Davies, R v

For an aggravated offence under section 3(1) of the Dangerous Dogs Act 1991, only the dog which inflicted the injury is potentially subject to the mandatory destruction regime in section 4(1). The owner bears the civil burden of satisfying the court under section 4(1A) that the dog would not constitute a danger to public safety.

Before ordering immediate destruction, the court should ordinarily consider a contingent destruction order under section 4A. It must assess all relevant circumstances, including the dog's history of aggression and the owner's record of control. A sentencing judge may make factual findings that are not inconsistent with the jury's verdict.

The appellant was convicted at the Crown Court at Harrow of an aggravated offence under section 3(1) of the Dangerous Dogs Act 1991. While he was walking an Alsatian and a Labrador without leads, the dogs attacked a neighbour's dog. The neighbour suffered a permanent finger injury when one of the appellant's dogs bit her as she intervened.

The Recorder made an immediate destruction order in respect of the Alsatian. The appellant challenged the finding that the Alsatian was the dog which bit the neighbour and, alternatively, contended that an immediate destruction order was wrong. The central issue was whether the statutory scheme required consideration of a contingent destruction order before immediate destruction.

1. Appeal allowed in part. The finding that the Alsatian bit the victim was open to the Recorder and was not inconsistent with the jury's verdict. A witness's credibility is not indivisible. The sentencing judge, having heard the evidence, could make a factual finding that did not contradict the verdict.

2. Only the dog which inflicted the injury was potentially liable to the mandatory destruction order under section 4(1)(a) of the Dangerous Dogs Act 1991. The court did not decide the separate, hypothetical question whether two dogs which jointly attack a person, but where only one causes injury, both injure that person for this purpose.

3. Section 4(1A)(a) relieved the court of the otherwise mandatory order if it was satisfied that the dog would not constitute a danger to public safety. The person asserting that position, normally the owner, bore the civil burden. Relevant evidence could be expert or lay evidence concerning the dog's character, demeanour and past behaviour.

4. The Recorder had not been referred to the full statutory scheme. In particular, she had not considered section 4A(4), which permits a contingent destruction order. Applying and agreeing with the construction in Flack 2008 EWCA Crim 204, the court held that immediate destruction should ordinarily be preceded by consideration of whether conditions of proper control would remove the danger to public safety. The assessment must include all relevant circumstances, including the dog's aggressive history and the owner's history of control.

5. The immediate destruction order was quashed. It was replaced with a contingent order requiring the Alsatian to be destroyed unless kept under proper control, including being muzzled and kept on a lead whenever in public.

• Court of Appeal (Criminal Division): Allowed the appeal to the limited extent of quashing the immediate destruction order and substituting a contingent destruction order.
• Crown Court at Harrow: Convicted the appellant on 17 December 2009 of an aggravated offence under section 3(1) of the Dangerous Dogs Act 1991, imposed a community sentence, and ordered the immediate destruction of the Alsatian.