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Friday, September 10, 2010

Dogs of Law

Dogs of Law

Dogs Act 1871

An Act to provide further Protection against Dogs.

2 Dangerous dogs may be destroyed

Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed, . . .

The first thing to note about all this is that the above section is the only remaining section in a very brief and somewhat outdated statute. It's re-emergence has come about because of the weaknesses in the hurried through Parliament of the knee-jerking Dangerous Dogs Act 1991. What we have here are 2 not fit for purpose statutes. It would appear that the solution to this problem was to let lawyers loose on it and tinker about with this, that and the other. As a result, it is now as water tight as a...

According to DEFRA “Under the Dogs Act 1871, any person may make a complaint to a magistrate’s court that a dog is dangerous, or report the matter to the police. If the court is satisfied that a dog is dangerous and not kept under proper control, it may make an order for it to be controlled or destroyed” (source).

So, we have got "any court" and now "any person".

My specialist area of knowledge is prison law, and not dog law...

"Section 2 Dogs Act 1871

This is a civil complaint, although as it is heard in a Magistrates' Court, it is often (wrongly) said to be criminal. It occurs if a dog is not kept under proper control and is dangerous. Generally a dog is regarded as not being under proper control if it is neither on a lead nor muzzled

I cannot for the life of me understand why a civil complaint is heard in a magistrates court instead of in the County Court where normally civil matters are heard? As observed above it only leads to confusion.

I admit to being confused firstly when the police get involved in a civil matter. And secondly when the CPS is prosecuting the case against me. Originally, I thought 'surely some mistake?'. When I started studying law I read that the law must be certain to enable lawyers to advise their clients. This makes sense if everybody is entitled to know what the law is, and bearing in mind the legal maxim "ignorance of the law is no excuse". This maxim only holds if the law is accessible by reasonable enquiry.

Regular readers will already know that I am a paid up member of the awkward squad. I have never since childhood accepted "Because!" as an answer to the question "Why?". All this told me was that the person I asked did not know the answer.

Last week I received a letter from the CPS referring to the case of R v Hirst. 'Hold on a minute', I thought, 'that signifies a criminal case and not a civil case'. Surely, some mistake? Could it be simply wrongly listed? My instincts told me that I am being subjected to an abuse of process.

I emailed the CPS for clarification...

"I understand that the CPS has no power to prosecute in a civil matter.

Is this still the case, for example, under s.2 of the Dogs Act 1871?

The CPS replied...

"The CPS is responsible for reviewing and, where appropriate, prosecuting most criminal cases in England and Wales following an investigation by the police. The CPS does not present cases in the civil courts".

In spite of this reply, my case shows that the CPS is presenting a civil case in a civil court. I phoned the CPS press office and was told the same thing as in the letter. But when I mentioned the case being listed as R v Hirst, I was informed that it was because this is a criminal matter!

I am a great believer in civil liberties, and am against the State encroaching upon civil rights. This requires vigilance by the citizen to ensure that such liberties do not get eroded. What we are dealing with here are public authorities; Hull City Council, the court, the police, the Crown Prosecution Service and the Attorney General. Public authorities can only exercise those public powers granted by the authorising statute. The ultra vires doctrine not only covers whether the power exists, but also whether it has been exercised for proper purpose.

In spite of my not agreeing that the magistrates court rather than County Court should deal with the case, s.2 of the Dogs Act 1871 clearly gives jurisdiction to the magistrates court. (Is this compatible with the HRA 1998?).

Hidden away on the CPS website I discover this little gem. "The Attorney General has formally assigned the conduct of proceedings under s.2 of the Dogs Act 1871 to the Director of Public Prosecutions". It set off alarm bells ringing in my head, because I know that it is the job of Parliament to legislate and not the job of the AG. The CPS is claiming that it's power comes from the AG. The next question is 'where does the AG's power originate?'.

Doggedly I dig further, and come across another little gem. "The police may make an application to the magistrates' courts under section 2 of the Dogs Act 1871 for the control or destruction of a dog considered to be dangerous. Although this is a civil proceeding, the Attorney General has formally assigned the conduct of proceedings under section 2 to the DPP and, hence to the CPS [POA section 3(2)(g)]".

This is a reference to...

"Prosecution of Offences Act 1985

s.3 (2)(g)to discharge such other functions as may from time to time be assigned to him by the Attorney General in pursuance of this paragraph

It is this rather vaguely worded section which the AG claims gives him the power, in effect, to turn a civil matter into a criminal matter for administrative convenience. The problem is, that in the process it has inconvenienced me. Time to get even. Notwithstanding yet another public authority, the Ministry of Justice, entering the affray, the more the better...

The MoJ issued "Circular 2008/01



58. In addition to their existing powers, and subject to statutory Instructions issued by
the Director of Public Prosecutions under section 7A(3) and (4) of the Prosecution
of Offences Act 1985, the amended section will enable an Associate Prosecutor to conduct:[...]

certain proceedings assigned to the Director of Public Prosecutions by the
Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985
(confined through Director’s Instructions to section 2 of the Dogs Act 1871); and
• binding over proceedings in the magistrates’ court.

59. The CPS proposes to take a phased approach to the introduction of the extended
powers conferred by the section. In order to manage the process the CPS has
issued revised Director’s Instructions under section 7A(3) and (4) of the
Prosecution of Offences Act 1985

WTF? the CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 has to do with taking the dog for a walk, is a puzzle I will be giving the magistrates court in Hull on Tuesday...


Gawain Towler said...

Is the dog a German Shepherd Dog? You could defend it under EUI equality legislation, that is if it is not treated the same as an Irish setter.

All very odd, but I cannot pretend i understand what is going on

Charles Cowling said...

Well well, my Ted was arraigned under this Act when he playfully nipped a woman on the arse. She didn't get the joke. I had to countersign a long and legally worded dog Asbo undertaking not to let it happen again (or let Ted be in the control of a person under 16, etc etc). We didn't have to go to court. I shall follow your researches with interest.

If Rocky needs a safe house...

Awkward squad, John? You have the gift of understatement.

jailhouselawyer said...

Gawain: If it is any consolation neither the AG or CPS has any idea what is going on...

Charles:"Awkward squad, John? You have the gift of understatement".

It's the Yorkshireman in me...

Anonymous said...

The important thing, for most of us, is not your interminable nit-picking but whether or not you really have a dangerous dog, what it is supposed to have done, and if you are capable of and willing to control it.
That subject seems to be studiously avoided here.

jailhouselawyer said...

Anonymong: You are missing the point that it is the burden of the prosecution to prove my dog Rocky is dangerous. So far they have failed in all their attempts. Therefore, Rocky is innocent of being dangerous.