on the ground that the applicant was entitled to the benefit of a plea of autrefois acquit and second because the information was an abuse of the process of the court. The present application is based on his refusal to do so.


6. Neither the magistrate nor the prosecution have been represented in this Court and Mr Bellis, for the applicant, has presented his case helpfully and fairly. He accepts that the defence of autrefois acquit is not in the circumstances available to the applicant and also that there had been no previous decision upon the merits. A fresh offence would be committed, if the other elements are proved, upon a fresh appearance in a public place and the only issue was whether the dog was a pit bull terrier. Mr Bellis submits that there was an abuse of process first because the prosecution had denied the applicant the opportunity of a favourable finding in his favour on 7 September 1995, second, because by returning the dog to the applicant on the following day they played a crucial role in allowing him to commit the offence with which he is now charged and, third, because of the delay between September 1995 and February 1996. In support of the first submission, Mr Bellis refers to the burden of proof being on a defendant under s 5(5) of the 1991 Act and the presence on 7 September of a dog handler who could have given evidence for the prosecution.


7. Mr Bellis relies upon the decision of this Court in R v Haringey Magistrates ex parte Cragg (The Times 8 November 1996). The prosecution offered no evidence upon a charge under s 1 of the 1991 Act and the charge was dismissed. The dog was returned to its owner who was not the defendant in the first proceedings. The dog was re-seized and proceedings were initiated for an Order for the destruction of the dog under s 5(4) of the 1991 Act. Maurice Kay J, with whom Rose LJ agreed, stated:

"At the end of the day the second proceedings, that is to say the ones against the applicant, involved the same dog which had remained in the same ownership throughout. In my judgment, in these circumstances, it was wholly inappropriate and wrong for the Commissioner to take the second proceedings against this applicant and the application which was made to the stipendiary magistrate to stop those proceedings as an abuse ought to have succeeded. It matters not precisely what label is put on that analysis but in my judgment it is an abuse of process and ought to have been held to have been such."


8. The power of magistrates to exercise control over their proceedings through an abuse of process jurisdiction is to be "most sparingly exercised" (Lord Griffiths in R v Horseferry Road Court ex parte Bennett [1994] AC 1, at 63H). Lord Griffiths added at page 64 at C that "the power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures". Lord Lowry stated at page 74 at G that the discretion to stay criminal proceedings on the ground that to try the proceedings would amount to an abuse of its own process arose either:


"(1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order the express the court's disapproval of official conduct."

9. There will be quite exceptional cases where the magistrate should intervene in circumstances where the fairness of the trial is not in question. An example is the decision of this Court in R v Croydon Justices ex parte Dean [1993] QB 769, cited without disapproval in Bennett.


10. A purpose of the 1991 Act is to give continuing protection to the public against dogs bred for fighting which include, by statutory definition, pit bull terriers. The issue between prosecution and defence is whether the dog in the case is a pit bull terrier. The first case against the defendant was dismissed because the prosecution, reasonably in my view, declined to proceed when, due to an administrative error, the expert witness they proposed to call to deal with the issue failed to appear. I do not criticise the magistrate for refusing to grant an adjournment. However, the issue as to breed being unresolved, I do not consider it an abuse of process to take further proceedings if the dog appears again in a public place without being muzzled and kept on a lead. It is the policy of the Act to give the public protection from dogs of a particular breed. The case is different from Cragg where the prosecution's decision not to proceed in the first case was unexplained and where the prosecution sought to justify the second proceedings on the basis that, although the dog had been in the same ownership throughout, the defendant was different.


11. I do not regard the delay in laying the information as constituting an abuse of process, undesirable, as the magistrate found, it was. In appropriate circumstances, the prosecution would not be abusing the process of the court in seeking to establish the breed of the dog if it again appeared unmuzzled in a public place.


12. Where the applicant is on stronger ground is in the circumstances upon which the information was actually laid. On 8 September the applicant was allowed to take the dog out of police custody and into a public place unmuzzled. He had expert evidence in his favour and he had been acquitted of the charge against him. On the evidence, there is no reason to doubt that, the prosecution not having proceeded against him on the previous day, and the charge having been dismissed, he reasonably believed he was entitled to act as he did. Unknown to him, the prosecution had already decided to base a further charge against him on observing him leave the police station in such circumstances.


13. I bear in mind the general principle that a court is concerned only with "the conduct of the trial" and neither "initiates nor stifles a prosecution" (Lord Scarman in R v Sang [1980] AC 402 at 455). Further, the defendant should not be protected for all time from a trial of the issue as to the dog's breed. However, the power in a trial court, in deciding upon the sentence to be imposed, to have regard to the circumstances in which the offence was committed is ordinarily a safeguard which mitigates the potential harshness of general principle.


14. In this case, however the statutory provisions in force at the time precluded any such safeguard. S 4(1) of the Act provided that:


"where a person is convicted of an offence under section 1...above...the court¾

(a) may order the destruction of the dog in respect of which the offence was committed and shall do so in the case of an offence under section 1..."


15. Upon a conviction of the defendant for the offence now charged, the court must order the destruction of the dog. The sentence was mandatory and there was no discretion to mitigate the severity of the sentence by reason of the circumstances in which the offence was committed. Had there been a discretion, the circumstances in which the offence was committed may have high mitigatory value and, by analogy with Sang (per Lord Scarman at page 451 at F), this was undoubtedly a case for its exercise. The absence of the discretion is, in my view, a relevant consideration when deciding whether there was an abuse of the process of the court. The defendant had no reason to believe that he was committing an offence when he accepted the dog from the police and walked out of the police station. He could reasonably assume that he would not be prosecuted for doing what he did and the police could have but did not disabuse him of that belief. The statutory provisions were such that the trial court, by way of mitigation of sentence upon conviction, was not in a position to protect him (or his dog) from the unfairness of the procedure followed. Given the consequences of a conviction, it was unfair to try the accused for the offence and offensive to the court's sense of justice and propriety, so as to be an abuse of process.


16. The Dangerous Dogs (Amendment) Act 1997, which provides some qualification to s 4(1) of the 1991 Act, is soon to come into force but should not in my view bear upon the decision reached upon the facts in this case.


17. I would grant the relief claimed and order a stay of the proceedings before the magistrate.


18. Mr Justice Astill is unable to be here this morning, but, as appears in the draft judgment handed, down he is in agreement and has asked me to express that.


19. ORDER: Stay of the proceedings before the magistrates; no order for costs save legal aid taxation ordered.



© 1997 Crown Copyright


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/529.html