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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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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").
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:
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:
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:
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.
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.