Hill, R. v

A Crown Court has no jurisdiction to try on indictment a summary-only offence which cannot properly be included in the indictment. A plea to such a count is a nullity.

Following conviction for an aggravated dangerous-dog offence, destruction is required unless the court is satisfied that the dog would not endanger public safety. The court should ordinarily consider a contingent destruction order. That exception requires reliable evidence that practical control measures will keep the dog safe; vague proposals for confinement or handling will not suffice.

The appellant pleaded guilty in the Crown Court at St Albans to two aggravated offences arising from his dog injuring an off-duty police officer and a police constable. He also pleaded guilty to a non-aggravated count concerning a third member of the public. He received concurrent conditional discharges, and the judge made an immediate destruction order for the dog.

The appellant challenged the conviction on the third count because it was summary only and had been added to the indictment. He also challenged the destruction order, contending that the judge should have considered a contingent order and adjourned for expert evidence. The central issue on sentence was whether conditions could reliably ensure that the dog would not constitute a danger to public safety.

1. The appeal against conviction was allowed on count 3. The non-aggravated offence was summary only and could not properly be added to the indictment. Section 40 of the Criminal Justice Act 1988 did not apply. The Crown Court therefore lacked jurisdiction to try that count, the guilty plea was a nullity, and the conviction was quashed.
2. The appeal against the destruction order was dismissed. Under sections 3 and 4 of the Dangerous Dogs Act 1991, destruction following an aggravated offence was mandatory unless the court was satisfied that the dog would not constitute a danger to public safety. That issue had to be assessed in the dog’s actual condition at sentencing and in the circumstances in which it had lived.
3. The court adopted the relevant framework helpfully collected in R v Flack [2008] EWCA Crim 204. Before directing immediate destruction, a court should ordinarily consider a contingent destruction order under section 4A. The assessment includes the dog’s history of aggression, the owner’s ability to control it, and whether specified measures would adequately protect the public.
4. The judge erred by not addressing a contingent order. However, the error did not affect the result. The dog had injured two people, lunged at a third, and broken free from the appellant. There was no reliable evidence of secure accommodation, safe arrangements for taking it out, or persons able to control it. An immediate destruction order was therefore inevitable and remained in force.

• Court of Appeal (Criminal Division) — In [2010] EWCA Crim 2999, the court quashed the conviction on the summary-only third count and dismissed the challenge to the immediate destruction order.
• Crown Court at St Albans — On 4 May 2010, the appellant pleaded guilty to two aggravated dangerous-dog offences and one non-aggravated count. He received concurrent conditional discharges for 12 months and an immediate destruction order under the Dangerous Dogs Act 1991.