AS TO THE ADMISSIBILITY OF
Application No. 27842/95
by Samuel CROTHERS
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 3 April 1995 by
Samuel CROTHERS against the United Kingdom, and registered on
11 July 1995 under file No. 27842/95;
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 1957 and is
resident in London. He is represented before the Commission by Anthony
Pickford, a barrister practising in London.
Particular circumstances of the case
On 25 October 1991 the applicant's father's dog was seized by
police and his father was charged with various offences in relation to
that dog under the Dangerous Dogs Act 1991 ("the 1991 Act"). Pursuant
to a prosecution notice of discontinuance, the Magistrates' Court
discontinued these proceedings.
However, on 6 March 1992 the Magistrates' Court made an order for
the destruction of the dog, further to an application by the
prosecution pursuant to section 5(4) of the 1991 Act of which no notice
had been given to the applicant's father. On judicial review the High
Court quashed the decision of the Magistrates' Court finding that the
rules of natural justice meant that the applicant's father should have
been given the opportunity to be heard and that section 5(4) should not
have been used in this particular case because there had been a
previous prosecution (albeit discontinued).
Subsequently, ownership of the dog was transferred to the
applicant and on 27 July 1992, when the dog was temporarily released
to the applicant, the applicant identified himself to the police as the
owner. Fresh proceedings under section 5(4) of the 1991 Act were issued
and the hearing was fixed for 13 October 1992. On 12 October 1992 the
applicant's solicitor wrote a detailed letter to the court indicating
clearly that the applicant would not be contesting the proceedings as
the dog had been examined on behalf of the applicant by two experts who
had indicated that it would qualify as a dog "of the type known as the
pit bull terrier" and thus he had advised his client that there was
little point in opposing the proceedings.
However, on the day of the hearing the applicant denied that he
had instructed his solicitor to indicate that he would not be opposing
the proceedings and requested an adjournment to obtain other legal
representation. He was refused an adjournment and he together with his
expert witness were not allowed to give evidence. Having heard the
prosecution evidence as to the dog's breeding the court made a
destruction order in relation to the dog.
A subsequent application for judicial review to the High Court,
raising, inter alia, the question of whether the applicant and his
expert should have been heard at the Magistrates' Court hearing, was
unsuccessful, judgment being given on 13 October 1994. Having found
that the Magistrates' Court were within their jurisdiction this time
in employing section 5(4) of the 1991 Act (because ownership of the dog
had changed in the meantime), the High Court noted the following points
as significant.
In the first place, the High Court noted that not only did the
applicant's solicitor write to the Magistrates' Court the day before
the relevant hearing stating that the applicant would not be opposing
the application but that solicitor outlined in that letter in some
detail that two experts had been briefed on the applicant's behalf, had
examined the dog and had identified the dog as a dog "of the type known
as the pit bull terrier". It was for that reason, according to the
solicitor's letter, that the solicitor had advised that there was no
point in contesting the application for the destruction of the dog. The
High Court went on to find that the applicant had failed to explain at
all his allegation, that his solicitors had acted without his
instructions, even though he had been ordered by the High Court to file
very full evidence about the relevant Magistrates' Court hearing and
when he had almost two years before the High Court appeal hearing to
formulate this explanation.
Secondly and in relation to the evidence which the applicant had
wished to present as to the dogs identity, the High Court noted that
the applicant filed two expert affidavits with the High Court which
stated that the dog was not of the relevant type. However, the
applicant's own affidavit before the High Court stated that one of
these latter experts was one of the experts who had already confirmed
to the applicant's solicitor that the dog was of the pit bull terrier
type. The other expert (whom it appears attended the hearing in the
Magistrates' Court in October 1992 with the applicant) described his
evidence as based on his previous "acquaintance" with the dog when it
was owned by the applicant's father.
The High Court therefore took the view that, while the
Magistrates' Court was not correct in relying on section 5(5) of the
1991 Act to exclude the applicant's and his expert's evidence, the
substance of the Magistrates' Court's decision in this respect was not
wrong and that the interests of justice would not be served by sending
the matter back for a rehearing. The applicant subsequently applied for
leave to appeal to the Court of Appeal and this was refused on 16 March
1995. The dog has since been 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. 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).
Section 5(4) states that where a dog has been seized by the
police and it appears that no one has been prosecuted for an offence
under the 1991 Act in relation to that dog (whether because the owner
cannot be found or for any other reason), a Justice of the Peace shall
order the destruction of the dog if it is a dog to which section 1 of
the 1991 Act applies.
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 the 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 under Article 6 para. 1 of the
Convention that he was denied the opportunity to make submissions and
produce expert evidence before the Magistrates' Court in October 1992.
2. He also complains that his relationship with his dog came within
the scope of his right to respect for his private and family life and
that the seizure and destruction of the dog failed to show sufficient
respect for those rights in violation of Article 8 of the Convention.
3. In addition, he complains under Article 14 of the Convention that
the 1991 Act discriminates against certain types of property
irrespective of the character or behaviour of the dog in respect of
whom charges are formulated and irrespective of any public benefit.
4. Finally, he complains under Article 13 of the Convention that he
has no effective domestic remedy.
THE LAW
1. In the first place, the applicant invokes Article 6 para. 1
(Art. 6-1) of the Convention submitting that, since he was not allowed
to argue his case and introduce his expert evidence before the
Magistrates' Court in October 1992, he did not receive a fair hearing.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,
reads as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
The Commission notes that the relevant proceedings issued under
section 5(4) of the 1991 Act and therefore did not involve the
determination of any criminal charge against the applicant. However,
even assuming that these proceedings involved the determination of the
applicant's civil rights, the Commission considers that this complaint
is, in any event, inadmissible for the reasons set out below.
In considering the fairness of proceedings under Article 6 para.
1 (Art. 6-1) of the Convention in light of the refusal by the
Magistrates' Court to hear the applicant and his expert, regard must
be had to the particular circumstances of the case and the proceedings
as a whole (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21).
The Commission notes that the only matter which could have been
at issue during the Magistrates' Court hearing in October 1992 was the
breed of the dog. At first glance the refusal to hear the applicant and
his expert witness would seem to be harsh.
However, the issue was carefully considered by the High Court.
That court found the detailed nature of the solicitor's letter together
with its contents (including references to two expert opinions against
the position which the applicant adopted the following day before the
Magistrates' Court), significant. The High Court also noted the
applicant's failure to explain in any way to that court his allegation
that he had given no such instructions to his solicitor. It is further
noted that no such explanation has been provided to the Commission.
Moreover, the High Court noted an inconsistency between the expert
evidence previously presented to the Magistrates' Court by the
solicitor's letter and that filed on behalf of the applicant before the
High Court. The High Court therefore took the view that, in the
circumstances, the interests of justice would not be served by sending
the matter back for a rehearing.
In view of the above, the Commission considers that nothing has
been presented by the applicant to demonstrate that the High Court was
wrong in so deciding. Taking the proceedings as a whole, the Commission
considers that applicant has not demonstrated that the decision of the
Magistrates' Court not to hear him or his expert witness rendered the
proceedings unfair within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
Accordingly the Commission finds this complaint of the applicant
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. He also complains that his relationship with his dog came within
the scope of his right to respect for his private and family life and
that the seizure and destruction of the dog failed to show sufficient
respect for those rights in violation of Article 8 (Art. 8) of the
Convention.
The Commission recalls that it has previously held that the
keeping of a pet did 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 pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
3. In addition, he complains under Article 14 (Art. 14) of the
Convention that the 1991 Act discriminates against certain types of
property irrespective of the character or behaviour of the dog in
respect of whom charges are formulated and irrespective of any public
benefit. Other less draconian measures would, according to the
applicant, suffice to achieve the purpose of the legislation.
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 and that the effective aim
of the legislation is to wipe out the breed from the United Kingdom.
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
exemption scheme provided by 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 within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Article 13 (Art. 13) of the
Convention that he has no effective domestic remedy.
However, the case-law of the Convention organs establishes 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 his rights and freedoms which warrants
a remedy under Article 13 (Art. 13) of the Convention.
It follows that this complaint must also be rejected as being
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