A second prosecution of a defendant for an offence of having a pit bull terrier unmuzzled in a public place, which was alleged to have been committed when the police returned the dog to the defendant after the first prosecution had failed, was an abuse of the process of the court.
The Queen's Bench Divisional Court quashed the decision of the Stipendiary Magistrate for the County of Merseyside refusing to stay an information laid against the applicant alleging an offence under section 1 of the Dangerous Dogs Act 1991.
An information was first laid against the applicant with respect to the dog in early 1995. It had been made clear at a pre-trial hearing that the sole issue was whether the dog was a pit bull terrier. Both prosecution and defence intended to call expert witnesses. On the date of the hearing, the expert witness for the prosecution could not attend. The magistrate refused to adjourn the case. The prosecution decided to call no evidence and the information was dismissed. The next day, 8 September 1995, the dog was returned to the applicant by the police.
In February 1996 another information was laid against the applicant alleging that he had been in charge of the dog in a public place on 8 September 1995. When that information came before the magistrate he refused an application for a stay on the ground of abuse of the process of the court.
Gordon Bellis (Jackson & Canter, Liverpool) for the applicant. The respondent did not appear and was not represented.
Lord Justice Pill said that it had been submitted that there had been an abuse of process because, by returning the dog to the applicant, the police had played a crucial role in allowing him to commit the offence with which he was now charged.
The power of magistrates to exercise control over their proceedings through an abuse of process jurisdiction was to be "most sparingly exercised", and should be "strictly confined to matters directly affecting the fairness of the trial of the particular accused . . . such as delay or unfair manipulation of court procedures": R v Horseferry Road Magistrates' Court, ex p Bennett  AC 1.
The issue between prosecution and defence was whether the dog in question was a pit bull terrier. That issue being unresolved it was not an abuse of process to take further proceedings if the dog appeared again in a public place without being muzzled and kept on a lead.
The applicant was on stronger ground on the question of the circumstances in which the information had actually been laid. On 8 September he was allowed to take the dog out of police custody and into a public place unmuzzled. On the evidence there was no reason to doubt that he had reasonably believed he was entitled to act as he did. Unknown to him, the prosecution had already decided to base a further charge against him on observing him leave the police station.
There was a general principle that a court was concerned only with the conduct of the trial and neither initiated nor stifled a prosecution. However, the power in a trial court, in deciding upon the sentence to be imposed, to have regard to the circumstances in which an offence was committed was ordinarily a safeguard which mitigated the potential harshness of general principle.
In the present case the statutory provisions in force at the time precluded any such safeguard. Section 4(1) of the 1991 Act provided that upon conviction for the offence with which the applicant was charged, the court must order that the dog be destroyed. Had there been a discretion in the sentence to be passed, the circumstances in which the present offence had been committed might have provided a high degree of mitigation.
Given the consequences of a conviction, it was unfair to try the applicant for the off-ence, and was offensive to the court's sense of justice and propriety. The proceedings before the magistrate would be stayed.Reuse content