England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 23 October 2013

1. .MRS JUSTICE SWIFT: On 12 April 2013, at Isleworth Crown Court before HHJ Matthews and a jury, the appellant was convicted after a trial of the aggravated offence of being the owner of a dog which caused injury whilst dangerously out of control in a public place, contrary to section 3(1)(a) of the Dangerous Dogs Act 1991 ("the 1991 Act"). On 19 July 2013, before the same judge, he was given a community sentence of 170 hours unpaid work. In addition, he was disqualified from keeping a dog for 4 years and an order was made for the destruction of his dog, a 5 year old German Shepherd called Ace. He appeals against sentence by leave of the single judge. His appeal is directed solely at the orders for disqualification and for Ace's destruction.
2. .The appellant is a 33 year old man who, in early 2012, regularly acted as a volunteer assisting with activities held at a Sikh centre known as Norwood Hall, in Southall. The appellant's brother-in-law was responsible for the day-to-day running of the Hall, which contained offices and meeting rooms. Situated in the grounds of the Hall was a school, together with a gym which was open to members of the public.
3. .The appellant regularly took Ace with him to Norwood Hall. There was a garden area immediately adjacent to the car park; that area was enclosed by a fence. The appellant had installed a large dog kennel there. It was his practice to keep the dog chained up in, or adjacent to, the kennel within the enclosed garden area. When the dog was not chained up, he was on a lead.
4. .Inderjit Gill, who was 12 years old, was a regular user of the gym. On the evening of 10 March 2012 he and his father were walking past the garden area on their way out into the car park when Ace ran out of the garden area and attacked Inderjit, knocking him to the ground and biting him on the arm, back and leg. Mr Gill tried to chase the dog away and the appellant and two other men also intervened. Ace was brought under control and returned to his kennel. Inderjit was taken to hospital where he underwent surgery to a deep penetrating wound on his left thigh. Eight stitches were inserted and he was kept in hospital overnight. He had bruising to his arm and ribs, together with scratches.
5. .Ace was taken into the care of the police, who have housed him in privately run boarding kennels ever since the incident.
6. .When interviewed by the police, the appellant said that, before the incident, Ace had been chained up in his kennel as usual. He claimed that Inderjit must have entered the garden area where the dog was and untied him. It is plain from their verdict that the jury rejected that explanation and must have concluded that the appellant had let Ace run free in the garden area with the gate open.
7. .There was a victim impact statement dating from seven weeks after the incident in which Inderjit described still suffering pain and difficulty in walking. He had not been able to return to playing sports and tired easily. He had an obvious scar on his leg. He was still suffering from recurrent nightmares and was not sleeping well. He had developed a fear of dogs and tried to avoid being near them (including his family's dog) as far as possible. This was plainly a very frightening incident for him and for his father who witnessed it.
8. .The appellant had no previous convictions. There were before the judge a number of references as to his positive good character, his voluntary and charitable work, his conscientiousness as a dog owner and Ace's previous good behaviour with other dogs, children and adults. There was no evidence of any similar incident in the past.
9. .There was a pre-sentence report. The appellant insisted to the author of the report that his version of events was correct and that Ace had been chained up and must have been freed by Inderjit. Nevertheless he expressed regret for what had happened. The author expressed concern that, if Ace was to be left unsecured again, the risk of a similar attack would be high. Whether or not this happened would of course depend on the appellant's ability to keep the dog under control.
10. .Also before the court was a report from Dr Roger Mugford, an animal psychologist, dated 1 July 2013. Dr Mugford appears well qualified to express an opinion on these matters. He examined Ace at his own premises in the company of other dogs and people who were not known to him. He observed that Ace coped well with being handled by a stranger. He could not be incited or directed to attack another person and accepted wearing a muzzle, which would prevent him from biting anyone. He showed no aggression towards another German Shepherd dog to whom he was introduced.
11. .Dr Mugford also visited the appellant's home where he found conditions which were entirely satisfactory for keeping a dog. There was a kennel with a run in a large garden, which was securely enclosed with a board fence approximately 2 metres high. He met the appellant's family, including several children, and witnessed what he described as "every indication that Ace is a very well cared for and much loved family pet". He considered that Ace could safely be returned to the appellant's care, subject to certain conditions. Those conditions were:

(a) that he be walked on a leash not exceeding 2 metres in length to be held by a responsible adult (ie 16 years or older);

(b) that he should be muzzled in public places in a suitable type of muzzle which he was accustomed to wear at the kennels where he is being kept; and

(c) that he should be surgically castrated.

12. .On the basis of Dr Mugford's report, it was submitted before the judge that he should not order Ace's immediate destruction, but should instead make a contingent (or suspended) destruction order incorporating the conditions suggested by Dr Mugford. The issue of disqualification from dog ownership was not addressed in submissions.
13. .In sentencing the appellant the judge observed that, since the appellant had regularly visited the Norwood Hall Centre for hours at a time, it must have been necessary for him to unchain Ace at times to enable him to get the regular exercise he needed. He observed that the appellant had been slow to admit that he was the owner of the dog and that, during the trial, he had shown no remorse for not controlling the dog, for the dog's aggression or for the injuries caused. He had even gone so far as to challenge the fact that the dog had caused the injuries. The conduct of his defence, although not an aggravating feature, had done little to assist by way of mitigation. The judge referred to the relevant Sentencing Guideline and indicated that he agreed with the appellant's representative that the case fell within Category 2 of the Guideline, i.e. greater harm and lower culpability. The sentencing range was therefore a Band B fine to six months' custody, with a starting point of a medium level community order. The judge imposed a 12 month community order.
14. .The judge also ordered that the appellant should be disqualified from owning a dog for 4 years. He indicated that, having taken all the circumstances into account, he was not satisfied that Ace would not constitute a danger to the public and accordingly he ordered his destruction. He did not specifically deal with the possible imposition of a contingent destruction order subject to the conditions proposed by Dr Mugford.
15. .Section 4 of the 1991 Act provides that, when a person is convicted of an offence contrary to section 3(1) of the Act, the court may order him to be disqualified for such period as the court thinks fit from having custody of a dog. The Act does not specify the criteria to be applied when considering disqualification. However, the Guideline suggests that the test to be applied is whether the offender is a fit and proper person to have custody of a dog.
16. .Section 4 also provides that, when a person is convicted of an aggravated offence contrary to section 3(1) of the Act, the court shall order the destruction of any dog in respect of which the offence was committed. That provision is subject to subsection 1A, which states that the court is not required to make a destruction order if it is satisfied that the dog would not constitute a danger to public safety.
17. .This court considered the provisions of section 4 in R v Flack [2008] Cr App R (S) 70 Giving the judgment of the court in that case Silber J said at paragraph 11 that:

"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."

The Guideline states that "the relevant circumstances" include the circumstances of the incident leading to prosecution, in particular the degree of harm was caused by the dog's behaviour; the past behaviour of the dog; the owner's character; and whether that person is a fit and proper person to own the dog in question.

18. .Pursuant to section 4A(4) of the 1991 Act, the court may impose a contingent destruction order, i.e. an order that, unless the owner of the dog keeps it under proper control, the dog should be destroyed. Section 4A(5) provides that a contingent destruction order may specify the measures to be taken to keep the dog under proper control, whether by muzzling, keeping it on a lead, excluding it from specified places or otherwise. Such an order may also require the dog to be neutered.
19. .For the appellant Mr Kelly submits to us that the judge did not properly consider whether the requirements for the making of the disqualification order were met. There was no prior discussion about the possibility of making such an order, and the judge did not identify any reasons for doing so. He does not appear to have considered the positive evidence about the appellant's character or the lack of previous incidents involving the dog. The disqualification order was, he submits, inconsistent with the judge's classification of the offence as of lower culpability. In any event, Mr Kelly argues, there was no evidence which would have supported the making of such an order and, even if the order was properly made, its length was manifestly excessive.
20. .Mr Kelly further argues that the order for the immediate destruction of the dog was wrong in principle in that the judge failed to have any, or any adequate regard to the approach in Flack. Silber J said at paragraph 11:

"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...".

Mr Kelly argues that the judge failed properly to consider the option of a contingent destruction order. Had he done so he would have been satisfied that, with the conditions recommended by Dr Mugford in place, Ace would not constitute a danger to public safety.

21. .The judge's sentencing remarks do not reveal his reasons for finding that the appellant was not a fit and proper person to have custody of a dog. Nor do they identify the matters which he took into account when reaching that decision. He had of course found that, on the day of the incident, the appellant had let Ace off the leash in the enclosed area and had left the gate open. He did not indicate whether he considered that the appellant had left the gate open accidentally. However, it seems unlikely that he would have done so deliberately. It is much more likely that this was an act of momentary carelessness. The judge characterised the appellant's conduct as giving rise to lower culpability for the purpose of sentencing.
22. .There was no evidence that such an incident had occurred previously. It was clear that the appellant had taken proper steps to provide suitable facilities for Ace at Norwood Hall so as to prevent him in general from coming into contact with members of the public. The character references that were produced described the appellant as a caring and responsible dog owner and of otherwise exemplary character. The contents of those references accorded with the observations of Dr Mugford and the facilities which he observed at the appellant's home. The judge should have considered all those positive matters and weighed them in the balance when deciding whether or not to make a disqualification order. That he failed to do.
23. .As a result we consider that the order was wrong in principle and we quash it.
24. .The judge stated that he was not satisfied that Ace would not constitute a danger to the public. He gave no reasons for that decision, or for his rejection of the views expressed so clearly by Dr Mugford. He did not refer specifically to the possibility of a contingent destruction order, or to the conditions that Dr Mugford had suggested should be attached to such an order. He did not explain why he did not consider that those conditions would successfully operate to prevent Ace from presenting a danger to the public in the future.
25. .A significant reason for his decision may have been that he did not regard the appellant as a fit and proper person to own a dog. However, as we have already said, the judge does not appear to have carried out the balancing exercise necessary when deciding whether that was the case. There is no doubt that Ace was allowed to run free on the occasion in question and that he acted aggressively. We do not minimise the seriousness of the incident. It is not possible to be absolutely confident that no risk of recurrence exists. However, given the lack of any previous incidents, the appellant's character, Ace's temperament as Dr Mugford observed it to be, and the nature of the conditions that he recommended, we consider that those conditions would mitigate such risk.
26. .That being the case, we consider that the imposition of an immediate destruction order was manifestly excessive. We quash that order and substitute for it a contingent destruction order pursuant to section 4A(4). The order we make is that, unless the appellant keeps Ace under proper control under the following conditions - namely that he is to be kept on a leash not exceeding 2 metres in length to be held by a responsible adult when in a public place, that he should be muzzled in public places and that he should be surgically castrated - he shall be destroyed. To that extent, we allow the appeal.