Sophie Coulthard & Anor, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

A designation under section 1 of the Dangerous Dogs Act 1991 involves an evaluative judgment for the Secretary of State. Judicial review is concerned with public law error, not the merits of whether a dog type should have been designated.

The statutory concept of “type” is wider than “breed” and permits a broad, practical assessment by reference to recognised characteristics. The decision-maker determines the extent of inquiry required, subject to rationality review.

The public sector equality duty requires rigorous and conscientious consideration before the decision is made. A later lawful assessment may nevertheless require refusal of relief where it is highly likely that the outcome would not have been substantially different under section 31(2A) of the Senior Courts Act 1981.

The claimants sought judicial review of the designation of XL Bully type dogs under section 1 of the Dangerous Dogs Act 1991, and of statutory instruments establishing compensation, exemption and rehoming schemes. They also challenged guidance setting out a conformation standard for identifying XL Bullies.

The claim alleged failures of inquiry, reliance on demonstrably wrong assumptions, breach of the public sector equality duty, ultra vires statutory instruments and legal uncertainty in the guidance. Permission had been refused for several other grounds, including unlawful fettering of discretion and Convention rights claims.

The central issues were whether the Secretary of State had acted unlawfully in designating XL Bullies, whether the consequential orders were within statutory powers, whether the equality duty had been discharged, and whether the guidance was sufficiently certain.

1. Disposition. The claim succeeded on the limited issue that the Secretary of State had failed to discharge the public sector equality duty before making the Designation Order, the Compensation and Exemption Order and the Rehoming Order. Relief was refused because it was highly likely that the outcome would not have been substantially different if the breach had not occurred. All other grounds failed.
2. Designation under section 1(1)(c) of the Dangerous Dogs Act 1991 was entrusted to the Secretary of State’s judgment. Whether XL Bullies had the relevant characteristics was not a precedent fact determining jurisdiction. The court could intervene only for a public law error, and was not hearing an appeal on the merits.
3. Section 2 of the Act provided materially narrower powers. An order under that section could impose only restrictions corresponding, with appropriate modifications, to muzzling and lead requirements and prohibitions on abandonment or straying, together with necessary supplementary or transitional provisions. Supplementary provisions could fill in machinery but could not extend to prohibitions on breeding or sale.
4. The statutory word “type” had a wider meaning than “breed”. A broad and practical approach, informed by recognised characteristics and evidence, was lawful. Absolute precision was unnecessary, and difficult cases did not make the Conformation Standard legally uncertain.
5. The Secretary of State had sufficient information to make the designation rationally. She was entitled to rely on the best available police and media data, was not required to verify every reported attack, and was not required to await an official definition before acting. The weight given to relevant considerations was for her, subject to rationality review.
6. The early equality assessments were perfunctory and did not assess potential impacts. They therefore failed to meet the requirement of rigorous consideration before the orders were made. The comprehensive May 2024 equality impact assessment was, however, lawful. It reasonably addressed unavailable information, stakeholder evidence and the potential effects on persons with protected characteristics.
7. Applying section 31(2A)(a) of the Senior Courts Act 1981, the court was required to refuse relief because the later lawful assessment established that the outcome was highly likely to have been substantially the same. No exceptional public-interest reason justified departing from that result.

This was a first-instance judicial review. Permission was granted in part by Dias J. on 24 April 2024. Swift J. later refused applications concerning expert evidence and disclosure. The Court of Appeal refused permission to appeal against those case-management decisions and refused an extension of time concerning the fettering ground.