Death row dog wins appeal against destruction order

The Sheriff Appeal Court ruled that the sheriff made the order on the basis of “irrelevant” factors and failed to take into account the fact that no person was injured in the attack.

Sheriff Principal Ian Abercrombie QC, sitting with Sheriff Paul Arthurson QC, heard that Philip Pudney tendered a plea of guilty in June 2016 to a single charge, namely a contravention of section 3(1) of the Dangerous Dogs Act 1991, which alleged that the dog in question, a St Bernard dog named Douglas, was “dangerously out of control and bit another dog causing its death”.

The sheriff imposed a financial disposal in respect of Mr Pudney and ordered the destruction of Douglas in terms of section 4(1)(a) of the 1991 Act.

But it subsequently transpired that Mr Pudney was not the true owner and instead was the person in charge of Douglas at the time of the incident referred to in the charge.

Mr Pudney did not oppose the destruction order, but the true owner, Anne-Marie Luckhurst, of the charity Saving Saints Rescue UK, appealed against the decision.

The appeal sheriffs noted that this was not, on the sheriff’s account of the Crown narrative, an aggravated offence under section 3(1), in that on the facts stated there was “no injury to any person”.

They also observed that, on the sheriff’s account, Mr Pudney’s role and conduct appeared to be the central issues in reaching his decision, and the court expressed “considerable concerns” about Mr Pudney’s conduct on the date of the incident.

As a St Bernards’ fosterer he should have known that Douglas was not to have an electric collar, given his previous history of “appalling physical abuse”, and he also should have known that Douglas “required to be kept on a lead”, in particular while Mr Pudney had with him a “multitude of other dogs”.

“These omissions were those of Mr Pudney and certainly not the fault of the dog. In the event, perhaps unsurprisingly, Mr Pudney was unable to maintain control of the dog,” Sheriff Principal Abercrombie said.

The court observed that the sheriff had correctly considered the past behaviour of the dog in determining whether the dog presented a danger to public safety, but there was no report available to him in respect of the dog’s temperament.

The Sheriff Principal explained: “This was an essential factor which was simply not present during the exercise undertaken by the sheriff… The sheriff did not have available to him the information that this court has in respect of the requirements relevant to the dog, which could have allowed him to make a fuller and more accurate assessment as to whether Mr Pudney was a fit and proper person to be in charge of Douglas at the time, being of course another essential consideration in the determination exercise as to whether the dog constituted a public danger.”

The appeal sheriffs therefore allowed that appeal and quashed the destruction order.

Delivering the opinion of the court, Sheriff Principal Abercrombie said: “The sheriff in this case has made the order on the basis therefore of factors which are irrelevant (lack of opposition), partial (the past behaviour of the dog has been considered, but not its temperament) or approached on the basis of incorrect information (whether the person in charge at the time was a fit and proper person).

“He has in addition not taken into account the lack of injury to any person in the Crown narrative. He has further not considered or addressed the suitability or otherwise of a contingent destruction order or any alternative orders short of destruction which would allow public safety issues to be addressed.

“In these circumstances we have no difficulty in finding that the sheriff has erred in fact and law in the exercise of his discretion.”

He added: “In identifying these matters, we express our concern that the relevant material required under the statutory regime applicable was not put before the sheriff in specific terms by the Crown on 9 June 2016. We also appreciate that significant new material has been placed before this court which was simply not available to the sheriff.”