Chief Constable of Merseyside Police v Doyle

A contingent destruction order under Dangerous Dogs Act 1991, section 4A(4), is a public-safety measure rather than part of the penalty for the underlying offence. If the condition requiring proper control is allegedly breached, the matter may be brought before the magistrates by complaint. The magistrates may determine the issue on the civil standard of proof and may implement, vary, suspend or rescind the order. Implementation requires consideration of the circumstances existing at the hearing, including the nature of the breach, any material change, and the statutory public-safety factors. Ordinarily, a non-trivial failure of control will lead to destruction where circumstances have not materially changed.

The Chief Constable appealed by way of case stated against the dismissal of an application concerning a contingent destruction order made after Andrew Doyle was convicted under section 3(1) of the Dangerous Dogs Act 1991. The order required his dog to be kept under proper control, including being muzzled and kept on a lead in public, otherwise it was to be destroyed.

The dog was later seen in public without a lead or muzzle. The magistrates concluded that section 63 of the Magistrates’ Courts Act 1980 could not be used and that the court lacked power to implement or vary the order. The central issues were whether the breach could be determined procedurally and whether the court could make consequential destruction orders.

1. The appeal was allowed in substance. A contingent destruction order under section 4A(4) of the Dangerous Dogs Act 1991 is not part of the punishment for the section 3(1) offence. It is a measure imposed, where appropriate, for public safety.

2. By section 4A(6), sections 4(2) to 4(4) apply to a contingent destruction order. The magistrates may therefore appoint a person to destroy the dog, require its delivery for that purpose, and order payment of reasonable expenses. Those consequential orders may be made after the original order, including following non-compliance.

3. An alleged breach may be brought before the magistrates by complaint. Section 63 of the Magistrates’ Courts Act 1980 provides jurisdiction because the contingent order belongs to the magistrates’ civil jurisdiction. The magistrates may make orders giving effect to the requirement of proper control and may suspend, rescind or vary the contingent order.

4. The magistrates must determine any disputed non-compliance to the civil standard of proof. If non-compliance is established, they must decide, in the circumstances existing at the hearing, whether to implement, vary, suspend or revoke the order. Relevant considerations include the reasons, duration and nature of the failure, any material change since the original order, and the factors in sections 4(1A) and 4(1B) concerning danger to public safety.

5. Where the failure of control is more than trivial, accidental or momentary, and circumstances have not materially changed, the ordinary outcome will be implementation of the contingent destruction order. An order actually implementing destruction carries the right of appeal under section 4(2). The court expressed no view on the order to be made in this case. Following the judgments, a consent order avoided remittal and the contingent destruction order remained in place.

• High Court (Administrative Court): [2019] EWHC 2180 (Admin) held that the magistrates had jurisdiction to determine alleged non-compliance and make consequential orders under the Dangerous Dogs Act 1991 and the Magistrates’ Courts Act 1980.
• Liverpool and Knowsley Magistrates’ Court: dismissed the application under section 63 and held that it lacked power to vary or implement the contingent destruction order.