Flack, R. v

Following a conviction for a dog being dangerously out of control, a court should not order immediate destruction without considering whether a contingent destruction order, with effective control measures, would prevent danger to public safety. The court must consider all relevant circumstances, including the dog’s history of aggression and the owner’s history of control. Where the evidence supports the conclusion that conditions such as muzzling, a lead and a control collar will adequately protect the public, a contingent order may be appropriate instead of immediate destruction.

The appellant pleaded guilty at Chester Crown Court to offences concerning two dogs which had been dangerously out of control in a public place. One dog, Star, injured Mrs Stalker after both dogs escaped from the appellant’s garden.

The Recorder made an immediate destruction order for Star and a contingent destruction order for the other dog, Snoop, subject to control measures. The appellant appealed, with leave, against Star’s destruction order. The central issue was whether Star should instead be made subject to a contingent destruction order under the Dangerous Dogs Act 1991.

Appeal allowed. The immediate destruction order for Star was set aside and replaced with a contingent destruction order.

1. For an owner convicted of an offence under section 3(1) of the Dangerous Dogs Act 1991, the court has power to order destruction. It need not do so if satisfied that the dog would not constitute a danger to public safety.

2. Before ordering immediate destruction, the court should ordinarily consider a contingent destruction order under section 4A(4). Such an order may require the owner to keep the dog under proper control and may specify measures including muzzling, a lead, a control collar or exclusion from a place. If those conditions would mean that the dog posed no danger to public safety, destruction should not be ordered.

3. The Recorder did not appear to have considered a contingent order for Star. That was material because Star had no previous aggressive history, an animal behaviour consultant found no inherent aggression or dangerous temperament, and the appellant was a competent and conscientious dog owner.

4. The court therefore ordered that Star would be destroyed unless kept under proper control. Star must be muzzled in public, wear a special control collar, and be kept on a lead at all times in public.

• Court of Appeal (Criminal Division): Allowed the appeal in [2008] EWCA Crim 204 and replaced the immediate destruction order with a contingent destruction order.
• Crown Court at Chester: On 21 August 2007, made an immediate destruction order for Star following the appellant’s guilty plea.