PY [2019] EWCA Crim 17
- Summary
- Citing
- Cited By
**R v PY [2019] EWCA Crim 17** concerned a prosecution appeal against a ruling that a police officer was exempt from an offence under section 3 of the Dangerous Dogs Act 1991 when a police dog in his care attacked a runner. The Court of Appeal (Lord Burnett of Maldon LCJ, Cheema-Grubb and Goose JJ) allowed the appeal and remitted the matter to the Crown Court.
The respondent, a police constable, was indicted under section 3 of the Dangerous Dogs Act 1991 after a police dog for which he was the designated handler attacked and injured a runner whilst he was exercising the animal in a field on 6 June 2016. The respondent cared for two police dogs at home and was paid an allowance for doing so. At the Crown Court at Newcastle, His Honour Judge Earl ruled that the exemption in section 10(3) of the 1991 Act applied. Section 10(3) provides that a dog being used for a lawful purpose by a constable is not to be regarded as dangerously out of control. The prosecution sought leave to appeal the ruling under section 58 of the Criminal Justice Act 2003.
A preliminary issue arose as to whether the prosecution had validly invoked its right of appeal. The judge reserved judgment after argument on 20 July 2018 and handed down his written ruling on 20 August 2018 in the absence of the parties. At approximately 14:16 that day, before the ruling was formally handed down at 16:00, the prosecution sent an email to the judge and the respondent stating its intention to appeal and giving the acquittal agreement required by section 58(8) of the 2003 Act. A further email the following day repeated the agreement and served a written application for leave to appeal. At a directions hearing on 22 August 2018 the judge granted leave to appeal.
The question arose whether the notice of intention to appeal and the acquittal agreement had to be given orally in open court or whether email notification sufficed. Section 58(4) and (8) of the 2003 Act provide that the prosecution may not appeal unless it informs the court of its intention to do so following the ruling and, at or before that time, agrees that the defendant should be acquitted if leave is not obtained or the appeal is abandoned. These requirements are jurisdictional and strict compliance is mandatory.
Mr Mably QC for the prosecution and Mr Ramasamy QC for the respondent jointly submitted that the requirements had been met. Mr Little QC, as advocate to the court, argued that the statute required the steps to be taken in open court and that email notification raised practical difficulties concerning transparency, judicial control and the risk of misdirection. The Court of Appeal rejected that submission.
The court held that section 58 does not explicitly or implicitly specify any mechanism for informing the court of an intention to appeal or providing the acquittal agreement. The statute is concerned that the steps are taken as required, not how they are taken. The procedural timing obligations are designed to ensure speed, not to mandate oral communication. There is no warrant to interpret the section in a way that would spawn unnecessary hearings or require unnecessary attendance at the handing‑down of reserved rulings. The modern practice of handing down judgments in writing, often with the attendance of parties dispensed with to save inconvenience and expense, is routine. Consequential matters are frequently dealt with in writing. The court emphasised that the judge remains in control of proceedings and can convene further hearings if necessary. The use of email sits comfortably with the modern trend towards electronic communication in court proceedings. Concerns about open justice do not compel a different conclusion, given that many procedural and interlocutory decisions are made on the papers without offending that principle. The court stressed, however, that rulings of this nature should ordinarily be given in court and that email notification will arise only in the rare case where attendance has been dispensed with.
Turning to the substantive appeal, the respondent argued that he was at all times required to care for the dog, including exercising it, and was acting in the execution of his duty when the incident occurred. Exercising the dog was a lawful purpose and therefore the exemption in section 10(3) applied. The judge had accepted that submission, holding that exercise of the dog was a lawful purpose within the exemption. The prosecution submitted that the focus should be on the word “used” and that the respondent was not using the dog for police purposes at the time of the incident.
The Court of Appeal held that the key to the scope of the exemption lies in the concept of “being used”. The term suggests the active engagement of the dog in a directed task or in support of an identifiable purpose. Analogies were drawn with sheepdogs and gundogs, which are “used” when working but not when taken for a walk or played with. Millions of people walk their dogs or play with them, but to say they are using them in such circumstances would be a misuse of language. The words “for a lawful purpose” reinforce this interpretation: one must identify the purpose for which the dog is being used and ask whether that purpose is lawful. Furthermore, the exemption could not sensibly apply to circumstances where a police dog was being used recreationally. The words “by a constable or a person in the service of the Crown” import a restriction: the use must be part of policing or Crown activities. In the context of a constable, the use must be part of a policing activity, a question of fact.
The court rejected the judge’s conclusion and held that on the assumed facts the exemption in section 10(3) was not established. In exercising the dog as described, the respondent was not using it. The court allowed the appeal and remitted the matter to the Crown Court for the proceedings to continue.
In short, the Court of Appeal held that the prosecution may notify the court of an intention to appeal and give the acquittal agreement by email when attendance has been dispensed with, and that a police officer exercising a police dog off duty was not using it for a lawful policing purpose so as to attract the exemption from the offence of having a dog dangerously out of control.
LSA [2008] EWCA Crim 1034; [2008] 2 Cr App R 37
R v Quillan [2015] 1 WLR 4673
Knightland Foundation and Jacob Friedman [2018] EWCA Crim 1860
Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin)
R v T(N) [2010] EWCA Crim 711
R v Quillan [2015] 1 WLR 4673
R v F(JR) [2013] EWCA Crim 424