England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26th November 2010

1. LORD JUSTICE GROSS: On 4th May 2010 in the Crown Court at St Albans, before His Honour Judge Plumstead, the applicant, Mr Hill, now aged 74, pleaded guilty to two counts of being in charge of a dog which caused injury whilst dangerously out of control in a public place (counts 1 and 2) and one count of being in charge of a dog which was dangerously out of control in a public place (count 3). He was sentenced to a conditional discharge for 12 months concurrent on each count. A destruction order was made pursuant to sections 3(1) and (4) of the Dangerous Dogs Act 1991, regarding the dog in question.
2. The applicant (as he was when the morning began) applies for an extension of time for leave to appeal against conviction, the application having been referred to the Full Court by the Registrar. He renews his application for leave to appeal against sentence, in connection with the destruction order only, following refusal by the single judge. The Full Court has already conducted an adjourned hearing of the application.
3. So far as concerns the application for an extension of time to appeal conviction, counsel has previously indicated that the point about the Crown Court's jurisdiction to try the applicant on count 3 only came to light when drawn to his attention by the Criminal Appeal Office. Count 3, of course, had no practical effect upon the sentence. Perhaps that is why it was not pursued earlier.
4. At the previous hearing of the Full Court, an adjournment was granted so that an additional transcript could be obtained with view to a full consideration of the destruction order. The point about conviction was flagged for consideration today.
5. So far as concerns the facts, on 1st August 2009 the applicant and his wife were walking their Staffordshire Bull terrier in St Albans. The dog was 10 months old at the time. The applicant had with him a muzzle for the dog, but most unfortunately was not using it. An off-duty police officer was jogging past the couple when the dog jumped at him and bit him seriously. Police Constable Kier attended to investigate the incident. The applicant struggled to hold the dog, which broke free and jumped at the officer's leg, causing a red mark on the shin.
6. The off-duty officer's injuries gave rise to count 1, the injuries to Police Constable Kier, count 2. Constable Kier was able to kick the dog away and the applicant then managed to regain control of it. Thereafter the dog lunged towards a passing member of the public, locking onto his trouser but causing no injury. The applicant managed to regain control of the dog about 2 seconds later.
7. In interview the applicant said he had the dog for a year and this was the first time it had bitten anyone. It had not done anything like this since. The applicant was indeed extremely sorry that it had happened and there is no doubt whatever about the genuineness of his remorse.
8. Very helpfully, the Criminal Appeal Office has pointed out the following in connection with count 3 and we are grateful to it. The applicant was originally indicted on count 3, with the aggravated offence of being in charge of a dog which caused injury while dangerously out of control. That offence is triable either way. The indictment was amended in the Crown Court prior to arraignment, to reflect the fact that no injury was inflicted upon the third complainant, the passing member of the public.
9. The non-aggravated form of the offence to which the applicant pleaded guilty is a summary only offence under section 3(1) and (4) of the Dangerous Dogs Act 1991. Moreover, section 40 of the Criminal Justice Act 1988 has no application to the offence. It could not therefore be added as a third count to the indictment. It appeared to the Criminal Appeal Office that the conviction on count 3 was unlawful; still further, there would appear to be no provision rendering the summary only offence a statutory alternative to the aggravated offence. The court could not therefore have accepted a plea of not guilty to the offence charged but guilty to the lesser non-aggravated offence had the indictment remained unamended.
10. When passing sentence the judge observed that the applicant's concern for his dog did him credit emotionally but was unrealistic. The fact that the applicant owned a muzzle showed he was aware of the potential for trouble with a powerful dog. The dog was not just out of control but a real danger. The first claimant could have been seriously and permanently injured. The dog had bitten three people within the space of an hour. In failing to place the muzzle on the dog after the first attack the applicant presented a clear example of somebody not learning a lesson. There was an obligation under the Act to make a destruction order and nothing said on behalf of the applicant would displace that. The court had such a duty because there were many decent people who owned, loved and cared for dogs that were dangerous.
11. Counsel for the applicant invited the court to adjourn the sentence so that an expert witness could be instructed to assess and report on the danger posed by the dog. But the judge proceeded nonetheless.
12. Passing sentence, the judge observed that the applicant was, as was plain, a decent man, who had led a blameless and worthwhile life. However, the judge's duty was clear, it was to override the applicant's understandable love for his dog and make an order for its destruction. The dog was a proven danger. If it was thought that the applicant had it for that reason he would have been sent to prison. Of course that was not the case. The applicant was of good character and hence, with regard to him, the judge imposed a conditional discharge for 1 year.
13. The applicant was not in a financial position to pay costs, compensation, or a fine, and it may be noted, because it is of relevance later, that the material before the court showed that the applicant lived on benefits and was in council accommodation.

The Conviction Application

14. We can deal with this summarily. We grant leave. As is clear from the Registrar's most helpful note, the Crown Court had no jurisdiction to try the appellant on count 3, as it charged a summary offence which could not properly be included on the indictment. The plea to count 3 was therefore a nullity. The Crown properly does not oppose this appeal against conviction. We need say no more than that we quash the conviction on count 3. We turn to sentence.

The Sentence Application

15. We grant leave. We begin with the legal framework. The relevant offences is contained in section 3(1) of the Dangerous Dogs Act 1991 ("The Act"):

"(1) If a dog is dangerously out of control in a public place-

(a) the owner...

is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection."

For present purposes, provision for the destruction of the dog is made by section 4 of the Act:

"(1) Where a person is convicted of an offence under section... 3(1)... the court.

(a) may order the destruction of any dog in respect of which the offence was committed and, subject to subsection (1A) below, shall do so in the case of... an aggravated offence under section 3(1)... above. ...

(1A) Nothing in section (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied-

(a) that the dog would not constitute a danger to public safety ..."

16. Provision is also made by the Act for "contingent destruction orders": see sections 4A(4) and section 4A(5) of the Act:

"(4) Where a person is convicted of an offence under section 3(1)... above, the court may order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed.

(5) An order under (4) above-

(a) may specify the measures to be taken for keeping the dog improper control, whether by muzzling, keeping on a lead, excluding it from specified places or otherwise ..."

17. If we may say so the threads here are helpfully pulled together in a judgment of this court given by Silber J in R v Flack [2008] EWCA Crim 204 at paragraph 11:

"The relevant principles that can be made in respect of a dog whose owner has been convicted under section 3(1) of the 1991 Act of failing to keep a dog under control in a public place are that:

(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.

(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4a(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed ('a suspended order of destruction').

(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4(a)(5) of the 1991 Act.

(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made."

Any additional observations on the law may be picked up from the 2011 edition of Archbold, at paragraph 31-38, where the following is set out.

"A court should ordinarily consider, before ordering the immediate destruction of a dog, whether to exercise the power under section 4A(4)...to make a suspended order of destruction; if satisfied that the imposition of such a measure would mean the dog would not constitute a danger to public safety, a court should not order destruction but, when deciding what order to make, the court must consider all the relevant circumstances, which include the dogs history of aggressive behaviour, the owner's history of controlling the dog concerned and the owner's character ...

Whereas destruction of the dog is mandatory in the case of an aggravated offence under section 3, unless 'the court is satisfied that the dog would not constitute a dangerous to public safety' the question for the court to determine is whether the dog, in the condition in which it actually is at the time of sentencing, and having regard to the circumstances in which it has lived, constitutes a danger to public safety..."

18. It follows that in the present case, given the offence or offences of which the appellant was convicted, that destruction of the dog is mandatory unless it can be seen that the dog is not a danger to public safety whether by means of a contingent destruction order or otherwise.
19. The grounds of appeal developed before us today by Mr Hooper were essentially these. The judge had failed to give any or adequate consideration to a contingent destruction order. The judge had also erred in not adjourning to allow Mr Hooper to adduce evidence. For a year preceding the attack, the dog had not caused any concerns. Since the attack, that is between August 2009 and the hearing before the judge, the dog had not attacked anyone. Mr Hooper further added these points. Since the time in question the dog had in fact been kept within the grounds of Mr Hill's home - but Mr Hooper, unfortunately, was not in a position to give us any further detail as to what those grounds were, what area the garden comprised or indeed how secure the perimeter was. Mr Hooper further told us, on instructions, that if the dog needed to be taken out (and Mr Hooper said that it had remained happily within the grounds ever since the incident), then it would not be taken out by Mr Hill, whose physical condition was not such as to permit him to control the dog, but it would be taken out by others. Asked by us who those others were, Mr Hooper's instructions did not permit him to give an answer.
20. The prosecution response, both in a helpful written skeleton and in Miss Evans' observations today, is really made in a tone of sadness. In the written skeleton the prosecution position was essentially that the defence case was unrealistic and that the order made by the judge was, in summary, unavoidable. There was no material which gave any confidence as to how the dog could be controlled if taken out and indeed Miss Evans voiced understandable concern about the dog, if indeed it had not been allowed out at all since the incident.
21. Elaborating today, Miss Evans reminded the court that the evidence before the judge was that the appellant lived in council housing, so there was some degree of concern as to the extensive grounds of which Mr Hooper had spoken. Miss Evans, again understandably, repeated concern as to the situation which would arise or might arise should the dog ever get out again.

Discussion

22. Having considered the full sentencing transcript for which the court had adjourned, it does seem to us that the judge was of the view that it was pointless to adjourn for evidence and that the judge did not consider, with respect, the imposition of a contingent destruction order. We can understand why the judge did not adjourn for evidence. Other than by way of a contingent rather than an immediate destruction order, there was no realistic prospect of demonstrating that the dog would not constitute a danger to public safety.
23. For our part and with respect, we think that the judge was in error not to deal with the point as to the contingent destruction order. But the question for us is whether nonetheless the making of an immediate destruction order was inevitable and unavoidable, or whether a contingent destruction order would suffice for the purpose of public safety. With great regret we are driven to the conclusion that there was no alternative but to make an immediate destruction order. We confess that the court had hoped that there might have been evidence before us today, for which an opportunity had been given, to show that adequate arrangements could be and had been made for the dog to be taken out in conditions of safety. We are not at all comforted by the suggestion that the dog could or should be confined within grounds of an unspecified nature, with uncertain security. We fear, as did the prosecution, for the consequences should the dog get out or be taken out after an extended period in such confinement.
24. With regret therefore, we must dismiss the appeal. The judge was in the circumstances right to make an order for the dog's immediate destruction.
25. LORD JUSTICE GROSS: Just before you go, I am not sure whether the terms of the order need to be considered. There is a time period, is there not?
26. MR HOOPER: My Lord, no it is the time period which applies to the court below.
27. LORD JUSTICE GROSS: So we simply dismiss the appeal and that order is then in effect.
28. MR HOOPER: My Lord yes.
29. LORD JUSTICE GROSS: We are very sorry about it but we see no alternative.