Brett Basdeo, Walkers
The entitlement to own a dog in the Cayman Islands is not absolute. In addition to licensing and registration requirements with the Department of Agriculture, owners are responsible not only for the welfare of their animal, but also for the welfare of others, including other animals, who may come into contact with it. Some contact is inevitable and, while most will be benign, there are some cases that are not. In the latter instances, owners may be subject to both civil and criminal liability for damages or injuries caused, usually determined in the first instance by the magistrates of the Summary Court.
However, while empowered with the jurisdiction to deal with such cases, the decisions of the magistrates, unlike decisions of judges of the Grand Court, are not binding on other magistrates and therefore do not create binding precedent. In the absence of any guidance from the Grand Court, and despite diligent reporting by various news outlets, each decision stands alone and the magistrates are often left to deal with dangerous dog cases in a judicial vacuum.
This has now changed. On 4 Feb. 2019, the Grand Court handed down its judgment in Merren v R.
In the first known decision of its kind in the Cayman Islands, the Grand Court heard an appeal against the order for the destruction of dangerous dogs made by the Summary Court. At issue was the question of whether the court could impose requirements on persons keeping dogs such that the court could be satisfied that the animal would not pose a danger to public safety, as an alternative to the dogs being destroyed.
The provisions of the Animals Law (2015 Revision) relating to dogs considered to be a ‘nuisance’ (trespass and fouling), ‘dangerous’ (apprehension of the spread of disease, injury or damage), or ‘ferocious’ (likelihood of injury or damage) can be described as ‘control’ offences. In each instance, the owner or person in charge of the animal can be charged with an offence which carries a fine and/or imprisonment on conviction, both of which are greatly increased where injury is caused to a person. While the court may impose requirements to be observed in relation to the future keeping of the animal, the court also has the discretion to order its immediate destruction. Unfortunately, such destruction orders are made by reference to the action, or inaction, of the owner, rather than on an examination of the temperament of the animal. As such, a dog’s life can be forfeited because of the owner’s failings. This is especially striking when compared with the position in England where the courts must consider the histories of both the animal and its owner, including the prospects for the animal’s rehabilitation, before making an order for its destruction.
Review of the approaches taken by the magistrates in local dangerous dog cases indicates that the practice of the Summary Court in relation to destruction orders can vary greatly. While this may be understandable due to the lack of precedent, it is nevertheless unsatisfactory as too wide a range in the exercise of the court’s discretion can lead to injustice and to negative perception by the public. Unfortunately, due to differences in statutory language, English authorities and sentencing guidelines, which in other circumstances are persuasive and typically followed by the courts in the Cayman Islands, were of limited assistance in the Merren case.
The underlying facts in Merren related to an all too common occurrence where the owner’s four dogs were not kept within a suitable enclosure and were free to roam. An altercation between the owner and his neighbours led to a fight between the dogs in which the neighbours and their dog were bitten while on their own property. The presiding magistrate described the incident as one of the most serious cases of failing to keep dogs under proper control that she had seen and proceeded to make orders for the immediate destruction of the owner’s four dogs. The owner appealed the destruction orders.
Acting Justice Stephen Hellman of the Grand Court, who had the opportunity to consider the lack of equivalence between English and Cayman Islands statutory regimes, heard the appeal. The judge identified that, despite the absence of statutory authority to make orders for suspended destruction (i.e., where the dog is destroyed only if the owner fails to keep it under control) and the benefit that such alternative sentencing might provide, questions of policy raised in English cases were, as a matter of justice and common sense, equally applicable in the Cayman Islands.
Following analysis, Justice Hellman held that before making a destruction order the court must first ask itself whether any measure short of a destruction order was sufficient to safeguard the public. In doing so, the judge arguably installed an important, and humane, filter on the exercise of the court’s discretion. In responding to the question, owners, or the legal practitioners representing them, have been afforded the additional opportunity to persuade the court to save the animal, divorced from repercussions of the owner’s previous conduct.
Having identified suitably practical and alternative measures which could be, and had been, taken, which included the use of secured enclosures, muzzles and controlling the number of animals that could be led by a single person when in public, the judge in Merren accepted submissions that he was bound to quash the destruction orders. The dogs, which had been impounded with the Department of Agriculture for close to a year while awaiting the appeal, were ordered to be returned to their owner.