R v C

Samuel March, 14 November 2022

On 10 November 2022 to 14 November 2022, Swindon Crown Court heard a case about a dog (“R”).

The Facts

It was alleged that on 03 October 2021, R had jumped up on a police sergeant, and on 11 November 2021 that he had done the same to two police community support officers (PCSOs).

On both occasions, officers had visited R’s human companion’s address to conduct routine checks on a closure order. It was an agreed fact that the order was in place because the defendant had been taken advantage of by others, who had used his property to conduct criminal activity. As a result, a closure order was in place preventing anyone but the defendant from being at the property.

As a result of the incidents, all three officers alleged that they sustained some scratches and/or reddened skin, and two of them had taken photos of the marks in question. The police sergeant in the first incident allegedly sustained a nip to the wrist causing a light scratch. The first PCSO in the second incident was allegedly bitten to the elbow, causing a small red patch that lasted somewhere between 20 minutes and an hour. The final PCSO allegedly sustained a bite to the wrist that did not puncture the skin, and a slightly longer scratch to the left thigh where R had jumped up. On no occasion had the skin been punctured, none of the officers needed time off work, and no officer required as much as a plaster or antiseptic wipe.

As a result of these marks and scratches, R’s human companion was charged with three counts of being the owner of a dog dangerously out of control causing injury to a person, contrary to s.3(1) Dangerous Dogs Act 1991.

At trial there were a number of factual disputes about whether R was aggressive or merely boisterous and whether some of the marks were the result of bites as opposed to butts or scratches; but the central issue in the case was whether the various scratches and marks could really be characterised as injuries.

The Law

Because of this issue, a legal argument arose on 11 November 2022 as to how the jury should be directed as to the meaning of the words “injures any person” for the purposes of an aggravated offence contrary to S.3(1) Dangerous Dogs Act 1991.

This appeared to be a novel point of law, and neither counsel had been able to locate any decided authority on the matter. Counsel for the defendant argued that whilst injury was an ordinary word to be given its ordinary meaning, the jury might benefit from some additional “gloss” or guidance, as is common practice in cases of assault occasioning “actual bodily harm” (ABH), contrary to s.47 Offences Against the Person Act 1861. It was submitted that that “injures any person” in this context, meant something similar to “bodily harm” in that context. Attention was drawn to the discussion of that term in R v Donovan [1934] 2 K.B. 498. In light of that authority, it was submitted that a harm cannot properly be categorised as an “injury” in the context of the aggravated offence where it is “merely transient or trifling”.

The prosecution argued that the defence submissions were unsupported by precedent and that no gloss or guidance was necessary and that injury should simply be given its ordinary meaning.

Held

HHJ Townsend considered the matter and ruled that “injures” was indeed an ordinary word to be given its ordinary meaning. It was clear from the context of the offence that “injures” referred to personal injury as opposed to any wider notion of injury. In the context of the offence, he could see no difference between the concepts of “injury” and “bodily harm”, and that the word “actual” added nothing of significance to the 1861 act that he could discern. As such he considered that the same “gloss” routinely given to juries in ABH cases was potentially helpful to the jury in this case.

With this in mind, he included the following in his written and oral directions to the jury on 14 November 2022:

“Finally, the prosecution would have to prove that R caused an injury to the relevant police officer or police community support officer. “Injury” is an ordinary word, with no special legal meaning. An injury could include any hurt or harm calculated to interfere with health or comfort. It need not be permanent or serious, but must be more than merely transient or trifling. It is for you to judge whether the things that the witnesses say they suffered as a result of R leaping up at them amount to an “injury” in the ordinary sense of that word.”

On 14 November 2022, R’s human companion was unanimously acquitted on all three counts.

Commentary

It is worthy of note that where a defendant is tried on indictment for an aggravated DDA offence, there is no power for a jury to return an alternative verdict and convict a defendant of the non-aggravated offence of merely being the owner or person in charge of a dog who is dangerously out of control. As such, if the offence is tried in the Crown Court, it is an all or nothing trial: the Crown must either prove injury, or the defendant falls to be acquitted entirely.

The legal significance of the ruling is limited in that this was a decision of the trial judge at first instance. It sets no binding precedent and need not be followed by other courts of first instance. Nevertheless, it may be considered to provide persuasive support in similar cases, where minor harms are alleged to constitute injuries. It may in particular be a helpful example to refer to when writing letters of representations to the CPS. When making representations on charge, parallels could be drawn to the CPS guidance on ‘Offences against the Person, incorporating the Charging Standard’ contains as section entitled Common assault or ABH: Decision on charge. This states:

“Unless there are aggravating features, the appropriate charge will usually be contrary to section 39 [common assault rather than ABH] where injuries amount to no more than the following:

• Grazes;

• Scratches;

• Abrasions;

• Minor bruising;

• Swellings;

• Reddening of the skin;

• Superficial cuts”

Where the extent of the harm alleged is no more than the sorts of things included in the above list, a sensible and pragmatic reviewing lawyer may take a view on the public interest and/or prospects of success of pursuing the aggravated offence, particularly where a defendant is willing to plead to the lesser offence. It took a year for this matter to come to trial in the Crown Court, and with the current Crown Court backlog that could be considered fairly speedy. Given that dogs are often seized and kept in kennels at great cost and with potential welfare concerns, speedy resolution can be in the interests of all involved.

The difference between the aggravated and non-aggravated offences does not just result in a lower potential sentence for the human defendant, but has a bearing on the ancillary orders that must or may follow for the dog.

A conviction for the aggravated offence carries a presumption that the dog in question should be killed under a “destruction order”; in such cases the burden falls on the defendant to prove that the dog would not constitute a danger to public safety if released under a “contingent destruction order” (CDO) instead. The court MUST at least make a CDO, and these can carry stringent conditions which the dog’s life then depends on. Conversely for a non-aggravated offence there is no such presumption and in appropriate cases a court could decide to not even make a CDO.

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.