Scottish High Court of Justiciary Decisons

TERENCE SWANKIE v. PROCURATOR FISCAL, PETERHEAD [1998] ScotHC 3 (20th October, 1998)

The appellant, Terence Swankie, appeared at Peterhead Sheriff Court and pled guilty to a charge that on 10 April 1998 in Roanheads, Peterhead, Aberdeenshire, he was the owner of a dog, namely a collie type dog which was dangerously out of control in a public place, whereby said dog (a) ran towards Alistair Gardiner, 79 Roanheads, Peterhead and his granddaughter, barked and growled at them and said Alistair Gardiner had to fend off said dog to prevent it biting him and his granddaughter and (b) ran towards Andrew Ainslie, care of Royal Mail, Kirk Street, Peterhead, a postman delivering mail, barked, growled and showed his teeth at him and he had to fend off said dog with his bicycle to prevent said dog biting him; CONTRARY to the Dangerous Dogs Act 1991, section 3(1).

When the case first called on 13 August the appellant was not present in court but he had submitted a letter of explanation. The procurator fiscal informed the sheriff that at about 11.45 a.m. on a Friday morning, Alistair Gardiner had been out walking with his granddaughter and as he walked past the gate of the appellant's home, a large black dog ran towards them, jumped over the wall and approached them barking and growling. Mr. Gardiner tried to fend the dog off and did so successfully. About 15 minutes later a neighbour heard the sound of breaking glass and, on looking out, saw the dog running along the top of the wall. An approaching postman was then seen and the dog jumped off the wall and ran to the postman, barking and growling, and backed the postman up against a wall. The postman used his bicycle to ward the dog off. Mr. Gardiner came out of his house and with his assistance the dog was chased off and went back into its own garden. The police were called and when they interviewed the appellant the dog was on a lead and was excitable but not aggressive.

It appeared to the sheriff that the information which was contained in the appellant's letter of explanation was inconsistent with the account which had been given by the procurator fiscal and the appellant was invited to appear personally to explain how these two incidents had occurred within 15 minutes of each other. On 2 September the appellant was present in court and he explained that the dog had probably been pawing at the window where she usually sat and it had broken and allowed her to get out. The sheriff pointed out to the appellant that that would explain the second incident but not the earlier incident. However, the appellant was not able to provide an explanation as to how the dog got out on the first occasion and insisted that the dog could only have got out through the window. The sheriff took the view that there were two incidents of aggressive behaviour on the part of the dog. While one of them might have been explained by the dog having fallen through the window and having had a fright, there was no explanation as to how the dog had been free in the garden at the time of the earlier incident. The sheriff then invited the appellant to provide him with evidence to show that the dog was not dangerous and offered to continue the case so that he could provide the necessary evidence, perhaps from a veterinary surgeon, but the appellant declined to provide any evidence. In these circumstances the sheriff concluded that the dog was a danger to the public. He took the view, in light of the appellant's refusal to provide evidence that the dog was not dangerous, that public safety was paramount and he reluctantly made an order that the dog was to be destroyed. He also fined the appellant £200 but the appellant did not seek to challenge the imposition of the fine.

Counsel for the appellant pointed out that, as the dog had not injured anyone, this had not been an aggravated offence under section 3(1) and the sheriff had a discretion whether or not to order the dog to be destroyed. It was important to note that the appellant had not been legally represented at the hearing. Counsel accepted the sheriff's account of what had taken place in court but stated that when the sheriff had invited the appellant to lead evidence he had thought that he was being asked to supply further information as to how the dog had got out of the house, but he had no further information. He had not realised that he was being invited to lead evidence to show that the dog was not dangerous and he had not appreciated that the sheriff could order the dog to be destroyed. Counsel submitted that the sheriff, in ordering the dog to be destroyed, had exercised his discretion wrongly. Counsel further stated that information was now available which was not before the sheriff and which he asked us to take into consideration. In the first place, it was clear that the procurator fiscal's narrative that there had been two separate incidents, the first of which was unexplained, had weighed heavily with the sheriff. There was no doubt that the window had broken and the dog had fallen out, become agitated and excited, and had barked. However, since the hearing before the sheriff Mr. Gardiner had provided a statement to the effect that there was, in fact, only one incident. Mr. Gardiner had been in his house and had heard something going on outside. He and his granddaughter had gone out and he had seen the postman being confronted by the dog. When the dog saw Mr. Gardiner and his granddaughter, she had left the postman and run along the road towards them. Mr. Gardiner had shouted at the dog who had then run back towards the postman. Mr. Gardiner had put his granddaughter in the house, closed the door and again shouted at the dog. The dog backed towards the appellant's front gate and then ran back into the garden. Mr. Gardiner had told the police that he did not wish to make a complaint and he had not expected to hear anything more about the incident. On the basis of Mr. Gardiner's statement, there had not been two separate incidents but one continuous incident after the dog had fallen out of the window. In these circumstances it was understandable why the appellant had not been able to give the sheriff an explanation for two separate incidents 15 minutes apart, as the account which the procurator fiscal had given to the sheriff was factually inaccurate. In the second place, once the appellant had realised the seriousness of the matter, he had obtained evidence which clearly showed that the dog was not dangerous. It was important to recognise that the dog had not bitten anyone. Counsel placed before the court a report from Dr. Roger Mugford, the Head of the Animal Behaviour Centre, Chertsey, Surrey. Dr. Mugford stated that the dog was a good natured and much loved family pet who had never previously been the subject of complaint or caused danger to the public. She had escaped through the broken window and, unexpectedly finding herself outside the family home, had barked at passing strangers. Further, since the incident the appellant and his wife had behaved in a neighbourly and responsible fashion and, as set out in the report, had instituted steps to prevent a recurrence of the incident. In his opinion the dog was not a danger to public safety and she had caused no physical injury. Counsel also produced a letter from Mr. Gardiner stating that since the incident in question he had noticed a marked improvement in the dog's behaviour. The dog is now much more amenable and he expressed the wish that she should not be destroyed. We were also told that numerous references had been obtained from neighbours and friends to the effect that the dog was a good-natured family dog and her veterinary surgeon had

The appellant pled guilty to being the owner of a dog which was dangerously out of control and when he appeared in court he was unable to explain how there could have been two incidents about 15 minutes apart and he refused the opportunity which he was given to lead evidence to show that the dog was not dangerous. In the circumstances the sheriff reluctantly ordered the dog to be destroyed and, in light of the information which he had before him, it is difficult to criticise the sheriff's approach. However, we have now been asked to take into account a considerable amount of information which was not before the sheriff. The appellant was not legally represented at the hearing and we are prepared to accept that he had misunderstood what the sheriff said to him. In these circumstances, and having regard to the interests of justice, we have decided to consider the information which has now been made available to us. That information tends to show that there was one continuing incident involving the postman and Mr Gardiner and his granddaughter and that it took place after the window had unexpectedly broken, the dog had fallen out and was understandably upset and agitated. Further, even in that condition she did not cause any injury. We have also taken into account the evidence relating to the dog's nature and the information which we have been given about the steps which the appellant and his wife have taken to prevent a recurrence of such an incident. On the whole matter, and in light of all the information now before us, we are satisfied that the dog does not constitute a danger to public safety and that the circumstances do not justify the making of an order that she should be destroyed. We shall therefore allow the appeal and quash the order for the destruction of the dog.