Webb v Avon and Somerset Constabulary & Anor

Under Dangerous Dogs Act 1991, a contingent destruction order may be made for a prohibited dog which is not currently exempt only if the court is satisfied that the dog would not endanger public safety and considers the owner or the person for the time being in charge as a fit and proper person. A third party’s fitness cannot be considered as an independent route under “other relevant circumstances”.

“In charge for the time being” is an ordinary, fact-sensitive concept involving responsibility for the dog. It may include a regular dog-walker, but cannot extend to proposed future contact. A court may decide whether a person is fit and proper, but has no power to order that a named person apply for an exemption certificate.

The appellant owned Sky, a prohibited dog which had previously been exempted. The exemption lapsed after breaches of the certificate conditions. The magistrates ordered destruction. On appeal, the Crown Court found that Sky was not dangerous and that the appellant and the proposed keeper, Mrs McCann, were fit and proper persons, but made a contingent destruction order without deciding whether Mrs McCann was the person for the time being in charge.

The appeal by way of case stated concerned the scope of Dangerous Dogs Act 1991, section 4B, the meaning of “the person for the time being in charge”, and whether the Crown Court could direct a named person to apply for an exemption certificate.

1. Section 4B and the statutory class. The court held that section 4B(2A)(a)(ii) limits the persons whose fitness must be considered to the owner or the person for the time being in charge of the dog. A third party cannot be treated as fit and proper under section 4B(2A)(b) merely because that person is willing to take the dog. The Crown Court therefore erred in treating Mrs McCann’s fitness as one of the other relevant circumstances.
2. Relationship with article 12. Article 12 of the 2015 Order applies to dogs which are currently exempt, and provides an exclusive and narrow route for substitution where the existing keeper has died or is seriously ill. Where exemption has lapsed, section 4B applies instead. The Crown Court was right to reject the argument that a dog previously exempted remained subject to article 12 for all purposes.
3. Meaning of “in charge for the time being”. The phrase should not be construed narrowly or expansively. It concerns responsibility for the dog and is highly fact-sensitive. A person who regularly walks a dog and has responsibility for it during that time may qualify. A volunteer may qualify, although a person acting purely as another’s agent may not. The phrase includes past or present contact, but not proposed future contact.
4. Application to Mrs McCann. The Crown Court had made no finding whether Mrs McCann was the person for the time being in charge and had wrongly declined to hear relevant evidence. That issue, and if necessary whether the statutory public-safety test was satisfied, had to be determined by the Crown Court.
5. Certificate application. The Crown Court had no power under article 9, expressly or by implication, to order Mrs McCann or any other named person to apply for a certificate. It could decide whether a person was fit and proper; if the statutory conditions were met, the Index would then be required to issue a certificate.
6. The appeal was allowed on the alternative basis and the case was remitted to the Crown Court.

• Bristol Magistrates’ Court: destruction order made on 16 June 2016.
• Bristol Crown Court: destruction order quashed and a contingent destruction order made on 11 August 2016.
• High Court (Administrative Court): appeal allowed on the alternative basis and remitted to the Crown Court for a finding whether Mrs McCann was the person for the time being in charge of Sky and for any consequential decision under section 4B.