O'Keefe v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 August 2023
• Neutral Citation: [2023] IEHC 489
• Court: High Court
• Docket Number: 2023 No. 47 J.R.

Between

Kevin O'Keefe

Applicant

and

Commissioner of An Garda Síochána

Respondent

[2023] IEHC 489

2023 No. 47 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Colman Fitzgerald, SC and Karl Monahan for the applicant instructed by John M Quinn & Co

Frank Kennedy for the respondent instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 August 2023

INTRODUCTION

1 This judgment resolves a disagreement between the parties as to the conditions which should be imposed on an order remitting a matter to the District Court for reconsideration. The disagreement arises in the following circumstances. The applicant seeks to set aside an order of the District Court directing the destruction of a dog owned by him. The respondent has indicated that he does not intend to defend the procedural fairness of the order of the District Court. The respondent seeks, instead, to have the matter reconsidered by the District Court. The parties are in dispute as to the conditions, if any, which should be attached to the High Court order remitting the matter to the District Court for reconsideration. The essence of the dispute is whether the High Court should direct that the animal, the subject-matter of the proceedings, should continue to be housed in kennels pending the reconsideration of the matter by the District Court.

PROCEDURAL HISTORY

2 These judicial review proceedings are directed to the procedural fairness of a hearing before the District Court on 21 January 2023. The events leading up to the hearing were as follows. The applicant had been arrested on 17 January 2023. The arrest had been made on foot of a bench warrant issued by the Dublin Circuit Criminal Court. On 20 January 2023, the applicant was sentenced by Dublin Circuit Criminal Court to a term of imprisonment of two and a half years.

3 It is alleged that, during the course of the applicant's arrest on 17 January 2023, a member of An Garda Síochána had been bitten by a dog owned by the applicant. The dog was seized at the time and has been detained in a professionally run kennels ever since. The dog is described as a “ Belgian Shepherd”.

4 A number of days after the applicant's arrest, a complaint was made by a member of An Garda Síochána to the District Court pursuant to Section 22 of the Control of Dogs Act 1986. This section provides, in relevant part, that upon a complaint being made to it by any interested person that a dog is dangerous and not kept under proper control, the District Court may make an order directing the destruction of the dog. A complainant is required, under Order 91 of the District Court Rules, to serve notice of intention to make such a complaint upon the person in charge of the dog, and, where that person is not the owner of the dog, also upon such owner. Service must be effected at least seven days before the date of hearing of the complaint.

5 In the present case, these requirements in respect of service were not complied with. Instead, an email was sent to the applicant's solicitor on the morning of Saturday, 21 January 2023 indicating that it was intended to make an application to the District Court that very morning. The applicant's solicitor attended before the District Court and applied for an adjournment to allow the applicant to be present. To this end, the solicitor also sought an order directing that the applicant, who was in prison, be produced before the District Court at its next sitting: Monday, 23 January 2023. The District Court judge refused the application for an adjournment and proceeded to hear the complaint pursuant to Section 22 of the Control of Dogs Act 1986.

6 Sergeant Molloy gave evidence that he had seen the dog biting another member of An Garda Síochána on 17 January 2023. Sergeant Molloy also gave evidence that the dog was going to be put down on Monday, 23 January 2023. The District Court judge stated that he was accepting the Sergeant's evidence and made an order directing the destruction of the dog. This was done notwithstanding the objection made by the applicant's solicitor to the effect that the proceedings were being conducted in breach of fair procedures.

7 The operative part of the District Court order reads as follows:

“THE COURT being satisfied that notice of these proceedings was duly served upon the defendant and upon the owner of the dog,

having heard the evidence tendered by or on behalf of the complainant* (and the defendant, Kevin O'Keefe), and it appearing to the Court that the said dog is dangerous and not kept under proper control,

HEREBY ORDERS

that the dog be destroyed,

AND DIRECTS that the dog be delivered to Animal Control, of Dublin City Council dog wardens to be destroyed.”

8 The District Court order did not specify a date by which the destruction of the dog was to have been carried out. However, the applicant's solicitor apprehended from what had been said at the hearing that it was to be carried out two days later, on Monday, 23 January 2023.

9 It has been submitted on behalf of the applicant that an appeal to the Circuit Court did not represent an adequate alternative remedy to judicial review in circumstances where it appeared that the dog was to be destroyed on the next working day. There would not have been sufficient time to enter recognisances, file an appeal and apply for a stay on the order.

10 Accordingly, an ex parte application for leave to apply for judicial review was moved before the High Court on 21 January 2023, i.e. the same day that the District Court had made its order. The High Court (Creedon J.) granted leave to apply and imposed a stay restraining the destruction of the dog pending the determination of the judicial review proceedings.

11 The respondent has since indicated that he does not intend to defend the procedural fairness of the order of the District Court. This concession is sensibly made. Save in urgent cases, the owner of a dog is ordinarily entitled to seven days' notice of an intended complaint pursuant to Section 22 of the Control of Dogs Act 1986. There is nothing in the papers before the High Court which indicates that there was any particular urgency in the present case. Here, the dog had already been seized and was being detained and there was no immediate risk to the public.

12 The parties are broadly agreed that the matter should now be remitted to the District Court for reconsideration. The only outstanding dispute between the parties is as to what should happen to the dog in the interim.

13 As matters currently stand, the dog is being housed in professionally run kennels. The operator of the kennels has provided a report which makes worrying reading as follows:

“[The dog] has been housed at Hollygrove Kennels since mid-January. From the outset the animal has exhibited extremely aggressive behaviour. The dog has attempted to attack and bite all of its carers on a daily basis. Her behaviour has deteriorated steadily since its incarceration to an extent that it is now what can be characterized as food guarding/aggressive.

We need a safe environment for our staff to work and [the dog's] behaviour threatens that environment. Even our most senior staff, with more than 30 years of experience in the handling of aggressive dogs finds it difficult to feed and clean up after [the dog], the care of this animal has become so fraught that we can no longer put our staff in contact with [the dog] as we have no doubt she will attack.

[The vet] has performed an assessment to gauge the well-being of the animal. He has found that the dog's behaviour has deteriorated to such an extent that she is too dangerous to approach without medication and in his opinion, there is no possibility that she will improve. See attached report.

It is with enormous regret that we at Hollygrove can no longer care for this dog and request that she be euthanized or removed from this facility.”

14 The report of the veterinary surgeon, referred to above, reads as follows in relevant part:

“[The dog] was extremely aggressive, lunging at the kennel gate, stripping her teeth with intent to harm.

On subsequent visits her behaviour has steadily disimproved she is challenging kennel staff and is proving very dangerous in the vicinity of other housed animals.

[The dog] is a fit athletic dog and confinement is certainly adding to her stress, kennel guarding, frenzied barking and snarling.

She has an unpredictable nature and coupled with her agility and swiftness of foot she is in my opinion a dangerous dog.

Prolonged confinement for [the dog] will not be advantageous to her and in my opinion on animal welfare grounds this dog should be euthanised.”

15 As appears, both the operator of the kennels and the veterinary surgeon have offered the opinion that the dog is dangerous and a cause of concern to its handlers. In the circumstances, the respondent submits that, on public safety grounds, the High Court should make a consequential order which ensures that the dog is kept in professional care pending the reconsideration of the complaint by the District Court. The applicant, conversely, contends that the dog should be immediately released into the care of his cousin, Mr. Ciaran Kinahan.

16 The parties exchanged written legal submissions and the matter was heard before me on 31 July 2023. Judgment was reserved until today's date.

HIGH COURT'S JUDICIAL REVIEW JURISDICTION

17 It may assist the reader in better understanding the dispute between the parties to pause here and to examine the nature of the High Court's judicial review jurisdiction. This exercise is appropriate in circumstances where there was much debate at the hearing before me as to whether the High Court enjoys an inherent jurisdiction to impose conditions on an order for remittal. The implication of some of the submissions being that, once the High Court makes an order of certiorari, it has only a...