Nelson’s Tale

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Nelson was an 11 year old bull mastiff type dog who lived happily with his owner until September 2014. His life was turned upside down by the senseless murder of his owner in a street stabbing. Nelson was taken in by his owner’s mother and the pair were a great source of comfort to one another as they both grieved. The first few months were a time of great stress for Nelson’s family. There was no suggestion that this killing was anything other than an attack on someone who was in the wrong place at the wrong time but the police did catch the offender and they provided support in the form of well trained liaison officers who sat with the family and whilst doing so played with and fed Nelson treats. A trial followed which ended in March 2015 when the offender received a life sentence with a minimum period of 21 years in prison before he can apply for parole for what the sentencing judge described as a “despicable and cowardly” attack on a wholly innocent man.

Even though the  trail was over life was difficult for Nelson’s new owner. She had to come to terms with what had happened. For those of us who have not had our lives turned upside down in such circumstances it is difficult to imagine how hard it can be to get back to normality and, from time to time, the enormity of had had happened overwhelmed her. Nelson was ever present. He seemed able to sense distress and would place himself by his owners when there was no one else to comfort her. That was until the 25th May 2015 when visitors to Nelson’s home found his owner distressed and out of concern for her left the front door open and Nelson wandered out.

There is no suggestion that Nelson did anything other than amble about. He is by any standards an old dog, no longer as fit and agile as he was and he had reached that stage in his life when is content to wander about and sniff quite a lot. Unfortunately he is a pit bull type dog and there was a dog warden about and he was seized. The warden informed the police that they suspected Nelson was a pit bull type dog and when the police agreed rather than being taken home he was sent to police kennels despite being quickly traced by his owner. The grief of losing a son was now compounded by losing his dog.

The Dangerous Dogs Act 1991 makes it an offence to own a pit bull type dog. Pit bull type dogs are not a recognised breed like labradors or poodles and so the police and the courts have to decide if any particular dog shares a “significant number of the characteristics” of a pit bull type according to a standard set down in America. The standard is such that many of the features of a pit bull type dog are shared by other types of bull breeds and there are many examples of one litter of Staffordshire bull terriers producing dogs that would meet the pit bull standard and others that would not.

If a dog is a pit bull type the presumption is it should be destroyed unless a court believes that if were insured, microchipped, castrated, kept muzzled, on a lead in public and subjected to certain other conditions it would not present a risk to public safety. If the dog does not pose a risk to public safety the destruction order is suspended to allow the owner to have the dog exempted by the Department of Food and Rural Affairs. Of course court proceedings take time and the law used to be that suspected dogs had to be kept in police custody but, since March 3 2015, following an informal scheme set up by DEFRA and guidance from the Association of Chief Police Officers, the government introduced an interim exemption scheme that would allow dogs like Nelson to be returned home if their owners agreed to abide by the conditions of exemption that would apply of the dog were to be found to be a pit bull type.

Unfortunately Nelson was not returned home because Merseyside Police seized him and they have a policy of not returning such dogs under the interim scheme. They also have a policy of insisting that a court determines the fate of the dog rather than speeding up the process by agreeing to the making of a conditional destruction order that would lead to exemption as other police forces do. Whilst the police claim neutrality when presenting such cases to court the opinion of many of us who have observed their methods would not agree with that assertion.

In Nelson’s case the police solicitors delayed issuing the magistrates’ court proceedings that might secure Nelson’s release until July 10, 2015. By that time it had become obvious to those who were assisting Nelson’s owner and who had seen photographs of Nelson that he did not appear to be a pit bull type at all but in order to prove that a defence expert had to be appointed to examine Nelson and that meant further delay. Unbeknown to Nelson’s owner the police officer who inspected him was also having doubts and he made repeated visits to see the dog to confirm his opinion. He discussed the case with the two other dog legislation officers who regularly assess dogs for “type” and came to the conclusion that his original assessment was wrong. To that police officer’s great credit he admitted his mistake, told the force solicitors that the proceedings should be discontinued and that Nelson should be returned home as soon as possible.

On August 20 Nelson was assessed by a defence expert, Melanie Rushmoor, who formed the opinion that Nelson was not a pit bull but had more in common with a Bull Mastiff type dog. She, like everyone else who had seen Nelson formed the view that he was a friendly and submissive dog that was not likely to pose a risk to anyone. Mrs Rushmoor’s report was sent to the police solicitors.

You might be forgiven for thinking that the fact that the lead police examiner had decided Nelson was not a pit type dog, his findings had been confirmed in an independent report and the fact that Nelson had never been the subject of complaint might have caused the police to re-evaluate their position and withdraw the case, particularly given its tragic background. However, Merseyside Police believe that these cases must be determined by a court and so they decided to carry on and did not decide to send Nelson home.

It was in these circumstances Nelson was visited in the police kennels in Merseyside by a Metropolitan Dog Legislation Officer and Inspector Gareth Phelps who leads Merseyside Police’s Dog Section. If you follow dog cases you may have heard of Inspector Phelps before as it was he who ordered the seizure and immediate killing of 27 pit bull type dogs in Merseyside on March 27, 2014, something which was later found to be unlawful by the High Court, however I digress. The Metropolitan Police Officer formed the view that Nelson was a pit bull type and his statement was served on the defence the evening before the hearing that would decide Nelson’s fate. The defence were not afforded the opportunity to challenge that report in court as the Metropolitan Police Officer was not available to be called and his statement was served as “hearsay evidence”.

All the available evidence was presented to the Court on August 27 in circumstances where a barrister appointed by the police was in the unusual position of having to put to an experienced Merseyside Police Officer that his change of mind was wrong. It was apparent to those who saw that officer give his evidence that admitting that he had made a mistake had caused him particular difficulties and that taking the decision to make that admission had required considerable courage. It was not until the following day that the court assembled again to hear that the District Judge rule that he was not satisfied that Nelson was a pit bull type which means that Nelson is going home.

The costs of this case are considerable in terms of the emotional distress caused to Nelson’s owner and the costs to the public purse and Nelson’s owner.

Merseyside Police seek to reclaim £10 per day for kennelling a dog when they can. They could not do so in this case and therefore council tax payers in Merseyside will have to pick up a bill for £890 which could have been avoided if the police had adopted the interim scheme that would have allowed Nelson to go home whilst the court proceedings were addressed. They will also have to pay the costs of the Metropolitan Police Officer’s examination of Nelson.  Given that a same day standard class return from London to Liverpool costs £150 that cost is unlikely to be insignificant. Then there are the costs of the police lawyers and the barrister sent to court. In other similar cases the costs sought by the police for their legal costs have been in the region of £2,000 and there is no reason why the bill in this case should be any less. Neither should we forget the court fee of £205 which rises by a further £500 where a case likes this is contested and the actual cost to the public of the court hearing. So in all a bill of at least £3,750.

There may also be an additional collateral cost to the police. Cases like this have a tendency to affect the perceptions of those who are caught up in them. They question whether the faith they had been taught to place in the police and the respect they give the police as law abiding citizens is justified. What is Nelson’s owner to make of the support she received from the police when her son was killed on the one hand and then an application by the police that could have led to her son’s dog being killed?

Of course in this case one of the police officers did what we might expect of public officials and institutions. He questioned whether his initial decision had been correct and when he decided it was not he openly and publicly admitted his error and took steps to correct it. It would appear that the reaction of the organisation he serves and which should serve us was far less open and transparent and given the previous errors of this force in relation to dog related policy that is something that should concern us all.

Then there is the cost to Nelson’s owner. Those who find themselves defending cases like this are not eligible for legal aid.  That is in our view unacceptable as we know of cases where dogs have been handed over to the police for destruction by those who dare not or cannot afford to take the risk of defending the case even though they know handing their dog over to the police means it will be killed. That leads to the destruction of innocent animals and enormous distress.

In Nelson’s case we have reduced and subsidised the costs of defending the case, but as business we cannot afford the luxury of providing free advice in every case as there are sadly so many cases of this nature. Mrs Rushmoor gave her time and expertise for free and a Merseyside charity, Carla Lane’s Animals in Need, offered their assistance to Nelson’s owner and provided advice, guidance and a home assessment for use in court.

Of course the police are not responsible for the legislation. Many people recognise that the Dangerous Dogs Act 1991 promotes little more than canine ethnic cleansing which, if it were extended to humans, would be regarded as a crime against humanity. We might wonder how it is that our politicians have recognised that we must not discriminate or abuse people on the grounds of their appearance, ethnic background, colour or religion and have enacted legislation to prevent such behaviour and yet on the other hand brand dogs inherently dangerous simply on the basis their appearance. We might also care to ask ourselves how effective this Act really is. The answer seems to be that the provisions related to type have protected no one.

James Parry

James Parry is a solicitor advocate and partner at Parry Welch Lacey LLP.

You can follow Parry Welch Lacey on Twitter at @legalexpert_uk or Facebook at Parry, Welch & Lacey or on the web at http://www.uklegal.expert

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