A High Court judge has ruled that a black Belgian Sheppard dog accused of biting a Garda while its owner was being arrested must remain in the custody of a professional kennel operator until an application to put the animal down is determined.
In his ruling Mr Justice Garrett Simons said that it was in "the public interest" that the dog, described as being highly dangerous and aggressive, remain "incarcerated" pending the rehearing of a Garda application to the District Court to have it euthanised.
Owner in jail
The dog is owned by Mr Kevin O'Keefe, with an address at Oliver Bond Flats in Dublin 2, who is currently serving a two-and-a-half-year custodial sentence in Mountjoy Prison.
Last January he was arrested by members of An Gardai Siochana at his home.
During the course of the arrest on foot of a bench warrant issued by Dublin Circuit Criminal Court, the court was told that a Garda was attacked and bitten by the dog.
The dog, known as Theo aka Cleo aka Deo was seized and placed in professionally-run kennels.
A few days afterwards the alleged attack, a complaint was made by a Garda under the 1986 Control of Dogs Act to the District Court.
A judge of that court subsequently granted an order directing that the dog be destroyed.
Mr O'Keefe disputes the allegation made against the dog.
Arising out of the destruction order Mr O'Keefe's lawyers brought High Court judicial proceedings against the Garda Commissioner seeking to have that decision set aside on grounds including that fair procedures were not followed.
Notice of application
The owner's lawyers claimed that Mr O'Keefe was not given the required seven days' notice of the application for the destruction order.
He also said that the District court was wrong not to issue a production order that would have allowed him to attend the hearing.
A stay was placed on the destruction order pending the outcome of the High Court challenge.
In a judgment on Friday Mr Justice Simons said the Commissioner does not intend to defend "the procedural unfairness" of the District Court's destruction order
This concession is sensibly made, the judge said, adding that both sides "broadly agree" that the case should be remitted back to the District Court for a fresh consideration.
However, the court had been asked to determine what should be done with the dog pending the re-hearing of the destruction order application.
The judge said that the court had been asked to determine what is to happen with the dog in the meantime.
The applicant had asked the court to release the dog into the care of his cousin.
Public interest
The Commissioner argued that in the interest of public safety, the dog should be kept in professional care pending the outcome of the rehearing.
He said that the court had been provided with a report from the kennel operator about the dog that made "worrying reading."
The report said that the dog has exhibited "extremely aggressive behaviour" and has attempted to "attack and bite all of its carers on a daily basis".
Staff at the kennel find it difficult to feed and clean up after the animal, he said.
Evidence was given that the dog's behaviour has "deteriorated steadily since its incarceration" and it was recommended that it be "euthanised or removed from the facility."
The judge said a vet's report agreed that the "fit, athletic" dog was proving to be "very dangerous in the vicinity of other housed animals" was "unpredictable" and was "a dangerous dog.".
In his decision the judge said that the balance of justice favoured weighed heavily in ordering that the dog remain in professional care pending the outcome of the re-hearing.
He said the court was entitled to rely on the reports submitted from the kennel and the vet.
He also said that the applicant had failed to produce any evidence that his nominated family member is capable of caring for, or handling the dog.
'Grave concern'
This failure the judge said was of "grave concern" to the court.
The High Court had not been given any assurance that the dog if released will be kept under proper control if released to the nominated family member.
The court also held that the owner would not be prejudiced if the dog has to remain in the kennels as Mr O'Keefe is currently serving a sentence of imprisonment, the judge said.
The judge further rejected arguments that the dog's alleged dangerous behaviour in the kennels was due to the fact that it is incarcerated.
There was nothing in the reports before the court to suggest that the dog might be "rehabilitated" if it were to be released.
Ultimately any decision to destroy the dog is a matter for the District Court, the judge said, but there was sufficient evidence before him to refuse the application to release the dog.
The court also made orders requiring the Commissioner to give the applicant the required seven days advance notice of the re hearing.
Mr O'Keefe is allowed to attend at that hearing, whenever it is due to take place, the judge also held.
The court further ruled that the judge rehearing the case can consider any admissible evidence, including about the dog's behaviour at the kennels, and is not confined to evidence about the dog prior to a date in January when it first went into custody.
As both sides had been partially successful in the case, the judge directed that each party pay its own legal costs.
