R v David Allen Parsonage [2025] EWCA Crim 456

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 456Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday, 21 January 2025
Before
LORD JUSTICE COULSONLORD JUSTICE WILLIAM DAVISMR JUSTICE LAVENDER
Between
REXCrownV
Between
DAVID ALLEN PARSONAGE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR S GOODMAN appeared for ApplicantMR P JARVIS appeared for Crown________J U D G M E N T
[1]On 11 September 2023 in the Crown Court at Gloucester before His Honour Judge Rupert Lowe ("the judge") the applicant, then aged 65, changed his plea to guilty on one count of being the owner of a dog which caused injury whilst dangerously out of control in a public place, contrary to section 3(1) of the Dangerous Dogs Act 1981. On 26 February 2024 he was sentenced to a 12 month community order and a dog destruction order was made in relation to his dog, Rocco. The applicant was disqualified from having custody of a dog for five years.[2]The applicant sought permission to appeal against the dog destruction order. His application for permission to appeal was referred to the full court by Yip J. That application is now supported by a separate application to rely on fresh evidence. The Facts[3]On 10 September 2021, Angela Woodland (the complainant), took her dog Biggles for a walk in Longlevens Rugby Club's playing fields in Gloucester. As she was walking she saw the applicant and Rocco, a black Rottweiler-Labrador cross. Rocco was off his lead and went towards the complainant. She called for Biggles and placed him on his lead. As Rocco bounded over she began shouting, "Get back. Stay away." Biggles tucked his head down. He was smaller, submissive, friendly and had never shown any aggression.[4]Rocco continued in Miss Woodland's direction and she placed herself between the two dogs. Rocco then locked his mouth on her leg, above her left knee, and bit down, shaking his head as if playing with a rope. This caused Miss Woodland intense pain. She screamed in agony, fell to the ground and hyperventilated. The applicant walked over, shouted at Rocco, grabbed him by the collar and said: "You're sorry, aren't you Rocco".[5]The complainant was advised to attend Accident and Emergency but instead saw a nurse at her workplace who cleaned and photographed the wound. She then saw her GP who also cleaned and dressed the wound and gave her both a tetanus job and antibiotics. In his sentencing remarks, the judge described the wound as "a very nasty, very frightening dog bite". We have seen the photographs. We agree with that description.[6]The applicant pleaded not guilty, saying it was not clear which dog had bitten Miss Woodland, even asserting that it was just as likely to have been Biggles who bit her, whilst cowering in the face of a larger and more aggressive dog. On the day of trial the applicant changed his plea to guilty on a basis of plea that still suggested that it was unclear from the bite marks which dog it was that had bitten Miss Woodland.[7]The judge said he was not prepared to sentence on that basis, so there was a Newton hearing. The judge found that it was "absolutely clear" from the evidence that it was Rocco who was the aggressor and that it was Rocco who bit Miss Woodland. The judge also rejected the applicant's suggestion that it was a "quick glancing bite". The judge found:
"It was a proper bite of some duration as he held on and she fell to the ground."
The Previous Incidents Involving Rocco[8]There had been at least two previous incidents involving Rocco. The first took place at exactly the same location in September 2017. Rocco came at a woman called Agata Bieloskorska. He was again off his lead. He bit her left leg breaking the skin. She had to attend the doctor and was given a Tetanus injection, antibiotics and stitches. We note that at the sentencing hearing the applicant, who was by then representing himself, suggested that this was not a bite but a paw mark. The judge rejected that on the basis of the written material. He went on to say that the applicant had "a completely unrealistic view of your own dog, bordering on fantasy as to its behaviour and as to its culpability of its acts and yours."[9]Ms Bieloskorska complained to the police. As a result the applicant was given a caution. He was also obliged to sign a Dog Behaviour Contract which lasted, so it said, for the entirety of Rocco's lifetime. He undertook under that contract that Rocco would always be kept on an appropriate lead when being walked in a public place and that Rocco would never be taken out, other than in the presence of an appropriate person who had full control of him. We note that at the sentencing hearing the applicant also sought to cast doubt on the conditional caution, but as the judge pointed out he had signed it on 1 December 2017.[10]Given the severity of the bite on Ms Bieloskorska, the applicant was perhaps fortunate that a dog destruction order (or at the very least a contingent destruction order) was not made in 2017. We can find nothing in the papers to explain that omission.[11]On 9 July 2019 someone called the police to say that another dog (and there is no dispute that it was Rocco), had bitten the caller's dog and “chucked him in the air”. That dog now had two puncture wounds in its back. The caller told the police that the applicant had offered to pay the vet's bill and had said that he would muzzle Rocco in future. The matter was investigated and a police officer noted on 24 July 2019 that the applicant had been spoken to. The applicant had said that he thought the Dog Behaviour Contract only lasted six months but the officer showed him the contract and noted that the applicant understood that he had to keep Rocco on a lead at all times.[12]At the sentencing hearing the applicant sought to argue about those records, saying he had not himself been spoken to as described. The judge rejected that suggestion. The Law[13]The relevant part of section 3(1)(a) of the Dangerous Dogs Act 1981, as amended by the Anti-social Behaviour, Crime and Policing Act 2014, provides that:
"If a dog is dangerously out of control in any place in England or Wales (whether or not a public place)— (a) the owner ... … is guilty of an offence, or, if the dog while so out of control injures any person or assistance dog, an aggravated offence, under this subsection."
Pursuant to section 10 a dog is to 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. Of course in the present case this was an aggravated offence because Rocco had severely bitten Miss Woodland.[14]Section 4, as amended, provides for sanctions, in particular destruction orders. In so far as relevant to this claim, section 4 reads as follows:
"Destruction and disqualification orders (1) Where a person is convicted of an offence under section 1 or 3(1) 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, subject to subsection (1A) below, shall do so in the case of an offence under section 1 or an aggravated offence under section 3(1) above; and (b) may order the offender to be disqualified, for such period as the court thinks fit, for having custody of a dog."
[15]Accordingly, since this was an aggravated offence, a dog destruction order was the mandatory sanction unless the court was satisfied that Rocco did not constitute a danger to public safety. That is the effect of section 1A(a).[16]Section 4A was added subsequently. It is headed:
"Contingent destruction orders"
. Section 4A(1) however appears to provide for something quite different. That says:
"(1) Where— (a) a person is convicted of an offence under section 1 above or an aggravated offence under section 3(1) 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, the dog shall be destroyed."
[17]Sections 4A(4) and 4A(5) as amended make provision for contingent destruction orders as follows:
"(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 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."
[18]The relationship between sections 4 and 4A, i.e. between immediate and contingent destruction orders, was considered by the Court of Appeal Criminal Division in R v Flack [2008] EWCA Crim 204, [2008] 2 Cr.App.R (S) 70. Having considered the statutory provisions, Silber J giving the judgment of the court said this:
"(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 4(a)(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."
Although in describing an order made under section 4A(4) Silber J used the term "a suspended order of destruction", it has become more common to refer to such an order as a "contingent destruction order".[19]These provisions and the law in this area were helpfully summarised by Hickinbottom LJ in R (Killeen) v Birmingham Crown Court [2018] EWHC 174 (Admin) at paragraph 9. He said this:
"Therefore, in summary, where a dog who is dangerously out of control injures someone and the dog's owner is convicted of the aggravated offence under section 3(1) of the 1991 Act, the sentencing court must order the dog's immediate destruction, unless the court is satisfied that the dog will not constitute a danger to public safety. The burden of satisfying the court that the mandatory consequence of destruction should be displaced falls upon the person asserting that the dog would not constitute a danger to public safety (normally the owner of the dog or the person entrusted with the dog's care), by adducing expert evidence or lay evidence relating to such matters as the dog's character, demeanour and general past behaviour (see R v Davies [2010] EWCA Crim 1923 at [14] per Mackay J). One way in which that burden may be satisfied is by persuading the court that, although without conditions the dog might pose an unacceptable risk to the public, with conditions the dog would not; in which case the court should make a contingent (rather than an immediate) destruction order. Before making an immediate order, the court should consider whether a contingent order would be sufficient to reduce the risk that the dog poses to the public to an acceptable level."

The Judge's Sentencing Remarks

[20]Having set out the history of each of the three incidents involving Rocco and the procedural history of these protracted criminal proceedings, including the Newton hearing,

the judge said this:

"I am afraid you come across as you have, as you did, when you gave sworn evidence and as you have today, as being in complete denial about your dog. You have no proper idea of the danger it presents, and you try to excuse its actions whenever it bites a person or another dog, which it has done at least three times. You blame the victim for interfering in a dog fight as though it was an equal thing between two dogs. I note from the Pre-Sentence Report that you are still not muzzling your dog, even now after all that biting history, because in your words to the probation officer: 'The dog is friendly to everyone.' I contrast that with what I read out earlier about promising in July ’19 that you would muzzle your dog. You will say the right things to the police in order to get them off your back, but you are not prepared to actually do them."
[21]As to the dog destruction order,

the judge said this:

"Well, I am satisfied, I am afraid, that the dog is a danger to public safety, notwithstanding you tell me you have moved to the Forest of Dean and you keep the dog on a short lead at all times, and you never meet anyone out on walks and you do not let him off, I have difficulty in accepting these things you tell me because I have found you to be an untruthful witness generally. But even if that were the case, I do not find that it has been shown that the dog would not constitute a danger to public safety. I have to take into account, and I do so, the temperament of the dog, including the expert evidence I have read in this case ... I have the read the report of David Martin extremely carefully. But David Martin did not know what your dog had done to Angela Woodland, and was very neutral on that question on the likelihood of it having happened at all. He also did not know the full history which I have outlined in this long judgment. So, I am afraid, even having taken that expert report into account, there is no alternative for the Court but to make Rocco the subject of a Dog Destruction Order, and I will come to the details in a moment. There is then the question of whether you are a fit and proper person, which I find you are not, to have a dog, because you do not take proper responsibility for your dog's actions as I have described in the history. I take into account all other relevant circumstances. So I am going to disqualify you also from having custody of a dog for 5 years starting from today and we will make arrangements shortly for you to deliver Rocco up to the appropriate officer of the police within a period of seven days."
[22]It appears that the dog was not handed over to the police with the police's agreement because they were told that there was going to be an appeal. The dog has been left with the applicant's sister, Miss Dawn Northcott. We come back to her evidence in a moment, and we also will refer later to our concern that a dangerous dog which was the subject of a dog destruction order was not retained in police kennels.[23]The first issue for this court is to decide whether or not the judge was entitled to make the dog destruction order on 26 February 2024. In our view, on the material before him, the judge's order was entirely appropriate. On the evidence a dog destruction order was the only appropriate[24]Contrary to Mr Goodman's very clear submissions today, Flack does not require the court to investigate alternatives to a dog destruction order in circumstances where the defendant (in this case the applicant) has offered no alternative and provided no evidence to support any such alternative. The applicant's unrealistic stance that he was to retain ownership and control of Rocco may explain why no alternatives were proposed, but in those circumstances the judge was quite entitled to consider and deal with this as an all or nothing case.[25]Furthermore, we note that at the original hearing in September 2023 the judge quite properly suggested that a contingent destruction order may be appropriate. He expressly raised that with counsel. That was in September. The sentencing hearing, as we have said, was in February 2024. There had therefore been plenty of time, four or five months, in which the applicant and his legal advisers could have considered whether or not to seek a contingent destruction order and, if so, what evidence they would need in order to seek such an order. After all, since a destruction order was mandatory they needed to provide the evidence, the burden being on them, to demonstrate why that order should not be made. However, notwithstanding the judge's suggestion, the applicant did nothing about it. No evidence of any kind was prepared on which a contingent order could be based.[26]The criminal courts do not operate some form of negotiating process in which a defendant in the position of this applicant can seek to advance one case at the sentencing hearing and then, if that is unsuccessful, seek to suggest another alternative and ask the judge, or in this case this court, to consider that alternative. Furthermore, we are bound to note that in any event, even if the possibility had been raised, the applicant was so clear that he required control and ownership of Rocco that it is infinitesimally unlikely that the possibility of a contingent order would have been pursued.[27]Mr Goodman asks us to bear in mind that the applicant was unrepresented at the sentencing hearing. So he was, although that was because he had chosen to dispense with the services of his barrister less than an hour before the hearing started. His solicitor, who had been instructed by him throughout, declined to make submissions on his behalf. But in our view that cannot have made any difference to the outcome of the sentencing hearing. It is right that counsel then instructed has subsequently suggested that he would have raised with the judge the possibility of a contingent order. But the judge would have said, "Well, where is the evidence?" Counsel would have said:
"There is not any" and the judge would have said: "
This matter needs to be determined, it's gone on far too long as it is." So everyone would have been back in precisely the same position as they were at the hearing itself.[28]That a dog destruction order was the only order that could be made on the evidence before the judge is also apparent from the remarks of Yip J when she dealt with the application for permission to appeal under section 31. She noted that the application for permission was put on the basis that the judge should have made a contingent destruction order because Rocco would be re-homed with the applicant's sister. As Yip J noted:
"The judge was not invited to consider a contingent destruction order on the basis that Rocco could be re-homed with your sister. Further, he had no evidence of her suitability to manage Rocco. The judge took account of all the circumstances as they then appeared. In particular, he had regard to the history of Rocco biting another woman in 2017 and subsequently attacking another dog. The judge was not satisfied that you would comply with any conditions having regard to the history. I agree with the Respondent that, if you seek to rely on developments since the sentencing hearing and on matters not in evidence before the judge, the proper process for the introduction of fresh evidence should be followed. I am not persuaded to grant leave on the material presently before me ... "
[29]It appears that, as a result of her observation that a proper application to rely on fresh evidence was required, such an application has now been made. It is another example of the reactive nature of the applicant's case as these proceedings have continued. The Fresh Evidence[30]Section 23(2) of the Criminal Appeal Act 1968 sets out the relevant criteria to which this court must have regard when considering whether to receive fresh evidence. Those include whether the evidence appears to the court to be capable of belief, whether it appears that the evidence may afford any ground for allowing the appeal, whether the evidence would have been admissible in the proceedings and whether there is a reasonable explanation for the failure to adduce the evidence below.[31]The principal fresh evidence comes from Dawn Northcott, the applicant's sister. It appears, as we have said, that on 15 March 2024 Rocco was rehoused with Dawn Northcott. There is a short witness statement from her dated July 2024. The first half of that statement and indeed the last paragraph deal with Rocco's behaviour before the sentencing hearing. Miss Northcott expresses surprise at the discovery that Rocco was in trouble and expressed the view what happened to Miss Woodland was "a terrible tragic accident". The other part of the statement talks about the five months that Rocco had been with her at the time that the statement was made. She says that Rocco had shown no aggression towards people at all, she also says:
"There are some dogs around that don't like him but we adjust to the situation."
[32]Also in relation to Dawn Northcott there is a statement from a civilian Dog Legislation Officer, Nicola Robinson, dated 12 December 2024 who attended Dawn Northcott's property to conduct a "fit and proper person test". Her conclusion was that Rocco was biddable and well behaved and well looked after and that Dawn Northcott was a fit and proper person to be in charge of Rocco. It is not clear how long this inspection lasted.[33]We accept that the evidence of Dawn Northcott and Nicola Robinson is capable of belief and would have been admissible at the sentencing hearing.[34]There are, as we see it, three difficulties with this evidence. First, to the extent that it was material, it was evidence that could and should have been adduced before the judge. There was a period of two-and-a-half years between the biting of Miss Woodland and the sentencing hearing. There was a period of five months between the judge's suggestion of a possible contingent order and the sentencing hearing. There was therefore plenty of time for the applicant to transfer ownership to Dawn Northcott and to seek a contingent destruction order with clear conditions. But because the applicant's approach was unmoored from reality and he thought that he could and should continue to look after Rocco, those alternatives were never explored. That has meant that this evidence could and should have been available to the judge but was not. It therefore does not pass that limb of the test.[35]Secondly, we have asked ourselves whether that evidence, if it had been available to the judge, would have made a difference. In the end we do not think that it would have made a difference. Much of Dawn Northcott's statement appears to ignore the three biting incidents over a four year period. For her to call the biting of Miss Woodland, which she did not witness, "a tragic accident" shows in our view a complete inability to understand the danger that Rocco poses. Indeed it is fair to say that she appears to share the same lack of insight as the applicant. The fact that Rocco had not been involved in a similar incident during the months that she had been looking after him, does not in our view displace the inevitable conclusion, based on the three biting incidents, that Rocco is a dangerous dog.[36]Thirdly, we note that even now there is no clear offer by the applicant either to transfer the ownership of Rocco to Miss Northcott or that he would abide with a clear set of conditions that could be applied in a contingent order. The evidence is not that the applicant will cease to have any contact with Rocco; indeed the evidence is clear that the applicant has continued to see Rocco and go out walking with him and his sister.[37]So the evidence even as it stands is still wholly unclear as to whether Rocco would be transferred to Miss Northcott, what the conditions would be governing his control and, most important of all, how and why those conditions would mean that the danger that he poses to the public would be reduced to an acceptable level.[38]For those reasons we conclude that if, as it should have been, this further evidence had been available to the judge at the sentencing hearing, it would have been insufficient to displace on the balance of probabilities the clear evidence that Rocco was a danger to public safety. In those circumstances, therefore, even with that new evidence, we consider that the judge would still have made the destruction order.[39]Finally as to the fresh evidence, there is an email dated 13 July 2024 from another Dog Legislation Officer called Mark Avery. This email is very unsatisfactory for a host of different reasons. It is not in the form of a statement and therefore there is no statement of truth. In the email Mr Avery suggests that the original Dog Behaviour Contract from 2017 was "unnecessary, unsuitable for the circumstances and should be discarded from any consideration in any subsequent hearing". No explanation for that sweeping generalisation is provided. The email also goes on to refer to a report from Mr Hesmondalgh to the effect that Rocco is not an immediate risk to public safety. That report is however dated 26 June 2023 and was considered by the judge at the sentencing hearing. Mr Avery's email does set out certain conditions that the police would consider appropriate if a contingent destruction order was made.[40]We are not persuaded that the evidence of Mr Avery meets any of the necessary tests. We do not consider that it is capable of belief. Mr Avery gives no reason why the Dog Behaviour Contract was in some way unnecessary or unsuitable. If the applicant had complied with the contract, Rocco would have been on a lead, he would not have bitten Miss Woodland and we would not be here. That seems to us pretty good evidence of necessity. In any event, whatever the legal position, the requirement that Rocco was always on a lead in a public place seems to us to have been an entirely suitable condition. We are also surprised at Mr Avery's attempt to rely on a report which was contrary to the judge's findings, even though the report pre-dated those findings and had been considered by the judge at the hearing.[41]Accordingly, therefore, we reject the application to rely on fresh evidence from Dawn Northcott, Nicola Robinson and Mark Avery. The evidence does not pass the necessary tests for the reasons that we have given.[42]Accordingly, since we consider that the judge came to the right conclusion originally, we consider that the appeal will have to be dismissed.[43]However we make four final observations. First, although it has been unnecessary for us to refer to it, we consider that section 4A(1) of the Dangerous Dogs Act 1981 is very badly worded. The reference to someone convicted of an aggravated offence under section 3(1) in that subsection appears to have been added as an afterthought and does not fit in with the rest of the subsection, which is all about prohibited breeds. The learned editors of Archbold at paragraph 31 and 38B call the subsection meaningless for someone convicted under section 3(1). We would go a little further and say that, on its face, it might appear to suggest that a dog destruction order was mandatory in circumstances where such an order had not been made under section 4 itself. That is inexplicable. It cannot be right. It is, as we have made clear, not an approach we have followed. In our view the section needs to be amended forthwith and the reference to section 3(1) deleted.[44]Secondly, we are bound to observe from the recent authorities that there appears to be a growing tendency in these cases of dog owners arguing at the sentencing hearing that a dog destruction order should not be made and to offer no alternatives and then, when such an order is made, to seek to have another go on appeal on the basis that, although they did not seek one, and offered no evidence in support of one, the judge should have made a contingent destruction order in any event. That is, for the reasons that we have set out, misconceived in principle. It will not be countenanced in future. If a dog owner wants a contingent destruction order the only time and place to seek such an order is at the original sentencing hearing.[45]Thirdly, we express our natural concern that Rocco has not been in police kennels since the making of the destruction order. That will inevitably mean that there will be additional upset caused by our dismissal of the appeal. In our view, if a dog is the subject of a dog destruction order it is because the dog is dangerous and in those circumstances the only place for it is in police kennels.[46]Finally, on the facts of this case we consider that the contract that was entered into in 2017 in relation to Rocco's behaviour was a useful exercise which, if it had been complied with, would have avoided this incident. It was much more generous to the applicant and therefore to Rocco than a dog destruction order or contingent destruction order. So we are troubled by Mr Avery's glib renunciation of that contract in the email to which we have referred. In our view Dog Legislation Officers are there to assist in the protection of the public and not the protection of dangerous dogs.[47]For all those reasons, and with the inevitable regret that comes with the circumstances of this case, we are bound to refuse this application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

order

indeed that was the mandatory order unless there was evidence that Rocco was not a danger to public safety. As Mr Goodman concedes, there was no such evidence before the judge. All the evidence pointed firmly the other way. The applicant had sought to play down at every turn the evidence of Rocco's aggressive behaviour in the past, as well as his own culpability in failing to keep him on a lead. That was all part of what the judge described as the applicant's fantasy in which somehow Rocco is a perfectly behaved dog and he is a model owner. Since there was no evidence that Rocco did not constitute a danger to public safety, there was therefore no reason for the judge to consider alternatives, including the possibility of a contingent destruction order. Such an order was not sought and there was no evidence before the judge that if, for example, the ownership of Rocco was transferred to someone else and strict muzzling or other conditions were imposed, a contingent order was a potential alternative outcome.