Robert Fitzgerald v CPS

When deciding whether to destroy a dog under the Dangerous Dogs Act 1991, the court must consider the dog’s temperament and past behaviour, the fitness of the proposed person in charge, and all other relevant circumstances. A breach of an earlier contingent destruction order is important, but it is not a trump card. Changed or proposed circumstances, including transfer of care to a fit and proper person, must be properly assessed.

Where expert evidence is unchallenged and materially supports release subject to conditions, the court cannot reject it without a rational and properly explained reason. A court rejecting proposed conditions must explain why they would not protect public safety.

The appellant appealed by way of case stated from the Harrow Crown Court’s dismissal of his appeal against an immediate destruction order made under the Dangerous Dogs Act 1991. The dog had previously been subject to a contingent destruction order and was later involved in an incident causing bruising but no broken skin.

Before the Crown Court, an uncontested expert report concluded that the dog would not pose a danger to public safety if care were transferred to the appellant’s brother and the dog were kept muzzled and on a lead in public. The central issues were whether the Crown Court had lawfully rejected that evidence and proposal, and whether it had given proper weight to the earlier order and the proposed change of ownership and control.

1. Appeal allowed. The Crown Court had failed properly to apply the statutory and common-law approach to destruction and contingent destruction orders.
2. Under sections 4 and 4A of the Dangerous Dogs Act 1991, the defendant bears the burden of satisfying the court, on the balance of probabilities, that the dog would not constitute a danger to public safety. Absolute certainty that no risk of recurrence exists is not required.
3. A breach of an earlier contingent destruction order is a relevant factor, and may in some cases justify an immediate destruction order. It does not automatically require that result. The court must consider all the circumstances at the time of sentencing, including changed circumstances and proposed transfer or rehoming to a suitable person.
4. Following R v Brennan [2014] EWCA Crim 2387 and TUI UK Ltd v Griffiths [2023] UKSC 48, unchallenged expert evidence on a material issue cannot be rejected without a rational and properly explained basis. If the opposing party wishes materially to challenge the expert’s conclusion, fairness will ordinarily require cross-examination, subject to recognised exceptions. None applied.
5. The Crown Court had not properly engaged with the expert report, the evidence that the appellant’s brother was fit and proper to control the dog, or the proposed conditions. It had not explained why those conditions would fail to protect public safety. That omission was contrary to the approach in Singh [2013] EWCA Crim 2416.
6. The destruction order was quashed and replaced with a contingent destruction order. The conditions required the dog to remain muzzled and on a lead in public, care and ownership to transfer to Terry Fitzgerald, and the dog in public to be controlled by an adult other than the appellant who was physically capable of controlling it.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The Harrow Crown Court’s immediate destruction order was quashed and replaced with a contingent destruction order.
• Harrow Crown Court: On 15 June 2023, the Crown Court dismissed the appellant’s appeal against the District Judge’s destruction order.
• District Judge: On 15 December 2022, an immediate destruction order was made following the appellant’s conviction under section 3(1) of the Dangerous Dogs Act 1991.