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Fitzgerald v CPS [2024] EWHC 869 (Admin):
On 16 April 2024, the High Court quashed a dog destruction order and replaced it with a contingent destruction order. This meant that instead of being euthanised, a dog called ‘Yosser’ would be rehomed with a new human under certain strict conditions. The case reviewed and clarified the approach to deciding whether a dog should be destroyed following their human companion’s conviction under s.3(1) of the Dangerous Dogs Act 1991; and in particular the status of an uncontested expert’s report in a case of this kind.
FACTS
Yosser had been in the care of a vulnerable man who had mental and physical health problems. Yosser’s human companion was so mentally and physically unwell that he ended up being sectioned under the mental health act. During his decline, he sadly lost control of Yosser on a number of occasions.
There had been an incident on 24 April 2021 where Yosser bit a visiting surveyor but he had not pieced the skin, and no formal action had been taken.
A few months later on 27 July 2021, Yosser had bitten another dog and, when the keeper of the other dog got involved, they had feared that they might be injured too. No injury was actually caused to any human in that case. Yosser’s human companion pleaded guilty to an offence contrary to s.3(1) of the Dangerous Dogs Act 1991, and a “contingent destruction order” (CDO) was imposed in respect of Yosser, requiring that he be euthanised unless kept on a muzzle and lead when in public.
On 22 February 2022 there was a third incident that gave rise to this case. Whilst his muzzle was being readjusted, Yosser pulled away and jumped up and nipped or mouthed the victim’s arm, leaving a mark but not breaking the skin.
Yosser’s keeper pleaded guilty to an aggravated offence contrary to s.3(1) of the Dangerous Dogs Act 1991 and the magistrates made a “dog destruction order” (DDO). There was no expert report before them and it was unclear what conditions were forward that could have persuaded the court to suspend destruction a second time.
Yosser’s keeper had a brother who was an experienced dog owner and fond of Yosser. He got involved and helped secure to assistance specialist solicitors, a specialist barrister and an expert in dog behaviour; and an appeal was made to the Crown Court.
The expert provided a detailed report and concluded that Yosser would not be a danger to public safety if rehomed to the brother; and that the brother had a suitable home and was a fit and proper person to take charge of him and could be trusted to adhered to a muzzle and lead condition.
The prosecution read the report and confirmed in writing that they did not dispute the opinion and that the expert did not need to come to court to give evidence or be challenged on it.
Despite this, the Crown Court dismissed the appeal and upheld the destruction order. They noted that the expert had not assessed Yosser in a public place as he had been seized by police at the time. They did not deal expressly with why rehoming to the brother would not address any concerns about Yosser and simply said that they gave “great regard” to the history in the case and that they had to uphold the Destruction Order because they could not be satisfied that the dog would not constitute a danger to public safety.
ISSUES
On appeal from the Crown Court to the High Court by way of case stated, there were four questions posed:
QUESTION 1: Did the Crown Court unlawfully and/or unreasonably fail to identify a rational or proper basis and/or give cogent reasons for departing from uncontradicted and unchallenged expert evidence that the dog would not constitute a danger to public safety if released subject to certain conditions?
QUESTION 2: Was it unreasonable and/or irrelevant and/or unfair to take into consideration that the expert had not assessed the dog in a public place, given that the dog was at the time seized by police and so could only be inspected in circumstances prescribed by the police?
QUESTION 3: Did the court fall into error by failing to determine whether or not Terry FITZGERALD was a fit and proper person before deciding that it could not be satisfied that the dog would not be a danger to public safety if ownership and/or keepership were transferred to him?
QUESTION 4: On the facts of this case, was the conclusion that there were no conditions whatsoever that could be put in place that would ensure, on balance, that the dog would not constitute a danger to public safety so unreasonable that no reasonable tribunal could have come to it?
HELD
Uncontested expert evidence
The court considered the leading criminal and civil cases on uncontested or uncontroverted expert evidence. Despite following from a criminal sentence, authorities suggest that a CDO or DDO are in fact part of the civil jurisdiction of the magistrates’ court and so the leading civil case of TUI UK Ltd v Griffiths [2023] UK SC48 was considered in particular depth.
As explained at paragraphs [31]-[32], the effect of applying that case to these facts was that, unless certain exceptions applied that would provide a valid reason to depart from it, fairness required that uncontested expert evidence be accepted. The Crown Court’s decision was therefore unfair.
Seized dog not assessed in public
The only attempt the Crown Court had made to grapple with the expert report or its conclusions was the notice it took of the fact that the expert had not assessed the dog in public. At paragraph [24], the High Court was “wholly unpersuaded by this attempt to minimise [the expert’s] findings”.
Three reasons were given at paragraph [24]:
“First, of course, she was unable to see Yosser in public areas because he was detained by the police. Secondly, [the expert] herself would have been only too aware of the fact that she had not seen Yosser in a public place but, on the face of her report, that did not affect her conclusions. Thirdly, if this was a real point of doubt or difficulty, and one which at least potentially undermined [the expert]’s conclusions, then fairness dictated that she should have been asked about it, rather than her report and recommendations simply being set to one side.”
Proposed change of keeper
No challenge had been made to various assertions in the brother’s statement, character references or the expert’s report that he would be a fit and proper person to take on Yosser. This was significant in a case where it was quite clear that Yosser’s former companion was not a fit match for him.
The High Court considered that the “the failure to grapple with that issue is one of the main omissions in the Crown Court judgment” [paragraph 42].
A review of relevant authorities at paragraph [16] stressed
“Where a CDO is proposed, and particular conditions are put forward, a court which rejects those conditions must explain why they would not address the danger posed by the dog.”
The High Court ruled at paragraph [35] that in this case, at best the reasons for the Crown Court’s rejection of this part of the proposal were implicit (which was contrary to the authorities reviewed). At worst, they were not addressed at all. Either way, the decision was unlawful.
So unreasonable no reasonable tribunal could agree
The final ground of challenge was that the decision of the Crown Court was “so unreasonable that no reasonable tribunal could have come to it”. As an appeal by way of case stated is only allowed on a point of law, a challenge to the merits of the decision being appealed has a very high threshold.
This final ground was something of a catch all ground, where the arguments mirrored those made in respect of the issues above, but took aim at the merits rather than the legality or fairness.
At paragraph [43] Lord Coulson stated in answer to the question of whether the high threshold for irrationality was met,
“It is probably not necessary to decide this question, because of my answers to the first three questions. But if required, I would say Yes, for the reasons set out above.”
COMMENTARY
The ruling in Yosser’s case has been welcomed by those working in defence of allegedly dangerous dogs. Save our Seized Dogs Ltd, the company who funded Yosser’s appeal said
“This is not just a victory for Yossah, this case has set a precedent and can now be used to protect expert witness reports in any future cases.
Samuel March of 9 King’s Bench Walk, the specialist animal protection barrister acting for the appellant, said
“This is first and foremost a life-saving ruling for Yosser, and a huge relief for his family and those who have supported them through this process.
This is an important case to use in future cases where there has been a breach of a previous CDO. Very often, failure to adhere to basic safety measures imposed by a previous court order will be more indicative of safety issues at the human end of the leash. Yosser’s previous human companion was a sweet man, without any malice – but he was seriously unwell and not in the right state to take on the serious responsibility of a strong and energetic dog.
This case makes it clear that even a breach of a previous CDO need not always be fatal for a dog – it may very well be that the dog just needs to be re-homed to someone experienced, willing and able to take the order seriously.
Finally, the case puts to rest an uncertainty around the status of unchallenged experts in these cases. It has become common for the prosecution to agree, or at least not contest, expert reports about dogs. However, even where there is no dispute, there has been a lingering risk that courts would ignore the expert and go on to make life-and-death decisions about dogs they have never met and do not have the specialist knowledge to reliably form their own views about. Thanks to this case, we now have a considerable degree more certainty in terms of what an uncontroverted expert reports means for the outcome in this sort of case. Hopefully this will help avoid the wrongful destruction of other dogs in Yosser’s position. We had reached a point where experts were wasting time and money having to travel around the country to attend hearings on the off chance that a court might questions for them, even where it was clear that the prosecution did not.”
Getting advice
This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws please contact info@advocates-for-animals.com.
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