Factual and Procedural Background
This prosecution appeal arises under section 58 of the Criminal Justice Act 2003 against a binding ruling made under section 40 of the Criminal Procedure and Investigation Act 1996 by His Honour Judge Earl in the Crown Court at The City. The ruling concerned the interpretation of section 10(3) of the Dangerous Dogs Act 1991, which provides that a dog being used for a lawful purpose by a police constable is exempt from being regarded as dangerously out of control. The Defendant, a police constable, was charged with an offence under section 3 of the 1991 Act for allegedly being in charge of a dog that was dangerously out of control and injured a runner while being exercised in a field on 6 June 2016.
The judge ruled that the statutory exemption in section 10(3) applied, effectively excluding the offence from liability. The prosecution sought to appeal this ruling. A preliminary jurisdictional issue arose regarding whether the prosecution's notification of intention to appeal and the required acquittal agreement needed to be given in open court or could be communicated by email. The prosecution had given notice and the acquittal agreement by email shortly after the ruling was handed down without the parties being present in court. Leave to appeal was subsequently granted.
Legal Issues Presented
- Whether the prosecution complied with the procedural requirements under section 58 of the Criminal Justice Act 2003 and Part 38 of the Criminal Procedure Rules 2015 by notifying the court of its intention to appeal and giving the acquittal agreement by email rather than in open court.
- The correct interpretation of the phrase "being used for a lawful purpose by a constable" in section 10(3) of the Dangerous Dogs Act 1991, specifically whether exercising a police dog as part of routine care constitutes "use" under the statutory exemption.
Arguments of the Parties
Appellant's Arguments
- The prosecution argued that exercising the police dog constituted "use" of the dog for a lawful purpose under section 10(3), thereby engaging the statutory exemption.
- The prosecution submitted that the notification of intention to appeal and the acquittal agreement given by email complied with the procedural requirements of section 58 and CPR Part 38, and that this court had jurisdiction to hear the appeal.
Respondent's Arguments
- The Defendant contended that as the designated handler responsible for the dog’s care, including exercise, he was entitled to the exemption under section 10(3) because exercising the dog was part of his lawful duties.
- The Defendant did not challenge the court’s jurisdiction to hear the appeal, accepting that procedural requirements had been met.
Advocate to the Court's Submissions
- The advocate to the court submitted that strict compliance with section 58 requires that the notice of intention to appeal and the acquittal agreement must be given in open court.
- He raised practical concerns about electronic notification, including lack of transparency, potential confusion, and loss of court control over proceedings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Arnold [2008] EWCA Crim 1034 |
Strict requirement that the acquittal undertaking must be given in open court at the time of announcing intention to appeal to confer jurisdiction. |
The court acknowledged the authority but considered whether electronic notification could suffice in modern practice. |
| R v T(N) [2010] EWCA Crim 711 |
Endorsed strict compliance with statutory preconditions for appeal jurisdiction; requirement to inform the court immediately after ruling or request adjournment. |
Supported the principle that timing and manner of notification are preconditions to jurisdiction, but allowed some flexibility in timing. |
| R v Quillan [2015] 1 WLR 4673 |
Interpretation of "immediate" timing requirement flexibly, accounting for trial realities and need for reflection. |
Reinforced that immediacy does not mean instantaneous but prompt within practical constraints. |
| R v F(JR) [2013] EWCA Crim 424 |
Requirement that rulings be given in court for the statutory timing of appeal notification to apply. |
Confirmed that email circulation of ruling does not replace handing down in open court for timing purposes. |
| R v The Knightland Foundation Jacob Friedman [2018] EWCA Crim 1860 |
Best practice is to give notice of intention to appeal and acquittal agreement in open court, but question remained whether jurisdiction is lost if done electronically. |
The court noted practical concerns but did not definitively rule out electronic notification. |
| Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin) |
Context on police officer’s duties and injury claims when exercising police dogs. |
Supported argument that exercising police dogs is a lawful activity related to duty. |
Court's Reasoning and Analysis
The court examined the statutory framework under section 58 of the Criminal Justice Act 2003 and the relevant provisions of the Criminal Procedure Rules 2015 concerning prosecution appeals. It noted that the statute requires the prosecution to inform the court of its intention to appeal and to give an acquittal agreement either at or before that time. However, the statute does not explicitly prescribe the manner in which this information must be communicated.
While precedent emphasized strict compliance and suggested that the acquittal undertaking should be given in open court to confer jurisdiction, the court reasoned that the statutory scheme’s purpose is to ensure promptness and certainty rather than mandate oral notification. Given modern court practices, including reserved rulings and the use of electronic communication, the court concluded there was no principled reason to require these steps to be taken orally in open court. Email notification, properly copied to all parties and the court, sufficed to meet the statutory requirements, maintaining court control and procedural fairness.
On the substantive issue, the court analyzed the meaning of "being used for a lawful purpose by a constable" within section 10(3) of the Dangerous Dogs Act 1991. It identified four key concepts: the dog whose conduct is in question, whether the dog was being used at the time, whether the use was lawful, and whether the use was by a constable or Crown servant.
The court emphasized that "use" connotes active engagement of the dog in a directed task or policing activity, not merely routine care such as exercising or feeding the dog. Drawing analogies with working dogs like sheepdogs or sniffer dogs, it concluded that taking a dog for a walk or exercising it for care purposes does not constitute "use" within the statutory exemption.
The court rejected the judge’s broader interpretation that exercising the dog as part of care was sufficient to engage the exemption. It held that the exemption applies only when the dog is actively used in the execution of policing duties or other lawful Crown service activities, not when the dog is merely being cared for.
Holding and Implications
The court ALLOWED THE APPEAL and remitted the matter to the Crown Court for the proceedings to continue.
The direct effect of this decision is that the statutory exemption in section 10(3) of the Dangerous Dogs Act 1991 does not apply to the Defendant’s conduct in exercising the dog at the time of the incident, and therefore the prosecution may proceed with the charge under section 3. The court clarified that electronic notification of intention to appeal and acquittal agreements satisfy the procedural requirements of section 58, reflecting modern court practices without undermining procedural safeguards.
No new precedent was set beyond the specific interpretations and procedural clarifications made in this case.