Henderson v Commissioner of Police for the Metropolis

Standing in a dangerous-dog destruction application depends on the issue being contested. A person who has never owned, possessed or been in charge of the dog has no standing merely because they may wish to provide a future home. Standing to challenge whether the dog is a prohibited type is confined to the owner and persons whose relationship with the dog engages Article 8 of the Convention. The statutory factors concerning danger to public safety may be argued only by the owner or the person for the time being in charge. Whether someone is presently in charge is fact-sensitive. The fitness of a third party who is neither owner nor person in charge is not an “other relevant circumstance” under section 4B(2A)(b).

The Commissioner applied under section 4B(1)(a) of the Dangerous Dogs Act 1991 for the destruction of Olive, alleged to be a pit bull terrier type. The dog had been seized after its registered owner could not be traced. A proposed intervener, Debra Case, had never owned, possessed or met the dog and wished to offer it a home. Gill Henderson was named as appellant and later relied on limited involvement with the dog, including arranging veterinary examination and payment of fees.

The Magistrates’ Court held that neither person had standing. The appeal concerned the scope of standing, the meaning of “person for the time being in charge”, and whether a prospective carer could rely on other relevant circumstances. The court also considered the separate question of who could challenge the allegation that Olive was a prohibited dog.

1. Reformulation and outcome. The Case Stated involved separate questions which had to be distinguished. The matter was remitted to the Magistrates’ Court for a further hearing.
2. Sections 4B(1), 4B(2) and 4B(2A) operate differently according to whether the seized dog is one to which section 1 applies. For a prohibited dog, destruction is required unless the court is satisfied that it would not constitute a danger to public safety, applying the mandatory factors in section 4B(2A)(a) and any other relevant circumstances under section 4B(2A)(b). For a non-prohibited dog within section 4B(1)(a), the court has a general discretion and sections 4B(2) and 4B(2A) do not apply.
3. Only the owner or a person for the time being in charge has standing under sections 4B(2) and 4B(2A) to argue that a prohibited dog should not be destroyed. The statutory scheme contemplates release to one of those persons and excludes a wider class of prospective carers.
4. On the separate issue whether the dog is a prohibited type, standing is limited to the owner and persons able to show that destruction would interfere with an Article 8 right to family or private life. A general legitimate interest in giving the dog a home is too vague and falls outside the statutory scheme. The conclusion was supported by section 5(5), which limits the corresponding challenge in a prosecution to the accused.
5. Whether a person is “for the time being in charge” is for the Magistrates’ Court to determine on the facts, with the guidance in Webb v Chief Constable of Avon and Somerset [2017] EWHC 3311 (Admin). A person who is neither owner nor person in charge cannot rely on their fitness as an “other relevant circumstance” under section 4B(2A)(b), and has no standing to contend that the dog would not endanger public safety.
6. The court did not determine the disputed new factual material or prescribe how the Magistrates’ Court should proceed on the report challenging the dog’s classification, beyond recording the prosecutor’s responsibility to draw that report to the court’s attention.

• High Court (Administrative Court): On an appeal by way of Case Stated from the decision of District Judge Jabbitt at Willesden Magistrates’ Court on 9 February 2017, the court reformulated and answered the questions and remitted the matter for a further hearing.