Baballa, R v [2010] EWCA Crim 1950

Case No 201001151 A7[2010] EWCA Crim 1950
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 28 May 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE COOKE
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrownv
Between
MOSES BABALLA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Wright Appeared for Appellant
J U D G M E N T
[1]MRS JUSTICE SWIFT: The appellant, Moses Baballa, who is 24 years old, appeals against sentence by leave of the single judge. The case arises out of an incident on the morning of 18 August 2008 when he was exercising four dogs, unrestrained by leads or muzzles, in Melfort Park, Thornton Heath.[2]The appellant originally faced an indictment containing four counts of being the owner of a dog which caused injury while dangerously out of control in a public place, contrary to section 3(1) of the Dangerous Dogs Act 1991 (i.e. one count in respect of each dog) and an offence of witness intimidation. In the event, on 14 August 2009, at Croydon Crown Court, he pleaded guilty to only one count contrary to section 3 of the 1991 Act, the dog in question being a mongrel named Crystal. That plea was acceptable to the Crown which offered no evidence on the remaining counts, in respect of which not guilty verdicts were entered.[3]The appellant was sentenced on 8 February 2010. On that day he also fell to be sentenced for three offences contrary to section 1(3) of the 1991 Act, namely having in his possession or custody a pit bull terrier (i.e. one count in respect of each of the other three of the four dogs). Those offences had been committed to the Crown Court by the Magistrates' Court pursuant to section 41 of the Criminal Justice Act 1988 and had previously been admitted by him. For the section 3 offence he was sentenced to 6 months' imprisonment, suspended for 2 years, with 2 years supervision, 160 hours unpaid work, and Thinking Skills programme requirements. For each of the other three offences, he received 2 months' imprisonment suspended for 2 years concurrent.[4]The prosecution had applied for an order disqualifying the appellant from having custody of a dog, pursuant to section 4(1)(b) of the 1991 Act. The judge declined to make such an order. However, he was persuaded to make destruction orders in respect of all four dogs, pursuant to section 4(1)(a) of the 1991 Act. This appeal relates solely to the destruction order made in respect of the three dogs who were the subject of the section 1(3) offences. It is not disputed that Crystal had to be destroyed.[5]The facts giving rise to the appeal are these. At 10 o'clock in the morning of 18 August 2008, a student, Mr Jalal Dawad, was walking through Melfort Park when he saw the appellant by the gate playing with four dogs. One of the dogs, Crystal, approached Mr Dawad. As the dog got nearer to him, it began to bark and jump up. Mr Dawad was scared and ran behind the appellant, grabbing him and trying to shield himself. The three other dogs then surrounded him. They were barking and jumping up and he was bitten. The effect of the prosecution's acceptance of the appellant's plea is that the bites must be assumed to have been inflicted by Crystal and Crystal alone.[6]Mr Dawad managed to get away from the dogs and report the incident to the police. On medical examination he was found to have three bite marks on his right wrist, a bite mark on the right forearm, teeth marks and scratches on his left forearm, and a tooth mark on his thigh.[7]When arrested, some months later, the appellant accepted that the dogs were his but denied that they had ever bitten anybody in the park. He said that the complainant had run up to him and the dogs. He denied that the complainant had been attacked. He accepted that the dogs had not been muzzled and said he had taken all of them out on that occassion, whereas it was his normal practice to take out only two at a time.[8]There was written evidence before the judge from expert witnesses from both prosecution and defence. PC William Morrisson is an experienced police dog handler. He and a colleague examined all four dogs and concluded that Crystal was properly classified as a mongrel, while the other three dogs had a number of the characteristics of a pit bull terrier, and therefore fell within section 1 of 1991 Act. PC Morrisson noticed that the three dogs had a good temperament while being examined.[9]The defence expert, Mr Trevor Turner, was a retired veterinary surgeon who had specialised in treating small animals. He was, for many years, chief veterinary officer at Crufts Dog Show and has officiated at many other canine national events. He examined the three dogs who were the subject of the section 1(3) offences and found them to be friendly and compliant. He agreed that they had sufficient characteristics to be correctly classified as American pit bull terriers. It was his expert opinion that the dogs did not constitute a danger to the public if properly restrained by a responsible adult when in a public place. He observed that the incident which had occurred could have happened with any type of dog in similar circumstances. The dogs had responded in typical canine fashion to what they had perceived to be a threatening situation. The expert recommended that the dogs be entered on to the Index of Exempted Dogs, pursuant to section 1(5) of the 1991 Act, as a result of which they would be subject to certain conditions, including neutering, tattooing, micro-chipping, muzzling and keeping on a lead in public places.[10]In passing sentence, the judge said that he appreciated Mr Turner's views in relation to the three dogs. It was not suggested by the expert police officer who had examined them that they were aggressive. Nevertheless, he said, dogs were "attack animals" and might not display the same characteristics when examined alone as when in company and overexcited. In the circumstances, he could not be satisfied that they would not constitute a danger to public safety. Therefore, he made destruction orders in respect of each of them.[11]For the appellant, Mr wright argues that the evidence of Mr Turner was clear, and that there were no grounds for the judge to reject his opinion. The possibility of the dogs hunting as a pack would arise only if the appellant permitted them to run free together. According to him, that was not the appellant's usual practice, and the judge had not thought it appropriate to disqualify him from having dogs. Any risk of the type envisaged by the judge could be met by the dogs being made the subject of certificates of exemption, subject to the appropriate conditions.[12]We have not had the benefit of hearing submissions from the prosecution in this case.[13]Section 1(1)(a) of the 1991 Act provides that the section applies to any dog of the type known as the pit bull terrier. Section 1(3) of the Act provides:
"After [30 November 1991] no person shall have any dog to which this section applies in his possession or custody ..."
. There are exceptions to that subsection which do not apply in this case.[14]Applicable to this case, however, is section 1(5), which provides that the Secretary of State may, by order, provide that the prohibition in subsection (3) shall not apply in certain circumstances, including when there is compliance with the requirements of a scheme of exemption imposing certain conditions. We shall come back to the scheme of exemption mentioned in that subsection.[15]Section 4 of the Act provides: "(1) Where a person is convicted of an offence under section 1 or 3(1) or (3) ... the court(a) may order the destruction of any dog in respect of which the offence was committed and, subject to subsection (1)A below, shall do so in the case of an offence under section 1 or an aggravated offence under section 3(1) or (3); and(b) may order the offender to be disqualified, for such period as the court thinks fit, from having custody of a dog. (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".[16]Section 4A(1) of the Act provides:
" Where - (a) a person is convicted of an offence under section 1 above or an aggravated offence under section 3(1) or (3) above; (b) the court does not order the destruction of the dog under section 4(1)(a) above; and (c) in the case of an offence under section 1 above, the dog is subject to the prohibition in section 1(3) above the court shall order that, unless the dog is exempted from that prohibition within the requisite period [2 months] the dog shall be destroyed"
. Such an order is known as a "contingent destruction order".[17]Section 4A(4) provides:
"Where a person is convicted of an offence under section 3(1) or 3 above, the court may order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed"
. Subsection (5) of section 4A enables the court to specify measures to be taken for keeping a dog under proper control.[18]The exemption scheme pursuant to section 1(5) of the 1991 Act is set out in the Dangerous Dogs Compensation and Exemption Schemes Order 1991. The relevant parts are Article 3, which provides that the section 1(3) prohibition does not apply in certain circumstances, i.e. where the dog has been neutered and has a form of permanent identification (Article 7); where there is appropriate third party insurance in force in respect of the dog (Article 8); where a prescribed fee has been paid; where a certificate of exemption for the dog is in force; and where the requirements specified in the certificate are complied with. Those requirements are set out in Article 10. They include a requirement to keep the dog to which it relates in sufficiently secure conditions to prevent its escape, and a requirement to keep the dog to which it relates muzzled and on a lead when in a public place.[19]The three dogs in question have not been the subject of a conviction for the aggravated offence pursuant to section 3 of the 1991 Act. Their part in the incident which took place in Melfort Park was, on the basis of the appellant's plea, to surround Mr Dawad after he had run towards and behind the appellant, and to bark and jump up at him. His action in running towards the owner of the dogs and grabbing his clothing in the hope of gaining shelter, although entirely understandable in the circumstances, may well have appeared to the dogs to be an act or threat of aggression against the appellant. No doubt it was for that reason that Mr Turner expressed the view that the dogs had responded as any other type of dog might have done in a similar situation. His view, which was confirmed by the prosecution expert, was that, approached individually, and even when subjected to close examination, the three dogs were well behaved and showed no signs of aggression. He considered that the dogs did not constitute a danger to the public if properly restrained by responsible adult when in a public place.[20]The judge was, no doubt, correct to say that dogs of this kind can, if unrestrained, behave as a pack, and thus have the potential to cause injury. However, that observation would apply to all dogs which fall within the 1991 Act and, no doubt, to some breeds of dog to which the Act does not apply. Yet the Act does not require the destruction of every dog to which it applies, only those whose individual characteristics mean that the court cannot be satisfied that the dog would not constitute a danger to public safety. The real mischief in this case was that the appellant had attempted to take out four dogs, all without leads. He thereby put himself in a position whereby he was unable to control the dogs effectively. The position would have been entirely different if the dogs had been properly restrained on leads and muzzled. In that event, they would not have been able to approach Mr Dawad at all. Even if they had come near him, he would not have had cause to fear for his safety and the situation which led him to run away from them and seek shelter behind their owner would not have arisen.[21]In R v Flack [2008] 2 Crim App R (S) 70, this court considered the principles to be applied in respect of a dog whose owner had been convicted of the aggravated offence under section 3(1) of the 1991 Act. Giving the judgment of the court, Silber J stated the principles thus:
"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 4A(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."
[22]As we have observed, Flack was concerned with section 3(1) of the 1991 Act. Nevertheless, we consider that the same principles are applicable to a case which falls within section 1(3) of the 1991 Act.[23]Applying those principles to the present case, we consider that, before ordering the immediate destruction of the three dogs, the judge should have considered whether to exercise his power under section 4A(1) of the 1991 Act to make a contingent destruction order. He should have considered whether he could be satisfied that the imposition of the conditions which would be attached to a certificate of exemption would be sufficient to ensure that the dog would not constitute a danger to public safety. It seems that, although the possibility of a section 4A(1) order was considered, the case of Flack was not brought to the judge's attention. We consider that, if it had been, and if he had followed the approach set out in that case, he could and should have been satisfied that a contingent order of destruction would suffice. The expert evidence before him was to the effect that the dogs would not be dangerous if properly restrained. There was no evidence that the appellant had failed properly to restrain his dogs on any occasion other than the one with which we are concerned. The judge made no order disqualifying him from owning or being in control of dogs. If there were a certificate of exemption in force, with requirements to keep the dogs muzzled and on a lead in a public place, the appellant would have every incentive to keep the dogs under proper control in the future, lest further proceedings be brought against him for breach of the conditions set out in the certificate of exemption.[24]In the circumstances, we have concluded that we should set aside the orders for destruction and substitute for them orders under section 4A(1) to the effect that, unless each dog is exempted from the prohibition under section 1 within 2 months, it shall be destroyed.[25]To that extent, the appeal is allowed.

Cited in 3 later judgments