Russell v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 19 June 2015 |
| Neutral Citation | [2015] EWHC 2065 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11/2015 |
| Date | 19 June 2015 |
[2015] EWHC 2065 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/11/2015
Ms Pamela Rose (instructed by Wheldon Law Solicitors) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
This is an appeal by way of case stated against the decision of the Crown Court at Derby which decided that a dog owned by the appellant should be destroyed.
The charge against the appellant was that on 11 November 2011, she was the owner of a dog which was dangerously out of control in a public place, namely Elm Street; and whilst so out of control injured Angela Russell and her dog, a corgi called Socks, contrary to section 314 of the Dangerous Dogs Act 1991.
The matter came before the Magistrates' Court in the early part of 2012 and the appeal against which this case is stated was on 23 August 2012. Some 10 months or so had passed since the incident when the matter was heard before the Crown Court. That is of some materiality, because during that period the dog had not been in any way dealt with and indeed had been permitted to remain in the care of its owner.
The circumstances as set out in the case stated which led to the prosecution were as follows:
The dog is a Staffordshire Bull terrier, known as Breeze. At about 6.50 in the morning of 11 November 2011, Mrs Russell was walking her dog, a corgi known as Socks, with a friend, when they were approached by the dog Breeze, that is the dog which is the subject of the order.
She saw, as she walked on, that her dog Socks was being sniffed at by Breeze. She called her dog, and Breeze then attacked that dog. It seems in fact that she endeavoured to prevent Breeze from reaching her dog, and as a result she was bitten on her ankle by Breeze. Breeze then latched on to the Corgi around its neck. Endeavouring to rescue Socks, Mrs Russell received some fortunately relatively minor injuries.
It seems, in fact, that Breeze had escaped from the garden (or yard) in which he was kept, together with another dog owned by the appellant, a Husky, but that dog apparently disappeared from the scene, as it were, and took no part in any attack on Socks.
Other members of the public tried to assist in removing Breeze. One hit him with some crutches but the attack only ceased when a man inserted his finger into Breeze's anus upon instruction from a police operator, police apparently having been called and arrived at the scene by then. Breeze was then removed and was tied up. The wounds that had been suffered by Mrs Russell were dealt with.
Sadly, the corgi, Socks, although treated was in such pain as a result of what happened that it had to be put down, and therefore was killed as a result of this attack.
The magistrates ordered a conditional discharge and a payment of costs and compensation. Those orders were varied to some extent by the Crown Court but are not the subject of any complaint in this appeal. It relates only to the order that Breeze be destroyed.
The contention is and was before the Crown Court that the appropriate order here would have been what is known as a contingent destruction order, that is to say, a requirement that the dog be subjected to various controls (such as were considered appropriate) but would be destroyed if there were any repeat, without the need for any further hearing. It would simply be a question that a breach of a condition or any further attack would result in the destruction order coming into effect.
The relevant statutory provisions are contained in the Dangerous Dogs Act 1991, as amended. Section 3(1) provides that:
i. "If a dog is dangerously out of control in a public place the owner is guilty of an offence. Or, if the dog, while so out of control injures any person an aggravated offence under this subsection."
Of course this was an aggravated offence.
The charge as I have already indicated referred to the injury to Socks. The point was taken that this was not a matter that should properly have been contained in the charge because it is only injury to a human being that renders the offence an aggravated offence.
It may well be that it was an unnecessary matter to be contained in the charge but it does not invalidate the charge. At most, it would be surplusage but the fact that the dog was injured (and indeed unfortunately killed as a result of the attack) was a relevant consideration in determining whether the dog could properly be regarded as a dog which was out of control to an extent that a contingent order would not have been one which was appropriate.
Destruction orders are dealt with in section 4 of the Act. Section 4(1) provides that where a person is convicted of an offence under section 3(1) the court may order destruction of the dog and subject to sub-section 1(A) below shall do in the case of an aggravated offence under section 3(1).
In addition, the court has power to order the offender, that is the owner of the dog, to be disqualified for such period as the court thinks fit for having custody of a dog. The mandatory requirement of destruction of a dog guilty of an aggravated offence was the subject of amendment by the Dangerous Dogs Amendment Act 1997, which inserted sub-section 1(A).
This reads:
i. "Nothing in sub-section 1(a) above shall require the court to order the destruction of a dog if the court is satisfied:
a. That the dog would not constitute a danger to public safety."
The satisfaction has to be that the dog would not constitute a danger to public safety.
The distinction between an aggravated offence and what I might call an ordinary offence under section 3(1) is that in the case of an aggravated offence, the burden is upon the owner to satisfy the court that the dog would not continue to constitute a danger to public safety so it would be possible to make a contingent order instead of an immediate mandatory order.
Contingent orders are dealt with in section 4(A). Again, that was inserted by the 1997 Act. So far as material, it provides that where a person is convicted of a relevant aggravated offence, but the court does not order the destruction under 4.1(a), the court shall order that unless the dog is exempted from that prohibition within the requisite period the dog shall be destroyed.
The order that is material is that provided for by sub-section 4, which is that the court may order that unless the owner of the dog keeps it under proper control, the dog shall be destroyed.
Sub-section 5 provides:
i. "An order under sub-section 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.
b. If it appears the court the dog is a male, it would be less dangerous if neutered and may require it to be neutered."
The purpose behind the 1997 Act was obviously to mitigate the absolute requirement that if a dog committed an aggravated offence, that is to say an offence in which a human is injured, then a destruction order was automatic.
That, as I say, is now mitigated to the extent that if the court is persuaded controls that are referred to in section 4(A)5 can be taken so as to mean that the dog is not a danger, then immediate destruction is not needed.
The evidence here as the case stated identifies was, as I have indicated already, that the police had in their discretion permitted the dog to remain with the appellant throughout the court proceedings, that she had kept it on a lead when walking since the incident, and was prepared to keep it muzzled.
In addition, veterinary evidence was submitted in the form of two short reports going to the condition and good behaviour of Breeze and up to date vaccination records. Together, these showed that Breeze was well cared for and well behaved around other dogs in the surgery and displayed no aggression throughout examination which took place in March and August 2012.
It is recorded that references regarding Breeze were offered to the court. The claimant had since moved and photographs of the new secure yard were shown to the court.
The general rule, of course, is that one is not entitled in considering an appeal by case stated to go beyond the case itself. However, that is somewhat artificial in the case of an appeal against a decision of a Crown Court judge since there is a transcript of the hearing and, in particular, a transcript of the judge's reasons for in this case dismissing the appeal against sentence.
It is to be noted that in the course of that the judge stated as follows:
i. "So we have to consider whether in the circumstances we are satisfied that if properly controlled by muzzle, lead and restrictions on being allowed out in public that we can simply trust this dog.
ii. Whether the dog, given its history and given what has happened since and given what has been observed in the photographs, and also, importantly, by two of veterinary examinations could be trusted not to constitute a danger to the public.
iii. Of course the public include not only people out walking their dogs but children on that school route, people in other places, visitors to the home and other members of the family.
iv. "We have seen photographs that suggest that this was a well cared for family pet, who was quite happy to interact with other dogs and the children of the family are...
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