No: 201605303/C4 

Neutral Citation Number: [2018] EWCA Crim 1215
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 18 May 2018
B e f o r e:

LORD JUSTICE McCOMBE 

MR JUSTICE DINGEMANS 

HIS HONOUR JUDGE TOPOLSKI QC
(Sitting as a Judge of the CACD)  

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R E G I N A 
v 
GARY THURLWELL

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Non‑Counsel Application 

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J U D G M E N T
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1.	MR JUSTICE DINGEMANS:  The applicant seeks permission to appeal against his conviction and sentence and the applications have been referred to the full court for consideration as to whether there should be a summary determination pursuant to section 20 of the Criminal Appeal Act 1968.  
2.	Section 20 of the Criminal Appeal Act 1968, as amended by the Criminal Justice Act 1988, provides:  
"If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer the appeal or application for leave to the Court for summary determination; and where the case is so referred the Court may, if they consider that the appeal or application for leave is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss the appeal or application for leave summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon."  
The proceedings below 
3.	On 28 October 2016 in the Crown Court at Leeds the applicant pleaded guilty to being in charge of a dog which was dangerously out of control on an agreed facts basis.  The applicant was sentenced to six months' imprisonment suspended for 24 months, with residence and curfew requirements.  A victim surcharge order was imposed.  The dog was ordered to be destroyed.
4.	The applicant had originally been charged together with persons known as Caple and Oxtoby, the owners of the dog.  It appears that Oxtoby is related to the applicant and Caple was her partner.  Proceedings against them were terminated when no evidence was offered against them and not guilty pleas were entered.  They remained at the hearing however to make representations to the effect that the dog should not be destroyed.  The dog was ordered to be destroyed.
5.	The circumstances giving rise to the applicant's plea of guilty are as follows.  On 13 January 2016 at about 12.05, PC Dryden and PCSO Lewis were summoned by PCSO Noonen and attended the applicant's home address at 26 The Green, Acomb, York to apprehend a man known as Clark, who appears also to have been related to the applicant.  PC Dryden attempted to gain access to the property, but the applicant refused entry.  He relented and allowed the officers into the house.  They went into a living area and the applicant opened another door allowing the dog into the living area.  The dog was a Staffordshire Bull Terrier cross‑breed called Diamond.  The applicant was looking after the dog for Oxtoby and Caple who apparently lacked accommodation suitable to house a dog.  The dog was subject to a previous control order at York Magistrates' Court imposed in April 2015 after the dog had bit another dog.
6.	The defendant kicked the dog and said words to the effect: "It's not my fault if the dog bites you."  He then kicked the dog again.  The dog leapt up and attempted to bite PCSO Lewis.  PC Dryden told the applicant to get the dog under control but did not do so.  PC Dryden hit the dog with his asp.  The dog leapt up and bit PC Dryden, latching on his left forearm, sinking his teeth into his skin and biting him.  Oxtoby and Caple turned up at the property and the dog was secured.  The applicant was arrested.  The applicant said, he was not aware the dog was there and the dog had come straight through and attacked the police officers.  He denied goading the dog, saying he told the officers to be careful in case the dog bit them.  
7.	There was an agreed basis of plea which provided that the applicant had before the attack on the police officers shouted and kicked the dog in an attempt to stop it going to the police officers and not in an attempt to goad the dog.  The applicant had not responded to a request to control the dog, but he did not goad or encourage the attack.  It was agreed that this was a Category 2B offence for the purposes of the relevant guideline, which provides for a sentencing range from a medium level community order to one year's custody.  Aggravating features were that there were two separate attacks by the dog in the course of the living room incident.  The applicant had previous convictions for dishonesty and some very old (19 years before) convictions for wounding and assault.
8.	It was agreed that section 4(1)(a) of the Dangerous Dogs Act provided for the dog to be destroyed by saying that the court may order the destruction of the dog and shall do so in the case of an offence under section 1 or an aggravated offence under section 3(1), although the relevant sections went on to provide that the court was not required to order the destruction of the dog if the court was satisfied that "the dog would not constitute a danger to public safety".  The judge noted that the dog had a previous control order, had attacked two police officers when attempts were being made to stop it and that another police officer was warned by Mr Caple when he turned up that the dog would be aggressive as it did not like hi‑vis clothing.  A vet was brought to sedate the dog.  The judge was satisfied that the dog constituted a danger to public safety.
9.	At this hearing the applicant, who is not in custody, did not attend and there has been no representation on his behalf. 
The grounds of appeal 
10.	The grounds of appeal against conviction and sentence were very difficult to follow.  So far as the grounds of appeal against conviction are concerned, they appear to be that the proceedings were an abuse of process as the police were at the premises unlawfully.  The way in which the police were said to be unlawfully there was not explained at all in the grounds of appeal.  So far as the issue of abuse of process was concerned it was possible to have a fair trial in this case but one was not required because the applicant pleaded guilty.  There was no misuse of court proceedings.  So far as the police's presence at the premises is concerned, it was common ground that the applicant had permitted the police to enter the premises.  In the material submitted to us it was suggested that this was under duress and reference was made to police powers to enter which could have been used and it was suggested that the applicant was given little option but to agree.  However, it is common ground that he agreed.  A failure to record that in accordance with relevant Codes of Practice (which is another complaint) might raise other issues but it does not remove the fact that consent was given.  This is not an arguable ground of appeal.  It should not have been advanced and it was frivolous.  
11.	So far as the appeal against sentence was concerned, the main complaint appeared to relate to the order for the destruction of the dog.  One ground, which only appeared in a witness statement and not in the grounds of appeal, was that the order for destruction should have been stayed pending an appeal against conviction.  However the ground of appeal against conviction was not arguable, in part because the applicant pleaded guilty and he did not apply to vacate his plea.  Other complaints were that there were no behavioural assessments of the dog.  This was a complaint mainly directed at former legal representatives and a waiver of privilege was requested and completed but for understandable reasons the matter was not pursued by the Registrar.  This was because in circumstances where the dog has now been destroyed, the fact that some legal advisors might have obtained such a behavioural assessment cannot form a ground of appeal against sentence.  
12.	There was another complaint that the solicitors for Oxtoby and Caple should have made a plea of no case to answer and reference was made to the well‑known case of Galbraith.  There are a number of problems with this suggested ground of appeal.  First, the applicant is not representing Oxtoby or Caple.  Secondly, a submission of no case to answer could only have been made at trial.  Thirdly, it appears that the legal representative for Oxtoby and Caple were in correspondence with the CPS and pointed out weaknesses in the case against them and persuaded the CPS to drop the case against them.  
13.	Finally, a submission that there was no evidence against Oxtoby and Caple would have depended on showing that they had delegated responsibility for the control to someone responsible such as the applicant.  That raised issues of fact, making a summary determination unsuitable.  None of these matters was addressed in the grounds of appeal.  
14.	Finally, an application was made to call witnesses, even though there had been a guilty plea on an agreed basis at trial.  The basis on which the court should have admitted this fresh evidence was not identified.  The witness evidence appears to contradict part of the basis of plea and contains statements expressing unhappiness at the fate of the dog.  That may all be understandable, but did not make it admissible before us.  
15.	We were unable to discern any grounds of appeal against sentence and returning to section 20 of the Criminal Appeal Act 1968, we have determined that the application for permission to appeal was frivolous and can be determined without adjourning it for a full hearing and we dismiss the appeal without calling on anyone to attend the hearing or for the Crown to appear.  
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