A CUSTODIAL sentence handed down to the owner of a dog deemed to be ‘dangerously out of control in a public place’ under Section 3 of the Dangerous Dogs Act was ruled to be appropriate by Appeal Court judges in their judgement published last week.

Lord Justice Woolf, the Lord Chief Justice, sitting together with Lord Justice Moses and Mr Justice Leveson, heard the appeal in Manchester on January 27th.

In determining the appropriate sentence for a defendant whose dog was dangerously out of control in a public place, the Justices said that it was important to look at the consequences of the offence. If the dog had injured somebody that would be a ‘seriously aggravating’ feature.

The Court of Appeal thus reduced the rare custodial sentence imposed on Jacqueline Cox on November 18, 2003 by Mr Recorder Manley, QC, at Burnley Crown Court following her plea of guilty to aggravated keeping dogs dangerously out of control, contrary to section 3(1) of the Dangerous Dogs Act 1991, from nine to three months imprisonment. She was banned from keeping dogs for ten years.

Mr Justice Leveson, giving the judgement of the court, said that at about 11.15am on March 1, 2003 a member of the public saw seven dogs (of unspecified breed) run into a park. They came to a halt in a pack and appeared to be attacking something. It was a boy aged seven.

The boy suffered multiple puncture wounds and lacerations to his arms, legs, face, chest and stomach. He twice required surgery under general anaesthetic.

The evidence did not reveal the nature of any permanent consequences of the injury, although it was not difficult, irrespective of the physical consequences, to anticipate both serious scarring and psychological damage.

The appellant pleaded guilty to the offence essentially on the basis of an ‘omission to act’, in that she failed to ensure that the five dogs living at her house were kept indoors.

No prior example of a sentence in such a case was apparent from a study of the authorities. Their Lordships therefore had to approach this case from first principles.

Keeping a dog dangerously out of control, contrary to section 3(1), was an offence which on summary conviction was liable to a maximum penalty of six months imprisonment or a fine not exceeding level 5 on the standard scale.

The aggravated form of the offence, committed if the dog while out of control injured a person, was punishable on conviction on indictment to a term not exceeding two years' imprisonment, or a fine, or both.

Thus Parliament had demonstrated the clearest intention that the courts should in no small measure look at the consequences of the offence when determining the ultimate penalty.

The Justices stated that an analogy could be seen by comparing the offence of dangerous driving, which had a maximum of two years imprisonment, and causing death by dangerous driving, which had a maximum of ten years. Whether death occurred could be a matter of pure chance.

The extent of the negligence or the existence of recklessness set the scene for the potential escape of dogs which, given the nature of dogs when roaming as a pack, created the risk of injury, and potentially extremely serious injury.

The appellant had intended no injury to anyone, let alone a young child, yet the consequences of her behaviour had had that result. Parliament required the courts to consider that as a ‘seriously aggravating feature’.

The Justices felt that it was entirely appropriate to pass a custodial sentence to mark the nature and the extent of the obligation which owners of dogs owed to all those who might be affected if the dogs roamed free.

Nevertheless, it was not necessary for the appellant to have been deprived of her liberty for as long as nine months. She was a lady of good character whose plea was on the basis that she should have ensured that the dogs stayed in her home, not on the basis that she had frequently allowed the dogs to terrorise others.

Although the courts frequently raised concern about short sentences and their utility, in a case such as the present it was important that the court recognised the harm done to the young boy and the public interest in requiring all dog owners to control their dogs.

The prison sentence would be reduced to three months and the ten-year disqualification order in relation to dogs remained.

Solicitor Trevor Cooper, who is well known for his work in defending dogs caught up under the DDA told OUR DOGS that he felt that the custodial sentence was unusual, but not unheard of.

"The judgement is a sufficiently worrying decision to require me to make further enquiries and obtain a copy of the full judgement," said Mr Cooper, adding that it would take some weeks before he would receive a copy of the ruling.

"I know of only two other cases dealt with by me which have resulted in a custodial sentence for aggravated offences," he added.

COURT OF APPEAL ruling. Published February 20, 2004. Regina v Cox (Jacqueline). Before Lord Woolf, Lord Chief Justice, Mr Justice Moses and Mr Justice Leveson. Judgment January 27, 2004