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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Flack, R. v [2008] EWCA Crim 204 (25 January 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/204.html Cite as: [2008] EWCA Crim 204, [2008] 2 Cr App R (S) 395, [2008] Cr App R (S) 70

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		25 January 2008

LORD JUSTICE HOOPER: I will ask Mr Justice Silber to give the judgment of the court.

MR JUSTICE SILBER:

1. On 20 August 2007, in the Crown Court at Chester, before Mr Recorder Killeen, the appellant, Michael James Flack, pleaded guilty on re-arraignment to a count of being the owner of a dog called 'Star' which had caused injury while dangerously out of control in a public place. He also pleaded guilty to an offence of being in charge of a dog called 'Snoop' while dangerously out of control in a public place. On 21 August 2007, a destruction order was made in respect of the dog Star and a contingent destruction order was made in respect of the dog Snoop. The measures specified in relation to Snoop were that he should be muzzled in public places at all times, he should wear a special collar to keep him under control and be kept on a lead at all times in public.
2. The appeal is against the order for destruction of Star. It is brought with the leave of the single judge.
3. The facts which give rise to this conviction are these. During the afternoon of 18 June 2006 a Mr and Mrs Stalker were walking through Ridgway Park in Lymm with their three grandchildren. At the entrance to the park they noticed that there were two dogs running towards them. Mr Stalker thought that the dogs were behaving aggressively and he told his wife to take care. Unfortunately, before she could take evasive action, the dogs attacked her lower left leg. The smaller of the two dogs bit her leg, ripping her trousers and causing a severe wound which bled profusely. She cried out in pain. Mr Stalker shouted at the dogs and they ran off.
4. An ambulance was called. On admission to hospital the wounds suffered by Mrs Stalker were sutured.
5. On 23 June 2006, the appellant's wife went to the Stalkers' home and accepted that the offending dogs belonged to her. On 27 June 2006, Mr Stalker went to the home of the appellant and his wife. He identified Star as the dog responsible for biting his wife.
6. The basis upon which the appellant pleaded guilty was that an unknown third party had opened the gate behind which the dogs were secured, thereby allowing them to escape.
7. Evidence was called before the Recorder from Dr Candy d'Sa, an Animal Behaviour Consultant, who explained that she had carried out an assessment of the dogs Star and Snoop over a period of two hours. She concluded that they were both sociable to people, very friendly and very playful with each other. It was her view that there was no reason to fear them or to worry about their temperament in any way. The evidence of Dr d'Sa was that the behaviour of the dogs at the time of the incident may have been consistent with heavy play which may seem aggressive. In her report Dr d'Sa said that Star was a neutered bitch Rottweiler crossed with a German Shepherd dog. She was used as a therapy dog to visit the elderly in care homes. This had required rigorous training so far as her temperament was concerned. Dr d'Sa considered that Star and Snoop were friendly and interactive and that they responded to commands. The dogs displayed no signs of aggression. They were two of the most passive and friendly dogs which had been encountered by Dr d'Sa. She considered that the cause of the attack might possibly have been that the dogs had been anxious on escaping from their garden and that they had reacted with fear to unfamiliar stimuli. Her view was that their aggression would most likely show itself in a single reflexive bite rather than the attack described. She described the dogs as being calm in the presence of unfamiliar people and passing cars. They displayed no predatory or exploratory behaviour. Her conclusion was that there was no evidence that Star or Snoop were inherently aggressive or dangerous dogs and that Mrs Flack showed that she was a capable and experienced dog owner.
8. There were eight references before the Recorder in respect of Star.
9. The Recorder explained, correctly, that the offence involving Star required the destruction of the dog unless he was satisfied that she would not cause a danger to public safety. He accepted that Dr d'Sa had assessed the dog as not being dangerous, but that assessment was undermined to some extent in his view because the assessment took place over a short space of time and largely in the presence of the dogs' owners. He considered that the expert had not explained satisfactorily why Star had behaved in the way that she had. The evidence of the Stalkers was that the dogs ran towards them, fighting and behaving aggressively. In his view the court could not assume that Star would not constitute a danger to public safety. Thus the Recorder concluded that the court would fail in its duty if it did not make a destruction order. In reaching that conclusion he had not overlooked the fact that the appellant and his wife were decent people with a history of caring for dogs.
10. The grounds of appeal are that Star did not constitute a danger to the public and therefore should be exempted from destruction under section 4(1A)(a) of the Dangerous Dogs Act 1991. It is also contended that there is a statutory power which should have been exercised to impose stringent conditions upon the appellant in relation to the future behaviour of Star with the sanction of the dog being destroyed if there was non-compliance.
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) 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.

12. In this case the Recorder does not appear to have considered whether to impose a suspended destruction order in relation to Star. If such an order had been considered, it would have been relevant that, apart from the episode which led to the conviction under appeal, Star had not previously been aggressive. There was evidence from an Animal Behaviour Consultant to that effect. Another relevant factor is that the appellant is a man of good character. The Recorder regarded him as a conscientious dog owner. He made no order disqualifying him from owning or being in control of dogs. We are not surprised by that conclusion. It is clear from the evidence before us that the appellant is a competent and conscientious dog owner.
13. We of course sympathise with Mrs Stalker for the injuries suffered by her. We have not overlooked that fact in reaching the conclusion that we can set aside the order for destruction. Instead we make an order that, unless the appellant keeps Star under proper control, she will be destroyed. We also impose the same conditions that were imposed in relation to Snoop: (1) Star shall be muzzled in public places at all times; (2) she must wear a special collar to keep her under control; and (3) she must be kept on a lead at all times in public. To that extent the appeal is allowed.

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