PY, R. v (Rev 1)

For a prosecution appeal, the mandatory requirements to inform the court of an intention to appeal and of the acquittal agreement must be met promptly. However, section 58 of the Criminal Justice Act 2003 does not require those steps to be taken orally in open court. Where attendance at a ruling has been dispensed with, timely email communication may satisfy the statutory scheme.

The exemption in section 10(3) of the Dangerous Dogs Act 1991 applies only where a dog is actively being used for an identifiable lawful policing or other Crown purpose. Routine exercise of a police dog is not such use.

The respondent, a police constable and designated handler of two police dogs, was charged under section 3 of the Dangerous Dogs Act 1991 after one dog attacked and injured a runner while being exercised in a field.

At Newcastle Crown Court, the judge made a binding ruling under section 40 of the Criminal Procedure and Investigations Act 1996. He held that the section 10(3) exemption applied because exercising the dog was a lawful purpose. The prosecution sought to appeal under section 58 of the Criminal Justice Act 2003.

A preliminary issue arose because the prosecution had notified the court of its intention to appeal, and given the acquittal agreement, by email rather than orally in court. The central issues were whether that method deprived the Court of Appeal of jurisdiction and whether routine exercise was a use of the dog within section 10(3).

1. Jurisdiction. The court held that it had jurisdiction and that the prosecution had complied with section 58 of the Criminal Justice Act 2003. The statutory conditions remain mandatory. The prosecution must promptly inform the court of its intention to appeal and, at the same time or earlier, give the acquittal agreement. However, section 58 prescribes no oral or open-court mechanism for doing so. A timely email sent when a reserved ruling is handed down may therefore satisfy the scheme, provided it is communicated to the court and copied to the parties. This conclusion did not weaken the need for strict compliance with the statutory timing and acquittal requirements recognised in R v Arnold [2008] EWCA Crim 1034. Open-court notification remains the usual and best course when the parties are present, but it is not a jurisdictional condition where attendance has properly been dispensed with.
2. The statutory exemption. The court allowed the prosecution appeal. Section 3 of the Dangerous Dogs Act 1991 is a strict-liability measure protecting the public from dangerously out-of-control dogs. Its exemption in section 10(3) must not be given an extravagant construction that defeats that purpose.
3. The phrase being used requires active engagement of the dog in a directed task, or in support of the constable, for an identifiable purpose. A dog is not being used merely because its handler is walking, exercising or playing with it. Further, the use by a constable must form part of a policing activity, rather than any recreational activity undertaken by a police officer. On the assumed facts, the respondent was exercising the dog and was not using it within section 10(3). The exemption was not established. The matter was remitted to the Crown Court for the proceedings to continue.

• Court of Appeal (Criminal Division). In [2019] EWCA Crim 17, the court held that it had jurisdiction, allowed the prosecution appeal, and remitted the proceedings to the Crown Court.
• Newcastle Crown Court. On 20 August 2018, HHJ Earl made a binding ruling under section 40 of the Criminal Procedure and Investigations Act 1996 that the section 10(3) exemption in the Dangerous Dogs Act 1991 applied.