Duke allowed home after nine months
AFTER NINE months in custody held under the 1991 Dangerous Dogs Act, accused of being of Pit Bull Type, ‘Duke’ a six-year old crossbreed was ordered by Prestatyn Magistrates to be returned to his owners.
The magistrates accepted submissions by defence solicitor Lara Smith and the witness testimony of Identification expert and behaviourist Dr Roger Mugford and Veterinarian Kendal Shepherd that Duke was not a pit bull ‘type’ dog.
Duke, owned by John and Wendy McGowan from Liverpool had come to the attention of the police after they were called following a disturbance, during which Duke was attacked by a group of men whilst the family were on holiday at a caravan site in Prestatyn in June 2007. After much provocation, including being hit with a bin and ashtray Duke eventually had no choice but to defend his master and the family’s other dog Duchess who was also present, with the result that he bit his attackers, Police were called and removed both dogs on suspicion of an aggravated offence under Section 3 of the DDA.
However, due to the circumstances surrounding the incident it was decided not to bring charges and Duchess was released. However, police thought that Duke was of pit bull ‘type’ and therefore illegal, so he was detained under Section One of the Act.
The McGowans sought help via the anti-DDA group Deed Not Breed who assisted them in preparing a defence. The case was expertly defended by solicitor Lara Smith in a two-day trial which began on March 18th.
Prosecutor Mr Maidstone opened the prosecution case. The prosecution stated that Mr John McGowan was in possession of Duke a ‘pit bull type’ dog on 16the June 2007. He was seized due to an incident in Prestatyn which would be outlined by witness evidence.
Mr Maidstone then began to make his application regarding alleged bad character relating to defence expert Dr Roger Mugford (see below). Lara Smith objected to this on the grounds that it was served extremely late within the proceedings and the defence had therefore been denied the opportunity to prepare for the bad character application.
The magistrates decided that they wished to hear the application despite these representations. Having heard the application, they moved to the trial itself.
The prosecution read evidence from Mr Derek Swindells, and Mr Royden Hilton and then called Pc Jill Tumilty to give live evidence.
Pc Tumilty gave evidence as to her experience and training. She stated that she had assessed Duke in a secure kennels in the Merseyside area. She stated that the assessment took from 11.00-11.30am and took certain measurements at close quarters to assess Duke for conformation to ‘type’.
She said that Duke was square from the side and had a ‘pump handle tail’ which was set low and went down to the elbow of his leg, and that Duke was a good, friendly dog who had a light and springy gait. She said that his head was round from the front and wedge shaped from the side, rather than the pear shape of a Staffordshire Bull Terrier.
She also stated that the conformation states the dog may have various traits but does not say it has to have these traits and that she was assessing Duke as to ‘type’ not as to whether he was a pure bred APBT.
Pc Tumilty said his eyes were elliptical from the front and triangular from the side, that his neck was long in proportion to his body and he has substantial characteristics of a APBT. She did say however that Duke’s head did not conform, as the measurements of nose, stop and occiput did not match the conformation standard.
During cross examination, Pc Tumilty stated that her experience was based solely in the UK and that she had not knowingly ever examined a pure bred APBT, but she stated that it is not always possible to tell the difference between a type dog and a pure bred dog.
Pc Tumilty stated that the conformation standard was designed for a pure bred dog.
Pc Tumilty conceded during cross examination that as regards Duke’s eyes and coat, she stood by her assessment and the photographs that witness Peter Tallack had provided were deceptive and that this explained the difference between her assessment and the photos. She also conceded that Duke did not match all of the conformation standards on the points that she had considered and that there were many points which she had not considered.
During re-examinations she stated that measurements were ‘not the be-all and end-all’ and that some dogs are easier to examine than others, She also stated that she assessed a dog by eye rather than measurements.
Court adjourned at 4.45pm until the following day, when the trial recommenced early at 8.45am.
The prosecution began its case with the evidence of Mr Peter Tallack on ‘type’. Mr Tallack stated that he assessed Duke on February 19th 2008 and was with him for approximately 1 hour and 5 minutes. He stated he used to ADBA standard as his reference material. Mr Tallack went on to say that the 1991 Dangerous Dogs Act was a preventative act to stop animals attacking people. During cross examination, he stated in response to the remark that dog attacks had actually increased that statistics could be slanted but that he could say that there are people alive today who would not be had the act not been created.
He also stated that there were a lot of fallacies around regarding the Pit Bull Terrier and that the true fighting dogs of the pure breed strain do not show any aggression towards humans whatsoever and it is in fact a major fault, so if a dog showed any human aggression it would be destroyed and the line would not be bred from anymore. He said that the handlers were in the pit with the dogs during a fight and would not be so if they thought there was any danger. However that when these dogs were crossed with other breeds and had irresponsible owners then aggression could be an issue and that there were problems outside the fighting lines.
Regarding Duke, Mr Tallack said his first impression was that he was of the pit bull type and that he then used the conformation to check his first impression.
He also said that he understood there had been problems with Duke’s health whilst in kennels but stated that when he saw him he had no such concerns.
He stated that his head was wedge shaped from the side and top and round from the front, that he was square and his height and weight were in proportion. However during cross-examination he accepted that he had not weighed Duke and could therefore not argue against Dr Mugford’s weight and height measurement.
He said that Duke was not a perfect pit bull and there were areas where he did not conform.
He stated that Duke’s head was two-thirds the size of his body (shoulders) but accepted in cross examination that he had not taken any measurements He stated that Duke had several faults, including:
• Cheeks, no masseter muscle development
• Nose to stop and stop to occiput did not match
• His zygomatic arch was not wider that his eyes
• His muscle development was low
• Jowls were slightly lippy
• His teeth had a level bite
• His eyes were not that small
• His shoulders were level with the 8th rib
Specifically the nose to stop and stop to occiput were important as his measurements they were significantly different to those of PC Tumilty.
He accepted that many of the points where Duke did conform were those which would apply to any dog i.e. scapular and humerus and his feet being high on the pasterns as most dogs are unless they are genetically faulty or elderly. He was unwilling to comment on the incident which had led to Duke’s incarceration, as he was not a behaviourist.
Mr Tallack accepted that there was no suggestion that Duke was a fighting dog or had ever been used in such a way.
He stated that he had been wrong in his first impression when assessing a dog previously and that first impressions were not always correct; however he was adamant that his first impression in this case was correct although there was little by the way of measurements to back this up.
Pc Threlfall was then called and he stated that he had spoken to Mr McGowan on the evening of the incident. He stated that he had been told that Duke was of the pit bull type but he could not remember who had told him this.
The prosecution then closed their case by reading Mr McGowan’s interview.
The defence began their case by calling John McGowan to the stand to give evidence. He stated that he bought Duke as a Lurcher cross mastiff dog, He stated that he had had Duke for four years since he was a puppy and prior to this incident he had never had any problems with Duke, and that on the day in question he was more concerned about Duchess, as she is less tolerant normally than Duke.
Wendy Hurt, John McGowan’s partner of eight years then gave evidence as to Duke’s temperament and how much time she spent with him. The defence called Dr Mugford to give evidence.
Lara Smith began by dealing with Dr Mugford’s previous experience and CV. Dr Mugford gave evidence as to cases he had previously dealt with and how he had gained his experience including experience he had gained overseas.
Dr Mugford gave evidence regarding court cases that he had given evidence as to type and stated that he had given evidence during the original crown court cases of Dunne and Brock.
Miss Smith then dealt with the matter of the unedited footage from the UTV programme (see below).
Dr Mugford then gave evidence as to the specifics of the case and why, in his opinion Duke did not fall within the conformation standard of the pit bull type dog. He pointed out the many faults which Duke had. He also pointed out the faults which all parties agreed upon, as well as the points which Pc Tumilty and Mr Tallack had failed to assess.
During cross-examination Dr Mugford was asked if he had ever appeared for the prosecution. Dr Mugford stated that he had appeared in court for the prosecution on one occasion but also stated that he was rarely asked by the prosecution and that often he had advised before court and the matter had never been before the court. He also stated that he had given advice to Dorset, Bristol and Sheffield County Councils. He also said that there were very few independent experts prepared to give evidence in court, as people did not wish to put their head over the parapet and expose themselves to cross-examination.
Dr Mugford stated that he examined Duke with Mrs Kendal Shepherd, and said that Mrs Shepherd had previously worked with him and that they had travelled to Liverpool to assess Duke together in an attempt to save public funds.
He stated that he had recently assessed the dog of Dean Daniels which had been a ‘jolly fine specimen’ which showed many of the conformation points.
He went on to say that he went to peoples’ houses as his instructions were to assess the dog for type and also to assess whether the dog was a threat to public safety, but that this did not compromise his assessment of the dog as to type as the home visit did not take place until after he had formed his opinion of the dog on type. He said that he also advised what the exemption conditions are as to assess the safety of the public he needed to know if someone was prepared and capable of complying with the conditions.
Dr Mugford explained that he used the ADBA standard as stated in Dunne and Brock rather than the new ADBA standard as shown on the ADBA website. Discussing Duke’s anatomy he stated that he did conform on some points however he had many shortcomings anatomically.
He said that he was ‘not a pro-defence expert but he was pro-dog and that he liked dogs’. He stated that Duke’s musculature was not suitable for a fighting dog as he did not have the muscular definition required for fighting, and also that although Duke’s muscles would obviously not be developed after the time in kennels; he did not feel that they could be developed under any circumstances to the level required for a fighting dog.
Dr Mugford stated that Duke was undershot which is very unusual and pointed to a ‘bulldog’ heritage. He stated that there were problems with Duke’s anatomy and with people taking measurements who are not aware of the anatomy of the dog and simply blindly follow the conformation standard without knowledge of the dog’s anatomy.
The DVD filmed by Dr Mugford and Mrs Kendal Shepherd was then played and Dr Mugford gave a running commentary. He stated it was apparent that someone had undertaken extensive training with Duke, as he would sit for a titbit, walk to heel, stay on command and come on recall.
Dr Mugford commented on Duke’s lack of chase, game and play involvement in the video. He said that it seemed that Duke was a well socialised dog as he dealt with humans, other dogs and livestock well and responded to commands.
He further went on to state that he was happy to make an assessment on his own; however it was easier to assess a dog with another person and he felt it was of assistance to have his measurements of anatomical points backed up by the agreement of a vet. Dr Mugford also stated during his evidence that he did not deal with dog fighters and did not represent them.
Mrs Kendal Shepherd then gave evidence as a vet. She stated her speciality was in veterinary medicine and gave evidence of her experience within this area.
She gave evidence of how long she had known Dr Mugford and cases she had given evidence in. She also stated that she used to work for Dr Mugford but had only given evidence in one other case in which he was involved.
Mrs Shepherd gave evidence that if Duke was indeed a Lurcher mastiff cross as was put across by John McGowan he would fit the pattern. Mrs Shepherd stated that not only was she an expert and under a obligation to the court she was a veterinarian and was bound by her veterinary oath.
She said that Duke appeared to have been well socialised and the training which he displayed was of an excellent level. She stated that the bites during the incident leading to his seizure displayed a lack of intent by Duke to inflict serious harm and the fact that he had gone to a stranger on recall showed that he did not wish to be involved in the incident. She also stated that barking and biting were not signs of aggression but signs of fear.
The magistrates then retired to give the defence time to prepare closing.
Lara Smith closed the case stating that John McGowan had bought Duke as a Lurcher cross mastiff and there was no evidence to show that he had knowingly bought Duke as a pit bull type dog. She pointed out the weaknesses in the prosecution case and the points where Duke varied from the conformation standard, asking the magistrates whether they thought Duke McGowan would be a good fighting dog. The prosecution had made much of this as a basis for confirmation and it is accepted that it is important.
The magistrates retired for two and half hours before returning to deliver their verdict.
They acquitted Mr McGowan.
They magistrate’s chairman stated that they had heard from Mr McGowan and Wendy Hurt who could only comment ontemperament and from Mrs Shepherd as to veterinary evidence and temperament. They heard from experts who took a mixture of approaches, and that Pc Tumilty and Mr Tallack ‘had been selective in taking their measurements’, and that ‘Dr Mugford had been filmed and was thorough’. There were two different outcomes on this complex matter and some of the decisions were subjective. They stated there was no conformity between the experts. They acknowledged the complaint regarding Dr Mugford’s ‘bad character’ but accepted that experts attended court to give evidence with integrity and to the best of their ability. They felt that uncertainty had been created as to the conformation and as to type under the ADBA standard and they felt that on the balance of probabilities Duke was not of the pit bull type. They therefore found Mr McGowan not guilty.
Outside court, Mr McGowan was understandably very happy and said he wanted duke home as soon as possible. Mr McGowan readily agreed on advice that he should have Duke microchipped whilst he was still in custody and obtain a letter from the police that stated that Duke was identifiable by this microchip and had been the subject of a criminal proceedings of which he had been acquitted This would be important in preventing Duke being seized again in the future.
This was organised and Duke was released to his ecstatic owners – and of course, his Duchess at lunchtime the next day.
Duke was found to be in worryingly bad condition when assessed by Dr Mugford and that an independent veterinary report was sought regarding his poor condition. A request is now to be made to the RSPCA that they look into the matter.
When asked for a quote regarding the case Solicitor Lara Smith said: “We are glad that the court heard all of the evidence in this case and came to the right decision. Mr McGowan has always maintained that Duke was not a pit bull and that he was a lovely dog who did not deserve to be seized. We are grateful he has now returned home where he belongs. We hope that other dogs will not be seized when the level of conformation to type is so low as this would mean suffering for many more dogs and their owners.”
‘Sting’ on defence witness
Prosecution counsel Mr Maidstone stated that Dr Mugford on 13th August 2007 was the subject of a ‘sting’ operation by the USPCA in Ireland. They had brought him in to assess a dog named Nipper, which they could prove was a Put bull terrier and they filmed this assessment. The CPS stated that the footage would show that Dr Mugford is not impartial.
Dr Mugford was confident that he could deal with all of the allegations made.
The CPS continued their application and stated that Dr Mugford created a short film which was filmed by a man he was led to believe was named Paddy Hill in which he stated that Nipper is clearly not a pit bull.
In the subsequent report Dr Mugford states that he formed the ‘instant impression’ that Nipper was not a pit bull.
The magistrates then stated that they would wish to begin hearing the substantive part of the matter.
Dealing with each of the prosecution points raised during the application for bad character argument and other pertinent points: i.e. Dr Mugford stated during the DVD that his checklist is objective and you have to be honest.
He stated that his initial impression was that Nipper was a pit bull type dog however when he assessed him he did not match up on many points.
He said some of the points with which the prosecutor took issue were said because Paddy Hill was there and ‘wanted a response’.
He also stated that during the conversation with Paddy Hill which was not recorded. Paddy Hill had stated that he wanted to take his dog back to Finland when he was released. Dr Mugford stated that this was the reason he had stated if Nipper was in England he would say he was a pit bull type. This would be the quickest way for Nipper to be returned to his owner if they resided in England.
The magistrates seemed to accept this explanation and, in their summary after acquitting Duke of all charges accepted that experts attended court to give evidence with integrity and to the best of their ability.
With thanks to Melanie Rushmore, Fireside Breeds Rescue