Neutral Citation No [2012] NICA 19

Ref:    

GIR8515

 

 

 

Judgment: approved by the Court for handing down

Delivered:

12/06/12

(subject to editorial corrections)*

 

 

 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_______

 

CAROLINE BARNES

Applicant;

and

BELFAST CITY COUNCIL

Respondent.

_______

Before: Morgan LCJ, Higgins LJ and Girvan LJ

_______

 

GIRVAN LJ

 

Introduction

 

[1]        This is an application by Caroline Barnes to compel His Honour Judge Rodgers (“the judge”) to state a case on points of law arising out of a judgment given by him in an appeal by the applicant against a decision in Belfast Magistrates’ Court whereby the applicant was convicted of being the keeper of a type of dog known as a Pit Bull Terrier contrary to Article 25A(1) and (7) of the Dogs (Northern Ireland) Order 1983 as amended by the Dangerous Dogs (NI) Order  1991.  As a consequence of that conviction it was ordered that the applicant’s dog (“the dog”) should be destroyed.

 

[2]        The applicant accepted that the dog was of the type known as a Pit Bull Terrier and that she was guilty of the offence of being the keeper of such a dog within Article 25A of the 1983 Order as amended.  The dog has been in the custody of the Council since May 2010 awaiting the final outcome of legal proceedings.  The only issue for the County Court was whether the dog should be destroyed as a result of this conviction.

 

[3]        The judge by his judgment delivered on 30 September 2011 dismissed the applicant’s appeal against conviction and ordered the destruction of the dog.  An application to state the case was made on 20 October 2011.  On 18 November and 23 November 2011 the respondent, Belfast City Council, wrote to the judge requesting that a case be not stated.  The judge wrote to the parties on 6 December 2011 directing that both the applicant and the respondent attend to clarify the legal position.  This hearing took place on 15 December 2011 during which both parties were present.  The judge wrote to the applicant on 4 January 2012 enclosing an addendum to his judgment and requesting to know whether in light of the judgment the applicant wished to proceed with the application to state the case.  It was indicated that the applicant wanted to proceed.  The judge issued the refusal to state a case on 13 January 2012.

 

Factual background

 

[4]        Following the expiry of the dog’s licence in September 2009 a dog warden attended the applicant’s property on 11 May 2010 and observed what she thought was a Pit Bull type dog on the property.  She returned with another warden to the premises later that date.  The wardens spoke to a male on the premises who refused to permit the examination of the dog and told he them that if they attempted to measure the dog it would “rip their head off”.

 

[5]        A warrant to enter was obtained on 14 May 2010.  The dog wardens attended on 19 May 2010.  One of the wardens, Ms Lightfoot, attempted to examine the dog in the kitchen.  The dog was very agitated, barking and growling.  The dog lunged at her head and hit her with his muzzle.  She was unable to carry out the examination because the dog was repeatedly lunging at her.  The applicant finally agreed that the dog wardens could take the dog and she placed the dog in the Council van.

 

[6]        Mr Peter Tallaght, an expert dog handler, retained by the Council examined the dog.  He confirmed that the dog was a Pit Bull Terrier and he had serious concerns in relation to its temperament and general stability.  The dog allowed Mr Tallaght to examine him but after the examination and without warning the dog flew at him at head height hitting the wire gate parallel to Mr Tallaght’s face.  At the hearing before the County Court Mr Tallaght stated the dog was a dangerous example of this type of dog and he believed it had a severe personality defect.  He considered that the dog had a problem with strangers and it was not possible to determine when the dog would be under stress. 

 

[7]        Ms Fisher, an expert instructed on behalf of the applicant, gave evidence that she had very little experience of Pit Bull Terriers but had experience of Staffordshire Bull Terriers and had dealt with some dogs of this type in the US.  She considered that the dog was not a danger to the public and that it was a wonderful family dog who had been well handled.  She found the dog to be one of the easiest dogs that she had met.

 

[8]        On the other hand Mr David Ryan, on behalf of the applicant, in a report dated 16 March 2011 recorded that when he reached over the dog’s head to clip a line to the back of his collar in one movement the dog lunged towards him, growled, barked and snapped.  He concluded that if the dog were to be returned to the family he would not be a danger to the public if kept muzzled and confined to a lead when in public and kept confined to an enclosure from which he could not escape when not confined by a lead.

 

The judgment

 

[9]        The judgment of 3 September 2011 referred to the circumstances in which the dog was removed from the applicant’s family by the Council.  The judge noted that the dog had been in kennels for 17 months and that Ms Lightfoot was the main carer.  Her conclusion was that the dog was “one of the most aggressive and unpredictable dogs she had ever met.”  The dog was on medication for depression which had mellowed it.  Her conclusion was that it would not be possible to correct the dog’s faults and he remained a danger to the public and anyone around him.  Two other dog wardens gave similar evidence.  The applicant stated in evidence that she did not know the dog was a Pit Bull Terrier until she was told by the dog wardens.  She conceded that the dog had changed since an incident where she and her child were threatened by a group of youths.  She said the dog gave no problems in the house.  She admitted that the dog did not deal well with strangers who forced themselves upon him.  The dog had been neutered and micro chipped and was covered by third party insurance.  She also gave evidence that she was willing to muzzle the dog and at present the dog was muzzled “to warn people”.

 

[10]      With regard to the expert evidence the judge stated that he was impressed by the evidence of Ms Lightfoot  and the supportive evidence of her two colleagues.  He stated Mr Tallaght’s view that this was a very dangerous dog.  He considered that the view taken by Ms Fisher flew in the face of other evidence.  The judge noted her lack of experience of Pit Bull Terriers.  The applicant too accepted that the dog had to be muzzled and she acknowledged the dog had difficulty with strangers and children not well known to him.  He referred to evidence by Mr Ryan that the dog had lunged at him without warning.  He stressed that the issue was a matter of public safety and that it was the duty of the courts to put public safety above anything else.  He concluded that he believed that :-

 

“It would not be practicable or possible to put restraints on the ownership of the dog that would bring it within the statutory test.  Accordingly I cannot be satisfied that this dog is not a danger to the public and I dismiss the appeal.”

 

[11]      The judge in the course of his written judgment dealt with the legislative context in which he had to make his decision.  He referred to the difference between the English statutory provisions and those applicable in Northern Ireland.  Article 5 of the Dangerous Dogs (Northern Ireland) Order 1991 amending the Dogs (Northern Ireland) Order 1983 obliges the court to order the destruction of a dangerous dog.  A Pit Bull Type Terrier is defined as a dangerous dog.  The judge correctly concluded that the dog in this instance fell within that definition.  The judge noted that under the Dangerous Dogs (Amendment) Act 1997 in England and Wales the court was given a discretion not to order the destruction of a dog falling within the prohibited list if the court came to the conclusion that it did not in fact pose a danger to the public.

 

[12]      The judge noted the introduction in Northern Ireland of the Dogs (Amendment) Act (Northern Ireland) 2011.  Article 5(2) amending Article 25C3 of the 1983 Order now provides that the court “may order the destruction of a dog and shall do so unless satisfied that the dog will not be a danger to the public.”  He referred to the fact that in England a court can take into account that an exemption certificate is in existence in relation to the dog.  Local authorities there may issue exemption certificates imposing conditions such as neutering, micro chipping, muzzling in public and third party insurance for the dog. The judge in his judgment stated that:-

 

“Northern Ireland authorities have no facility to issue exemption certificates”.

 

In so saying the judge was strictly correct but it was accepted on behalf of the Council that this did not portray the full picture.  The Council thought it had made clear to the judge that an exemption scheme could be set up by the Council, if appropriate.

 

The applicant’s criticism of the judgment

 

[13]      The applicant seeks to argue that the judge erred in law in failing to take properly into account that the Council could set up an exemption scheme if appropriate.  The first and central question on which the applicant sought to require the judge to state a case was whether the judge was wrong in law in “failing to consider the provisions of the Dogs (Amendment) Act (Northern Ireland) 2011 when considering that local authorities in Northern Ireland have no facilities to issue exemption certificates.”

 

[14]      The respondent contends that the judge’s judgment properly read makes clear that the judge did carefully consider possible conditions which could be imposed on the dog to render it safe.  In particular it relies on paragraph 28 and 37 of the judgment which are in the following terms:-

 

“28.     . . . I mentioned above the exemption certificates the contents of which can be taken into account by a court in reaching a decision under the equivalent legislation in England and Wales.  Although we have no similar resource I will take into account that the appellant would comply with similar conditions as are in exemption certificates despite her refusal to allow the dog warden into her house until the warden returned with police officers.

 

. . .

 

37.       In this case as I have said I have to make a finding on the facts that I find proven and on the balance of probabilities whether I am satisfied the dog will not be a danger to the public.  In the light of the attacks on Ms Whitefoot, Mr Tallaght and Mr Ryan I would find this very difficult to do.  I also believe that it would not be practicable or possible to put restraints on the ownership of this dog that would bring it within the statutory test.  Accordingly I cannot be satisfied that this dog is not a danger to the public and I dismiss the appeal.”

 

[15]      When application was made to the judge for a case stated the judge conducted a short hearing in which he dealt with the applicant’s proposition that he had misdirected himself on the relevance and impact of a possible exemption scheme formulated by the Council.  In what was described as an addendum to the judgment the learned judge stated:-

 

“Counsel agreed that what I was told was there was no exemption scheme in Northern Ireland although the legislation had been passed but if  I found that the dog was not dangerous they would consider this dog for exemption. The words in bold and underlined are the extra words that I had not understood had been agreed but I, of course accept that, if Counsel say that was agreed it must have been agreed”.

 

He then went on to refer to paragraphs [28] and [37] of his judgment to show his reasoning pointing out that he had taken into account that the appellant would comply with similar conditions as could be set out in an exemption certificate in England and Wales but he concluded that it would not be practicable or possible to put restraints on the ownership of the dog that would bring it within the statutory test. He declined to state a case.

 

Conclusions

 

[16]      Although the written skeleton argument on behalf of the applicant asserted that the judge reviewed and amended his original decision, that he was wrong to do so and that by doing so gave rise to the appearance of bias in confirming the outcome of his original judgment, Mr Lavery QC did not appear to press that argument before us. We are satisfied that there is no substance in those assertions.  The judge was dealing with an application to require him to state a case and he made clear in the course of the further hearing that he had in effect properly considered the question whether the dog could be rendered safe by the imposition of conditions.  His original judgment makes clear that he did consider that question and reached a conclusion of fact justified on the evidence that no conditions could be formulated that would have avoided the conclusion that the dog was dangerous.

 

[17]      Mr Lavery QC focused his argument on the first question set out in the application to state a case asserting that the judge failed to properly consider the provisions of the 2011 Act when concluding that local authorities in Northern Ireland had no facilities to issue exemption certificates.  We are satisfied that the judge in his judgment made clear that he was aware of the 2011 Act.  While he concluded that the Council had no power to issue an exemption certificate (which is legally correct) the Council was in fact prepared to consider the dog for exemption if the court concluded that the dog was not dangerous.  Even though the judge had not appreciated that that was the way in which the Council was making its case, he clearly did consider the question whether conditions could be drawn to avoid dangerousness in the dog.  He found as a fact, as he was fully entitled to do on the evidence, that the dog could not be rendered safe by the imposition of a scheme of conditions designed to render it safe.  The judge had heard evidence on the issues relating to this dog over a protracted two day hearing, carefully considered the evidence and the issues and he reached conclusions of fact which have not been vitiated by any error of law on his part.  In these circumstances we conclude the judge was correct to refuse to state a case.

 

[18]      Accordingly we must dismiss the application to compel the judge to state a case.