‘Ruff justice’ appeal rejected as judges confirm destruction of dangerous dog

Lord Carloway
Lord Carloway

A dog-owner who challenged a sheriff’s decision to order the destruction of her pet Bullmastiff after it attacked a passer-by and another dog has had her appeal dismissed.

The Appeal Court of the High Court of Justiciary rejected the argument that the sheriff ought to have imposed a “contingent destruction order” instead, with “Eva” the dog being kept on a lead and muzzled when in public and made subject to a “behavioural plan”.

‘Dangerously out of control’

The Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellant Moira Hunter pled guilty at Kilmarnock Sheriff Court in November 2017 to an offence which libelled that she was in charge of a dog which was “dangerously out of control” in that it attacked and injured a Labrador belonging to a woman “LM” and thereafter bit the complainer on the right hip and then on the hand, causing two puncture wounds and a broken finger, contrary to section 3(1) of the Dangerous Dogs Act 1991, as amended by section 10 of the Control of Dogs (Scotland) Act 2010.

In interpreting the legislation, the sheriff determined that she had to order the destruction of the dog unless she was satisfied that it did not constitute a danger to public safety.

A report had been prepared for the appellant by Elaine Henley, an animal behaviourist, which gave the sheriff “no confidence” that the dog would not attack another dog or a person again, given its “inherently aggressive” nature – the dog had to be stopped from attacking another dog when Ms Henley had been out observing it – and the appellant’s irresponsibility.

The court was told that the appellant had continued to allow the dog off the lead while out of doors, contrary to a court order not to do so, and that she also had a previous conviction involving the same dog.

The sheriff disqualified the appellant from owning or keeping a dog for a period of five years, imposed a compensation order of £166.38 in favour of LM, fined the appellant £300, and ordered the destruction of the dog on the basis that she was not satisfied that the dog did not constitute a danger to public safety.

The appellant sought leave to appeal the destruction and the disqualification orders on the basis that the sheriff had failed to give sufficient weight to the dog’s temperament and the scope for the dog to change, but the appeal was refused at the first sift.

At the second sift a new point was raised, to the effect that the sheriff had failed to consider the “alternative” of a contingent destruction order under section 4A(4) of the 1991 Act, but the decision of Sheriff Appeal Court at first sift was that the point was “unarguable” because section 4A only applies if the court does not order destruction under 4(1)(a) and 4B is only applicable to destruction orders otherwise than on a conviction.

‘Miscarriage of justice’

Following an application by the appellant to the Scottish Criminal Cases Review Commission, the case was referred to the High Court on the basis that a “miscarriage of justice” may have occurred and it was now in the “interests of justice” to refer the case, given the “upset” which the dog’s destruction would cause to the appellant.

It was argued that the sheriff had erred in her consideration of whether the dog would constitute a danger to public safety.

The test required her to consider the temperament of the dog, its past behaviour and whether the owner of the dog was a fit and proper person to do so, but the sheriff had placed substantial weight on the appellant’s lack of fitness as an owner in determining that the dog did constitute a danger to the public.

Given that the sheriff had imposed a disqualification order for a period of five years, the appellant was no longer capable of owning the dog.

Had the dog not been made the subject of the destruction order, it could not have been returned to the appellant’s care and would have had to be re-housed, meaning the fitness of the appellant was “irrelevant”.

It was also submitted that section 4(1B)(a)(ii) was drafted on the basis that it was the fitness of the dog owner in the future that was relevant to whether the dog would constitute a danger to public safety.

The sheriff should have enquired into “alternative arrangements” for the dog, superseding the appellant’s fitness accordingly, or, if no alternative arrangements existed, proceeded solely on a consideration of 4(1B)(a)(i) and (b).

Had the sheriff disregarded the appellant’s fitness, or looked at an alternative arrangement, the test for destruction of the dog would not have been satisfied.

If the sheriff was correct in considering the owner’s fitness, she erred in failing to consider the imposition of a contingent destruction order first.

In all the circumstances, the appellant’s position was that the court should quash the destruction order and substitute a contingent destruction order, requiring the dog to be” kept on a lead and muzzled” when out of doors, and made subject to a “behavioural plan”, as the risk posed by the dog could be “managed”.

‘Danger to public safety’

Refusing the appeal, the judges held that the approach of the sheriff and the Sheriff Appeal Court at second sift was “correct”.

The Lord Justice General’s opinion stated: “[32] The terms of section 4 (including sub-sections (1), (1A) and (1B)) constitute a complete code which exists for the purposes of public safety, and not just in relation to the individual dog which is found to be out of control.

“They were conceived as a means of deterrent, designed to prevent injuries to members of the public. It follows from all of this reasoning that the approach of the sheriff, and the Sheriff Appeal Court at second sift, was correct and the appeal must be refused.

“Even if the sheriff had been bound to take into account the prospect of a contingent destruction order of the limited nature suggested, and this court thereby required to reassess the matter, the same result would follow.

“On the material before the sheriff, this was a large dog which had run out of a garden and across a public road with the obvious design of attacking a Labrador puppy which was, in contrast to it, under proper control. When the complainer attempted to prevent further injury by lifting the puppy, she was attacked and bitten three times. The experience must have been extremely alarming, as well as painful, especially when the complainer was with a young child.

“An almost inevitable conclusion from the material about the behaviour of the dog and its owner, both at the time of the incident and prior to it, was that this dog was indeed a dangerous dog which posed a danger to public safety, even if certain measures, if abided by, might reduce that risk.”

Lord Turnbull agreed, as did Lord Drummond Young, who said: “It is accepted that the dog was dangerous, and it was certainly responsible for a very unpleasant attack. It also appears to be accepted that, as the dog is now five years old, the possibility of altering its character in fundamental respects is limited. The only factor in favour of a contingent destruction order is accordingly that the dog has a new, responsible, owner, who can be relied on to ensure that it is kept on a lead and muzzled when in public.

“I find this balancing exercise difficult. It is perhaps important not to be unduly swayed by sentimental considerations; the court must adopt a rigorously objective approach at all times. Ultimately, however, I have come to the conclusion that the dog’s background outweighs the significance of the new owner, and on that basis I would agree that the destruction order imposed by the sheriff should stand.”

© Scottish Legal News Ltd 2020

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