Successful appeal for DDA Zebo
A DOG of the pit bull ‘type’ that was sentenced to death under the 1991 Dangerous Dogs Act largely because of his ‘type’ of owner won his appeal at Liverpool Crown Court last month in a case which threw up some interesting legal questions about the Act itself.
The case of Staffordshire Bull Terrier cross ‘Zebo’ owned by James Riley was first heard at Liverpool Magistrates’ Court in September by District Judge Clancey, who was seen to have a less lenient approach to such cases as some of his colleagues who had presided over previous hearings.
Police seized Zebo, aged 18 months and his mother Stella, aged 4 in April as illegal pit bull ‘types’ from the home of Mr Riley and his mother Patricia. Mr Riley and his mother voluntarily surrendered the dogs, but Mr Riley was distraught and contacted the Fury Defence Fund who supported him and gave him advice. Stella was later released without charge – although she had lost a lot of weight in custody – but Zebo was held back and charges were proceeded with under Section 4b of the DDA.
The case was heard in September, but crucial expert evidence in Zebo’s defence was not put forward by Mr Riley’s solicitor and there was an unresolved query as to whether Mr Riley or his mother owned the dogs, whilst a totally unrelated previous case involving Mr Riley was referred to by the Prosecution and may have influenced the final judgement. Judge Clancey told Mr Riley: ‘People like you get these dogs. I know I have a right to release the dog, but I don’t have to.’ He duly ordered that Zebo be destroyed.
Mr Riley lodged an immediate appeal and placed the case in the hands of another solicitor, and was again assisted by the Fury Defence Fund.
The appeal hearing took place at Liverpool Crown Court on November 23rd before His Honour Judge Gilmour, sitting with two Justices, Mr J Hardy and Mrs G Withinshaw.
The Prosecution began by outlining a summary of the original 1991 Act and its 1997, which allowed for the registration of dogs found guilty of being of the pit bull ‘type’. Judge Gilmour said that he and his colleagues needed to be satisfied on the balance of probabilities that the dog did not constitute a danger to the public and asked whether there was any evidence that Zebo was dangerous. The Prosecution counsel replied that there was ‘none at all – the officer who seized the dog said it was friendly.’
The prosecution went on to state: ‘In the Magistrates Court there was an issue as to the ownership of the dog. Mr Riley [also] has an antecedent history that was taken into account.’
Judge Gilmour made the point: ‘If I bought my daughter a dog and the dog becomes a family pet, who owns the dog?’
Evidence was then heard from Police Constable Francis, who attended Mr Riley’s home on April 5th when the dogs were removed. He confirmed that Mr Riley had been content for the dogs to be taken away for examination and that the dogs had been friendly and that neither had shown any signs of scarring.
In cross-examination Defence Counsel Lara Smith asked PC Francis if Mr Riley had objected ‘ferociously’ to the dogs being taken, to which PC Francis replied ‘No.’ Ms Smith asked: ‘Would you say these were the actions of a responsible owner?’ Pc Francis replied ‘Yes.’
James Riley took the witness stand and explained to the court how he came to have the dogs Stella and Tyson (the sire of Zebo). An accidental mating between the two dogs occurred of which Zebo was the result, the three other puppies in the litter being stillborn. He explained that he had been living with his grandparents and was their carer, and that Tyson was his grandfather’s dog. He then related how his grandparents’ sudden deaths – one shortly after the other had a bad effect on him and that he had been going through ‘a bad time.’
Under cross-examination by Lara Smith, Mr Riley was asked whom the dogs belonged to and he replied: ‘They belong to all of us, they’re family dogs’. Asked if he could comply with the requirements of the Act if Zebo was registered as a pit bull ‘type’ and returned to him, Mr Riley said that he could, he had a well secured garden – photographs of which were passed to the bench – and there was parkland opposite the house for the dog to be exercised in.
He added that there had never been any problems with aggression from Zebo towards other dogs and that he got on well with children. Answering the point that when the dogs were seized by police, he referred to them as his dogs, Mr Riley said that this was a figure of speech – they were family dogs.
Judge Gilmour asked Mr Riley if Zebo had ever been muzzled. Mr Riley replied: ‘No, he is not a dangerous dog.’
Mr Riley’s mother Patricia took the stand next and explained to the court that the family had owned dogs before – German Shepherds. Breaking down in tears, she told the court how her mother had died of cancer, and that her grandfather had died very shortly afterwards of a broken heart. She explained that her parents had got Stella, a Staffordshire Bull Terrier in 2004, about the accidental mating and how, when Tyson died, she and her son James had kept Stella and Zebo.
She also confirmed that Zebo was a friendly dog who had never displayed any aggression, and that whenever her nephews and their children visited her house, he was fine with them.
Judge Gilmour again asked whether Mrs Riley and James had a muzzle for Zebo. Mrs Riley explained that she had only purchased a muzzle for Zebo after the police had taken him, in preparation for his hoped-for return as a registered pit bull ‘type’. Judge Gilmour seemed to take a dim view of the fact that Zebo was not muzzled when taken out to the park for exercise, but the question had not been put to Mr Riley or his mother as whether or not they knew the breed of dog, when in actual fact they both believed Zebo to be a Staffordshire Bull terrier cross, as his sire Tyson had been a Stafford cross and his mother Stella was a pure-bred Staffordshire Bull Terrier.
At this point, several character references for Zebo from family and friends were handed to the bench. The bench said they would read all the paperwork during the lunchtime recess.
After lunch, evidence was heard from veterinary surgeon Ms Kendal Shepherd for the defence. She showed a video to the court depicting her examination of Zebo, showing how friendly the dog was to herself, her assistant and her own dogs. Sadly, the video also showed the kennel sores and lesions Zebo had developed whilst in the kennels.
She told the court: ‘I found him exceptionally friendly, he was happy to give up his toys, he did not display that tenacity associated with Pit Bull Terriers.’ Her full report was lodged with the bench.
Describing her visit to the family home, Ms Shepherd said that ‘Stella was immediately a friendly dog and very healthy.’ Her report also referred to Stella as ‘readily identifiable as a Staffordshire Bull Terrier.’
Judge Gilmour asked her several questions, some related to Zebo being of the pit bull ‘type’. She replied on this point: ‘I wasn’t there to decide on type but on behaviour. Although in appearance Zebo could be described as a PBT type, his mentality and behaviour did not conform to the type.’
After a brief cross-examination by the Prosecution, in which Ms Kendal reiterated that Zebo would, in her opinion, not present a threat to public safety, Judge Gilmour considered all the evidence.
The Defence put to the judge the conditions under which Zebo could be exempted, but Judge Gilmour said: ‘I find this very difficult. In view of what Ms Shepherd has said, Zebo in no way constitutes a danger to the public, but if we decide this, does he still have to be subject to the same restrictions?’
In querying this point, Judge Gilmour had exposed an apparent contradiction in the DDA, in that if a dog was ruled NOT to be a danger to public safety and yet ‘of the type’, why did it still need to be muzzled and thus restricted?
The Prosecution stated that they were neutral and were content for an imposition of the usual conditions to secure the release of the dog.
The bench retired, then returned and made their ruling. Judge Gilmour said that he was allowing the appeal and that ‘we have formed the view that this particular dog doesn’t constitute a danger to public safety. We have regard to the expert evidence – which was not available at the magistrates’ court – that this is a friendly dog. Certainly the video has shown it to be high spirited and that the dog had not enjoyed much exercise at the time.’
He ordered that Zebo be registered as a pit bull ‘type’ and subject to the usual neutering, microchipping and tattooing, plus muzzling restrictions. In an interesting point of technicality, Judge Gilmour also ordered that Mrs Riley should be registered as Zebo’s owner and she should also be registered as his keeper. If there was provision for more than one keeper, then she and James Riley should be joint keepers.
A delighted James and Patricia Riley left court, thanking the bench, their defence counsel Lara Smith and John and Juliette Glass for the Fury Defence Fund for all their help and support. They said that they looked forward to having Zebo home to spend Christmas where he belonged, with his family.
Juliette Glass of the FDF told OUR DOGS: ‘We are happy that this nightmare is finally over for Patricia and James. They have had to endure many tragedies and have suffered dreadfully during this terrible ordeal. John and I both attended court. We have given in-depth support and comfort throughout, including financial help to a very deserving and caring couple. This is the first successful Liverpool appeal in the current batch of DDA cases in the area and it brought back memories of the Sandra Rowlands Appeal being upheld in 1998. We were in Liverpool all those years ago helping and supporting Sandra and her dog Buster during his three year incarceration. We continue with our vital work to this day, as sadly, the DDA is still with us.’