England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15 February 2008

LORD JUSTICE KEENE: I will ask His Honour Judge Hall to give the judgment of the court.

HIS HONOUR JUDGE HALL:

1. This is an application for leave to appeal against a ruling given by His Honour Judge Gibson as to how he would address the jury in a case of an offence under the Dangerous Dogs Act 1991. Following the ruling the applicants pleaded guilty and were sentenced. They now challenge the ruling, as they are entitled to.
2. The facts are simple. The second applicant is the owner of two Rottweiler dogs. The first applicant and her friend took them for a walk. While passing a young lad on the pavement, one of the Rottweilers, "Rocky", went for him, bit him and tore his scrotum. A Good Samaritan came to his rescue. He went to hospital. Seemingly there are no long-term effects but it was extraordinarily painful for him at the time.
3. In presenting the legal argument, it was acknowledged that neither of the Rottweiler dogs had ever shown a propensity to attack; that at the time they were both on a lead; that it was in a public place; and that injury was caused. The question was: was that behaviour of the dog such that the applicants were guilty of the offences under section 3 of the Dangerous Dogs Act 1991?
4. The Act is straightforward. It provides that if a dog is dangerously out of control in a public place, the owner (or the person in charge of it) is guilty of an offence, and if injury is caused, is guilty of an aggravated offence. There is a definitions section. Section 10 provides:

"(3) For the purposes of this Act a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so ...."

5. It is argued that, although there are two decided cases on the topic, they are incorporated in Rafiq v Director of Public Prosecutions [1997] JP 161 (Divisional Court, Auld LJ and Popplewell J). In giving the judgment of the court, Popplewell J referred to R v Bezzina [1994] 3 All ER 964, where Kennedy LJ said at page 968:

"Accordingly, we come to the conclusion that the terms of the statute in section 3(1) do have to be read in the way that we indicated at the start of this judgment. In other words, when one encounters the words in section 3(1) -- 'dangerously out of control' -- one applies the meaning which is set out in section 10(3) and that means, in effect, that if a dog is in a public place, if the person accused is shown to be the owner of the dog, if the dog is dangerously out of control in the sense that the dog is shown to be acting in a way that gives grounds for reasonable apprehension that it would injure anyone, liability follows. Of course, if injury does result then, on the face of it, there must have been, immediately before the injury resulted, grounds for reasonable apprehension that injury would occur."

Popplewell J slightly dissented from that approach. He said:

"It seems to me that in order to impose some logic in this case the proper way to approach these cases is to take the view that if there is a bite without a reasonable apprehension immediately before that, the use of the word 'any occasion' is sufficient to impose a liability because there are grounds thereafter for reasonable apprehension that it will injury some other person."

Auld LJ commented:

"Depending on the circumstances, the time for apprehension, even by the notional reasonable bystander, may be so minimal as for practical purposes to be non-existent. The notion of reasonable apprehension of injury before it occurs in such circumstances, is artificial and the court should strain against adding that unhappy element to an already difficult statutory formulation. It seems to me that Kennedy LJ in that passage was unnecessarily focusing on the injury as if it were a necessary culmination and demonstration of anterior reasonable apprehension of injury. In my view there is no need for such an approach. The act of a dog causing injury, a bite or otherwise, is itself capable of being conduct giving grounds for reasonable apprehension of injury."

6. Mr Garson on behalf of both applicants submits that we should consider the type of occasion where a dog reacts to provocative behaviour. He submits that it is possible to conceive a factual situation where it would be unjust to impose actual liability in such circumstances. The teasing schoolboy -- a stick with the horse's head handle -- comes to mind. But that is not this case. This was an ordinary pedestrian walking past a woman in charge of a Rottweiler dog which swung round and bit him.
7. Having referred to the authorities to which we have referred, Judge Gibson in his ruling said:

"My conclusion is that the directions to the jury should include a direction that in law the occasion on which the boy was bitten was an occasion on which there arose grounds for reasonable apprehension that the dog would injure a person, and that in consequence the dog was to be regarded, immediately it administered the bite, as being dangerously out of control. "

8. We ask ourselves: was this dog under control? The answer is patent: No. What is the evidence of that? It bit someone else who was innocently walking past it on the pavement and who exhibited no provocative behaviour. Was it dangerous? Yes, because the dog bit the boy.
9. On either the interpretation propounded in Rafiq or that of Kennedy LJ in Bezzina, this dog was dangerously out of control. We are inclined to go further. In any event the definitions section, section 10, is not exclusive. It does not read as a matter of construction, "For the purposes of this Act, a dog shall only be regarded as dangerously out of control ...." and then proceed to the definition. Therefore we feel ourselves entitled to go back to the straightforward words of section 3: "If a dog is dangerously out of control in a public place ...." In our judgment, this dog was dangerously out of control in a public place. That was amply evidenced by the way it behaved and the fact that it was not controlled by its handler.
10. In these circumstances this application is refused.
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