‘Death row’ dogs saved from destruction by appeal court

The Sheriff Appeal Court quashed the orders made against Sasha the Rottweiler and Floyd the Staffordshire bull terrier and imposed “contingent destruction orders” after ruling that the sheriffs erred in ruling that the animals posed a danger to public safety.

Sheriff Principal Craig Turnbull, sitting with Appeal Sheriff Nigel Ross, heard that Sasha’s owner Desire Feldwick and Floyd’s owner Laura Adamson had both pled guilty to a contravention of section 3(1) of the Dangerous Dogs Act 1991.

‘Dangerously out of control’

In Ms Feldwick’s case, the circumstances giving rise to the offence were that on the morning of 24 July 2017, three women, including JT, were out walking their dogs when they heard a noise from nearby bushes and then saw Sasha running towards them.

Sasha was aggressive and went for JT’s dog, a Greyhound, who was bitten to his rear leg, shoulder and abdomen.

JT attempted to intervene and, in doing so, she and Sasha came into contact with each other, whereby Sasha’s teeth injured JT’s left hand.

Ms Feldwick was previously served with a dog control notice, which required the appellant to keep Sasha on a lead in a public place at all times; to ensure that a muzzle or a halter was worn at all times when Sasha was in any public place; to ensure that her property was secure so that Sasha could not escape; and to require Sasha to attend training classes to address all behavioural problems she had with other dogs and people.

On the date of sentencing, the summary sheriff was advised that the appellant had been diagnosed with cancer and required to undergo treatment, which meant she had been unable to attend the training courses required of her in terms of the dog control notice, but she had otherwise complied with the remaining requirements of the notice.

But the summary sheriff ultimately ordered the destruction of the dog in terms of section 4(1) of the 1991 Act.

Destruction order was ‘excessive’

However, Ms Feldwick argued that the order for destruction was “not justified” having regard to the personal circumstances of the appellant in determining whether she was a fit and proper person to be in charge of a dog; and that other, more appropriate, courses had been open to the sheriff, namely, the imposition of a contingent destruction order in terms of s.4A of the 1991 Act.

In Ms Adamson’s case, the circumstances that gave rise to the offence were not set out, but the sheriff, having considered the terms of a criminal justice social work report, decided to order the destruction of Floyd, one of the two dogs that the appellant admitted had been dangerously out of control.

But Ms Adamson also contended that the order for destruction was “excessive” having regard to the appellant’s character and the temperament of Floyd prior to and after the date of the offence.

The appeal sheriff quashed the orders made after ruling that both sheriffs erred.

‘Last chance’

Delivering the opinion of the court in Sasha’s case, Sheriff Principal Turnbull said: “In the present case, the summary sheriff, having carefully considered the material before him, was not persuaded that Sasha did not constitute a danger to the public. Having done so, he formed the view that the possibility of making a contingent destruction order under s.4A of the 1991 Act did not arise. To that extent, he erred.

“The making of a contingent destruction order does not require the court to be satisfied that the dog would not constitute a danger to public safety. It is ordinarily inherent in the making of either form of destruction order envisaged by the 1991 Act that the dog in question does constitute a danger to public safety. The difference is that in the case of a contingent destruction order the court is satisfied that the circumstances of the case are such that the dog owner should be afforded a ‘last chance’, in the certain knowledge that a failure to take that chance will result in destruction of the dog in question.

“If such an order had been considered, the interplay of the difficult personal circumstances of the appellant and her compliance with the terms of the dog control notice, save to the extent set out at paragraph above might properly have been considered. The appellant’s failure was as a direct consequence of her personal circumstances. But for that failure, it is conceivable that the offence would not have been committed…Moreover, in this case, the measures available under the terms of a contingent destruction order are such as to significantly militate against the possibility of a repetition of the previous incidents involving Sasha.

“Having regard to the appellant’s personal circumstances, we are satisfied that that the appropriate course of action in this case is to allow the appeal, quash the order for destruction and impose a contingent destruction order in terms of s.4A(4) of the 1991 Act. That order will provide that, unless the appellant keeps Sasha under proper control, Sasha will be destroyed. The order will be subject to the following conditions: (1) Sasha shall be muzzled in public places at all times; and (2) Sasha must be kept on a lead at all times when in public.”

‘Not a danger to public safety’

Delivering the opinion of the court in Floyd’s case, Sheriff Principal Turnbull said: “To engage s.4(1A) the court requires to be satisfied that the dog would not constitute a danger to public safety. By virtue of the terms of s.4(1B) of the 1991 Act, when deciding whether a dog would constitute a danger to public safety, the court must consider the temperament of the dog and its past behaviour, and whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog. The court may also consider any other relevant circumstances.

“The sheriff had regard to all the information before her, including a criminal justice social work report. She also considered whether or not a contingent destruction order in terms of s.4A(4) of the 1991 Act might suffice. She concluded that that was not an appropriate disposal. As she states in her report, the sheriff formed the view that she could not be certain that the dog in question did not constitute a danger to public safety.

“As is explained in Feldwick v PF Edinburgh, the court must consider, before ordering immediate destruction, whether to exercise the power under s.4A(4) of the 1991 Act to make a contingent destruction order that is, unless the owner of the dog keeps it under proper control, the dog shall be destroyed… The making of a contingent destruction order does not require the court to be satisfied that the dog would not constitute a danger to public safety. To that extent, the sheriff erred.

“Looking at the whole circumstances of this case, the prior good behaviour of both the appellant and Floyd and the steps taken by the appellant subsequent to the incident which gave rise to the prosecution, we are satisfied that the appropriate disposal in this case is the imposition of a contingent destruction order.

“We shall allow the appeal, quash the order for destruction and impose a contingent destruction order in terms of s.4A(4) of the 1991 Act. That order will provide that, unless the appellant keeps Floyd under proper control, Floyd will be destroyed. The order will be subject to the following conditions: (1) Floyd shall be muzzled at all times when in public places; and (2) Floyd must be kept on a lead at all times when in public.”