R v Davies

Factual and Procedural Background

The Appellant was convicted at the Crown Court at Harrow on 17 December 2009 of an offence under Section 3(1) of the Dangerous Dogs Act 1991. The offence alleged that on 5 September 2008, the Appellant was in charge of a dog dangerously out of control in a public place, specifically Larkspur Close, Kingsbury, and that the dog injured a neighbour, referred to as the Victim. The Appellant received a Community Sentence comprising 180 hours of unpaid work and 20 days of education, training, and employment activities. The appeal concerns an immediate destruction order made in respect of the Appellant's Alsatian dog.

The incident arose when the Victim was walking her dog on a lead towards a green space near her home. The Appellant was walking two dogs, an Alsatian and a Labrador, neither of which were on leads or controlled. Both dogs ran towards the Victim and attacked her dog. The Victim tried to intervene by placing her hand over her dog's chest and was bitten on the finger by one of the Appellant's dogs, causing a large open wound. She was treated at the hospital, admitted for intravenous antibiotics and surgical exploration, and discharged with a permanent disability in the affected finger.

Regarding the Appellant's circumstances, a pre-sentence report indicated he left school at twelve, had no formal qualifications or work experience, lived at home on benefits, and was described as a loner. He was of previous good character but lacked insight into the consequences of his behaviour, leading to the educational requirement attached to his sentence.

Legal Issues Presented

1. Whether the Alsatian was the dog that bit the Victim and thus the dog "in respect of which the offence was committed" within the meaning of Section 4(1) of the Dangerous Dogs Act 1991.
2. Whether the Recorder was correct in ordering the immediate destruction of the Alsatian dog or if a suspended destruction order would have been more appropriate.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the Victim was bitten by her own dog and that his dogs were merely playing, not causing injury.
• The Appellant argued that the jury's rejection of his evidence precluded the judge from relying on any part of his testimony, including the involvement of both dogs in the attack.
• He maintained that the order for immediate destruction was inappropriate and that, even if the Alsatian was the biting dog, a suspended destruction order should have been made instead.

Court's Arguments

• The Recorder found as a fact that the Alsatian was the dog that bit the Victim, rejecting the Appellant's version of events.
• The court considered but rejected the notion of a joint attack by both dogs causing injury, noting the indictment specified injury by one dog only.
• The court emphasized the burden on the Appellant to prove that the dog did not constitute a danger to public safety to avoid mandatory destruction.
• The court noted the absence of any application or evidence from the defence regarding the dog's character or control measures to avoid destruction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Flack [2008] EWCA Crim 204	Interpretation of Section 4A of the Dangerous Dogs Act 1991 regarding contingent destruction orders and the court's discretion to impose conditions preventing immediate destruction.	The court relied on the Flack decision to explain the necessity of considering a contingent destruction order and the conditions that may be imposed to keep the dog under proper control before ordering destruction.

Court's Reasoning and Analysis

The court first addressed whether the Alsatian was the dog that bit the Victim. The Recorder made a factual finding that the Alsatian inflicted the injury, which the court found unassailable and consistent with the jury's verdict. The court rejected the Appellant's argument that the judge could not rely on any part of his evidence after the jury's rejection of his central claim. It also dismissed the notion of a joint attack causing injury, as the indictment specified injury by a single dog.

Regarding the destruction order, the court noted that Section 4(1)(a) mandates destruction of the dog that caused injury unless the court is satisfied the dog would not constitute a danger to public safety, with the burden on the Appellant to prove this to a civil standard. The court emphasized the importance of considering Section 4A, which allows for contingent destruction orders with conditions to keep the dog under control, potentially avoiding immediate destruction.

The Recorder had initially believed the destruction order was mandatory upon identifying the Alsatian as the biting dog but later acknowledged the dog was a danger to public safety. However, no evidence or submissions were made by the defence to challenge this or to seek a contingent destruction order. The court found that the immediate destruction order could not stand without such consideration and should be replaced by a contingent destruction order requiring the dog to be muzzled and kept on a lead in public.

Holding and Implications

The appeal was ALLOWED in part. The immediate destruction order for the Alsatian dog was quashed and replaced with a contingent destruction order. Under this order, the dog shall be destroyed unless the owner keeps it under proper control, specifically requiring the dog to be muzzled and kept on a lead at all times in public places.

The direct effect of this decision is to avoid immediate destruction of the dog, allowing the owner an opportunity to comply with control measures. The opinion does not establish new legal precedent but reinforces the application of existing statutory provisions and the importance of considering contingent destruction orders under the Dangerous Dogs Act 1991.