Baballa, R v

When deciding whether to destroy a prohibited dog, the court must assess the individual dog and the effect of enforceable control conditions. A general risk that unrestrained dogs may behave as a pack does not establish that every dog of the type is dangerous. The court should consider whether a contingent destruction order, coupled with exemption conditions such as muzzling and a lead in public, will ensure public safety. The approach applicable to aggravated offences also applies to possession offences under the Dangerous Dogs Act 1991.

The appellant pleaded guilty at Croydon Crown Court to possessing three pit bull terriers contrary to section 1(3) of the Dangerous Dogs Act 1991. He was also convicted of an offence involving a fourth dog, Crystal, which had caused injury while dangerously out of control.

The sentencing judge ordered the destruction of all four dogs. This appeal concerned only the three pit bull terriers. Expert evidence described them as well behaved and non-dangerous if properly restrained, but the judge considered that they might act as a pack if excited. The issue was whether immediate destruction was justified or whether conditional exemption and contingent destruction orders would adequately protect public safety.

1. Appeal allowed. The orders for the immediate destruction of the three pit bull terriers were set aside. The court substituted contingent destruction orders under section 4A(1) of the Dangerous Dogs Act 1991: each dog was to be destroyed unless exempted from the section 1 prohibition within two months.

2. The court applied the principles stated in R v Flack [2008] 2 Crim App R (S) 70. Although that case concerned an aggravated offence under section 3, the same approach applied to a section 1(3) possession offence. Before ordering immediate destruction, the court should consider whether a conditional order and effective controls would ensure that the dog did not constitute a danger to public safety.

3. The statutory question concerns the individual characteristics of the dog. The mere fact that dogs of the prohibited type can behave as a pack when unrestrained could not justify destruction of every such dog. The relevant circumstances include the dog's history of aggression and the owner's history of controlling it.

4. Here, the expert evidence showed that the three dogs were not aggressive and would not be dangerous if properly restrained. The incident resulted from the appellant taking four dogs out without leads, rather than from an inherent dangerous propensity in the three dogs. Conditions requiring exemption, muzzling and leads in public would prevent a recurrence. There was no evidence of any previous failure by the appellant to restrain the dogs, and the sentencing judge had not disqualified him from keeping dogs.

• Court of Appeal (Criminal Division): Allowed the appeal in [2010] EWCA Crim 1950 and substituted contingent destruction orders for the immediate destruction orders affecting the three pit bull terriers.
• Croydon Crown Court: Following guilty pleas, imposed suspended sentences and ordered the destruction of four dogs. The destruction orders concerning the three dogs subject to the section 1(3) offences were challenged on appeal.