Criminal law update

Facts: The police obtained warrants from a magistrates’ court permitting them to enter and search a home address in order to seize a pit bull terrier. This breed of dog is a prohibited dog for the purposes of Dogs Act (DA) 1991 s1. Two dogs were seized, and following that action the dogs became exempted from the prohibition in section 1(3) of the DA within the requisite period. The exemption scheme provides that the prohibition on a person having, in their possession or custody after the appointed day, a dog to which DA s1(3) applies, does not apply to a dog in respect of which certain specified conditions have been complied with. Having seized the dogs, the police destroyed each dog without any further authority. The claimant in this case raised the issue of whether the destruction order was lawful. The warrants obtained by the police gave no power to destroy the dogs because they were issued under DA s5 and each dog was seized not for the purposes of destruction, but to be retained as evidence of the commission of an offence under the DA.

The chief constable relied on the fact that in most cases of this nature several years before, dogs were destroyed as a result of the making of a contingent destruction order by the court. The statutory authority states that where a magistrate does not order the destruction of a dog, the dog shall be destroyed unless it is exempted under section 1(3).

In each of the cases referred to, the dogs did become exempt and the Queen’s Bench Division ruled that reliance on a contingent destruction order as giving the authority for the destruction of the dogs was misconceived. The very wording of the order for destruction ceased to have any effect once the dog became exempted within the specified requisite period. The relevant provision uses a similar expression ‘unless the dog is exempted … within the requisite period’ , and the definition of ‘requisite period’ gives a period of two months beginning with the date of the order, unless the period is extended by the court.

The police submission was that it must follow that even if at any time after the dog had become exempt, it ceases to be exempt and loses its exempt status, the order for destruction is, in effect, revived. It was argued on behalf of the police, therefore, that the contingent destruction order could be executed at any time, without recourse to any judicial authority, once the dog as a matter of fact had ceased to be exempted. Effectively, if the chief constable formed the view that a dog had ceased to be exempted, the order for mandatory destruction would apply.

Decision: It was held that the chief constable’s interpretation could not be read into the relevant legislation. There was nothing in the exemption scheme which spelt out the consequences of a dog ceasing to be exempt except that the prohibition on possession is revived. The only way in which a dog could lawfully be destroyed, in circumstances where it was believed that the exemption no longer applied, was to apply to the court or a magistrate for a destruction order under DA s4, s4A or s4B.

Comment: This case, while giving guidance to the police, will also be relevant to any owner of a prohibited dog which is seized and retained on the basis that it is dangerous. Police have no powers to summarily destroy dogs which have ceased to become exempt within the terms of the legislation.