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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 >> Davies, R v [2010] EWCA Crim 1923 (04 August 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1923.html Cite as: [2010] EWCA Crim 1923, (2010) 174 JP 514

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court at Harrow
Mrs Recorder Bickford-Smith QC
T20090143-1

		Royal Courts of Justice Strand, London, WC2A 2LL
		4/08/2010

The Honourable Mr Justice Mackay:

1. This appellant was convicted at the Crown court at Harrow on 17 December 2009 of an offence under Section 3(1) of the Dangerous Dogs Act 1991 ("the Act"). The particulars of offence are significant; they allege that he "on the 5^th day of September 2008 was in charge of a dog which was dangerously out of control in a public place namely Larkspur Close, Kingsbury and whilst so out of control injured Caroline Foley" (emphasis added).
2. As a result of this conviction he received a Community Sentence with a requirement of 180 hours unpaid work and 20 days education, training and employment specified activity requirements. No complaint is made about that sentence. This appeal is directed an immediate destruction order made in respect of the appellant's Alsatian dog.
3. This charge arose from an incident when one of the appellant's neighbours Mrs Foley was walking her dog on a lead towards a green space at the bottom of her road. The appellant was at the same time walking his two dogs an Alsatian and a Labrador. They were not on leads or otherwise controlled in any way. They ran towards Mrs Foley and attacked her dog.
4. Mrs Foley tried to pull her dog away and in so doing placed her hand over its chest. One of the appellant's dogs bit her finger inflicting a large open wound. She could not tell which of the two dogs had bitten her.
5. She went to hospital with a deep laceration over the finger with decreased power on extension. The wound was washed and dressed and she was admitted for intravenous antibiotics and surgical exploration of the wound, which confirmed that the tendon and hood were intact and the joints not involved. She was discharged with a course of antibiotics. No follow up was needed but she was nevertheless left with a decrease in the power of extension in her finger and thus a permanent disability.
6. So far as the appellant himself was concerned, and in so far as his circumstances were relevant to the destruction order, the pre-sentence report showed that he had left school at twelve, had received some home tutoring but had no formal qualifications or work experience. He lived at home with his mother and siblings on benefits and described himself as a loner. He was of previous good character but the probation officer said that his lack of insight into his responsibility for what had happened shows that he failed to think of the consequences of his behaviour. That was the reason for the educational requirement being attached to his community sentence.
7. There are two limbs to this appeal. The first is that the Recorder was wrong to find, as she did, that the Alsatian was the dog that bit Mrs Foley. The second limb is that, if the first limb is not made out, nevertheless the Recorder was wrong in her approach to the making of the destruction order and the appropriate order would have been at most a suspended destruction order.
8. It is necessary first to set out the relevant provisions of the Act so far as they apply to this appeal.

Section 3: Keeping dogs under proper control

(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.

Section 10: … Interpretation … …

(3) For the purposes of this Act a dog shall be regarded as dangerously out of control on an occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so…

Section 4: Destruction and Disqualification Orders

(1) Where a person is convicted of an offence under Section …3(1) above… the court –

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

(1A) Nothing in subsection (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;…

Section 4A: Contingent destruction orders…

(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 sub section (4) above –

a) may specify the measures to be taken for keeping the dog under proper control, whether by muzzling, keeping on a lead, excluding it from specified places or otherwise; and

b) If it appears to the court that the dog is a male and would be less dangerous if neutered, may require it to be neutered.

Issue 1 – Was the Alsatian the "dog in respect of which the offence was committed" within the meaning of Section 4(1), and therefore the dog referred to in the Particulars of Offence in the indictment?

9. The Recorder correctly approached this issue by making a finding as to which of the two dogs had bitten Mrs Foley. The jury's verdict meant they had rejected the appellant's evidence, which was that she had been bitten by her own dog and his dogs were merely "playing".
10. The Recorder clearly considered it arguable that both dogs fell within this definition, presumably on the basis of some form of joint attack. But she did not make such a determination and limited herself to identifying the dog which bit the victim. She found as a fact that that dog was the Alsatian.
11. As to the possibility of this being viewed as a joint attack, in view of the finding as to the dog by which the victim was bitten this does not arise, but as it was raised in argument we deal briefly with it. While there may be a case whose particular facts require such a concept to be considered, this court does not believe that in the present case it could have been a valid approach. In the first place it runs counter to the indictment, which asserts that one dog only injured the victim. Also the evidence was that both dogs attacked Mrs Foley's dog, and that she was bitten either by the Alsatian or Labrador when she intervened to protect her dog. Thus the offence was committed whichever dog delivered the bite and caused her injury. The prosecution did not need to rely on any analogy with joint enterprise between human beings. Neither we nor the Recorder were called upon to answer the question whether, if two dogs together attack a human victim but only one causes injury, both dogs "injure" that person, or only one does. That is a question for another day.
12. Mrs Foley had said throughout that both dogs attacked hers, but she agreed she was in a state of panic, and she had plainly received a significant injury. The appellant himself had given evidence that the Labrador was not involved at all and was some distance away at his home by this stage. The appellant's argument is that, the jury having rejected the appellant's central contention, that neither of his dogs had bitten the victim, it was not open to the judge to rely on any part of his evidence. Equally the jury having found the victim reliable on that issue it was not open to the judge to make any other finding than that two dogs were involved in the attack at all times.
13. We do not find this argument convincing. It is a truism often repeated in this court that the credibility of a witness, even an essentially honest witness, is not indivisible, or a seamless garment as it is sometimes put. The jury may have found themselves in some doubt about the involvement of the Labrador but still could still have convicted on the charge as drawn. The Recorder had heard and seen the witnesses both give evidence and was entitled when deciding sentence to make findings of fact provided they were not inconsistent with the jury's verdict. We consider her finding that it was the Alsatian which bit the victim unassailable in this court, albeit it may have been one which both Mrs Foley and the Appellant may have found controversial. But we do not consider it was not open to the Recorder on the evidence she heard.

Issue 2 – Was the Recorder right to make an order for immediate destruction?

14. Only the dog inflicting the injury is potentially liable to a mandatory destruction order under Section 4(1) (a). Other dogs present and out of control but not causing injury may, depending on the charge or charges, qualify for discretionary disqualification under that same subsection. But in either event, whether the mandatory or discretionary version of the destruction order is engaged, before making any order the court still has to consider both sections 4(1A) (a) and 4A(4) and (5). As to the first of these the court does not have to make the mandatory order if it is satisfied that the dog would not constitute a danger to public safety. In our view applying normal principles the burden of so satisfying the court falls on the party making that assertion, i.e. the appellant, and to the civil standard. It is the appellant who is seeking to displace a mandatory consequence and it is the appellant who will normally be the owner of the dog or a person entrusted with its care and who will be best placed to know about and adduce evidence of its characteristics. Such evidence may be of an expert nature (as was led in Flack 2008 EWCA Crim 204 - see paragraph 7) or it may be lay evidence relating to such matters as the dogs character, demeanour and general past behaviour.
15. But the matter does not end there, because Section 4A allows for a contingent destruction order even if a destruction order, mandatory or discretionary, is otherwise appropriate. That section was construed by this court in Flack by Silber J in this way, at paragraph 11 of the judgment, in an analysis with which we agree:-

" iii) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4(A)(4) of the 1991 Act to order that unless the owner of the dog keeps it under proper control the dog shall be destroyed…

iv) 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…

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

vi) 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."

16. The problem in the present case is that the Recorder was not referred to any of these provisions. Initially she was under the impression that as she had identified the Alsatian as the biting dog a destruction order was mandatory – see 6E of her sentencing remarks. She was then reminded of section 4(1A) to which she replied –

"I don't think it's necessary for me to say this, but I am quite sure it follows, and I say for the sake of clarity that it seems to me plain, that this dog is a danger to public safety".

17. Defence counsel accepted that and said no more. He made no application to lead any evidence on this topic. He did not refer to the case of Flack or to the further obligation to consider a contingent destruction order under section 4A.
18. In those circumstances we consider that the immediate order for destruction cannot stand and must be quashed. It should be replaced by a contingent destruction order to this effect that the Alsatian dog be destroyed unless the owner keeps it under proper control and, in particular, the dog must, at all times when in public places, be muzzled, and kept on a lead. To that extent this appeal is allowed.