Killeen, R (on the application of) v Birmingham Crown Court & Ors

Before making an immediate destruction order for a dog involved in an aggravated offence, the court must consider whether public safety can adequately be protected by a contingent destruction order with appropriate conditions. The duty is one of substance, not form. A sentencing court need not recite the statutory provisions or authorities if its reasoning shows that it addressed the relevant question. Where the possibility of a contingent order was fully raised in evidence and submissions, and the court gave adequate reasons for preferring an immediate order, failure to cite the statutory provision or authority does not establish legal error.

The claimant pleaded guilty to an aggravated offence under section 3(1) of the Dangerous Dogs Act 1991 after her dog injured a dog warden. The magistrates imposed a financial penalty, disqualification order and immediate destruction order. The Crown Court dismissed her appeal against the latter two orders.

Permission to seek judicial review was granted only on the ground that the Crown Court had failed properly to consider whether a contingent destruction order would adequately protect the public. The claimant argued that the Crown Court’s failure to refer expressly to section 4A(4) or R v Flack [2008] EWCA Crim 204 rendered the destruction order unlawful.

1. The claim was dismissed. The statutory scheme required the court, before imposing an immediate destruction order, to consider whether a contingent destruction order would provide an adequate level of public safety. The burden of showing that immediate destruction should be displaced lay on the person asserting that the dog would not constitute a danger to public safety. Relevant matters included the dog’s temperament and past behaviour, the owner’s fitness to be in charge, and other relevant circumstances.
2. The requirement was one of substance rather than form. The Crown Court was not required to cite section 4A(4) of the Dangerous Dogs Act 1991 or R v Flack [2008] EWCA Crim 204 in its ruling, provided that it properly addressed whether conditions could reduce the risk to an acceptable level.
3. R v Davies [2010] EWCA Crim 1923 was distinguishable. There, the possibility of a contingent order had not been raised or considered. In the present case, it was the only live issue. The expert evidence, police evidence and submissions addressed the possible conditions and whether the claimant could comply with them.
4. The Crown Court was entitled to reject the expert evidence, to rely on the claimant’s and her mother’s inability to control the dog, and to conclude that an immediate, or non-contingent, destruction order was required. Its reference to that form of order demonstrated that it had the contingent option in mind.
5. It was therefore unnecessary to determine the issues concerning the proper procedural route and delay. The court nevertheless observed that a different judge of the same court ordinarily could not reconsider an application for permission refused after an oral hearing, absent a specific rule, changed circumstances or another good reason.

The judgment records that the claimant pleaded guilty and was sentenced at Birmingham Magistrates’ Court. The magistrates imposed an immediate destruction order and disqualification order.

The Birmingham Crown Court dismissed the claimant’s appeal against those orders on 5 August 2016. The Administrative Court dismissed the subsequent judicial review claim.