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Unchallenged Evidence Cannot be
Ignored by the Court: High Court says
‘Yes’ to Saving Yosser the Dog
In the recent case of Fitzgerald v. CPS [2024] EWHC 869 (Admin), the High Court confirmed
that, absent very special circumstances, a court is not entitled to reject the evidence of a witness
that has not been challenged in cross-examination.
willing to take control of and look after Yosser. The
second piece of evidence was an expert’s report on
Yosser’s behaviour and likelihood of reoffending. The
expert, Ms Helen Howell, concluded that Yosser
would not pose a threat to public safety if ownership
and care is transferred to the appellant’s brother, and
he is walked in public on a lead and muzzled. It is important to note that prior to the hearing, and upon
receiving Ms Howell’s report, the CPS confirmed that
they took no issue with the report, that it was not disputed and that there was therefore no need for Ms
Howell to attend the appeal hearing.
Facts of the case:
This case concerned a dog named Yosser. Over time,
Yosser’s behaviour began to deteriorate. In July 2021
he attacked another dog resulting in his owner, the
appellant in this case, being convicted by North West
London Magistrates’ Court, of being the owner of a
dog dangerously out of control. The Magistrates
made a Contingent Destruction Order imposing conditions on Yosser for when he was taken out in public,
including the mandatory wearing of a muzzle.
A month later the appellant was walking Yosser down
the street without a muzzle on. Upon passing a member of the public Yosser jumped up and nipped the
victim’s arm. The victim called the police and after an
investigation the police executed a search warrant and
seized Yosser.
Notwithstanding this, the Crown Court upheld
the original decision and imposition of the dog
destruction order.
High Court Appeal
On appeal, the High Court overturned the decision to
order the destruction of Yosser. In considering the
case, Lord Justice Coulson concluded that it was not
open to the Court to reach a polar opposite conclusion
to the expert’s unchallenged evidence. He noted that
if the CPS had wished to challenge the expert’s conclusion that Yosser didn’t pose a threat to public safety
they were obliged to require her to attend the hearing
for cross-examination. Instead, the CPS took no issue
with the report. In those circumstances, Lord Justice
Coulson held that the Crown Court was bound by the
expert’s conclusion unless there was a reason why that
conclusion could be fairly ignored or discounted.
No such reason was identified by the Crown Court,
therefore leading to an unfair outcome.
On 3 December 2022 the appellant entered a guilty
plea at the first opportunity to being in charge of a dog
dangerously out of control. The District Judge also
made a Dog Destruction Order on the basis that there
was already a Contingent Destruction Order in place
and that the appellant was not a fit and proper person
to own a dog. In an attempt to save his beloved dog
the appellant appealed to the Crown Court.
Crown Court Appeal
The appeal hearing took place on 15 June 2023
before Mr Recorder Michael Caplan KC and two lay
magistrates. At this hearing, the Court had before it
two distinct pieces of new evidence, namely a statement from the appellant’s brother saying that he was
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