“As I said, that we have got to look at all the circumstances indulgent temperament of the dog and its past behaviour. That is a factor which we have got to consider here. And we have looked at and re-visited when we considered this case, the past behaviour of the dog. Here was a situation where one month earlier in January 2022, there was a contingent order in place for the very reasons of the concerns which have been expressed by the Court then. So, this is not a case of a dog, an owner and a dog coming before a Court for the first occasion. It was before the Court on20 January 2022 , and we do think we should give great regard to the previous history and the behaviour of the dog in this case. Added to the [inaudible] there is the matter which I did refer to. We have considered, bearing all that in mind, whether there would be arrangements, which we can say, should be put in place which will allow us to come to the conclusion, on the balance of probabilities, that we do not have to make a destruction order in this case, because we can be satisfied the dog would not constitute a danger to public safety; and unhappily, and after careful consideration, we have come to the view, in the light, most certainly because the past behaviour, against obviously what we have read in the expert’s report and what we have heard from Terri Fitzgerald, and all the submissions made to us, we have come to the conclusion that we feel in this case, that we have to make a destruction order because we cannot be satisfied the dog would not constitute a danger to public safety. In those circumstances we refuse this appeal.”
“3 Keeping dogs under proper control. (1) If a dog is dangerously out of control in any place in England or Wales (whether or not a public place)— (a)the owner; and (b)if different, the person for the time being in charge of the dog, 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…”
“…(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.”
“8.01 It should be made clear that no test will ever be able to 100% predict the future behaviour of a dog and provide absolute certainty that a dog will behave in a certain way, nor should any test be able to do so. The multifactorial nature of aggressive behaviour in any dog means that no professional is able to say with absolute certainty how an animal will behave in the future. My opinion regarding Yosser’s behaviour is based upon my professional judgment, experience and scientific knowledge and is an assessment of the risk I feel he poses to public safety. 8.02 On assessment Yosser presented as a nervous but gentle dog. He showed no sign of aggression during an invasive examination by a complete stranger. There are no reports of Yosser behaving aggressively toward people during his time in kennels. There was a period of some four months between the incident occurring and the Metropolitan police seizing Yosser, I find this surprising considering the opinion of the officer in the case that the dog involved presented such a risk to public safety that it required seizing. During this period of time there were no reports of Yosser behaving aggressively… 8.06 Mr Fitzgerald’s home is suitable to house Yosser. I have recommended that the broken panel in the private rear garden be repaired, and I would advise that Yosser be separated from unfamiliar visitors to the house with the use of a child’s safety gate across an internal doorway, I would suggest the kitchen door. Mr Terry Fitzgerald is an experienced dog owner and is clearly very fond of Yosser. He understands the importance of managing him safely as ordered by the court. 8.07 In summary, with the following measures in place I am of the opinion that Yossser would not pose a danger to public safety: • Ownership and care of Yosser be transferred to Mr Terry Fitzgerald • Yosser should be walked on a lead and muzzled when in public.”
“We note what she says in her report. She has carried out an assessment, she describes the dog as nervous, but a gentle dog. She has visited the home of Terry Fitzgerald, she says what the amendments can be made to his home, of course what she has not done is seen Yosser out in the public areas, she saw him and observed him, obviously, when he was detained; but of course, we have given due weight to her expert report. We have also given due weight to the statement from Mr Terry Fitzgerald.”
“70… (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”