The Chief Constable of Avon and Somerset (R on the application of) v Bristol Crown Court & Ors.

For an aggravated offence involving a dangerously out-of-control dog, a court may avoid destruction only if it is satisfied that the dog would not constitute a danger to public safety. That assessment must include the dog’s temperament and past behaviour and the fitness of its owner or current person in charge.

A contingent destruction order cannot be used to defer those statutory decisions to the police. A prospective, unidentified keeper is not a person presently in charge of the dog. Where no fit and proper person is identified who is willing and able to assume responsibility, and the evidence shows that responsible control is essential to safety, destruction is the inevitable statutory outcome.

The Chief Constable sought judicial review of a Crown Court order made on an offender’s appeal against sentence. The offender’s dog had fatally mauled another dog and injured its owner. The Magistrates’ Court had ordered its destruction following conviction for an aggravated offence under Dangerous Dogs Act 1991.

The Crown Court retained the owner’s disqualification but replaced immediate destruction with a contingent destruction order. It required castration, muzzling and use of a lead, and left the dog with the police pending placement with a suitable owner. The Chief Constable challenged the order as unlawful, irrational and unworkable. The central issue was whether the statutory scheme permitted the Crown Court to leave the identification of a future keeper to the police.

1. Claim succeeded. The contingent destruction order was quashed. On the facts and findings available, the only lawful conclusion was that the dog constituted a danger to public safety and had to be destroyed.

2. Under sections 4(1)(a), 4(1A) and 4(1B) of the Dangerous Dogs Act 1991, destruction following an aggravated section 3(1) offence is mandatory unless the court is satisfied that the dog would not constitute a danger to public safety. The court must consider both the dog’s temperament and past behaviour and whether its owner or current person in charge is fit and proper. It may also consider other relevant circumstances.

3. The Crown Court neither determined that statutory question nor lawfully applied the mandatory fitness consideration. It had found that the owner was not fit and proper, and it had not found the proposed nephew fit and proper or presently in charge of the dog. There was no identified person willing and able to take responsibility for the dog.

4. The expression person for the time being in charge concerns a person with responsibility for the dog through past or present contact. It does not extend to an unidentified future keeper: [2017] EWHC 3311 (Admin). The Crown Court therefore erred by delegating to the police the task of identifying a suitable owner and, in substance, the statutory assessment of public safety. The police had neither ownership nor authority to transfer ownership.

5. Although a contingent destruction order under section 4A(4) may specify control measures, it is available only after the court is satisfied that the dog is not a danger to public safety. The uncontested evidence showed that exceptionally responsible and competent control was necessary, while no such responsible keeper existed. Exercising the power in section 31(5)(b) of the Senior Courts Act 1981, the court made the inevitable decision itself: the dog must be destroyed.

• High Court (Administrative Court): Allowed the Chief Constable’s judicial-review claim and quashed the contingent destruction order made by the Crown Court.
• Crown Court: On appeal against sentence from the Magistrates’ Court, revoked the immediate destruction order and substituted a contingent destruction order.
• Magistrates’ Court: Following conviction for an aggravated offence under section 3(1) of the Dangerous Dogs Act 1991, ordered the dog’s destruction and disqualified its owner from having custody of a dog for 12 months.