“In reaching our decision we should consider the relevant circumstances, which must include the temperament of the dog, its past behaviour and whether the owner of the dog or the person for the time being in charge of it, in this case Ms Beth Golding, is a fit and proper person to be - to be in charge of the dog and may include other relevant circumstances. Various other factors apply to the fit and proper person aspect of the test.”
“Mr Turner … was a fully objective, experienced and qualified expert. A lot of court experience, a lot of experience of dogs. He had two concerns which I think we have addressed: the concern about jumping out of the garden of the Golding premises and, at least for the time being, the concern about risk to other pets, which apparently are no longer extant. However, his other two points, play aggression and dog aggression, remain. We completely agree with him, particularly on dog aggression. We don’t regard Ms Golding’s evidence as central to the case. We think the expert evidence is central. We have two experts, only one is objective and independent, and we are sorry, genuinely sorry, to say that we cannot find there is no danger to the public here, so there will be a destruction order.”
“… as a matter of true construction of section 4B it clearly was correct.”
“Exemption scheme and requirements 4. (1) The prohibition in section 1(3) of the Act shall not apply to a dog provided that- (a) A court has determined that the dog is not a danger to public safety under section 4(1A) or 4B of the Act and has made the dog subject to a contingent destruction order under section 4A or 4B of the Act; (b) The conditions set out in paragraph (2) are met in respect of the dog within the time period set out in paragraph (3); and (c) The requirements attached to the certificate of exemption in accordance with article 10 are complied with throughout the lifetime of the dog. (2) The conditions referred to in paragraph (1)(b) are that- … (c) third-party insurance in respect of the dog is obtained … (d) a certificate of exemption is issued … … Requirements attached to certificate of exemption 10. (1) A certificate issued under article 9 must contain requirements– (a) to keep the dog at the same address as the person to whom the certificate is issued save for any 30 days in a 12month period; … (e) to keep the dog muzzled and on a lead when in a public place; (f) to keep the dog in sufficiently secure conditions to prevent its escape; …” (a) A court has determined that the dog is not a danger to public safety under section 4(1A) or 4B of the Act and has made the dog subject to a contingent destruction order under section 4A or 4B of the Act; (b) The conditions set out in paragraph (2) are met in respect of the dog within the time period set out in paragraph (3); and (c) The requirements attached to the certificate of exemption in accordance with article 10 are complied with throughout the lifetime of the dog. … (c) third-party insurance in respect of the dog is obtained … (d) a certificate of exemption is issued … … (a) to keep the dog at the same address as the person to whom the certificate is issued save for any 30 days in a 12month period; … (e) to keep the dog muzzled and on a lead when in a public place; (f) to keep the dog in sufficiently secure conditions to prevent its escape; …”
“In broad terms, the 1991 Act, as amended, provides that a dog which is a prohibited dog within section 1 is to be regarded as inherently dangerous. The Act makes provision for such a dog to be seized and destroyed. But, as a result of the 1997 and 2014 amendments to the Act and the provisions in the 2015 Order, it also makes provision for those dogs which a court finds are not in fact a danger to the public to be exempted and not destroyed. To avoid the destruction of the dog, stringent conditions as to their retention including neutering, microchipping, taking out third-party insurance, and about their owner or keeper must be met.”
“… The ultimate effect of the Act, as seen from the provisions requiring the destruction of dogs unless exempted and the neutering of prohibited dogs, is intended to be the elimination of such dogs from the United Kingdom. On the other hand, the amendments introduced in 1997 reflected a desire to enable dogs which were not in fact dangerous, in certain circumstances, to avoid destruction, and those circumstances were refined by the 2014 amendments and the 2015 Order. The circumstances and safeguards considered necessary are reflected in the strict controls about the conditions to be met to qualify as an exempt dog and as to the transfer of such dogs”
“11. The relevant principles that can be made in respect of a dog whose owner has been convicted under section 3(1) of the 1991 Act of failing to keep a dog under control in a public place are that: (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) [we believe the intended reference must have been to 4(1A)(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 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.”
“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) 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 …”
“Under section 4B there are two sequential steps. The first is whether or not to make a destruction order. There is the requirement, in a case such as the present, under subsection (1) to make a destruction order and then the exception to that requirement is subsection (2). Second, and only if at the first step no destruction order has been made, the second step is whether to make a contingent destruction order under subsection (3). In a case like this, there is an obligation to make such an order. Therefore, under section 4B the court does not at the outset have a free choice between a contingent destruction order and a destruction order. Under section 4B, the court is not able to opt for a contingent destruction order simply because, on the evidence it might for the view that such an order would provide sufficient protection for public safety. Rather, the scheme under section 4B is much more prescriptive. A contingent destruction order arises and must be made only if the court has already decided not to make a destruction order. A court may only decide not to make a destruction order, again in a case such as the present, if it has decided that the dog ‘would not constitute a danger to public safety’.”
“23. I could not and do not disagree with any part of this, but it is important to recognise that it is said in the context of a case where there had been a conviction under section 3 of the 1991 Act. That is the premise of Silber J’s third subparagraph; and what is said in that subparagraph specifically follows section 4A(4) as enacted. Section 4A(4) is a provision which on its face applies only to cases where there is a conviction under section 3. 24. In R v Baballa, Swift J, who gave the judgment of the court, cited paragraph 11 of Silber J’s judgment in R v Flack and then at paragraph 22 said this: ‘As we have observed R v 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.’ R v Baballa was a case concerning convictions under sub section (1). Given the terms of section 4A(4) of the 1991 Act as enacted, I am not sure that paragraph 22 of Swift J’s judgment can fairly be understood as applying Silber J’s third subparagraph to a section 1 case. But even if Swift J’s judgment were to be so understood, there could be no read-over from that to the present case. The present case is one under section 4B. There is no basis on which section 4A(4) can somehow be read into the scheme of section 4B. The premise of section 4B is that there has been no conviction. Section 4A(4) assumes, if not a section 3 conviction, at least some conviction under the 1991 Act. 25. Thus I do not consider that either decision of the Court of Appeal is a case in point. Neither R v Flack nor R v Baballa was a case under section 4B. Each was a case under section 4 of the 1991 Act with the consequence that section 4A(4), which appears to have borne on the reasoning of the court in each case, was in play …”
“Where the court finds that the dog is not a danger to the public, section 4B(2A) of the Act … empowers the court to make a [contingent destruction order] to provide time for the dog to be exempted (or possibly, re-exempted). The court is required to consider the temperament of the dog and its past behaviour (section 4B(2A)(a)(i)) and the fitness of the owner of the dog or the person for the time being in charge of it (section 4B(2A)(a)(ii)). The court is empowered to consider ‘any other relevant circumstances’ (section 4B(2A)(b)).”
“provides an illustration of how the magistrates or Crown Court should conduct that exercise.”
“22. … Section 4B(1)(b) relates to pit bulls. Where such a dog has been seized, then the court must make a destruction order unless it is satisfied that the dog would not constitute a danger to public safety – see s.4B(2)(a). In these circumstances, s.4B(2A) requires the court to consider particular matters in deciding whether a dog would constitute a danger to public safety. The matters which the court must consider are set out at s. 4B(2A)(a). In addition, the court may consider any other relevant circumstances: see s.4B(2A)(b). 23. If consideration of those matters led to the conclusion that the pit bull would not constitute a danger to public safety, then the court would apply s.4B(3) and make a contingent destruction order which would bring into play the exemption scheme contained in theDangerous Dogs Exemption Schemes (England and Wales) Order 2015 .”
“Eventually, Miss Rose confirmed to me in oral submission that she was not asserting that the Judge had got it wrong in Grant and accepted that his approach was correct. In those circumstances I need say no more than I agree with the Judge’s conclusion and reasoning on the point in the Grant case. …”
“The provision in relation to a contingent destruction order is in a different section (not sub-section) of the Act (section 4A). Despite the anomalous sub-section 4A(1), it can only apply in a situation in which a decision not to destroy the dog under section 4(1)(a) has already been made. The purpose of the section was, and is, to allow the court the flexibility, which it had been, and continued to be, permitted under theDogs Act 1871 , to make a control order where destruction was not ordered. It was not to ‘tilt the balance’ further towards leniency than had already been done with the introduction of sub-section 4(1A). Indeed, if the prospect of a contingent destruction order were a consideration in determining whether a dog did constitute a danger to public safety, it is doubtful whether a destruction order could ever be made, given the ability effectively to chain a dog to its kennel or to prohibit its appearance in public. That this is the correct interpretation is strengthened by the amendment with the introduction of sub-section 4(1B), which, in determining public safety, requires the court only to consider the temperament of the dog, its past behaviour and whether the owner (or the person in charge of it at the time) was a fit and proper person. The court may consider other relevant circumstances. Perhaps it would be bound to do so if the circumstances were indeed relevant, but the alternative, of lesser court ordered controls, is not such a circumstance. The focus is on the dog and its owner (or minder) and not what the court could do to reduce the public risk which it requires to assess.”
“I didn’t realise it’d been there before, going to this family where a dog’s been away from, as we know, for over a year, with another dog. I could not put my hand on my heart and say it’s safe to go back and I have to live with those decisions.”