AS TO THE ADMISSIBILITY OF
Application No. 26279/95
by Karen BROCK
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1994
by Karen BROCK against the United Kingdom and registered on
24 January 1995 under file No. 26279/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the applicant may be summarised as
follows. The applicant is an British citizen, born in 1972 and is
resident in London. She is represented before the Commission by Anthony
Pickford, a barrister practising in London.
Particular circumstances of the case
On 4 August 1992 the applicant was convicted by a Magistrates'
Court of having in her possession on 26 December 1991, contrary to
section 1(3) of the Dangerous Dogs Act 1991, a dog "of the type known
as the pit bull terrier". The Magistrates' Court ordered, inter alia,
the applicant to pay a fine and that the dog be destroyed.
On appeal, the Crown Court (after a full rehearing lasting three
days) dismissed the applicant's appeal on 9 December 1992. The only
matter at issue (as in the Magistrates' Court) was whether the dog was
"of the type known as the pit bull terrier". In the first place, the
Crown Court considered that this latter phrase meant "known to those
experienced in identifying pit bull terriers and in accordance with a
recognised and accepted standard". Secondly, having considered the
expert evidence presented by both parties, the court concluded that the
breed standards laid down by the American Dog Breeders Association
("ADBA") were the most rigorous and detailed, that it was satisfied
that the dog substantially complied with those standards and that the
dog was therefore "of the type known as the pit bull terrier". In so
concluding as to the dog's "type", the court refused to take into
account evidence presented as to the animal's behaviour.
The applicant successfully applied for a case stated to the High
Court. The High Court's judgment was delivered on 2 July 1993. That
court accepted that reliance on substantial compliance with the ADBA
breed standards was the correct approach but found that, since those
standards included two characteristics of behaviour (gameness and
aggressiveness) in identifying a breed, the Crown Court should have
considered evidence as to such behaviour in reaching its conclusion as
to the dog's "type". The High Court therefore ordered a rehearing of
the applicant's appeal in the Crown Court but by a different judge.
The Crown Court, in its judgment of 26 August 1994, also accepted
that substantial conformation with the breed standards laid down by the
ADBA would be sufficient to identify the dog as being of the relevant
"type" including the behavioural criteria contained in those standards.
Having heard expert evidence the court concluded that, even though the
dog did not display aggressive behaviour, it was a dog of the relevant
type. Accordingly, the applicant's appeal was rejected.
The dog, which was seized on the applicant being charged, remains
in police custody to date pending the outcome of the present
application.
Relevant domestic law and practice
Pit bull terriers were bred as fighting dogs. When dog fighting
was banned in the United Kingdom, this breed died out but was re-
imported back into the United Kingdom from the United States in the
1970's.
Dogs generally have breed standards which are laid down and
recognised by different associations of dog breeders. The English
Kennel Club has no standards in relation to pit bull terriers because
of the long period when those dogs were not bred in the United Kingdom.
The United States, on the other hand, has two associations setting down
such standards - the American Dog Breeders Association ("ADBA") and the
United Kennel Club ("UKC").
The ADBA exists for pit bull terriers alone, its standards are
widely used, it is concerned to take into account fighting standards
and the dogs imported into the United Kingdom in the 1970's were
registered with the ADBA. Its breed standards mainly relate to the
physical characteristics of a pit bull terrier but also refer to the
dog's "gameness and aggressiveness". The UKC provides standards for
many breeds of dog registered with it (including pit bull terriers) but
is mainly concerned with show dogs.
In 1991, and pursuant to considerable public concern about recent
attacks on persons by, inter alia, pit bull terriers, parliament
enacted the Dangerous Dogs Act 1991 ("the 1991 Act") and, pursuant
thereto, the Secretary of State made the Dangerous Dogs Compensation
and Exemption Schemes Order 1991 ("the 1991 Order"). The 1991 Act is
ultimately aimed at the eradication of pit bull terriers as a breed
from the United Kingdom.
Section 1(1)(a) of the 1991 Act states that section 1 of that Act
applies, inter alia, to "any dog of the type known as the pit bull
terrier". Section 1(3) of the 1991 Act prohibits having any dog to
which section 1 applies in one's possession or custody after the
30 November 1991 (unless exempted under the 1991 Order). Contravention
of section 1(3) is an offence, carrying a potential punishment of
imprisonment for a term not exceeding six months or a fine (section
1(7)) and requiring the court to make a destruction order in relation
to the relevant dog (section 4).
The exemption scheme is detailed in the 1991 Order which, inter
alia, allowed owners to retain possession of their dogs. In order to
be so exempted the dog had to be, inter alia, registered with the
police (prior to the 12 October 1991 in the case of an adult dog and
prior to 30 November 1991 in the case of a puppy), neutered,
permanently marked as a dog of the relevant type and insured. A fee was
also payable.
Section 5(5) of the 1991 Act, insofar as relevant, reads as
follows:
"If in any proceedings it is alleged by the prosecution that a
dog is one to which section 1 ... applies it shall be presumed
that it is such a dog unless the contrary is shown by the accused
by such evidence as the court considers fit; and the accused
shall not be permitted to adduce such evidence unless he has
given the prosecution notice of his intention to do so not later
than the fourteenth day before that on which the evidence is to
be adduced".
COMPLAINTS
1. The applicant mainly complains about the presumption of fact
contained in section 5(5) of the 1991 Act arguing that it is in
violation of Article 6 para. 2 of the Convention.
2. She also complains that the condemnation of a category of dog,
on the basis of physical appearance and apparent characteristics alone
without accepting evidence as to past good behaviour, violates the
right to a fair trial guaranteed by Article 6 para. 1 of the
Convention.
3. She further complains under Article 8 of the Convention that she
has been deprived of her basic right to have a dog as a pet in
violation of her right to respect for her private and family life.
4. The applicant also claims that the 1991 Act has denied her
peaceful enjoyment of her possessions contrary to Article 1 of Protocol
1 as the measures in question went beyond any fair view of the public
interest in the control of the use of property.
5. In addition, she complains under Article 14 of the Convention
that the 1991 Act discriminates against a certain type of dog
irrespective of the character or behaviour of the relevant dog.
6. Finally, she complains under Article 13 of the Convention that
she has no effective domestic remedy because there is no option, other
than a destruction order, available to a court having convicted an
owner under section 1(3) of the 1991 Act.
THE LAW
1. In the first place, the applicant invokes Article 6 (Art. 6) of
the Convention. She submits that the presumption as to fact contained
in section 5(5) of the 1991 Act is in violation of Article 6 para. 2
(Art. 6-2) of the Convention. Article 6 para. 2 (Art. 6-2) of the
Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that the criteria to be applied in
determining whether proceedings involve the determination of a criminal
charge are the qualification of the offence in domestic law, the very
nature of the offence together with the nature and degree of severity
of the penalty which the accused risks incurring (see, for example, No.
13877/88, Dec. 17.5.90, D.R. 65 p. 279). Applying these criteria and
in view, in particular, of the sanction set out in section 1(7) of the
1991 Act for a contravention of section 1(3) of that Act, the
Commission considers that the proceedings against the applicant
constituted the determination of a criminal charge.
The Commission further recalls that the Court, in the Salabiaku
judgment and more recently in the Pham Hoang judgment, stated that the
Convention does not prohibit presumptions of fact or law in principle,
but does require Contracting States to remain within certain reasonable
limits as regards criminal law which limits take into account the
importance of what is at stake and maintain the rights of the defence.
The Court, in the above-mentioned judgments, also went on to consider
whether the application of the relevant presumptions was compatible
with the presumption of innocence (Eur. Court H.R., Salabiaku judgment
of 7 October 1988, Series A no. 141-A, pp. 14-18, paras. 26-30 and Pham
Hoang judgment of 25 September 1992, Series A no. 243, pp. 21-22, para.
33).
In the present case, the Commission also recalls that the
presumption contained in section 5(5) of the 1991 Act is one as to fact
namely, it is presumed that a dog is "of the type known as the pit bull
terrier".
The Commission notes what was at stake for the applicant namely,
a possible criminal conviction together with a potential penalty of,
inter alia, six months imprisonment and the destruction of her dog.
However, the Commission finds that it is significant that section 5(5)
of the 1991 Act expressly provides an opportunity to the defendant to
adduce evidence as to a dog's breeding and that the applicant did this
before the Magistrates' Court and the Crown Court. The sole issue of
substance throughout the domestic proceedings was whether the dog in
question was "of the type known as the pit bull terrier". Detailed
evidence was submitted by the prosecution and the defence as to the
dog's breeding before the courts concluded that the ADBA standards,
being the most rigorous standards available, could be utilised, that
the dog substantially complied with those standards and that the
applicant had not therefore, on the balance of probabilities,
established that her dog was not of a type known as a pit bull terrier.
In such circumstances, the Commission considers that section 5(5)
of the 1991 Act falls within reasonable limits, even in light of what
was at stake for the applicant, given the opportunity expressly
provided to the defence to rebut the presumption of fact and that that
section was applied in a manner compatible with the presumption of
innocence. Accordingly, the Commission concludes that the applicant's
complaint under Article 6 para. 2 (Art. 6-2) of the Convention is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that the condemnation of a category
of dog, on the basis of physical appearance and characteristics alone
without accepting evidence as to past good behaviour, violates her
right to a fair trial set out in Article 6 para. 1 (Art. 6-1) of the
Convention.
Having regard to the nature of these submissions, the Commission
considers that they are more properly considered under Article 1 of
Protocol 1 (P1-1), this complaint essentially being a grievance with
the provisions of the 1991 Act itself and there being no suggestion
(apart from the matter considered at 1. above) that the hearings
themselves were procedurally unfair.
3. The applicant further argues that the deprivation of her dog
constitutes a lack of respect for her private and family life in
violation of Article 8 (Art. 8) of the Convention.
As to whether the applicant's complaint is within the scope of
Article 8 (Art. 8) of the Convention, the Commission recalls its
previous case-law in which it held that the keeping of a pet does not
fall within the sphere of the owner's private or family life for the
purposes of Article 8 (Art. 8) of the Convention (No. 6825/74, X v.
Iceland, Dec. 18 May 1976, D.R. 5 p. 86). While the applicant argues
to the contrary, the Commission does not consider that, in the
circumstances of this case, there exists any reason to depart from or
to distinguish the aforementioned case-law (cf., No. 25517/94, Dec.
3.4.95, unpublished).
Accordingly, the Commission finds this complaint incompatible
ratione materiae within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant also claims that the 1991 Act has denied her
peaceful enjoyment of her possessions contrary to Article 1 of Protocol
1 (P1-1) as the measures in question went beyond any fair view of the
public interest in the control of the use of property.
Article 1 of Protocol 1 (P1-1), insofar as relevant, reads as
follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law."
The Commission recalls that the applicant's dog was impounded
when the applicant was charged, remains so to date and is the subject
of a destruction order and considers that these measures amount to a
deprivation of the applicant's property which falls to be considered
under the second sentence of the first paragraph of Article 1 of
Protocol 1 (P1-1).
In order to be justified, it must be shown that the deprivation
was in accordance with the conditions provided for by law and in the
public interest. Furthermore, not only must the aim of the deprivation
of property be in the public interest, but there must also be a
reasonable relationship of proportionality between the means employed
and the aim sought to be realised (cf., for example, Eur. Court H.R.
Holy Monasteries judgment of 9 December 1994, Series A no. 301-A, para.
70). This implies that a fair balance must be struck between the
demands of the general interests of the community and the requirement
to protect the individual's fundamental rights, which balance would not
be found if the individual was found to have borne an excessive burden
(Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A no. 52, pp. 26-28, paras. 69-73).
(a) Subject to the conditions provided for by law
The Commission recalls that the term "law" in the Convention
refers not only to compliance with the domestic law but also to the
quality of that law requiring it to be compatible with the rule of law
so that, inter alia, the law in question must not be arbitrary and must
be formulated with sufficient precision to enable citizens to regulate
their conduct (Eur. Court H.R., James and Others judgment of
21 February 1986, Series A no. 98, p. 41, para. 67 and the Sunday Times
judgment of 26 April 1979, Series A no. 20, p. 31, para. 49).
The Commission, having examined the applicant's submissions,
finds no evidence that the prosecution of the applicant was other than
in accordance with the 1991 Act or that her prosecution or conviction
was arbitrary in its effect. In view of the availability of objective
standards by which various characteristics of a dog can be assessed to
establish its identity and of the exemption scheme provided by the 1991
Order, the Commission does not find that the 1991 Act and Order lacked
sufficient clarity to have enabled the applicant to regulate her
conduct as regards her dog to avoid prosecution under section 1(3) of
the 1991 Act.
(b) Public interest
The Commission considers that it is clear that the provisions
of the 1991 Act, which applied in the applicant's case, operate in the
interests of public safety.
(c) Proportionality of the deprivation
The applicant disputes, in this respect, the necessity of the
mandatory destruction order (section 4) in that a number of other
options could have been made available by the 1991 Act. In the context
of her complaint under Article 6 para. 1 (Art. 6-1) of the Convention,
the applicant also points out that the 1991 Act denounces a breed
rather than a particular dog's dangerous behaviour (section 1(1)(a)).
Therefore, according to the applicant, the practical effect of the 1991
Act is that, if the owner misses the deadline for registration and thus
qualification for the exemption scheme, the possession or ownership of
the relevant type of dog is in itself unlawful and its destruction is
mandatory.
On the one hand, the Commission accepts that the conviction based
on breed rather than past behaviour and the consequent mandatory
destruction order, being provisions ultimately aimed at eradicating pit
bull terriers as a breed from the United Kingdom, are draconian
measures.
However and on the other hand, the Commission is cognisant of the
fact that the pit bull terrier breed was developed as a fighting animal
which, prior to the introduction of the 1991 Act, was known to have
attacked persons in the United Kingdom causing much public concern. In
addition, the Commission notes that an exemption scheme was provided
for by the 1991 Order which allowed persons such as the applicant, who
had fulfilled certain conditions prior to a certain date, to retain
possession of their dogs subject to the requirement that they be on a
lead and muzzled in public places.
In these circumstances, the Commission considers that the
provisions of the 1991 Act referred to by the applicant demonstrate a
reasonable relationship of proportionality between the means employed
and the aim sought to be realised in that a fair balance was struck
between the importance of ensuring the safety of the public and the
requirement to protect the applicant's rights under Article 1 of
Protocol 1 (P1-1).
Therefore the Commission concludes that this complaint of the
applicant is manifestly ill-founded pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant further complains under Article 14 (Art. 14) of the
Convention arguing that the 1991 Act discriminates against a certain
breed of dog irrespective of the character or behaviour of the dog in
question. Article 14 (Art. 14) of the Convention, insofar as relevant,
reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as ... political or other opinion, ... property or other
status."
The Commission recalls that this Article protects individuals in
analogous situations from a discriminatory difference in treatment in
the exercise of the rights and freedoms recognised by the Convention
and its Protocols. Article 14 (Art. 14) has, therefore no independent
existence and the Commission has accordingly considered this complaint
of the applicant in conjunction with Article 1 of Protocol 1 (P1-1),
into the scope of which latter Article a complaint relating to the
seizure and destruction of the applicant's dog could be said to fall.
However, such a difference in treatment will only be
discriminatory if it has "no objective and reasonable justification"
namely, if it does not pursue a "legitimate aim" and if there is no
"reasonable relationship of proportionality between the means employed
and the aim sought to be realised" (see, for example, Eur. Court H.R.,
Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 31).
Furthermore, the Contracting States enjoy a certain margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment in law; the
scope of this margin will vary according to the circumstances, the
subject matter and the background (Eur. Court H.R., Lithgow judgment
of 8 July 1986, Series A no. 102, pp. 66-67, para. 177).
The Commission accepts that the 1991 Act singles out, inter alia,
owners of pit bull terrier from owners of other dogs which by their
behaviour show themselves to be dangerous. However, the Commission
finds that this difference in treatment has an objective and reasonable
justification given that this type of dog is bred for fighting and the
experience of pit bull terriers in the United Kingdom. The Commission
further finds that such difference in treatment pursues the legitimate
aim of public safety and demonstrates a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised in light of, in particular, the existence of the exemption
scheme in the 1991 Order together with the relatively uncomplicated
requirement to use a muzzle and lead in a public place. Having regard,
in addition, to the margin of appreciation enjoyed by the Contracting
States in this area, the Commission considers that this difference in
treatment is not discriminatory within the meaning of Article 14
(Art. 14) of the Convention.
Accordingly, the Commission finds this complaint manifestly ill-
founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
6. Finally, the applicant complains under Article 13 (Art. 13) of
the Convention that she has no effective domestic remedy. In this
respect, she refers to the mandatory nature of the destruction order
pursuant to conviction under section 1(3) of the 1991 Act and the
inability of the courts to make any alternative orders upon convicting
the owner of a relevant dog.
Insofar as the applicant claims that there was no domestic remedy
in respect of her complaints that the provisions of the relevant
legislation do not comply with the Convention provisions and Protocols,
the Commission recalls that Article 13 (Art. 13) of the Convention does
not go so far as to guarantee a remedy allowing a Contracting State's
laws as such to be challenged before the national authority on the
grounds of being contrary to the Convention (Eur. Court H.R., James and
Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 85).
Insofar as the applicant complains about the consequences for her
of the application of the legislation, the Commission recalls that
Article 13 (Art. 13) of the Convention does not require a remedy in
domestic law for all claims alleging a breach of the Convention; the
claim must be an arguable one (Eur. Court H.R., Boyle and Rice judgment
of 27 April 1988, Series A no. 131, p. 23, para. 52). In light of the
above conclusions of the Commission concerning the applicant's other
complaints, the Commission finds that the applicant does not have an
arguable claim, of a breach of her rights and freedoms by the
application of the legislation in her case, which warrants a remedy
under Article 13 (Art. 13) of the Convention.
The Commission therefore considers the applicant's complaints
under Article 13 (Art. 13) of the Convention manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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