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PY, R. v (Rev 1)

Section 10(3) of the Dangerous Dogs Act 1991 does not render a police constable immune from prosecution when a police dog is not being “used” within the meaning of the Act. Also, the Prosecution may satisfy the requirements of section 58 of the Criminal Justice Act 2003 by email, without orally informing the court.

https://www.bailii.org/ew/cases/EWCA/Crim/2019/17.html

The respondent police constable cared for two police dogs at home. On 6th June 2016 he was exercising them both when one became dangerously out of control and attacked a runner, contrary to s.3 of the 1991 Act. The question of whether the exemption in s.10(3) of the Act applied was argued at a pre-trial hearing. The learned judge uploaded his draft ruling to the Digital Case System on the 18th August 2018 before formally handing down his ruling on the 20th August. On the same day that the ruling was handed down in favor of the defendant, the appellant (prosecution) sent an email to the judge and to the respondent, notifying them of an intention to appeal and setting out an acquittal undertaking pursuant to s.58 of the CJA 2003. A second email from the appellant purported to comply with the requirements of Part 38 of the Criminal Procedure Rules by referencing a written application.

There was thus a preliminary issue in this case. The question arose whether the appellant had complied with section 58 of the CJA 2003 and Part 38 of the CPR by sending emails, rather than by announcing an intention to appeal in open court. The advocate to the court submitted that the appellant had not so complied. Lord Burnett of Maldon CJ, however, giving the judgment of the Court, concluded that email could be used in such circumstances, particularly in cases such as this one in which the parties were absent when the judgment was formally handed down.

In the substantive appeal, the respondent submitted that since the constable was the designated dog handler, he was obliged to care for and exercise the dog and therefore the exemption should protect him at all times at which he was caring for the dog. The Court disagreed. The scope of the exemption was governed by the concept of "being used". In order for the exemption to apply, the use of the dog "must be as part of the activities of the police or other Crown body".

Held: The exemption in section 10(3) did not apply. The respondent police constable was not "using" the dog when exercising it. In the context of a police constable, the exemption will only apply when the dog is being used as part of a policing activity, which is a question of fact.

The appeal was allowed and the case was remitted to the Crown Court for the proceedings to continue.

13 March 2019

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