England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		24th November 1998

LORD JUSTICE PILL: On 5th March 1998 in the Crown Court at Carlisle before His Honour Judge Brown and a jury, Gavin Huddart was convicted of not keeping a dog under proper control. He was fined £250, ordered to pay compensation of £750 and prosecution costs of £500. He appeals against that conviction by leave of the single judge.

The appellant was the owner of a Rottweiler dog. At about 6.15 pm on 1st October 1996 a Rottweiler dog bit Mr Falcon while he was exercising his own dog in a field in Seaton, Cumbria. His ear was injured. The issue for the jury was whether the Rottweiler dog which injured Mr Falcon was the dog "Winston" owned by the appellant. There was no dispute that a Rottweiler dog had bitten Mr Falcon. He himself had not seen the dog which attacked him previously. Three days later he saw Winston in a police compound and identified it from its build and size as the Rottweiler which had bitten him. The prosecution also called evidence from Mrs Harrison who lived near the open space. She claimed to recognise the Rottweiler which she had seen on seven or eight previous occasions as belonging to the appellant. There was no one with the dog at the time it attacked Mr Falcon. Mrs Harrison also saw Winston in the police compound four days later and from its size and build thought it was the same dog as she had seen in the field attacking Mr Falcon.

The defendant at interview admitted, after consulting with his wife, that he was the owner of Winston. He said in evidence that he had owned Winston for about five years. He had owned another Rottweiler for a little longer. He was not able to exercise the dogs personally because of injuries he had suffered. His wife usually exercised them. He had erected a mesh fence around his garden some four years earlier to prevent the dogs from escaping. He claimed that Winston was not an athletic dog. The dog was blind in one eye, had eczema and bad back legs and hips. The dog could not have jumped the side gate from the premises which adjoined the open space where Mr Falcon was bitten. His wife let the dogs out into the garden two or three times a day. He rarely let the dogs out. He said that Mrs Harrison was mistaken in her belief that she had seen Winston in the field on seven or eight occasions.

The appellant's wife gave evidence that she exercised Winston by taking him for walks in the streets. She had let Winston, with the other dogs, out into the garden on the evening of 1st October but had not left them alone and had seen them return to the house. The appellant's mother gave evidence that the dogs had not gone out that evening. The appellant was in the house at the material time.

In his summing-up the judge summarised the material part of Mrs Huddart's evidence by saying that Winston did follow one of the other dogs into the garden where they were to relieve themselves. The judge continued:

"She said [that is Mrs Huddart]: 'I watched whilst they did their business, and then Kelly, my daughter, went out, and Kelly and I messed about with the tyre, we passed it between us for Winston to chase. And then I took the dogs back in... The dogs came in with us and they were inside during Home and Away.'"

Cross-examined, the judge recorded the witness as saying:

"'I don't let the dogs out except into the back garden. I don't let them out on my own.'"

The defence therefore amounted to a denial that Winston had left the appellant's garden at the material time and cannot have been the dog which bit Mr Falcon on the open ground. The jury plainly disbelieved that evidence; they accepted the evidence from prosecution witnesses that the dog which bit Mr Falcon was Winston.

The main ground of appeal is based upon the judge's refusal to allow the statutory defence under section 3(2) of the Dangerous Dogs Act 1991 to go before the jury. Counsel addressed the jury on that point but the judge directed the jury that they should not have regard to the defence. Section 3 reads, so far as is material:

"(1) If a dog is dangerously out of control in a public place-

(a) the owner; and

(b) if different, the person for the time being in charge of the dog,

is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection.

(2) In proceedings for an offence under subsection (1) above against a person who is the owner of a dog but was not at the material time in charge of it, it shall be a defence for the accused to prove that the dog was at the material time in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it.

(3) If the owner or, if different, the person for the time being in charge of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there-

(a) it injures any person, or

(b) there are grounds for reasonable apprehension that it will do so,

he is guilty of an offence, or, if the dog injures any person, an aggravated offence, under this subsection."

Subsection (4) provides for the punishment for offences under the section.

Mr Nance's submission on behalf of the appellant is that there were facts upon the basis of which the defence, provided by section 3(2), should have been permitted to go to the jury. We add that Mr Nance has criticised the wording of the section as a whole and submits that absurdities will result from its literal construction. He has made submissions as to the meaning of the words "material time" and as to what the position would be if, for example, a dog were to be left in the charge of a kennels while its owner went on holiday and the kennels lost possession or control of it. Would the owner, who might be hundreds of miles away on holiday, be liable for an offence under the section?

It is common ground that subject to the statutory defence, the offence is one of strict liability, that the dog which bit the witness was dangerously out of control at the time and was dangerously out of control in a public place. We follow that difficulties may arise under the section in many situations (such as loss of control by a person placed in charge), but our task is to consider whether, upon the evidence in this particular case, the judge was entitled to withdraw the statutory defence from the jury.

Winston was owned by the appellant. The appellant lived with his wife and mother-in-law in an ordinary domestic setting with a house and garden. There is no question here of any formal transfer of charge, such as that mentioned by Mr Nance, to any third party. Mr Nance's submission is that because it was the appellant's wife who allegedly opened the door of the house to let the dog into the garden, that the charge of the dog had been transferred from the appellant (the owner) to the owner's wife. If, as the prosecution evidence established, it subsequently went out of control then the statutory defence applied because the charge of the dog had been transferred to his wife whom he reasonably believed to be a fit and proper person to be in charge of it and thereafter had gone out of control and bitten the witness.

Mr Nance has referred the court to the case of Harter [1998] Crim.L.R 336. In that case, this court, the Vice President presiding, held that the judge ought to have left the statutory defence to the jury, even though the evidence that the statutory defence was applicable was of a somewhat tenuous nature. The facts however were quite different from those in the present case. The owner of the dog was the owner of a scrap yard where the dog was tethered. Whilst so tethered, the dog bit a visitor to the scrap yard. The defendant was absent from the scrap yard at the time. His daughter, who worked at the scrap yard and in her evidence claimed to be the owner of the dog, was present. The scrap yard was in itself a public place. It was upon that evidence that the court held that there was sufficient evidence to require the statutory defence to go to the jury. Plainly, in our view, there was evidence that in the absence of the owner from his scrap yard, his daughter who also worked there was in charge of the dog within the meaning of section 3(2) of the Act. The most that can be said in the present case by way of a transfer of the charge of the dog, is that on the particular occasion, as we dare say on many other occasions, it was the appellant's wife rather than the appellant himself who opened the door to let the dog out of the house. In our judgment that was not evidence which, for the purposes of this subsection, was capable of amounting to a transfer of the charge of the dog from the appellant to the appellant's wife which entitled the jury to consider the statutory defence.

In our judgment section 3(2) was not intended, in a situation where a dog is kept at home, to call for a minute analysis of which member of the family is in charge of it at any one moment. The fact that the door through which the dog gets out is opened by a member of the family rather than by the owner of the dog is not evidence from which it can properly be inferred that the charge of the dog has been transferred to that other member of the family. The subsection operates, in our judgment, only if there is plain evidence that the dog has been placed in the charge of someone other than the owner. We do not seek to place much formality upon what is required to transfer charge, but it will be necessary for there to be evidence which establishes, or permits the inference to be drawn, that the owner has for the time being divested himself of responsibility in favour of an identifiable person. A dog left with a neighbour or friend while the owner is on holiday would be one example. A neighbour who, with the agreement of the owner, takes the dog away from the home and out for a walk could be another, depending on the circumstances.

In our judgment, upon the present facts, there is no evidence from which it could reasonably be inferred that the charge of the dog within the meaning of section 3(2) has been transferred from the owner to the owner's wife. To adopt such an approach would, in our judgment, be artificial and contrary to the purpose of the subsection. If no such transfer of "charge" can be established, the rest of the appellant's case on this ground falls away. In our judgment upon the present facts the judge was correct not to permit the statutory defence to go to the jury.

In what he puts as a subsidiary ground of appeal, Mr Nance submits that the jury should have had further assistance and guidance as to the approach they should adopt to the evidence by which the witnesses claimed to identify as Winston the dog which bit Mr Falcon. The judge referred in his summing-up to the factors which the jury should bear in mind when considering the evidence of identification. No formal Turnbull direction was given. We do not find it necessary in this case to decide the possible application of Turnbull directions to animals. In our judgment, the judge amply warned the jury of the difficulties involved and of the care with which they should approach the evidence of identification. At page 1G he gave the conventional warning that the facts were entirely for the jury to decide:

"You decide which witnesses you accept as being honest, and, more importantly in this case, accurate and reliable, on the basis of your findings of fact."

Having said that he was not giving what would be known as a Turnbull direction, the judge added at 6E:

"...nevertheless you may think it fair to have in mind the same sort of matters that you would have if it were a case of the identification of a human. It is not, of course, the dog that is on trial, it is the defendant. And it is a serious matter.

So, what did the witnesses have to say then which may assist you in deciding whether or not the dog in question was a dog owned by the defendant?"

At page 7A:

"...you will bear in mind that he [that is the victim] never claimed to have seen that particular dog before. You will bear in mind the opportunity that he had on the day in question to form an impression of the appearance of the dog, the Rottweiler dog, that is. Bear in mind the fact that he obviously was shocked by the whole experience. Ask yourself whether that was likely to affect his reliability as an identifying witness."

At 7E reference is made to the cross-examination of the witness:

"...first of all he was asked if there was any special feature about the Rottweiler's appearance, the Rottweiler that had attacked him and his dog, Duke, and he said: 'No'. So there was nothing there that could assist him in, as it were, there was nothing unusual about the appearance of the dog to help with his later identification of it."

At 8B the judge continued:

"That is what he had to say, members of the jury. You will have to decide are you satisfied so that you are sure that Mr Falcon, when he identified Winston on 4th October was identifying the same dog which had bitten him on the 1st October? Or is there any room for reasonable doubt? It's a matter for you to decide."

The judge then referred to the evidence of Mrs Harrison and stated:

"There is no magic in their being two, members of the jury [that is two identifying witnesses]. Two identifying witnesses can be honest and equally mistaken. But I suppose, on the other hand, if you have two there is possibly twice the opportunity for one of them to convince you that he or she is correct. But whether he or she does convince you of the correctness of the identification is a matter for you to decide."

The judge summarised the evidence of Mrs Harrison. She stated that she had 'a clear view of the field' and:

"...she said she could see Mr Falcon holding up a Spaniel and the Rottweiler jumping around at his back. And then she described how she had gone in and told her husband, and then she went out again and by that time Mr Falcon was over by the fence, and then she ran back inside her house to telephone the police. She said that the Rottweiler was heading back up towards the top of the field.

She said that she had seen the dog before in the field, she said it belonged to Mr Huddart from Main Road in Seaton, and she described the same field as being the same as the field at the back of Mr Huddart's house.

She said: 'I know that he owned more than one dog', and then she was asked how far away she was from the incident that she described between Mr Falcon and the Rottweiler and she said: 'Two hundred yards'. She said the light was good, the weather was fine. She had no difficulty in seeing, she said."

Later she said that she had seen the dog seven or eight times before. No one was with the dog on the 1st October during the incident between the Rottweiler and Mr Falcon.

In the judgment of the court the jury were given sufficient guidance as to the approach which they should adopt to the evidence of identification. It was then a matter for them to decide whether they were sure that the dog which bit Mr Falcon was Winston. In our judgment there is no merit in this ground of appeal.

For the reasons we have given, this appeal against conviction is dismissed.

MR NANCE: May I respectfull correct one matter? Your Lordship said that the learned judge had heard submissions on the----

LORD JUSTICE PILL: Addresses to the jury.

MR NANCE: ---- section 3 point, whereas in fact he had not.

LORD JUSTICE PILL: When did the interlocutory discussion take place?

MR NANCE: There was none. That was at the beginning of -- I am sorry, that was at the beginning of the trial on the issue of----

LORD JUSTICE PILL: It was in relation to the indictment?

MR NANCE: The indictment, yes. It was not argued on the validity of the point. In fact the judge took the view at that stage that the statutory defence could avail this defence.

LORD JUSTICE PILL: Yes, I follow. So the address was to the jury rather than submissions?

MR NANCE: Yes. My Lord, there were no submissions in the course of the trial on the applicability of subsection 2.

LORD JUSTICE PILL: You addressed the jury on it?

MR NANCE: I addressed the jury - both counsel addressed the jury.

LORD JUSTICE PILL: I will amend from submissions to address to the jury.

MR NANCE: The judge did not hear submissions on the point.