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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Holland, R. v [2002] EWCA Crim 1585 (18 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1585.html Cite as: [2002] EWCA Crim 1585

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IN THE COURT OF APPEAL CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		18th June 2002

1. MR JUSTICE PITCHFORD: On 10th October 2001 the appellant pleaded guilty at Liverpool Crown Court to an offence of allowing a dog of which she was in charge to enter an adjoining property, 21 Strawberry Road Liverpool 11, where it was not permitted to be, and where it, as a matter of fact, injured Kathryn Ambrose. On 2nd November 2001 she was sentenced by Mr Recorder Martin QC to a fine of £250, payable in instalments. She was ordered to pay compensation of £250. She was disqualified from having custody of a dog for ten years and the dog was ordered to be destroyed. The appellant, with the leave of the single judge, appeals against the length of disqualification and she renews her application for leave to appeal against the order for destruction of the dog.
2. Some six weeks before 4th March 2001 the dog was left with the appellant at No 19 Strawberry Road by one of her sons. It was a Bull Terrier of the Staffordshire or English type. A neighbour, Peter Kavanagh, noticed during that period the dog's propensity to wander into adjoining property, having damaged the fence between his own home and the appellant's garden.
3. On Sundays, the appellant's neighbours on the other side, Mr and Mrs Ambrose, invariably had their two sons, their sons' wives and the grandchildren for lunch. On the afternoon of Sunday 4th March, at about 5.45 pm, two of the children, Liam and Kathryn, were in the garden playing with a ball. Kathryn was 8 years old. The dog forced apart the wire fencing between Nos 19 and 21 and ran towards Liam and Kathryn. Liam's father, Carl Ambrose, managed to remove his son, but the dog went for Kathryn and gripped first her ankle, then her right leg, and finally her clothing in the vicinity of her chest. The ferocity of the dog's attack and its determination to remain locked on the child was such that it was able to resist punches and blows with a mop handle from two men, Carl and John Ambrose. It desisted only when the appellant called the dog away. Kathryn was hysterical. At hospital she was found to have suffered a fresh injury 10 cms in diameter. In short, the dog had bitten a hole in her flesh just above the right knee on the inside of the leg. She has a permanent physical scar and may develop a phobia for dogs for life.
4. By reason of the circumstances, the offence was, by section 3(3)(a) Dangerous Dogs Act 1991, an aggravated form of the offence. Section 4(l)(a) and section 4(1A) required the Recorder to order destruction of the dog unless satisfied it did not constitute a danger to public safety.
5. There was before the Recorder and before us no evidence that the dog was other than a danger in circumstances such as we have just described. The Recorder expressly excluded the idea that the dog was being teased or tormented.
6. In support of the application, counsel for the appellant, Miss Rose, has provided to us a petition, signed by a number of people who live in the Scarisbrook Road and Mildmay Road area of Liverpool. The petition invited the signatories to express an opinion that while the dog had lived at 23 Mildmay Road until it joined the appellant at Strawberry Road, it was not a dangerous dog. No doubt those persons who felt able to make that assertion would have made it on the day before this incident occurred. We are bound to say that it provides no evidence of the type which the court would require to avoid an order for destruction.
7. Secondly, we are provided with a letter dated 4th March 2002, the author of which is Mr Kenneth Fogg, who clearly has an association with Bull Terriers, as his letter heading is "Sublyme Bull Terriers" of Stockport in Cheshire. Mr Fogg makes it clear that he does not have a veterinary qualification and that the purpose of his visit to see the Bull Terrier named 'Rickson' at the council kennels in Birkenhead was to assess the wellbeing of the dog. He specifically did not express any opinion about the circumstances in which the dog came to be housed in council kennels. Again, we find ourselves quite unable to attach to this letter any weight for the purposes of reaching a conclusion whether this was a dangerous dog in circumstances such as we have described.
8. We agree with the order made by the learned Recorder. He had, in our view, no alternative but to make the order he did, and that order for destruction will remain.
9. We turn now to section 4, as amended, which gives to the court the discretion of disqualifying the custodian of the dog for such period as it thinks fit. The purpose of disqualification is both punitive and preventative. As to the punitive element as it concerns this particular case, we have been provided with a number of testimonials from persons who know both the appellant and the fact that she has possessed dogs over many years. Miss Rose has shown us photographs which confirm that dogs have indeed been in the appellant's custody in the past. We have been provided with medical certificates, which confirm, what we venture to suggest is the obvious, that this incident which this lady witnessed caused her severe anxiety and stress. The Recorder disqualified the appellant for ten years on the express ground, not that he was punishing her, but that he wanted to ensure that Kathryn was protected from the worry that there might otherwise be a dog next door when she visited her grandparents.
10. It is asserted before us today, without evidence in support, that the grandparents have in fact moved. There is no confirmation of that bare assertion. In any event, it seems to us that fact would not alone meet the Recorder's concerns as to the nature of the animal which the appellant might keep at this property in future.
11. We have sympathy with the Recorder's purpose. We take the view that it was a legitimate purpose. A balance should, however, be struck between the sensitivities of the victim on the one hand and the restriction on the freedom of the custodian on the other. Disqualification prohibits the appellant from keeping not merely an aggressive or dangerous dog, but any dog at all. Section 4 provides as follows:

"(6)Any person who is disqualified for having custody of a dog by virtue of an order under subsection (l)(b) above may, at any time after the end of the period of one year beginning with the date of the order, apply to the court that made it (or a magistrates' court acting for the same petty sessions area as that court) for a direction terminating the disqualification.

(7) On an application under subsection (6) above, the court may—

(a) having regard to the applicant's character, his conduct since disqualification was imposed and any other circumstances of the case, grant or refuse the application; and

(b) order the applicant to pay all or any part of the costs of the application;

and where an application in respect of an order is refused, no further application in respect of that order shall be entertained if made before the end of the period of one year beginning with the date of refusal."

12. We consider that the Recorder was right to conclude that the risk of emotional, if not physical harm, to the child was a continuing one and that the onus of demonstrating that she was a fit and proper person to have custody of a dog should remain with the appellant. She can do that by making in due course an application to the Crown Court under section 4(6) and (7) of the Dangerous Dogs Act 1991. We would not intend to bind the court which hears such an application, but it is likely to be measured against the proposals of the appellant, first, as to the breed of dog she proposes to keep; second, as to the existence of secure fencing around her property; and, thirdly, who are her neighbours at the time when the application is made. 13. Accordingly, the application is refused and the appeal is dismissed.