Expert witness report regarding Spot Kirby – Kendal Shepherd, BVSc., MRCVS

Report regarding:-

9^th September 2022

Spot, a 10-year-old neutered female Staffordshire bullterrier/Jack Russell terrier crossbreed, belonging to Claire Kirby, 3, Coton Crescent, Shrewsbury, SY1 2NY

1. Purpose and scope of report:-

To give a retrospective overview of a Dangerous Dogs Act Section 3 case from the point of view of an expert witness in dog behaviour in the light of charges brought against Ms Kirby. These charges related to an incident in 2020 when it was alleged Spot was dangerously out of control in a public place, and whilst so out of control, caused the Claimant reasonable apprehension that she would be injured. During this incident, a dog belonging to the claimant was bitten and required veterinary attention.

Normally I would have a Solicitor’s instructions and would have received from them the Prosecution bundle, typically containing the charge sheet, a summary of the incident, record of Defendant’s interview, witness statements, particularly what was alleged to have happened by the Claimant, and medical evidence, including photographs of any injuries (human or canine). After the receipt of such documentation, I would be instructed to carry out a behaviour assessment of the dog and produce a report, taking witness statement and results of the behaviour assessment into account, which gives an opinion as to which version of events is the more likely and a view of the dog’s temperament and ‘dangerousness’.

On occasion, the report may call into question a dog’s (hence owner’s) guilt, particularly when the identity of the perpetrator is in doubt, but in the majority of cases, the report provides a rationale, hence probable mitigation, for a known dog’s actions following a guilty plea. I might or might not be required to attend Court, depending on whether my report and the opinions expressed in it was accepted by the Prosecution. (In my experience however, it can be the case that, despite a report being accepted, matters and questions arise in Court which do indeed require the personal attendance and response of an expert and it may be advisable to insist on attending to hear the live proceedings.)

Despite having legal representation from a firm specialising in dog law, Ms Kirby was not advised to get a behaviour assessment of her dog. This may have been with the intention of saving the Defendant expense; avoiding mental stress owing to her personal circumstances at the time; and the feeling that an expert report might not have any bearing on the question of guilt. The Court was therefore not supplied with any witness statements or live evidence regarding the incident and had only a guilty plea to inform their opinion of Spot. In addition, in my experience, the tendency in Magistrates’ Courts is to favour the Prosecution, in the questionable belief that the charges themselves cannot be without foundation and the police cannot possibly be wrong. An overarching problem is that the lower Courts are interested only in apportioning blame and retribution rather than investigating cause of an incident.

In essence, although advised to plead guilty to the charges owing to the offence being, for all intents and purposes, of a strict liability nature, Ms Kirby was not afforded the benefit of expert and independent analysis and rationale for the incident. This would have taken Spot’s history and the results of a practical behaviour assessment into account, which may have provided sufficient mitigation to offset the obligatory guilty plea and subsequent sentence. It must be stressed that the independent nature of expert opinion cannot ever be in doubt and that neither the Prosecution nor Defence evidence is assumed to be reliable by the expert unless underpinned and confirmed as likely to be true by as thorough a behaviour assessment as possible under the circumstances.

In Ms Kirby’s case, Spot was not seized following the incident, which would have afforded an expert the opportunity to assess her at home and, crucially, visit the site of the incident, where aspects of it could have been replicated with stooge dogs. Details of witness statements could have been confirmed or refuted, such as of distance run by a dog before injury occurred and time taken before a dog was retrieved – in my experience, though not necessarily with deliberate intent, frequently exaggerated.

As it is, I have now received from Ms Kirby:-

• The Defendant’s account of the entire experience and its ramifications, entitled ‘A sledgehammer to crack a nut: the Dangerous Dogs Act – a personal story’
• Defendant’s account of the incident itself
• Annotated photographs giving relative positions of the two parties prior to the incident
• History of the dog Spot

I have also received the Prosecution bundle as far as it goes, there having been no need to gather official witness statements owing to the guilty plea. The bundle contains:-

• A summary of the case
• A list of key witnesses from whom statements would have been taken
• A summary of the Defendant’s interview

I have not received as yet any photographs mentioned in the bundle, veterinary records for the bitten dog, Lily, nor invoice regarding treatment given.

Comments

 Although entitled ‘summary’ of the case, in my experience, it is far more detailed than a normal summary, even containing details of what insults were thrown, and more-or-less taking the form of witness statements. I shall therefore refer to statements made by witnesses as if these were indeed what they were.

Interestingly, the ‘key’ witnesses listed are only the injured dog’s owner and her daughter, and the daughter of the Defendant. The injured dog’s attending veterinary surgeon appears not to be considered a ‘key’ witness, yet when assessing the damage that a dog has done during a dog bite incident, its severity is crucial to prognosis for the perpetrator.

2. Summary of the incident and its aftermath as related by Ms Kirby also informed by photographs supplied by her

At around 6 pm in the evening of 27th April 2020, Ms Kirby was returning from her walk with her two dogs, Spot and Rover, an elderly male neutered Lurcher. She intended to remain on the same side of the road and turn left into her side street. However, they encountered Anita Cash and her daughter Marin, walking a small dog, a middle-aged female neutered Border terrier named Lily, who had crossed over the side street, thereby remaining on the same side of the road as Ms Kirby, and they began to approach her directly. As there was no room on the narrow pavement for two people and a dog to pass one person with two dogs safely, Ms Kirby retreated into a driveway on her left and waited for the Cash’s and their dog to pass by.

As they did so, Ms Cash’s dog suddenly barked at them, taking Ms Kirby and her dogs by surprise and causing her to drop both her dogs’ leads. Finding herself free, Spot retaliated by running towards the barking dog and biting her. Ms Kirby ran immediately to retrieve her dog, followed by Rover, who did not become involved in the incident. Ms Kirby was not given the opportunity to apologise nor to check for any injury, owing to the subsequent and constant screaming and abuse from Anita and Marin Cash.

Approximately a month after the incident, the incident triggered a visit from the police and Ms Kirby was invited to attend for a formal interview at the police station. It was then that she was informed for the first time that Lily, the dog belonging to the Cash’s, had been injured. Ms Kirby was shown photographs of two to three small scabbed over puncture wounds. Attending to these injuries had incurred veterinary fees of £55. Ms Kirby assured the police that she would ensure Spot stayed under control on lead from then on and offered to reimburse Ms Cash the vet fees. This was not enough to prevent Ms Kirby receiving a court summons for November 2020 and that she was being charged under Section 3 of the Dangerous Dogs Act, the allegation being that Ms Cash had reasonable apprehension that she herself would be bitten, owing to Spot being dangerously out of control. The evidence for Spot being so out of control was the bite injury, albeit very minor, to the dog Lily.

Ms Kirby now has a criminal conviction.

3. Points arising from documentation
4. Somewhat surprisingly, the Claimants’ version of events at the start of the incident largely concurs with Ms Kirby’s. It is accepted that that they remained on the same side of the road and that Ms Kirby and her dogs had retreated out of sight, although they had wrongly assumed she had entered a house instead of merely into a driveway. It is accepted that the Cash’s dog Lily barked first and that she was a ‘grumpy’ dog when on lead. It is also agreed that, as a result of Lily barking, Spot ran towards her and bit her.

(Ms Kirby appears to contradict herself slightly in that Spot is also described as ‘not liking other dogs’ in general in her interview, but in Spot’s given history, this dislike was confined to previous specific locations only.)

1. Anita Cash states that she attempted then succeeded to pick Lily up away from the attentions of Spot, at which Spot was on her hind legs. (This is an extremely ill-advised action, though very common finding in dog-on-dog conflicts. Not only does lifting a dog up increase frustration in both animals but also increases the risk of an owner being bitten by their own dog, a possibility that owners are often unwilling to admit.)

• The accounts of Anita and Marin Cash differ as to what Spot did and when but variously allege they were in fear of ‘being torn apart’ and that Spot was behaving ‘as if she was about to kill’. Anita Cash describes how thought Marin might be bitten as she was ‘batting’ Spot away with her hands and pushing then kicking Spot away with her left foot.

1. Anita Cash insists that she doesn’t understand why Ms Kirby did not assist in retrieving her dog at all whereas Ms Kirby asserts she grabbed Spot’s lead within seconds.

1. The incident itself is said to have lasted three to five minutes, the vast majority of which appears to have consisted of inter-human, rather than inter-canine, conflict. Marin Cash states that she heard Ms Kirby asking her mother several times to calm down, to which she herself responded by saying, ‘It was your fault’ as she had dropped the dog’s leads. Ms Kirby is alleged to have told her to ‘shut up’ to which Marin Cash responded by calling her a ‘dickhead’. Ms Kirby is said to have accused the Cash’s of causing the incident as they did not cross the road to keep the dogs apart.

1. The sound of people screaming at each other alerted Ms Kirby’s daughter, Ester, who was out searching for a missing cat. Only as she approached closer did she realise that the person being screamed at was her mother. She tried to take her mother’s arm as if to say, ‘Let it go’.

• At no point did her owners examine Lily for bite marks and Ms Kirby states that she wasn’t given the chance. Only once home does Marin Cash describe a ‘a huge bite mark on the lefthand side of Lily’s stomach which was tennis ball size’. No other marks were seen owing to ‘the thickness of her fur’ and it was only seemingly at the instigation of PC Langford that photographs were taken ‘some days later’ (actually on 30^th May and 1^st June) when scabs were noticed in the fur.

• Anita Cash states that, after ‘eventually’ collecting herself at home, she managed to call Quarry vets regarding Lily’s injuries, the implication being that this call was made shortly after the incident. The vet records however state that the call was not made until 1^st May, four days after the incident, and that no appointment to examine Lily was thought necessary. The next day, as Lily was suffering with diarrhoea, thought to be due to stress after the incident, and photographs (the same as those sent to PC Langford) of the scabbed-over injuries were emailed to Quarry vets, antibiotics were prescribed. Again, no examination was thought necessary, and no further conversations took place regarding the incident. The vet notes describe the visible injuries as ‘2 small puncture wounds & 2 partial thickness grazes, with some mild surrounding bruising’.

1. Subsequent to the incident, the Cash’s appear to have discovered what Ms Kirby’s occupation was and investigations were made by them on social media and the internet. The results of their investigation were sent to PC Langford at her request, namely Ms Kirby’s business (4-Legs-Good Pet Behaviour Counselling) with address and contact details.

Note – At the end of the extensive case ‘summary’, there is the unusual caveat that ‘Due to Coronavirus and being unable to get signatures from Victims and Witnesses, there were many emails between them and the OIC to establish the full details, clarify and make changes of their statements. Confirming they were happy with their statements as well as the sending of photos.’

This may be in anticipation of the matter going to trial but it is clear that the case summary was to serve in lieu of statements.

4. Relevant details of Spot’s history
5. Spot was obtained by Ms Kirby in 2012 as an eight-week-old puppy, being the single survivor of a litter born by Caesarian section to a stray bitch picked up on the streets while in labour. Spot remained with her mother in rescue kennels for the first eight weeks of life.

1. Spot was socialised and trained by Ms Kirby herself, being a professional and highly experienced dog trainer. Only positive reinforcement training methods were used.

• Spot is known to be a reactive and impulsive dog, often ‘acting first and thinking later’. Although highly responsive to commands when able to concentrate, she is easily distracted particularly by novelty or unpredicted events in the environment. She has a marked tendency to bark at post persons and at any visitors to the house but settles as soon as they enter, showing no aggression.

1. Unfortunately, Spot herself has been barked at and attacked by other dogs on several occasions leading to lasting negative associations with certain locations on her regular walks. Ms Kirby despite her experience has found these associations difficult to reverse, possibly owing to Spot’s innately reactive nature. She regularly reacts to and barks at unknown dogs and is therefore routinely kept on lead in their presence.

1. Spot can object by vigorous wriggling to grooming and handling around her head and forequarters. She is not a particularly affectionate dog but has never shown any overt aggression to people.

1. Early in life, Spot suffered a back injury which is regularly monitored by her attending veterinary surgeons. She receives pain-relieving medication for this and regular hydrotherapy. In addition, she has a long-standing luxating patella which results in a skipping hind limb gait.

5. Comments upon the incident as described taking Spot’s history and points of comment and dispute into account
6. It is acknowledged that Spot has shown some problematic behaviour throughout her life, in particular that she seems less able to process and cope with novelty. This may be owing to her very early life experiences, including in the womb. It is known that undue stress in the pregnant bitch affects the developing puppies in such a way as to render them less able to maintain emotional homeostasis and to cope with stressors later in life. Ms Kirby has therefore taken great care to keep Spot under control in the presence of unknown dogs, including taking the only steps she could to avoid contact with Lily. Dropping Spot’s lead was an unforeseen accident.

1. Spot had been barked at regularly at a location very close to that of the incident which is likely to have resulted in Spot already being on high alert before being barked at by the Cash’s dog. This may help to explain her excessive response on this occasion in causing actual injury.

• I am unable to comment further upon the nature of the puncture wounds without sight of the photographic evidence but am informed by the veterinary notes. Of greatest significance is that veterinary care was not sought by Anita Cash until four days after the incident and even then, no examination or medical treatment was given other than telephone advice to keep the puncture wounds clean.

1. I am able to say that the wounds as described are not evidence of a dog intent on doing serious damage, despite the Cash’s assertions. The fact that Spot did not injure either Anita or Marin Cash, in spite of their ill-advised interventions in the form of picking Lily up and admittedly trying to hit and kick Spot away, is testament to Spot’s good nature toward people.

1. The time the whole interaction lasted is not disputed. Whether or not Ms Kirby intervened and how long it took her, if she did, is however a bone of contention. Ms Kirby asserts she was approximately 12 meters away from the Cash’s in the driveway, that it took her two seconds to run into the road where the incident occurred and grab Spot’s lead. Anita Cash on the other hand alleges that Ms Kirby did not intervene at all. In my opinion, this latter allegation is scarcely believable.

1. Had an expert been able to visit the scene and ask Ms Kirby to replicate her actions on the day, this may have assisted in determining the veracity of the witness statements. Video evidence of the exact nature of a location can be very helpful in determining the more likely version of events. In addition, if indeed the minor damage to Lily is as described in the vet notes and depicted in photographs, it must be questioned what all three dogs were doing after canine conflict ceased and the human argument continued.

• In my opinion, allowing a very minor dog bite injury to another dog to automatically infer danger to a person, thereby justifying their apprehension and a Section 3 DDA charge, is itself a very dangerous precedent to set. In effect, what is evidence of a minor and very common squabble in canine behavioural terms (the molehill) is being ascribed the proportions of a mountain. I understand that ill-advised intervention in a dog fight is a common cause of human injury, particularly when there is no mean of physically separating the dogs other than by grabbing collars, skin or other body parts. This however was not the case in this instance as all dogs had leads attached to their collars.

• It is highly unusual in my experience for ‘reasonable apprehension’ of injury to a person to be sufficient grounds for a Prosecution to be not only undertaken, but also successful, without evidence of actual harm to a human. It is however assumed that if an injury, however caused and to whom, occurs, then there must have been apprehension of this immediately preceding the event, even though no prior warning is given by the dog. This premise was rather illogically and unfortunately supported by the High Court judge in Rafiq v. DPP (1997).

1. Spot was not taken into police custody following the incident nor was any Control Order put in place while awaiting a court hearing, as might be expected in the light of the authorities declared aim – to protect the public from a dog believed to be a risk to public safety. This adds further evidence that the police themselves did not consider Spot to be a danger and calls into question the pressure they applied for Ms Kirby to ‘take the path of least resistance’ and plead guilty. There is no evidence either in Spot’s history or during the incident in April 2020, that any aggression was directed towards Ms Cash It is of course understandable that dog owners, both of the perpetrator as well as the victim, may be upset and shaken by such incidents, but this should not alone, in my opinion, be sufficient reason for the full weight of the criminal arm of the Dangerous Dogs Act to be brought to bear on what was essentially an accident.

1. Veterinary fees of £55 is the absolute bare minimum that a client can be charged for treatment required following a dog bite injury. The veterinary notes as summarised in the bundle, as suspected, covered a telephone consultation in normal hours with advice to bathe any minor wounds and the prescription of a course of precautionary antibiotics, more to treat the diarrhoea than the wounds themselves. It is certainly not evidence of a dog intent on causing serious harm.

1. Finally, it must be noted that barking of itself may be but is not necessarily part of an aggressive repertoire. It is used for many purposes, not least to alert others to the arrival of visitors and potential intruders. It is frequently inadvertently rewarded and reinforced by its apparent success, as potential intruders (post people or passers-by) appear, in the dog’s perception, to depart as a direct result of barking. A dog is not to know that passers-by were going to pass by anyway.

• Spot had a history of wariness of certain locations which led her to believe the worst of such sites. In Spot’s perception, therefore, Lily’s barking would have confirmed her negative associations and suspicions and would have been viewed as a social afront in this location. She reacted accordingly.

6. Conclusions

1. There is nothing in Spot’s reaction or in the documentation that indicates any animosity whatsoever towards Anita Cash herself or her daughter, whatever apprehension of injury was alleged.
2. A little foresight on the part of the Cash’s, to avoid a direct approach on a narrow pavement particularly as they were aware that their dog might bark at an approaching group, might have avoided the precipitation of the incident entirely. Ms Kirby is also fully aware that had she not dropped her dogs’ leads, Spot’s unfortunate response to Lily’s bark, the whole incident would have been avoided. In essence, the incident was a very minor accident which seems not to warrant the punitive and costly actions the authorities subsequently took.

• One cannot help but be left with the suspicion that Ms Kirby was treated unnecessarily harshly in being pursued by the claimants and the authorities owing to her professional position. It certainly cannot be because there was any real belief in anyone’s mind that Spot was a dangerous dog.

Kendal Shepherd, BVSc., MRCVS

9^th September 2022