England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		7th October 1998

LORD JUSTICE BROOKE: This is an appeal by Mr Briscoe, by way of Case Stated, from a direction made by the Taunton Justices, on 1st April 1998, that he keep his Japanese Akita dogs, Hank and Hannah, under proper control. The Justices had found proved complaints by the prosecutor, David Shattock, that on 30th May 1997 at Biscombe, Churchstanton, Somerset he was the owner of the two dogs which were dangerous, and that they were not kept under proper control.

The Case Stated shows that the Justices found the following facts the Appellant was the owner of two powerful Japanese Akita dogs Hank and Hannah at all relevant times. These dogs were large and their combined weight sixteen stone. The Appellant had taken steps to contain his dogs by means of five foot six fences at his property, to control them by leads devised by himself and collars and by continuing to take them to dog training classes. He always kept the dogs on leads when he took them out.

At about 6.30pm, on 30th May 1997, he was with his dogs on their leads in Rainbow Lane in Biscombe, Somerset near

Mr Lenthall's House. Mr Lenthall's children, who knew his dogs, had taken their dog, a four year old Jack Russell named Toby, on a lead for a walk in the same lane. Toby was not an aggressive dog. Mr Lenthall had never had such a quiet Jack Russell. As the Jack Russell approached the Appellant and his dogs the Appellant tried to grab his dogs' collars and pull their feet off the ground. Hank wrestled his head out of his collar and the dog fight ensued. The Appellant fell on top of the Jack Russell and his own dogs pitched in and attacked both him and the Jack Russell. Mr Lenthall appeared on the scene at this point having heard his children screaming. He retrieved his dog and took it to a veterinary surgeon. The Jack Russell sustained severe injuries consisting of multiple bite wounds and severe shock. It died the following day at the veterinary surgery. The Appellant paid the veterinary surgeon's bill.

There had been other occasions when the Appellant's dogs had behaved aggressively: once towards a Mr Morley's puppy and once an attack by his dogs upon a Mrs Strange's Collie bitch that caused injury to its shoulder and loss of its collar, which the Appellant failed to stop. The dog, Hank, had also been involved in an incident described by the Appellant in which a straying sheep of Mr Willacott's had sustained injury.

The Case Stated contains a lengthy recital of the evidence. This is followed by a recital of the contentions of the parties, the cases and statutes to which the justices were referred and the advice they received. The Case Stated then continues:

"6. We were of opinion that:

1) in the ordinary everyday meaning of the words, the Appellant's dogs were dangerous and not kept under proper control on 30th May 1997; their actions resulted directly in the death of the Jack Russell. We found it inconceivable that large, heavy dogs would act 'in self-defence' towards a Jack Russell, when there was no evidence whatsoever caused that the Jack Russell caused them any injuries or that any injuries at all were suffered by them in the incident. The Appellant described the Jack Russell's behaviour as 'harrying' only and admitted that Hank was not being bitten. We were of the opinion that the Appellant's dogs were the aggressors. We were particularly impressed with Mr Lenthall and the way he gave his evidence. He appeared to us to be honest, candid and straightforward, particularly when he admitted that Jack Russells can be aggressive, and in the reasons he gave for the way he reacted to the incident with the Newfoundland dog. Accordingly we accepted his evidence that Toby was not an aggressive dog;

(ii) the Appellant did not keep his dogs under proper control on 30th May 1997. He either could not or did not stop the dog fight. By his own admission, he 'made a mistake' which resulted in Hank escaping from his collar, and he could not stop Hank attacking. We were of the opinion that 'psychological' control was not enough: actual physical control was required and was sadly lacking;

iii) the Appellant must have accepted at least some responsibility for the incident on 30th May 1997 to have paid the bill;

iv) the Appellant showed in his evidence that he felt it necessary to take extraordinary precautions with his dogs, by erecting high fences, devising special leads and by continuing to take them to be trained;

in our opinion he was well aware of their propensities, otherwise he would not have felt the need to take these extra steps."

In these circumstances the Justices found the complaint proved and made Orders under section 2 of the Dogs Act 1871 that the Appellant keep both dogs under proper control. They also ordered that the Appellant pay £675 by way of costs to the Respondent.

The questions for the opinion of this Court are:

I) Whether the evidence before the Magistrates' Court could support their decision that the dogs Hank and Hannah were dangerous and not kept under proper control.

II) Whether the Dogs Act 1871, as amended and applied, permitted a finding that the dog was dangerous and not under proper control when only a fight between dogs took place and no person or other animal was endangered or injured."

I will take the second question first. This is a question of law which relates to the meaning of the word "dangerous" in section 2 of the Dogs Act 1871. There is no statutory definition of the word and the Justices were merely advised that they were to be construed in the ordinary, everyday meaning of the word. They were not advised that they had to consider the meaning of the word through the eyes of the draftsman who drafted the Act in 1871, although I doubt if this makes much difference.

In those days the common law of England made a distinction between animals ferae naturae and animals mansuetae naturae, so far as an owner's civil liability for damage caused by his animal was concerned. As every reader of the works of the PG Wodehouse will know, by the common law of England every dog was allowed one bite. In Applebee v Percy (1874) 9 LR CP 647 Brett J explained the distinction in these terms at page 650:

"A distinction has always been taken between animals which are by nature fierce and untameable, such as tigers and others ferae naturae, and those which are not in their general nature ferocious. If a man keeps an animal of the former class, and another is injured, the owner of the animal is liable without any evidence of a scienter; but, where the animal belongs to a class which is not habitually ferocious, it is necessary to shew that its owner has notice that it has on former occasions shewn symptoms of a disposition to bite mankind."

In 1865 Parliament decided to tighten up the law relating to the liability of the owners of dogs (which were animals mansuetae naturae) for injuries their dogs did to cattle and sheep. By section 1 of the Dogs Act 1865, which was to extend to England and Wales only, it was no longer to be necessary for a party seeking damages from a dog owner, in such circumstances, to show a previous mischievous propensity in the dog in question, or the owner's knowledge of such a propensity, or that the injury was attributable to neglect on the owner's part.

Six years later Parliament enacted the Dogs Act 1871, whose long title is an Act to provide further protection against dogs. That Act applied to Scotland as well as to England and Wales. Section 1 of the Act gave a police officer power to take possession of and detain:

"... any dog that he has reason to suppose to be savage or dangerous straying on any highway, and not under the control of any person..."

Section 2 of the Act, with which this Court is now concerned, provided, so far as material:

"Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed..."

This section first came to be considered in Scotland in Henderson v McKenzie [1876] 3 R page 623. That case was concerned with a situation in which a dog was alleged to have injured one sheep and scared the rest of a flock by chasing it, and the question of law for the opinion of the Court of Session was, among others:

"Is the second section of 'The Dogs Act 1871,' limited in its operation to dogs which are dangerous to human beings, and which are not kept under proper control?"

Lord Ormidale, having set out the facts and the question posed to the Court, said at page 626:

"These questions involve very much the same thing, and in the present instance an answer either affirmative or negative to the first must also dispose of the second. Now, in regard to the limitation of the Act to dogs which are dangerous to human beings there is certainly nothing in it expressly to that effect. Neither am I satisfied, looking at the statute in all its clauses, that any such limitation was intended. The title of the Act is quite general, being simply 'An Act to provide further protection against dogs;' and the preamble is in the same terms. The second section, again, of the Act, being that on which the complaint is founded, provides 'that any Court of summary jurisdiction may take cognisance of a complaint that a dog is dangerous and not kept under proper control; and if it appear that such dog is dangerous, the Court may make an order directing the dog to be kept by the owner under proper control, or destroyed, and that, failing compliance, he shall be liable to certain penalties. Now, it is not said here that the dog must be dangerous to human beings, although if that had been meant nothing could have been more simple or easier than to have so expressed the enactment. Nor can I find anything in the other sections of the Act indicative of the limitation of the second section to dogs dangerous to human beings.

But it is only with the second section of the Act we have to deal at present; and considering that it contains no expressed limitation of its operation to dogs dangerous to human beings, but that in the generality of its words it is fairly, and I think not unreasonably, applicable to dogs dangerous to sheep, and it may be to other property, as well as human beings, I am of opinion that the first question submitted in the case must be answered in the negative;..."

Lord Gifford concurred and the Lord Justice-Clerk said:

"I felt at first considerable difficulty in this case, for I am not disposed that a dog can be said to be dangerous in the sense of this statute because he is liable to injure property. I am quite clear that 'dangerous' does not mean 'mischievous'. But I have come to agree with your Lordships that this complaint is sufficiently relevant, and that there was no ground for refusing to proceed with the case. The quality of being dangerous relates not to the acts of the dog, but to his nature and disposition. The Sheriff is to be satisfied that he is savage, ferocious, or dangerous. This nature may be shewn and proved in a variety of ways; and although the mere act of chasing sheep may not of itself, or in all cases, indicate that a dog is dangerous, the nature of the animal may be shewn in that way as well as in others. The mistake in the questions put to us, as well as in the judgment, consists in supposing that 'dangerous' must be defined in relation to some object. It is not so. It is the savage nature of the animal of which the Sheriff is to be satisfied."

That decision is of value because the law of Scotland was different from the law of England. It had a different source in Roman law and it did not include the variations introduced by statute into the law of England by the 1865 Act, which provided a particular protection for the types of livestock described in the Act from the usual 'a dog is allowed one bite rule. The Scottish judges clearly, when interpreting this United Kingdom Act, took the view that the meaning of the word "dangerous" must not be tightly defined as to include only danger to human beings and that it was a matter for the Court, which was the tryer of fact, to consider all the evidence before it and to decide whether or not the dog in question was dangerous in the sense that it had a dangerous disposition.

The Act came before this Court south of the border in Williams v Richards [1907] 2 KB 88. A complaint was made to the Swansea Justices, under section 2 of the 1871 Act, in relation to the conduct of a dog which had been seen to kill sheep and lambs. The Justices dismissed the complaint on the basis that no evidence had been adduced before them to show that the dog was dangerous to mankind, but this Court remitted the matter to them to hear and deal with the complaint on its merits. Lord Alverstone CJ said at page 90:

"Having regard to the fact that the previous legislation, namely, the Dogs Act, 1865, shews that the intention was to protect people's property, I can see no reason why the word 'dangerous' in s. 2 of the Act of 1871 should be construed as meaning only 'dangerous to mankind'"

Although Mr Pickford has drawn our attention to the Dogs Act 1906, and indeed also to the Animals Act 1971, the modern statute which replaced subsections (1) to (3) of the 1906 Act and related to civil liability of the owners of dogs for injury to cattle, section 1(4) of the 1906 Act, which is still on the statute book, provides:

"Where a dog is proved to have injured cattle or chased sheep, it may be dealt with under Section 2 of the Dogs Act 1871 as a dangerous dog."

Although that section, which was not yet in force, was cited to the Justices and to this Court in Williams v Richards, which came before this Court in March 1907, Lord Alvertone said that the Justices appeared not unnaturally to have been misled by it, but, for the purposes of that case, it was not necessary to consider what was the meaning of that section.

Mr Pickford sought to argue that in some way the English statutes, which were concerned with dogs, concentrated, in so far as they were only concerned with danger to mankind, on danger to the various items of livestock which were, from time to time, singled out for special protection by Parliament. He argued that even before 1906, although Williams v Richards was decided before the 1906 Dogs Act came into force, the language of that section meant that from that time onwards at least the only element of dangerousness the Magistrates' Court could properly take into account, apart from dangerousness to mankind, was dangerousness to the livestock mentioned in section 1(4) in the sense of the dog having been proved to have injured cattle or chased sheep, and by a later amendment in 1928 poultry was also included.

In my judgment, bearing in mind that the 1871 Act was not only concerned with the law of England and Wales, I can see no reason for limiting it in that way. The language of this Court in Williams v Richards, and the language of the Court of Session in Henderson v McKenzie, leads to the conclusion that the Justices at Taunton in 1998 were correctly directed by their clerk that the word "dangerous" was to be construed in the ordinary every day meaning of the word and not to be limited to dangerousness for mankind or for particular species of animals and birds.

Mr Pickford drew our attention to the case of Tallents v Bell & Goddard [1944] 2 All ER 474 where the Appellant kept rabbits for the purpose of selling them to butchers and it was proved that on two occasions dogs broke into the rabbit hutches and did considerable injury to his rabbits. On the second occasion only two dogs belonging to the Respondent were actually found in the hutches and the Appellant contended inter alia, in a case brought in the Worksop County Court, that the damage came within the meaning of sections 1 and 7 of the Dogs Act 1906. The Court of Appeal held, not surprisingly, that the expression "cattle" did not include rabbits kept for commercial purposes and therefore sections 1 and 7 of the Dogs Act 1906 did not apply.

For my part I can see no way in which that decision, on the line of statutes concerned with civil liability for the activities of dogs in England and Wales, can assist us in the interpretation of the 1871 Act. It is noticeable, however, that Finlay LJ, who gave the judgment with which the other two members of the Court of Appeal agreed, said at 476A:

"For myself, I see no ground at all for saying that because a dog is a lurcher or, indeed, belongs to any other breed, therefore it is to be taken out of the ordinary category of dogs. It is a dog with the habits of a dog. I think it quite plain that if you are going to make out a case in respect of damage done by a dog, you must establish scienter; that is to say, you must show that the plaintiff knew that this particular dog, not dogs in general, was a dog which, by reason of its habits was likely to cause damage by reason of the fact that it had in the past done the same sort of thing of which it was alleged to have done in the case in question. The most familiar illustration is, perhaps, that of a dog biting a human being. In that case the meaning of the doctrine of scienter simply is that it must be shown that the owner knew that the particular dog had a propensity that way."

On the facts of that case, Finlay LJ pointed out at page 476F:

"Both [Defendants] said that they had never known the dogs to attack rabbits before, and that they had never had any complaint."

It was put to Mr Pickford in the course of argument that if a dog was known to have a disposition to attack pet rabbits, and had done it on a number of occasions, it was hard to see why, in theory at any rate, that dog might not, in certain circumstances, be described as dangerous. At that stage Mr Pickford resiled from his earlier contention, and submitted that an examination of the civil cases concerned with civil liability was not going to assist us very much in the interpretation of the 1871 Act.

In Keddle v Payn 1964 1 All ER 189 the Divisional Court was concerned with a case in which:

"... a male Corgi dog, eight years old... had attacked and bitten children when the dog was not in charge of anyone, and on other occasions, when in the son's charge, had been near children without attacking or biting them. An information against the appellant's son that he had suffered to be at large a ferocious dog contrary to para 2 of s. 54 of the Metropolitan Police Act, 1839, was dismissed. Subsequently, on a complaint brought under s. 2 of the Dogs Act, 1871, against the appellant to show cause why an order should not be made that the dog, being a dangerous dog, should be kept under proper control or destroyed, the magistrate found that the dog had a propensity to bite children and was therefore dangerous. On appeal the appellant was permitted to raise a contention, not previously advanced, that the dismissal of the information under s. 54 of the Act of 1839 precluded the magistrate from finding subsequently that the dog was dangerous.

Held: there was no inconsistency between the two findings, since a dog with a propensity to bite children might be dangerous, although the dog might not be found to have a ferocity of nature which would justify its being found to be ferocious."

That case was mainly concerned with the difference between the meaning of the word "ferocious" in the 1839 Act and the meaning of the word "dangerous" in the 1871 Act. However, it is noticeable that this Court referred, without disapproval, to the Court of Session case of Henderson v McKenzie and concluded that what the Justices needed to examine, in the context of a complaint under section 2 of the 1871 Act, was whether the dog in question had a dangerous disposition or propensity. At page 191, after citing Lord Moncreiff speech (he was the Lord Justice-Clerk in Henderson v McKenzie) Fenton Atkinson J said:

"For my part I agree entirely with the magistrate's view, and I can see for myself no inconsistency at all in the two findings. A dog with a disposition or propensity to bite small children or postmen, or any other class of persons, it seems to me, may well be dangerous though nobody could fairly describe the dog as ferocious..."

Winn J said:

"In my judgment the essential elements of the complaint which was made in this case are only these: (1) that the dog should be shown to have a propensity to do certain acts; (2) that those acts should be shown to be per se dangerous."

Lord Parker CJ agreed, making observations on a particular aspect of Lord Moncreiff's judgment in Henderson v McKenzie.

The final case to which I would refer in this part of the judgment, is the Scottish case of MacDonald v Munro [1951] SLT Reports 48 in that case a dog bit a 4-year old girl under circumstances indicating that she had attempted to play with the dog while it was eating a bone, and that she might have interfered with the bone. Three months previously the dog had snarled at the child's father over a garden fence. The lower Court found the accused dog to be dangerous and not kept under proper control. The case went up to the High Court and, on the facts of that case, Lord Cooper, Lord Justice-General, said that:

"I am bound to say that the circumstances [of the case] seem to me quite consistent with a good tempered and peaceful animal being momentarily exasperated or frightened or misled by the conduct of its playmates into committing an isolated act, which may have been unintentional or accidental, but which, at worst, may have been in the dog's eyes seriously provoked by an apparent attempt to interfere with his bone."

The ground on which the Magistrate had justified the extreme Order which he had pronounced was as follows:

"'It is my belief' he says, 'that a dog which has once bitten a human being may do so again and is dangerous.'"

Lord Cooper went on to say:

"The first part of that section is a truism; but the second part seems to me to involve a misdirection in law as to the meaning of 'dangerous' in the Dogs Act of 1871, and to involve what was condemned by the Lord Justice-Clerk in Henderson v McKenzie - the pronouncement of an order under the Dogs Act based not upon its dangerous character or disposition but solely upon an act committed by the dog. Doubtless a single act may in some cases reveal a dangerous disposition, but this is not such a case. The incident was an unfortunate one, but the case does not seem to me to disclose a situation in which there is justification for the step that was taken in this case, nor indeed for even the minor order of requiring the owner to keep the dog under control."

The two other members of the Court agreed.

Standing back from all these cases it appears to me that Mr Pickford's attempt to confine the meaning of the word "dangerous" in section 2 of the 1871 Act is not justified by the authorities and not by the ordinary principles of interpretation. As I have said, Mr Pickford first sought to confine the meaning of the Act by reference to the English common-law and the way that the English common-law had been varied by statute in 1865, 1906, 1928 and so on. Since the Dogs Act 1871 is an Act which applies to both sides of the border, and the law of Scotland was different, that was, in my judgment, an unpromising attempt to confine the meaning of a clear English word.

It appears to me that the approach of the Courts on both sides of the border show that what the Court is to be concerned with is an analysis of the question whether, on the facts produced by the complainant, the Magistrates are satisfied that the dog or dogs in question, are dangerous in the sense that they have a dangerous disposition. As the Lord Justice-General said in MacDonald v Munro in an exceptional case "a single act may... reveal a dangerous disposition." In other cases it may be that the Justices would not be satisfied if evidence was only produced of a single act, but would require further evidence to satisfy them that the dog was dangerous within the meaning of the 1871 Act. At any event, I am satisfied that the meaning of the word "dangerous" should not be confined as meaning dangerous to mankind or dangerous to the livestock identified for particular protection by Parliament in relation to the law of England. Dangerous is a word which the Magistrates are entitled to apply whatever the evidence is before them. Accordingly I would answer the second question by the Justices:

"Whether the Dogs Act 1871, as amended and applied, permitted a finding that a dog was dangerous and not under proper control when only a fight between dogs took place and no person or other animal was endangered or injured."

with the answer "yes".

I turn now to the first question and this requires an analysis of the evidence. The evidence which was before the justices is set out on pages 3 to 22 of the Case Stated. It must be remembered that Mr Pickford accepted that the Appellant could only succeed on this ground of his appeal on a point of law if he was able to show that there was no evidence which could support the Justices' finding that the two dogs were dangerous and not kept under proper control. If there was some evidence which might support that finding it was a matter for the Justices to decide how much weight to give them. The parties put their arguments in diametrically opposite ways. Mr Mason, who appears for the Crown, submitted in his skeleton argument, that:

"It is possible to leave aside extraneous issues in what was a hotly contested case and concentrate upon certain incontrovertible findings:

A. On 30th May 1997 two very large dogs of great weight and power inflicted fatal injuries upon one very small dog. The Appellant, the owner of the large dogs, despite his best efforts, was not able either to keep the dogs on their leads and restrained, or to stop his dogs attacking the small dog. This is despite him lying on the ground to protect the small dog, thereby rendering himself liable to injury.

B. At the time of the incident, children were present in charge of the small dog, and two other adults had to intervene to bring the event to an end.

C. The dogs had previously been involved in incidents where other dogs had been frightened or injured and a sheep worried.

D. The Appellant had built high fences to keep the dogs on his property and used unconventional and powerful equipment to attempt to keep them under control whilst out walking. He had submitted the dogs to training from an early age.

E. The Appellant paid the Veterinary Surgeon's bill for the small dog."

Mr Mason went on to submit that:

"1. Dogs of all shapes and sizes may attack other dogs and animals. Such attacks may not always be dangerous, for instance in the case of two equally matched animals skirmishing, or a hunting dog gaining access to a rabbit or chicken. However, in any attack, there may be intervening circumstances which render the attacking dog dangerous.

2. In this case the dogs prosecuted an attack upon a small and helpless animal to the point of fatal injury. Part of the attack was carried out over the prone body of the dogs' master and all of it in the presence of three children, whose dog was being attacked. The Appellant was powerless to stop the attack. The notion, advanced by him that he had some form of pychological control is visible. As soon as the first of the dogs broke free they were out of control.

3. To argue that the small dog started the 'fight' is unhelpful. There was a fight between dogs: what the appellant was able to do to stop it is relevant to the issue of control, and the circumstances of the whole incident are relevant to the issue of whether the dogs were dangerous."

Mr Mason submitted in all the circumstances that the answer to the first question posed by the Justices must be in the affirmative.

Mr Pickford, in contrast, submitted the evidence to very careful scrutiny. He said that the way that the Justices should have approached the case was that there was a dog fight. Evidence about the dog fight was adduced from Mr Briscoe, Mr Lenthall and Mr Wembridge, a friend who had come on the scene with Mr Lenthall towards the end of the fight. Mr Pickford submitted that there was no significant difference between them. It was not a question of choosing which witness was to be preferred but of seeing their evidence as a whole.

Mr Lenthall's dog was injured, and he stressed the point that Mr Briscoe described the whole fight and the other witnesses only the end of it because they arrived on the scene late. He made a point of the fact that Mr Lenthall's three stepchildren, aged 9, 11 and 13, who had care of his dog, did not give evidence. He said that the evidence showed that the child who held the dog's lead let go of it when it pulled away at a considerable distance from the other dogs.

In those circumstances Mr Pickford complains that the Justices in considering the evidence and making their findings of fact failed to include specific mention in the facts, that the Lenthall dog which had been held on a lead had been let go. He pointed out correctly that this was common ground between the witnesses, but said that it was not considered by the Justices in reaching a decision. Mr Pickford says that the evidence showed, and this was not brought out in the Justices' finding, that Mr Briscoe was standing at the Lenthall's gate with both his dogs on leads when the children approached at about 30 yards away. It was their dog which broke away from the boy who was holding the lead and ran to where Mr Briscoe's two dogs were, which he regarded as his (the Jack Russell's) home territory. Complaint is made that this, too, is omitted from the facts found by the Justices and was not taken into account in their decision. It is said that Mr Briscoe, who had been asked a question by the Justices, told them that the Jack Russell, as it came down the lane, was growling and barking and it came at speed. Complaint is made that this fact, too, was omitted from the facts set out in the case.

Mr Pickford complains that the view of the justices:

"We found it inconceivable that large heavy dogs would act in self-defence towards a Jack Russell"

was not only not founded on any evidence but also not supported by common knowledge. He says that dogs will attack animals larger than themselves, such as cattle and horses, which will act in self-defence. He points out that Mr Briscoe told the Justices he tried to stop Mr Lenthall's dog's attack, and he took such action so that he could ward off the dog with his foot to avoid it. He showed us other evidence which shows that Mr Briscoe was, and his dogs were, placed in a situation where the Jack Russell was coming up to them in an aggressive way, and even when he tried to pick up the Jack Russell it bit him. He dropped it and it went on attacking. He says that Mr Briscoe's dogs never left his client's side throughout and the whole problem here was that the Jack Russell was attacking the other dogs.

It is said that Mr Lenthall's evidence confirmed Mr Briscoe's evidence as far as it could. The children were screaming because of the dog fight and the Jack Russell had started the dog fight. Mr Lenthall said that he pulled one of Mr Briscoe's dogs away and hit it, and there was no hostile reaction and no question of Mr Lenthall being in any danger or feeling in danger. Mr Pickford submits that this confirms that Mr Briscoe's dogs were not dangerous and that contrasted with the behaviour of Mr Lenthall's dog.

Mr Pickford complains that none of this evidence in favour of the Briscoe dogs by the complainant's lead witness, Mr Lenthall, was included in the facts. All the evidence contradicts the Justices' opinion that the Briscoe dogs were the aggressors. As a result of that view the Justices came to the wrong conclusion that there was something that he should, or could, have done to stop the fight.

After making a number of submissions based on his earlier contention that the word "dangerous" must refer to dangerous to mankind, he points out that there was no evidence that Mr Lenthall and Mr Wembridge knew about the Briscoe dogs having to defend themselves. He went on to make a number of submissions which were really based upon the same point that Mr Briscoe and his two dogs were standing near Mr Lenthall's gate, that the incident had been initiated because the Jack Russell came down the lane barking at them, and that all that happened was that Mr Briscoe's dogs behaved in a reasonable way when they were being harried.

Mr Pickford submits that the Justices were wrong to draw adverse inferences from the five and a half foot fence, the special leads, or the special training, and saw that his client was acting responsibly in attending to these matters. He complains that the Justices did not understand the nature of dog training. He complains that the mistake that Mr Briscoe made, which allowed one of his dogs to escape from his collar, was nothing more than that. The dog wrestled loose because it was being attacked. It acted in a defensive way. Even when it was loose from the collar he said that the dog did not leave his side. He cited the Oxford English Dictionary for the meaning of the word "harry" which means "vex by repeated attacks". He submits that Mr Briscoe's friendly act, in paying for the care of Mr Lenthall's dog by the veterinary surgeon until it died, was not a matter which the Justices should have taken into account against him.

In my judgment these matters were very much matters for the Justices on which the Justices were to to be entitled to reach conclusions on the facts they heard. They were clearly impressed by Mr Lenthall's evidence both as a dog owner and as the owner of this particular dog. They made it clear that they accepted his evidence that Toby was not an aggressive dog and that Mr Lenthall had never had such a quiet Jack Russell, and Mr Lenthall told the Justices that he had had Jack Russells all his life. That was a feature of the case that the Justices were entitled to take into account.

Even if the Jack Russell behaved in a predictable way by going down the lane and barking and harrying the dogs, which were at what he regarded as his home gate, it would very much be a matter of fact for the Justices to determine whether the fact that the two eight stone Akita dogs behaved in such a way that in a very short space of time the Jack Russell was, for all practical purposes, dead, was evidence from which they could conclude that those dogs had a dangerous disposition in the sense in which the Courts have approached the meaning of the word "dangerous" in the past. The Justices would have heard the evidence from Mr Hunt who gave evidence on behalf of the Defendant. He was an animal handler who had experience in dog's behaviour and he said in cross-examination:

"The Akita breed was originally bred as a sledge dog and used by Norwegians and Lapps, but now in Japan as a house dog. They are territorial and suspicious as are most dogs. They are not to my knowledge dangerous with others. They will revert to type for their own protection. If two dogs are approached by small dogs, they will kill."

Although he went on to say, "This applies to all dogs", that was evidence which the Justices were entitled to take into account. They were also, in my judgment, entitled to bear in mind the evidence by Mr Lenthall, a witness who clearly impressed them, when he had referred in his statement to the police, which was put to him in cross-examination, to the fact that one of the dogs was attacking the Jack Russell with the sole intention to kill it.

Mr Wembridge, his friend, who watched the matter and said that,"It was like a seen scene from a horror movie", also referred to a sole intention. He said that "The sole intention was of savaging Toby." These were matters very much for the Justices to take into account. I would certainly not be disposed to criticise the Justices for not making voluminous findings of fact. They heard all the evidence. They came to their conclusion, and their conclusion was, after hearing all the evidence, that the dog fight ensued when Hank wrestled his head out off his collar, the Appellant fell on top of the Jack Russell and his own dogs pitched in and attacked both him and the Jack Russell. In my judgment the evidence is there. It was a matter for the Justices to form their own opinion what to make of that incident with evidence from which they could conclude that these two large dogs were the dangerous disposition.

It is now necessary to look at the other matters on which the Justices relied. The first occasion when the Appellant's dogs had behaved aggressively was towards Mr Morley's puppy. Mr Morley gave evidence to them. He was a vet who lived 400 yards away from the Lenthalls in the other direction from Mr Briscoe's home, so that he lived more than half a mile from Mr Briscoe. He told the Justices he had met Mr Briscoe's dogs out and about and he had been warey of them. They did not have the same body language as other dogs he had experience of and he said that the most worrying aspect was that before the incident, when he walked by Mr Morley's house:

"the dogs were quite aggressive towards our puppy on the other side of our gate. They are pretty large animals. The males are 120 pounds, the females just under 100 pounds in weight."

He said at the end of his evidence-in-chief, that he was not confident of Mr Briscoe's ability to control the two dogs in public. In cross-examination he said he had never seen the dogs without their leads or breaking away. He thought Mr Briscoe did his best to control them but they were extremely powerful. He said that their own dog was off its lead in their garden, and he described an incident when it shot out once when the gates were open, although he did not see any encounter with the Briscoe dogs on that occasion. He accepted that he had no experience as a behaviourist with dogs and he would not hold himself out as an expert.

Mr Pickford complains that although Mr Morley said that the Briscoe dogs were "quite aggressive", there was no evidence of any incident. The incident of which Mr Morley complained was the incident in which his puppy was out in the garden and the Briscoe dogs going past had behaved aggressively towards him through the fence. Although that was as far as the episode went, the justices would no doubt have taken into account the general tenor of Mr Morley's evidence. Mr Briscoe reminds us that Mr Morley accepted that he did not understand the body language and had confirmed that the dogs were not off their leads and had never broken away from him.

It appears to me that for what it was worth the Justices were entitled to take into account Mr Morley's evidence in relation to the disposition of these dogs and the need to keep them under proper control, although that particular part of the evidence cannot have weighed very heavily with them.

The next matter that the Justices referred to was an attack by Mr Briscoe's dogs on a Mrs Strange's Collie bitch which caused injury to her shoulder and loss of its collar which the Appellant failed to stop. Mrs Strange is a local farmer who lived three miles away from Mr Briscoe. On one occasion she visited Briscombe where Mr Briscoe lives to inspect sheep in a field that she was renting there. She said in her examination-in-chief she had one of her dogs with her, a Collie bitch about two years old, who was kind natured and never in any trouble with any other dogs. She had never started a fight. Mrs Strange told the Justices she parked her pick-up in the lane and got out with the dog and saw Mr Briscoe in the lane. Her dog was not on a lead, she was five or six yards from her:

"We walked down the lane, my dog went over to his to say 'hello'. His dogs attacked my little bitch. One started and the other joined in. I managed to pull my dog free. She had an injury to her shoulder and lost her collar. It was a gash an inch and a half long which I treated myself as I am a farmer."

Mrs Strange was cross-examined at some length. She accepted that Mr Briscoe's two dogs were on leads, and she also said that a second dog of hers jumped out of the pick-up truck and she accepted she may have omitted to think of that at the time. She denied that that second dog nipped one of Mr Briscoe's dogs. She said:

"If I hadn't rescued it I think there would have been more significant damage. Though they were on leads, I would argue that his dogs were not under control. It didn't seem to stop them attacking."

In re-examination:

"My dog may well have run up to his dog but without showing fangs or hackles raised."

Mr Pickford showed us, during his examination of the evidence, how his own client had given the justices rather a different account of this incident. He had said that Mrs Strange's dog had come up among them all snarling and that her dog was barking. So far as the gash on her dog was concerned, he would say that she was lying or that she did not remember. He accepted that Hank had grabbed the fur on the back of the dog's neck, but Mrs Strange had told him that there was no injury and had said that the dog was all right.

As we pointed out to Mr Pickford during the course of his submissions, it is entirely a matter for the Justices to decide whose evidence they believe. They clearly found, as a fact, that Mrs Strange's Collie bitch had been attacked by Mr Briscoe's dogs and that it had injury caused to its shoulder and the loss of its collar, which although the dogs were on their leads, the Appellant had failed to stop. This again, in my judgment, was a matter which the justices were entitled to take into account in deciding whether to conclude that Mr Briscoe's dogs were dangerous within the meaning of the Act.

Mr Pickford has suggested that the point about Mrs Strange was not supported by her evidence. The general tenor of Mr Pickford's submissions appeared to be that if his client had two eight stone dogs which he was accustomed to take around with him outside his own premises and other dogs ran up to them, then if his client's dogs, even when they were still on a lead, did damage to the other very much smaller dogs it was unfair and improper to call them dangerous within the meaning of the 1871 Act. In my judgment this submission is not well-founded. It is entirely a matter for the Justices to try as a fact and to conclude whether the behaviour of a dog in question does show that it has a dangerous disposition. It may very well be that Mr Briscoe was causing the risk of danger, or the risk of an adverse finding under the 1871 Act, when he thought that he could take these two large dogs out together among the public.

The final point relates to an incident described by the Appellant where a straying sheep of Mr Willacott's had sustained an injury. There was very little evidence about this episode. It only came from Mr Briscoe himself and it referred to an episode where a sheep had been chased by his dog, Hank, and it caught itself on a metal spike. The sheep was on Mr Briscoe's own land and the sheep ran against it turning. Although the Justices said that the dog, Hank, had also been involved in an incident described by the Appellant as a straying sheep of Mr Willacott's which had sustained injury, that could not be said of the other dog and it is hard to think that that particular incident, which had only affected one of the dogs, would have weighed very heavily with the Justices when they made their finding that both dogs were dangerous within the meaning of the Act.

In my judgment Mr Pickford set out on an almost impossible task when he sought to challenge the Justices' findings on the facts, in this Court on a point of law. It may be that if there is an appeal to the Crown Court under section 2 of the Dogs Act 1871, the Crown Court might have taken a different view of the facts, but in this Court all we can consider is whether there was evidence on which a Bench of Justices could reasonably reach the conclusion which they did, and, in my judgment, there certainly was.

For those reasons I would answer the first question posed by the Justices:

"Whether the evidence before the Magistrates' Court could support their decision that the dogs Hank and Hannah were dangerous and not kept under proper control"

with the answer "yes".

For those reasons I would dismiss this appeal.

MR JUSTICE SEDLEY: The word "dangerous" in section 2 of the Dogs Act 1871 is not a term of legal art. In my judgment a dog is shown to be dangerous by evidence which satisfies the Justices that the description applies to it within the ordinary limits of the English language. The meaning of the word has not changed appreciably since 1871. What will have changed, as society has changed, are the circumstances in which a dog may be a source of danger. The contrasting language of the preceding section of the 1871 Act, now repealed, by employing the phrase "savage or dangerous" in relation to straying dogs on the highway, disposes of any argument that in section 2 Parliament meant the material danger to be restricted to danger to human beings. The latter is a purpose to which the word "savage" would, if anything, have been more appropriate.

The Court of Session came to the same view of section 2 in Henderson v McKenzie [1876] 3 R 623, without reference to section 1, and so independently did the Divisional Court in Williams v Richards [1907] 2 KB 88. The additional provision made by section 1(4) of the Dogs Act 1906, upon which Mr Pickford has relied, is in the main, therefore, a declaratory subsection. In any event, the meaning of the 1871 Act remains a matter for the Court and not for a subsequent Parliament. The substantive addition to the law made by section 1(4) of the 1906 Act is the chasing of sheep.

If, however, the danger envisaged by section 2 were, contrary to my Lord's and my view, confined to human beings, then the Justices' findings of fact would still have justified their making the Order which they did. A dog-fight can be a direct danger to the public. It can cause a traffic accident. It may cause people to risk injury in trying to separate the animals or passers-by may simply get bitten. One has only to ask what would have happened here if the Appellant had not thrown himself on to the Jack Russell terrier to try to protect it and the three Lenthall children had tried themselves to rescue their pet.

The Appellant's two dogs were found by the Justices to have had a history of aggression. This satisfied the test in Keddle v Payn [1964] 1 All ER 189. But it is necessary to bear in mind that a dog may demonstrate a dangerous propensity in the very incident which leads to the section 2 proceedings: see MacDonald v Munro [1951] SLT 48 at 49. The old law of scienter which required the dog to have given prior proof of the propensity does not govern section 2 of the 1871 Act. This is not to say that evidence of previous acts of aggression, or creation of danger, if such evidence exists, is irrelevant. It is to say that the scienter case cited by Mr Pickford, does not assist with the interpretation or the application of the Act of 1871.

The purpose of section 2 is not, as it is in section 1(3) of the Dangerous Dogs Act 1991, to make it an offence to have a dangerous dog. Section 2 is not a penal section. It bites only where a dog is shown to have been both dangerous and not under proper control. The Justices' powers are correspondingly limited to directing the owner to keep the dog under proper control, or where they conclude that it cannot be realistically controlled by the owner, to having it destroyed. Many dogs which are ordinarily docile may be dangerous in the relevant sense that unless kept under control they may cause real harm. The statutory purpose is thus simply to require dog owners, by exercising suitable control, to prevent such harm from occurring, and if they cannot, to have the dog put down.

So far as concerns the other limb of this appeal, an attempt on the Appellant's behalf to compel the justices to restate the case was rejected by Laws J in July of this year. In my view Mr Pickford's lengthy address to us on the merits was an impermissible attempt to circumvent Laws' J rules and to re-canvass facts which it was for the justices alone to find. The evidence was, as my Lord has demonstrated, ample to support the findings, and the findings as a matter of law justified the Justices' Order. The evidence which my Lord has set out, in dealing with Mr Pickford's submissions, should not be taken as some kind of a benchmark of liability in dangerous dogs' cases. Each case will be different. Each must be separately decided by the legal standard set out in the Act and the judgments of this Court.

For these reasons, as well as those given by my Lord, I agree that both questions should be answered in the affirmative and the appeal be dismissed.

MR MASON: There is an application, my Lord, on the part of the Respondent, for his costs in encountering the appeal in this matter.

MR PICKFORD: I do not think I can resist that, my Lord.

LORD JUSTICE BROOKE: Very well then the Appellant is to pay the Respondent's costs.