Devon, R. v [2011] EWCA Crim 1073

EWCA-Crim
Devon, R. v
[2011] EWCA Crim 1073 · 2011-03-17
[1]On 24 August 2010, the appellant appeared at the South West Essex Magistrates' Court where she pleaded guilty firstly to being in charge of a dog which was dangerously out of control in a public place, contrary to section 3(1) of the Dangerous Dogs Act 1991, and secondly, to using threatening, abusive or insulting words or behaviour with intent to cause fear of violence. Those pleas rendered her in breach of a suspended sentence imposed by the Crown Court at Basildon for burglary. Accordingly, all matters were committed there to be dealt with.[2]On 13 September 2010, in the Crown Court at Basildon, before Her Honour Judge Robinson, the appellant was sentenced to community orders with requirements. There was a further order that she be disqualified for three years from keeping a dog and, under section 4(4) of the Dangerous Dogs Act, an order for the destruction of the dog was made. The dog was a Staffordshire Bull Terrier named Rex.[3]The appellant appeals against sentence by leave of the single judge. On their face, the grounds of appeal refer to the destruction order only. In a skeleton argument dated 11 March 2011 Miss Hennessy indicates that the disqualification order was also the subject of appeal. She has informed us today that there is reference to that, albeit as an undeveloped argument, in her Advice on Appeal.[4]We deal with that last matter briefly. First, it was not in the grounds of appeal. Secondly, had this ground been clearly before the single judge, in the light of his observations about the appellant in giving leave in respect of the destruction order, he would have been bound to refuse leave. Thirdly, there was plenty of material before the sentencing judge -- one has only to look at the facts of the Public Order Act offence -- for her to come to the conclusion that the appellant merited a disqualification order. Although we have heard today that she had previously owned other dogs of a similar type, the fact is that there are many people who are not suitable to have dogs but do have them. Some get away with it.[5]We have additional material from Dr Aitken in a report dated 28 February 2011 which was ordered by the single judge. In it she says:
"It is most unlikely that he [Rex] had experienced any early training or socialisation. Ms Devon is probably not capable of training Rex. She may not be sufficiently motivated to train him. Rex needs a very responsible owner who has experience of training Staffordshire Bull Terriers and understands the sensitivity of their public image."
The attempt to raise that ground is bound to fail.[6]We turn to the destruction order. The facts of the matter are these. On 9 June 2010 Deborah Hymas was returning to her flat in Poole House, Goodman Road, Chadwell, with her daughter, son-in-law and 2 year old grandson, her two dogs (a female Springer Spaniel and a female Border Collie) and a dog belonging to her daughter and son-in-law (a female black Labrador). It was about 11.15pm. They were in a tunnel walkway when they were met initially by Rex alone. He was not on a lead. It seems likely that he knew Ms Hymas' two dogs since she and Miss Devon were neighbours in the same block of flats. Rex ran at one of those two dogs and bit it on the face. He was pulled off. The dog was left bleeding from a puncture wound to the neck.[7]Rex was returned to the appellant's partner who walked off with him. An argument then took place between those remaining, the details of which need not concern us. They form part of the public order matter. It resulted in an exchange of blows. Somehow Rex became loose again and he attacked the second of Ms Hymas' dogs, biting its throat. During this the appellant was fighting and shouting abuse. The second dog sustained a bite mark to the right shoulder and a puncture wound to the side of the neck. Both dogs were subsequently taken to a veterinary surgeon but there are no details before us as to the treatment each received.[8]It was the appellant's case that the original approach from Rex had resulted from him slipping his lead and disappearing round the corner so that she did not see the first bite.[9]There are two grounds of appeal which overlap: first, that ordering immediate, rather than a contingent destruction was manifestly excessive in the circumstances; and secondly, that because the prosecution did not seek a destruction order, the defence did not seek an expert's report on the dog's dangerousness. Legal aid probably would not have been forthcoming for such a report. In addition, there was not sufficient time (three weeks) between committal and sentence for such a report to be obtained. In any event, there was no such report before the court. It is unnecessary for us to consider how or why that happened. The fact is that it was not and counsel submits that, because it was not, she did not deal with the matter or raise the question of a contingent destruction order.[10]In granting leave the single judge said that it is a great pity that the defence did not place an expert's report before the judge to assist her and he directed that one be obtained, which we have. He also said, correctly on the authorities, that in such circumstances the law requires the consideration of the making of a suspended or contingent destruction order. That was a reference to R v Davies [2010] EWCA Crim 1923 and R v Flack [2008] 2 Cr App R(S) 70.[11]It is clear that the sentencing judge considered whether matters could by dealt with by other measures such as an exclusion order, a muzzle or neutering, and she rejected them. She concluded that the appellant was wholly unsuitable to own a dog and that her premises in a ninth floor bed-sit were wholly unsuitable for a dog such as a Staffordshire Bull Terrier. We entirely agree. The judge was bound to make the disqualification order that she did.[12]In respect of the destruction order, we have had the benefit of reading the report of the highly qualified veterinary surgeon, Dr Aitken. Her opinions in summary were these: first, Rex was lively and inadequately trained, but not a danger to public safety; secondly, in her opinion he should not be destroyed but should wear a lead in public and a muzzle when in contact with other dogs; thirdly, he should receive obedience training from an experienced trainer; and fourthly, he should be "re-homed" with a responsible owner, which the appellant was not.[13]We have expressed sympathy with those views. The question for us has been: is there a way by which they can be achieved with sufficient certainty for us to be satisfied that the dog will not behave again in a similar fashion? It seems to us that there is a way to achieve that by imposing a contingent destruction order. The contingencies will be these: ownership of the dog is to be transferred forthwith to where it currently is, which is Bovay Police Kennels and Rehousing Centre. They are more than able and willing to rehouse the dog with a suitably qualified family within 21 days. We will also make it contingent for the suspension of the order that the dog be rehoused within 42 days. If either of those contingencies fails, the destruction order will take effect. But to deal with the possibility of unforeseen circumstances, should it not have proved possible to rehouse the dog within the 42 day period, we will give liberty to those then in control of the dog to apply to the Crown Court for an extension of that period.[14]Accordingly, the contingency period is currently 42 days with liberty to extend. To that extent this appeal succeeds.

Cited in 2 later judgments