Sheriff Appeal Court replaces order for destruction of XL Bully with contingent destruction order after owner’s appeal

About this case:

• Citation:
  [2026] SAC (Crim) 6
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Christopher Shead

Shannon Kane tendered a plea of guilty to an offence under the Dangerous Dogs Act 1991 of possessing a dog, named Zeus, without a certificate of exemption. She argued that the sheriff had erred in proceeding on the misapprehension that she was capable of applying for an exemption when the ordinary deadline was 31 July 2024, and that Zeus did not present a threat to public safety.

The appeal was heard by Sheriff Principal Gillian Wade KC and Appeal Sheriff Christopher Shead, with Ogg, solicitor advocate, appearing for the appellant and Jarvis, advocate depute, for the Crown.

Unchallenged narrative

On 18 October 2024 police attended at the appellant’s home in response to a report of an unregistered XL Bully. The appellant confirmed that she had such a dog and that it was neither chipped nor neutered, and said that she would apply for a certificate of exemption for him. In mitigation, the sheriff was advised that she had “inherited” Zeus from her son, but no explanation was offered for why she had failed to register and microchip him.

Sentence was deferred on several occasions to allow the appellant to apply for a certificate of exemption and to neuter and microchip Zeus. The latter was done by 11 April 2025, but the appellant was unable to obtain a certificate. In ordering the dog’s destruction, the sheriff took into account the unchallenged Crown narrative, which noted that the dog was unmuzzled and that it took the police 10 minutes to restrain him. He considered that the appellant’s delays in taking steps to register Zeus demonstrated that she did not take her responsibilities as the owner of an XL Bully seriously enough.

In the course of the appeal a report was obtained from an animal behaviourist, Ms Henley, who assessed Zeus’ behaviour as appropriate for a dog of his age and concluded that he was a stable dog with a low risk of aggressive behaviour. It was submitted that nothing in the Crown narrative suggested that the dog constituted a danger to public safety and, while the ordinary deadline for applying for an exemption has passed, the appellant could apply for one because the court had made an order under section 4 of the 1991 Act.

The Crown accepted that it would be open to the court to make a contingent destruction order in place of the original order, under which the dog would not be destroyed if it was exempted within the requisite period. It was also conceded that the charge against the appellant narrated the wrong order, however the Crown’s position was that the appellant’s original conviction should stand.

Prepared to co-operate

Delivering the opinion of the court, Appeal Sheriff Shead said of the substance of the conviction: “The complaint contains reference to the correct statute, the section of the statute which it was averred that the appellant had contravened and the correct penalty in the event of conviction. The defect which occurs in the charge does not alter our view that the charge meets the necessary standard of relevancy.”

He added: “We acknowledge that the law does recognise some circumstances where a charge or complaint might be regarded as fundamentally null although no example was cited to us by the appellant. However, in practice those instances are rare. In paragraph 20-21 of Renton & Brown’s Criminal Procedure (6th edn) the authors state that the court will not allow a conviction to stand ‘for what is no crime under the law of Scotland, or which has been obtained in excess of the lower court’s jurisdiction.’ In the absence of a fuller submission on this point we consider it sufficient to say that the defect in this case comes into neither of those categories.”

Considering whether to overturn the destruction order, the Appeal Sheriff said: “We have had regard to the circumstances narrated to the sheriff about how the dog behaved when the police were called and the findings and expression of opinion by the expert to which we have already referred. We consider that the views of the expert help to put in context the narrative placed before the sheriff. The dog has no history of aggressive behaviour. In particular we note that Zeus did not act aggressively towards the local children or other dogs.”

He concluded: “We recognize that there is scope to criticize [the appellant’s] failure to act more quickly in dealing with the neutering and microchipping of the dog. She should also have acted to apply for the necessary exemption by the relevant date. However, there is no indication that she was not prepared to co-operate with the expert and no suggestion that she was resistant to any advice offered. For example, there is no indication that she would disregard any requirement to keep the dog muzzled, and on a lead while in public. Thus, in our view, on the information available it cannot be said that the appellant is not a fit and proper person to be in charge of the dog.”

The court therefore set aside the order made by the sheriff and in its place made a contingent destruction order, giving the appellant 2 months from the date of the opinion to make the necessary exemption application.