AS TO THE ADMISSIBILITY OF
Application No. 29102/95
by Amanda BULLOCK
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 15 May 1995 by
Amanda BULLOCK against the United Kingdom and registered on
8 November 1995 under file No. 29102/95;
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 1967 and is
resident in Durham. She is represented before the Commission by Anthony
Pickford, a barrister practising in London.
Particular circumstances of the case
On 14 October 1992 the Magistrates' Court convicted the applicant
of allowing her dog, being "of the type known as the pit bull terrier",
to stray contrary to section 1(2)(e) of the Dangerous Dogs Act 1991.
The court ordered, inter alia, that the dog be destroyed. The
prosecution's experts confirmed that the dog was of the relevant type
and the applicant's sole expert witness, who challenged this, admitted
that she had only examined the dog visually through a car window.
On 16 November 1992 the Crown Court (after a full re-hearing)
dismissed the applicant's appeal. Mr. Recorder Lumley of that court
noted that the applicant had admitted ownership and that she had
allowed the dog to stray but that she had contested the identity of the
dog. In referring to section 5(5) of the 1991 Act, the judge noted that
the burden of proof was on the applicant and that the standard of proof
was on the balance of probabilities. Having heard the evidence, the
judge concluded ("not without a great deal of regret") that the
applicant had not discharged the burden of proof.
A subsequent application to the Crown Court to state a case to
the High Court was dismissed by Mr. Recorder Lumley as frivolous, that
judge remarking that the question of dangerousness was not material to
the particular offence with which the applicant was charged.
In April 1994 the High Court gave the applicant leave to apply
for judicial review of Mr. Recorder Lumley's decision. A recent
domestic court judgment had confirmed that, since the American Dog
Breeders Association breed standards used in identifying dogs of the
type known as the pit bull terrier included two characteristics of
behaviour (gameness and aggressiveness), there must be some
consideration of these types of behaviour in reaching a conclusion as
to a dog's "type".
On 10 May 1995 the High Court dismissed the application for
judicial review and refused to refer the case back to the Magistrates'
Court for rehearing. The main judgment of the court referred to the
evidence presented before the Magistrates' Court together with the
recent domestic decision noted above and concluded that there was no
evidence before the High Court to demonstrate that the Magistrates'
Court's decision would be any different even taking into account those
two behavioural characteristics.
The dog (which was seized when the applicant was charged) was
subsequently destroyed.
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") which 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(2)(e) of the 1991 Act prohibits an owner of a dog
to which section 1 applies from abandoning such a dog or, being the
owner or the person for the time being in charge of such a dog, from
allowing it to stray. Contravention of section 1 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).
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 complains about section 5(5) of the 1991 Act
arguing that it is a denial of the benefit of the presumption of
innocence in violation of Article 6 para. 2 of the Convention.
2. She also complains under Article 6 para. 1 of the Convention that
she was denied a fair trial as the dog's past character or behaviour
was not examined or taken into consideration and because of the
decision of the High Court not to return the case for a rehearing.
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.
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 conduct 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 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. She argues that the
practical effect of the 1991 Act is that unless very strong evidence
is raised by the defence the owner of the dog is convicted and the dog
is destroyed. 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 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(2)(e) of that Act, the
Commission considers that the proceedings against the applicant
constituted the determination of a criminal charge.
The Commission also 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 considered 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 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. 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". Expert evidence was
submitted by the prosecution and the defence as to the dog's breeding
before the Magistrates' Court and the Crown Court concluded that the
applicant had not, on the balance of probabilities, established that
her dog was not of a type known as a pit bull terrier. When domestic
case-law then established that two behavioural characteristics included
in the ADBA breed standards must be considered in identifying the dog
as of the relevant type, the High Court reviewed the evidence before
it, and that evidence previously produced, before concluding that there
was no evidence to demonstrate that the decision as to the identity of
dog would be any different even using these two additional standards.
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 under Article 6 para. 1
(Art. 6-1) of the Convention that the condemnation of a category of
dog, on the basis of physical appearance alone without accepting
evidence as to past good character and conduct, violates her right to
a fair trial set out in Article 6 para. 1 (Art. 6-1) of the Convention.
However, 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.
As regards the applicant's complaint that the Crown Court
decisions were delivered before the change in the domestic case-law and
that the High Court did not then refer the case back for a rehearing,
the Commission notes that a right to a rehearing cannot be derived from
the provisions of the Convention (No. 7761/77, Dec. 8.5.78, D.R. 14 p.
171). In any event, the Commission notes that the High Court reviewed,
in light of that change in the domestic case-law, the evidence which
had been presented thus far in the case and took the view that, even
taking account of the relevant two behavioural characteristics, the
decision of the Magistrates' Court would not be any different. The
Commission therefore finds this complaint manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. She further complains under Article 8 (Art. 8) of the Convention
that the deprivation of her dog constituted a violation of her right
to respect for her private and family life.
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 seized and
subsequently destroyed and considers that the applicant was deprived
of her property within the meaning of 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, to be published in 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 (the ADBA breed standards) and the clear
prohibition on allowing such dogs to stray, the Commission does not
find that the 1991 Act lacked sufficient clarity to have enabled the
applicant to regulate her conduct as regards her dog to avoid
prosecution under section 1(2)(e) 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 the necessity of the mandatory destruction
order and contests the denouncing of a breed of dog rather than a
particular dog's dangerous behaviour (section 1(1)(a)). In this respect
she submits that her dog has never caused any trouble, has lived
happily with the applicant's four children and was not causing any
trouble when it was found as a stray.
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 does not consider the requirement
to prevent such animals straying to be an unreasonably onerous measure
on owners of such animals.
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 terriers which stray from owners of other dogs which
stray and 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, in particular, of the
reasonable requirement of control through ensuring that the animal does
not stray. 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 points to the mandatory nature of the destruction
order pursuant to conviction under section 1(2)(e) of the 1991 Act and
the inability of the courts to make any alternative orders upon such
conviction.
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 this complaint 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)
Full & Egal Universal Law Academy