Harry, R. v [2010] EWCA Crim 673

[2010] EWCA Crim 673Case No 200905194/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 2nd March 2010
Strand
London, WC2A 2LL
B e f o r e:
SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE FOSKETT
MRS JUSTICE NICOLA DAVIES DBE
Between
R E G I N ACrownv
Between
JAMIE JOSEPH HARRY
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 7831 8838(Official Shorthand Writers to the Court)
Mr M Roberts appeared for Appellant
J U D G M E N T
[1]MRS JUSTICE NICOLA DAVIES: On 11 September 2009 at the Crown Court at Mold, the appellant pleaded guilty to two counts of being in charge of a dog which caused injury while dangerously out of control in a public place, contrary to section 3(1) and (4) of the Dangerous Dogs Act 1991 ("the 1991 Act").[2]Count 1 related to a male English Bull Terrier called Snoopy (known as Snoop). Count 2 related to a Staffordshire female cross bred bull terrier called Millie. The appellant was sentenced to a 12 month conditional discharge on each count concurrent by Mr Recorder Parry. A destruction order was made pursuant to section 4 of the 1991 Act in respect of both dogs. The appellant appeals against the destruction order by leave of the single judge.[3]On 13 August 2008 the appellant arrived at his parents' home at 10 Chesnut Avenue, Wrexham. His parents were absent, he entered the kitchen. At this time the appellant's parents were having building work done to the rear of the property as a result the dogs were living inside. The appellant released the two dogs into the garden. The work was being carried out by local building contractors who had been told to ensure that the side gate, which gave access to the front of the house and the road, remained closed at all times. It transpired that one of the workmen had left the side gate open, as a result the dogs were able to enter the street.[4]At around this time the victim had left his girlfriend's property in the same road. He walked towards a car parked outside the house. The dogs ran towards him. At first they appeared friendly but when the first dog, Snoop, arrived it jumped up and bit the victim on his penis, the top of his legs, his stomach and his back. The victim ran to his girlfriend's house which was locked. He then ran to a neighbour's home. The dogs followed, both biting him on his back. The victim stumbled, threw his jacket at the dogs but they continued chasing him. He arrived at another house on Chesnut Avenue and a resident let him in. He trapped one of the dogs' heads in the door.[5]The victim was taken to hospital. On examination he had multiple superficial bite wounds and scratches to his arms, trunk and legs. There was a deeper wound on his buttock and also a superficial graze on his penis. The wounds were cleaned and the victim was discharged on antibiotics. He remained off work for a period of 2 weeks. It is believed he has made a good recovery.[6]At interview the appellant accepted that the gate had been left open. A letter was before the court from D & K Home Improvements Ltd, confirming that at some time during the course of 13 August 2008 the gate was left open by mistake by one of the building team. In that letter Mr Small, a director of the company, stated that at all times when the work was being carried out the dogs had been in their cage and even when they were let loose in the back garden they caused no harm to any member of staff and were playful.[7]The appellant was a man of good character and pleaded guilty on the basis of the above facts, namely that the workmen had left the side gate open and he had let the dogs out without first checking that the gate was secure. It was accepted by the Recorder that the appellant and his parents were conscientious dog owners, who cared for their animals and who had excellent record of animal ownership. Neither dog had ever done anything of this nature before and neither dog had shown any propensity to act in the way that each did on this single occasion.[8]The court was shown photographs of the accommodation that had been build for the dogs at the rear of the property since completion of the building works. It is an enclosed and roofed kennel which would significantly reduce the chance of the dogs being able to escape.[9]In his sentencing remarks the Recorder referred to the excellent character and responsible attitude of the appellant which he reflected in the sentence of a conditional discharge. The Recorder stated that he had concluded that both dogs constituted a danger to the public. This was a unprovoked, sustained attack by two animals together. Once the victim had broken free they continued to chase him, continuing to bite him. The only conclusion which the Recorder felt he could sensibly and reasonably come to was to make an order that the dogs be destroyed. Destruction Orders.[10]This governed by section 4 of the Dangerous Dogs 1991. Section 4(1):
"(1) Where a person is convicted of an offence under section 1 or 3(1) or (3) above or of an offence under an order made under section 2 above the court— (a) may order the destruction of any dog in respect of which the offence was committed and shall do so in the case of an offence under section 1 or an aggravated offence under section 3(1) or (3) above; and..."
Section 4(1A):
"(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 4(A)(4):
"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."
Section 5:
"An order under subsection (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."
[11]The provisions of section 4 were considered by the Court of Appeal in R v Flack [2008] EWCA Crim 204. In that authority Silber J set out the relevant principles: 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 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. The learned judge referred to that as a suspended order of destruction. 4. A suspended order of destruction under that provision may specify measures to be taken by the owner by keeping the dog under control by muzzling, keeping it on a lead or excluding it from specified place or otherwise (see section 4(A)(5) of the 1991 Act. 5. The court should not order destruction if satisfied that the imposition of such a condition would mean that 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.[12]It is the appellant's case that the Recorder failed to have any or any adequate regard to those principles, in particular to the provisions regarding the potential for a suspended order. Further, the Recorder failed adequately to consider both the owner's exceptional care for the animals and the fact that neither animal had every done anything similar in the past. It is the appellant's case that if the Recorder was considering a destruction order, he should have allowed the application made on behalf of the appellant to adjourn that part of the hearing, to allow for the preparation of a report on the dogs by an animal behavioural consultant.[13]Before this court was a report from such a person. Section 23(1) of the Criminal Appeal Act 1968 provides:
"For the purpose of an appeal, or an application for leave to appeal, under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice- (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to. (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
[14]The evidence sought to be adduced is a veterinary report prepared by Madeleine Forsyth, a veterinary surgeon and a barrister. Miss Forsyth examined both dogs on 30 September 2009, in the absence of their owner but in the presence of a police officer and a representative from the kennels. In her report Miss Forsyth deals with the question of aggression. She states that dogs that are normally subservient in a dog/human relationship are unlikely to show aggression towards humans except under the most stressful circumstances. It is essential to distinguish between predatory aggression, where the object is to kill the victim and dominance aggression, where the object is a threat intended to change the behaviour of the victim. Dominance aggression is usually provoked by actions of the victim which the dog perceives as challenging its dominance.[15]Miss Forsyth examined both dogs. She found Millie to be in good physical condition, extremely friendly and obedient. She described her as being obedient, placid in manner, displaying no signs of aggression, either to Miss Forsyth or her main handler from the kennels. Miss Forsyth concluded that she was in no doubt that Millie was anything other than a friendly domestic pet.[16]As to Snoop, Miss Forsyth described him as a good example of his breed and in good bodily condition. She found him to friendly and amenable to verbal command. He allowed examination without objection. He showed no signs of aggression but was boisterous and because of his size and musculature powerful. In Miss Forsyth's opinion neither dog displayed any aggressive attributes as a normal behavioural characteristic. The manner and demeanour of each dog was entirely consistent with the status of a friendly family pet.[17]It is the opinion of Miss Forsyth that the dog's behaviour on 13 August 2008 appeared to result from an initially friendly approach to the victim which, for some unknown reason, deteriorated into an aggressive attack, most probably associated with dominant aggression related to a pack situation. She stated that it is pertinent that the victim screamed and ran away, which may have encouraged the dogs to chase him. It is likely that Snoop was the instigator of the incident. Miss Forsyth stated that it is unlikely that Snoop would behave aggressively in any other circumstances as he is fundamentally friendly, obedient although boisterous. However, in the excitement of his escape and with another dog for company, his dominance emerged with disadvantage to the victim. Whilst it is never possible to be entirely confident of the future behaviour of a dog who has already bitten a person, it would in the opinion of Miss Forsyth seem that restraint and control of the dog, combined with castration would reduce his hormonal fuelled dominance.[18]As to Millie Miss Forsyth concluded that she is quiet and placid and does not represent an individual danger to anyone. However, she would be likely, as would most dogs, to join in an exciting chase if the opportunity arose and thus should be kept restrained and under control at all times.[19]In our judgment, the report of Miss Forsyth was relevant to the issues to be considered pursuant to section 4 of the 1991 Act. We are satisfied that this a report which should have been before the court and the adjournment sought on behalf of the appellant should have been granted by the Recorder. Accordingly we allow the introduction of this evidence pursuant to the provisions of section 23 Criminal Appeal Act 1968.[20]For the victim this was a frightening and distressing incident which caused him physical injury.[21]As to Snoop and Millie, there is nothing in the history of their behaviour or the owner's history of controlling the dogs which suggests that prior to the incident either dog was a danger to the public. The question is whether their actions on 13 August 2008, together with the risk of similar behaviour in the future, are sufficient to constitute a danger to public safety within the provisions of the 1991 Act.[22]In her report Miss Forsyth does not state that either dog constitutes a danger to public safety. As to Snoop, it is her opinion that, although she thinks it unlikely that he would behave aggressively in any other circumstances, it is never possible to be entirely confident about the future behaviour of a dog that has bitten a person. That is why Miss Forsyth recommends both restraint, control and castration.[23]As to Millie, Miss Forsyth states that she does not represent an individual danger to anyone, however she would be likely, as with most dogs, to join in an exciting chase, if the opportunity arose, and thus should be kept restrained and controlled at all times.[24]In our judgment, the fact that each dog has been involved in this incident creates a risk as to public safety in future. Accordingly, an order pursuant to section 4(A)(4)of the 1991 Act is appropriate. We quash the original destruction order, we substitute for it a contingent destruction order pursuant to section 4(A)(4). To this extent the appeal is allowed. Specifically the order we make is this. The destruction of the dogs is ordered unless the owner of the dogs keeps both dogs: 1. Under proper control and restraint; and 2. In respect of male dog, Snoop, within 56 days the owner ensures that he is neutered.