Jersey Unreported Judgments

Appeal against the decision of the Magistrate on 18th September 2020.

[2021]JRC026

Royal Court

(Samedi)

19 January 2021

Before     :

Sir Michael Birt, Commissioner, and Jurats Olsen and Austin-Vautier.

 

Advocate R. C. L. Morley-Kirk for the Appellant.

Crown Advocate R. C. P. Pedley for the Respondent. 

judgment

the commissioner:

1.        On 18^th September 2020, amongst other orders, the Magistrate made the following two orders: 

(i)        the Appellant's dog known as Annie be destroyed pursuant to Article 11(B)(3) of the Dogs (Jersey) Law 1961 ("the Law"); and 

(ii)       the Appellant be disqualified from keeping any dog for an indefinite period pursuant to Article 11(B)(8) of the Law. 

The Appellant appealed against both these orders. 

2.        At an interim hearing on 11^th November 2020, the Commissioner granted leave for certain evidence to be adduced at the hearing of the appeal. 

3.        On 26^th November, the Court allowed the appeal and quashed both the above orders.  Instead, against the formal undertaking of the Appellant that she would not keep (including on behalf of others) any dog other than Annie and Leah, the Court ordered that: 

(i)        in any public place, Annie must at all times be muzzled and kept on a short leash; and

(ii)       in any private property, by which is meant property to which the public does not have access, including the Appellant's home, on any occasion when Annie is in the presence of a child aged under 10, the Appellant must either remove Annie from the presence of such child forthwith or ensure that Annie is muzzled at all times when she is in the presence of such a child. 

4.        We now give the reasons both for the procedural decision of the Commissioner to allow the admission of evidence and the decision of the Court to allow the appeal. 

Factual background

5.        At the material time the Appellant owned three dogs.  Annie is aged 8.  She has been with the Appellant since she was 5 months old.  She is a rescue dog, thought to have come from Ireland.  She is believed to be a Collie cross with Whippet.  The second dog is Tibo.  His age is unknown, but the Appellant has owned him for 5 years.  He is also a rescue dog and came from Spain.  He is thought to be a Spanish cross breed and possibly partly Podenco. 

6.        The third dog is Leah who is approximately 6 years old.  She is smaller than the other two dogs.  The Appellant has owned her for 2 years.  She is a rescue dog from Spain, thought to be a breed similar to a Spanish Jack Russell. 

7.        The Appellant faced three charges before the Magistrate's Court in relation to three separate incidents.  The first of these occurred on 3^rd April 2020.  The Appellant had walked her dogs on the beach at La Pulente in company with a friend, who also had two dogs.  The walk had been completed and the Appellant had put her three dogs in her car, at which point the lead of one of the dogs became caught in the door.  She opened the door to free it, whereupon Tibo and Annie jumped out and ran off towards another dog which was down by the slipway.  That dog was called Biggles and belonged to Mrs Gaudion.  Tibo bit the other dog on the side causing an injury which bled and subsequently required stitching by the vet. 

8.        The second incident occurred on 21^st April at about 8:30 a.m.  The Appellant was walking her dogs on Ouaisné common.  She was in company with a friend who also had a dog.  There were therefore four dogs in total and they were all off the lead.  They came across a Mrs Clark who was walking her dog Luna.  Tibo attacked Luna and bit her causing bleeding.  Luna's injury also required to be stitched by the vet. 

9.        Both these incidents involved Tibo, and on 24^th April, the police attended upon the Appellant and ordered her to keep Tibo on a muzzle and lead, which she did from that point onwards.  It is not alleged that Annie bit either of the dogs in the above two incidents. 

10.      The third incident occurred on 18^th May at about 9:30 a.m. on Ouaisné beach.  What follows is taken from the prosecution version of events as set out in the fuller Representation presented to the Magistrate's Court.  At that time Mrs B and her son, aged 4, and daughter, aged 2, went to the beach.  They walked about halfway down the beach in order to find sand suitable to build sandcastles.  After a while the son wanted to collect some water in his bucket, so they walked towards the sea.  According to Mrs B, her son was carrying a bucket and her daughter was carrying a spade.  As they walked towards the sea, they crossed paths with the Appellant, who was walking her dogs on the beach in company with her friend, Mrs Hodgetts.  Tibo was muzzled and on a lead, but Annie and Leah were off their leads.  Mrs B noted that Tibo was barking aggressively and was pulling at his lead.  She thought the Appellant was struggling to control Tibo. 

11.      Annie approached Mrs B and her children and began circling the family.  Mrs B felt that Annie was becoming more aggressive than she was comfortable with, as Annie was barking and lunging towards her and the children.  The two children backed away.  The Appellant was calling Annie back, but this was having no effect on her behaviour.  Mrs B's daughter was sheltering behind Mrs B's legs and Annie was barking loudly and aggressively.  She then heard a scream from her daughter.  She turned around and saw that her daughter's face was covered with blood.  She picked her daughter up.  Her son was still by her side and Mrs B noted that Annie had gone.  She did not see the actual attack.  They walked quickly to the slip.  The Appellant handed control of her dogs to Mrs Hodgetts before following Mrs B and her family.  She was remorseful and made an immediate offer of help, saying that the dog had never done that before and was scared of spades. 

12.      The daughter was taken to the hospital and underwent surgery.  The Magistrate was provided with a report dated 10^th July from the doctor at the hospital.  He stated as follows in his report: 

"My examination revealed a small laceration on the bridge of her nose and two superficial lacerations about her upper lip and the main deep laceration measuring 2cms in the right cheek running into the vermillion zone along the angle of the mouth.  Just behind this deep laceration there was another 2cm deep laceration in the right cheek.  These lacerations were cleaned under general anaesthetic and repaired with absorbable stitches.  She was subsequently reviewed and the lacerations were healing well, although there are residual scars.  These scars will improve with time but there can be a necessity to do further treatment in the form of scar revision at a further stage."

He provided an addendum to that report on 28^th July in which he said:

"It is quite hard to say whether the injuries are purely bite or caused by the dog's claw.  My clinical examination suggests it could be a combination of both."

13.      Following the incident, Annie was taken to the Animal Shelter, where she remained at the date of the appeal. 

14.      Mrs Rosie Barclay, an expert in dog behaviour, produced a report and gave evidence before the Magistrate.  She reported that staff at the Animal Shelter considered Annie a 'really lovely dog' and had at no stage seen any body language or behaviour from Annie to suggest any aggressive tendencies although, in an addendum to the report, Mrs Barclay said she had been informed by Kari Lees at the Animal Shelter that, while walking around the Animal Shelter grounds, Annie had seen a number of children coming out of the nursery situated on site and had not reacted, there was one incident when she saw a child of about 18 months of age and began to growl.  It was reported that, apart from that one incident, she was still 'great' with all the volunteers and staff.  In relation to the incident on the beach, Mrs Barclay said that one incident was highly unlikely suddenly to turn Annie into a serial child biter. 

The procedural issue

(i)         Procedural history

15.      As a result of the above incidents, the Appellant was charged with three counts of being in charge of a dog which was dangerously out of control contrary to Article 11A(1) of the Law.  The first two charges related to Tibo and the third to the incident with Annie. 

16.      When represented by her former advocate, the Appellant entered pleas of guilty to all three charges on 19^th June.  At the end of June, Advocate Morley-Kirk was instructed in place of the former advocate.  However, Advocate Morley-Kirk did not receive all the relevant papers, including the charge sheets, until 30^th July. 

17.      Subsequently, in August, the prosecution and the defence held discussions regarding the sentencing facts. 

18.      It is important to bear in mind that, in proceedings concerning dogs, there are often concurrent civil and criminal proceedings.  Article 11A provides for criminal charges and conviction will in due course lead to punishment of the owner.  Article 11B provides for civil proceedings which may lead to an order that a dog be kept under proper control or be destroyed. 

19.      Although a very brief Representation under Article 11B was presented on 19^th June, it was, according to Advocate Morley-Kirk, not until 10^th September that a fuller Representation was provided setting out in detail the matters relied upon in support of the civil proceedings.  It is that fuller Representation that we have summarised at paragraphs 10 and 11 above.  The Appellant did not accept certain aspects of the case put forward on behalf of the prosecution in the fuller Representation and on 11^th September, Advocate Morley-Kirk set out a 'basis of plea' in relation to the incident concerning Annie, which raised the following matters:

(i)        Although the Appellant accepted that Annie rushed forward and circled the family, she did not believe that Annie was barking, although she could have been. 

(ii)       She did not believe that Annie was lunging towards the family, although she could see why Mrs B might have thought that. 

(iii)      She did not agree with Mrs B's description of Annie as being aggressive; the Appellant considered that Annie was being defensive.

(iv)      The Appellant considered that there were buckets and spades rather than one bucket and one spade and she believed that Annie felt afraid because of the noise coming from the buckets and spades as the children hit them together. 

20.      The Magistrate invited the parties to make written submissions as to whether a basis of plea could be introduced at this late stage.  By decision dated 16^th September and a written judgment dated 17^th September, she refused to permit the basis of plea to be reopened. 

21.      In the Magistrate's judgment, it transpired that, when entering the plea of guilty on 19^th June, the Appellant's then advocate had stated that not all the prosecution facts were accepted, and the Magistrate had directed that a written and signed basis of plea be provided to the Crown.  Unfortunately Advocate Morley-Kirk had not been aware of this and indeed only became aware of it on reading the Magistrate's judgment, because there was no record of this in the charge sheets. 

22.      Be that as it may, the Magistrate, having referred to Article 78 of the Criminal Procedure (Jersey) Law 2018 ("the Criminal Procedure Law"), held that the defence had not complied in a timely manner with the requirements of that Article.  In her view, when a guilty plea was entered, defence counsel would know both the Crown's case and the instructions given by his/her client.  Defence counsel should identify whether any facts are disputed and should be in a position to provide a written basis of plea to the Crown in compliance with Article 78 either at the time the plea is entered or very shortly thereafter.  To seek to introduce a basis of plea at a very late stage could not be said to be in furtherance of the overriding objective under Article 2 of the Criminal Procedure Law.  If defendants were permitted to vary the basis upon which they had entered a guilty plea, there would be no certainty for the prosecutor, the court or potential witnesses and the efficient and expeditious administration of justice would be frustrated.  Unless there were exceptional or compelling reasons which would make it unjust not to allow a basis to be put forward at a late stage, the court should not revisit the basis of plea.  In the Magistrate's view, Article 78 should be interpreted in accordance with the overriding objective, and she interpreted it to mean that where a guilty plea is entered, any dispute on the facts must be raised at the time of the plea or shortly thereafter.  In the absence of an indication of a basis of plea, the Crown, the court, witnesses and other agencies were entitled to proceed on the basis that the full prosecution case was accepted. 

23.      The effect of the Magistrate's ruling was that, even in relation to the civil proceedings, she did not permit any evidence to be adduced which was inconsistent with full acceptance of the case set out in the fuller Representation.  Advocate Morley-Kirk argued before the Commissioner that, because the Appellant had been prohibited by the Magistrate's ruling from adducing her version of events as to what had happened on the beach, this Court should allow her to adduce the evidence on appeal which she would wish to have adduced in support of the matters set out in the basis of plea. 

24.      In Knapp v AG [2011] JRC 118, this Court gave some guidance as to the nature of an appeal against an order by the Magistrates' Court for destruction of a dog or that it be kept under proper control.  At paragraph 39 the Court said this: 

"The 1961 Law is silent as to the correct approach on an appeal.  However, as in the case of most appeals, the 1961 Law does not envisage trial by a court of appeal; it envisages trial by the Magistrate's Court.  An appeal lies to correct error but not to re-hear the case afresh.  Accordingly, in our judgment, in the ordinary case, the Court will simply be concerned to consider whether there was evidence before the Magistrate upon which he could reasonably and properly conclude that the dog in question was dangerous or not kept under proper control and whether the decision to order the dog's destruction was proportionate.  However, where there are procedural defects in relation to the proceedings before the Magistrates' Court or where further evidence is admitted, this Court will have to reach its own conclusion on whether it is satisfied that the dog is dangerous or is not kept under proper control...."

25.      The Law has been amended since the decision in Knapp, and the relevant parts of Article 11D now provide as follows:

"11D.  Procedure on appeals

(1)       Where -

(a)       a person has been convicted of an offence under Article 9 or 11A(1) and an order has been made under Article 11B(3), 11B(6) or 11B(8) in respect of the same incident; and

(b)       the person appeals against the conviction or sentence and any such order,

the Royal Court may at any stage order that the appeals be heard and determined together and may give such directions for that purpose as it thinks fit.

(2)       On any appeal under Article 11B(7), 11B(9), 11B(10) or 11C(4), the Royal Court may direct that witnesses shall be heard before it at the hearing of any appeal in relation to any matter or thing relevant to the appeal.

(3)       On any appeal under Article 11B(7), 11B(9), 11B(10) or 11C(4) the Royal Court may -

(a)       confirm, reverse or vary the decision of the Magistrate's Court;

(b)       remit the matter with its opinion on the matter to the Magistrate's Court; or

(c)       make such other order in the matter as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised, and any order so made shall have the like effect and may be enforced in like manner as if it had been made by the Magistrate's Court."

26.      As can be seen, the Law now specifically envisages the possibility of the Royal Court hearing witnesses, but we remain of the view that this should be the exception rather than the rule, as is the case in an appeal from the Magistrate's Court in criminal proceedings.  Accordingly, we think that Knapp continues to state the correct approach. 

27.      The Commissioner concluded that there had been a procedural defect in the Magistrate's Court.  So far as relevant, Article 11B of the Law provides as follows:

"11B.   Orders directing dogs to be destroyed or kept under proper control

(1)       Any person may make a representation to the Magistrate's Court -

(a)       alleging that a dog is dangerously out of control or is otherwise not kept under proper control; and

(b)       seeking an order under paragraph (3).

(2)     ....

(3)       Where, after hearing a representation brought under paragraph (1) or after hearing evidence in proceedings brought for any offence, the Magistrate's Court is satisfied that a dog is dangerously out of control or is otherwise not kept under proper control, the Court may make an order either -

(a)       that the dog shall be kept under proper control; or

(b)       that the dog shall be destroyed.

(4)       An order shall not be made under paragraph (3) unless the owner of, or the person claiming responsibility for, the dog has been given an opportunity to be heard and to adduce evidence." [Emphasis added]

28.      There is nothing in the observations of the Magistrate quoted at paragraph 22 above with which we would disagree in relation to criminal proceedings.  On the contrary, they are entirely appropriate, and we approve the application of the approach she describes in relation to criminal proceedings in the Magistrate's Court.  The problem lies in the fact that, although reference was made in the written submissions to the Magistrate to the Representation proceedings as being separate from the criminal proceedings, the application itself was to enter a basis of plea in the criminal proceedings.  Not surprisingly, the emphasis of the submissions was on that aspect.  As a result, while she acknowledged the consequential effect of her ruling on the Representation proceedings, the Magistrate in her judgment concentrated almost entirely on the criminal proceedings and whether a late introduction of a basis of plea in those proceedings should be permitted.  She does not appear to have been referred to Article 11B(4) of the Law.  What was equally of concern to the Appellant was the version of events that she wished to put forward in response to the fuller Representation in the civil proceedings (which had only been presented on 10^th September), which might lead to the destruction of her dog.  In our judgment, the emphasis on the criminal proceedings and the fact that the application itself was to enter a basis of plea in those proceedings led the Magistrate into error.  In the emphasised passage above, Article 11B(4)) specifically provides that an order for the destruction of a dog shall not be made unless the owner has been given an opportunity not only to be heard but also to adduce evidence.  Because of the failure by the parties to distinguish adequately between the criminal proceedings and the civil proceedings, the effect of the Magistrate's refusal to allow a basis of plea to be entered was that the Appellant was prohibited from adducing evidence in the civil proceedings in relation to what happened on the beach.  That led to a result which was contrary to Article 11B(4)) and was therefore a procedural defect.  We add, for the avoidance of doubt, that as with any civil case, the right to adduce evidence is subject to reasonable regulation by the court. Suppose for example that the Magistrate had made an order that any evidence which the Appellant wished to adduce in the civil proceedings had to be filed by a certain date before the hearing and that the Appellant had failed to meet that deadline.  It would clearly be within the discretion of the Magistrate to refuse to allow the admission of evidence which had not been filed in time, such discretion to be exercised on ordinary principles. 

29.      In the circumstances, the Commissioner granted leave for evidence to be adduced on appeal as to what happened on the beach, because this was the only area where the Appellant had been prohibited from adducing evidence in the court below.  The Commissioner therefore gave leave for evidence to be heard from the Appellant, Mrs Hodgetts and Mrs B on this limited aspect. 

The evidence on appeal

30.      In her evidence before us, the Appellant said that she thought that the children were each carrying a bucket and spade and were banging them together as they walked on the beach.  She thought that this may have frightened Annie.  She did not think that Annie was barking, although she accepted that she may have been.  Tibo was barking.  Annie was not lunging forwards or being aggressive; the Appellant thought she was trying to round up in the way that a Collie is bred to do.  She said that Annie did not circle right round the family.  Like everyone else, she did not see the attack itself.  Annie came back very quickly and did not appear excited.  The Appellant thought that it all may have happened by mistake.  She accepted that she had told Mrs Barclay that the incident was a 'blur' and that she could not clearly describe exactly what had happened, but what had happened had stayed in her mind. 

31.      Mrs Hodgetts also gave evidence.  She has known the Appellant for about nine years and walks with her and her dogs on average about five days a week.  She said that on the morning in question Annie walked over to the B family and went round them.  She did this as if she was rounding up.  Mrs Hodgetts thought that both children had a bucket and spade although it may have been just one.  It was being banged.  She did not recall Annie barking at all nor was she lunging.  She just walked round the family.  Mrs Hodgetts did not think that Annie was acting aggressively.  She did not see the actual incident, but then the children started crying.  She accepted that Tibo may well have been barking.  He was on a lead and had become agitated. 

32.      Mrs B also gave evidence.  What she said was consistent with what she had said to the police and with the fuller Representation as summarised above.  In those circumstances we do not need to repeat it. 

33.      The Court was satisfied that it should proceed on the version of events set out in the fuller Representation, i.e. the prosecution version of events.  We accept without reservation that the Appellant and Mrs Hodgetts were not seeking to mislead the Court in any way.  However, it is clear that they are finding it hard to come to terms with what has happened.  We think that there was an element of wishful thinking in their evidence and they were recalling events as they would wish them to have been.  There were particular pointers to their evidence being unreliable. For example:

(i)        In Mrs Barclay's report, she said on the first page

"[The Appellant] explained that the incident was a 'blur' and she can't clearly describe what happened." 

That was inconsistent with her oral evidence when she purported to describe what had happened in some detail.

(ii)       In her oral evidence the Appellant said that Annie had not gone right round the family.  However, Mrs Barclay said in her report that the Appellant recalled that Annie seemed to circle around the children, and that was also the evidence of Mrs Hodgetts.  The Appellant's evidence in this respect was also inconsistent with her own basis of plea as set out at para 19(i) above, where she accepted that Annie had circled the family. 

It follows that, although we allowed in the further evidence which should have been heard in the Magistrate's Court, we proceed on the same basis of fact as did the Magistrate. 

Conclusion

(i)         The order for Annie's destruction

34.      The leading authority in this jurisdiction is Melim v AG [2012] JRC 134, where at paragraph 23, William Bailhache, Deputy Bailiff, summarised the position as follows:

"23.  These extracts show that the Law does not involve the adoption of the expression, popularly but incorrectly used, that 'every dog is entitled to one bite'.  The question for the Court, usually for the Magistrate but in the unusual circumstances of this case, for us, is whether the dog is considered to be dangerous.  One bite, particularly a severe bite, may well lead the Magistrate or the Court to the conclusion that the dog is dangerous.  There are, no doubt, many who would take the view that a dog which has bitten a child in the circumstances which face us today can never be trusted again, and, if it belonged to them, should be destroyed.  That however is not the legal test which we have to apply.  The test we have to apply is whether the dog is of such a dangerous disposition, on the balance of probabilities, that the risk to the public is such that an order should be made for its destruction.  In considering that test, the Court has to have regard to all the evidence surrounding the incident itself, but also the evidence of the dog's general disposition and, if it should be relevant, evidence of the characteristics of the breed in question."

35.      The terms of the Law have been amended since Melim and the test in both Articles 11A and 11B is now whether the dog is 'dangerously out of control'.  That expression is defined in Article 11(1) as follows (so far as relevant):

"(1)     A dog shall be regarded as dangerously out of control if on any occasion it is not being kept under control effectively by an individual and -

(a)       It is causing or has caused death, injury or other harm to an individual, a domestic animal or livestock..."

36.      Nevertheless, we do not think that this is a change of any substance for the purposes of Article 11B(3).  The Court must still consider whether the dog is of a dangerous disposition and, if it is not to act in breach of Article 1 of Protocol 1 ECHR, whether an order for destruction of the dog would be proportionate.  In conducting that exercise, the Court must consider whether a lesser order would adequately protect the interests of the public.

37.      There is no doubt that on this occasion Annie was dangerously out of control.  The Appellant has pleaded guilty to that and does not contest that element of the Representation.  The issue then is whether it is proportionate to order the dog's destruction.  We concluded that, in the circumstances of this case, it would not be proportionate and that it was not necessary for the protection of the public given the alternative order we proposed to make. 

38.      In relation to Annie's previous disposition, there was evidence before the Magistrate not only from the Appellant and Mrs Hodgetts, but also from many others who have had experience of Annie over the years.  All those with such experience speak with one voice.  They say that Annie has never before shown any sign of aggressive behaviour, including towards young children.  Annie has often walked on the beach where there have been children running around and playing, and nothing like this has ever happened before.  She has also been in contact with the children of some of those who have written letters.  We are satisfied that her behaviour on this occasion was wholly out of character.  

39.      Having said that, she did deliver a bite to a young child on this occasion and there is the incident referred to earlier where she growled at a young child while at the Animal Shelter.  We are satisfied that the public needs protection from her. 

40.      We do not underestimate what a frightening and shocking incident this must have been to the little girl who was bitten and to her parents.  Nevertheless, we did not consider that the protection of the public required Annie's destruction, given her previous complete lack of aggressive behaviour.  We considered that adequate protection would be provided by an order that, whenever she is in public, Annie must be muzzled and kept on a short lead, and that where she comes across a child under 10, even in private, steps must be taken to remove her immediately or to muzzle her. 

41.      In reaching this conclusion we took into account that Tibo has been re-homed since this incident.  There is no doubt that he is a dog with aggressive tendencies, and it seems likely that his barking and aggression while on the lead may well have contributed to Annie's behaviour on the beach by making her over-excited.  We were also troubled by the question of whether, at her age, the Appellant could properly control three dogs, even if Annie was muzzled and on a lead.  In that connection the Appellant undertook to the Court that she would at no stage keep any dogs other than Annie and Leah.  There is no suggestion from any source that Leah gives any problems at all. 

(ii)        The disqualification order

42.      We also concluded that, particularly in the light of the undertaking which the Appellant gave, the disqualification order was disproportionate.  Again, the references are unstinting in their praise of the Appellant.  She has apparently often looked after dogs for others and all the letters suggest that she is a responsible keeper of dogs.  Now that Tibo has gone, we could see no reason why she should not be permitted to keep Annie and Leah.  It was emphasised to her at the hearing that breach of her undertaking would be a contempt of court and would render her liable to punishment, including the possibility of imprisonment.  

Conclusion

43.      For the reasons which we have given, we allowed this appeal in respect of both orders and instead made the orders referred to at paragraph 3 above. 

Authorities

Dogs (Jersey) Law 1961.

Criminal Procedure (Jersey) Law 2018

Knapp v AG [2011] JRC 118

Melim v AG [2012] JRC 134