APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
PROCURATOR FISCAL, FALKIRK
Appellant, Shead, Alex Morison & Co
Respondent, Cathcart, A.D.
11 May 1999
This is the appeal of Gary Walton who was convicted of a contravention of section 3(3)(a) of the Dangerous Dogs Act 1991. The circumstances were that the appellant was the owner of an alsatian labrador cross. On the material date he left his ground floor home and went out. His cohabitee was within the house and remained within the house with the dog while the appellant was out. The appellant knew that the dog regularly escaped through a ground floor window, and had been returned on a number of occasions by a dog warden. The appellant did not lock the window or take any precautions to prevent the dog escaping. In due course on this occasion the dog escaped and went, as seems to have been one of its habits, to a nearby primary school playground where children were spending their lunch break. In the course of its activities there, it bit two children, although the sheriff has found that this was due to playfulness and excitement rather than any malicious intent. In these circumstances the sheriff decided that it was appropriate to convict under the alternative charge which the appellant faced under section 3(3)(a) rather than the first alternative which was a charge under section 3(1). The important distinction for present purposes between section 3(1) and 3(3) is the matter of whether the locus was a public place or not. Under section 3(1) an offence is committed if a dog is dangerously out of control in a public place. Under section 3(3) an offence is committed if the owner or the person for the time being in charge of the dog allows it "to enter a place which is not a public place but where it is not permitted to be", and while there injures any person. Accordingly in order to succeed under section 3(1) the Crown have to prove that the locus was a public place and in order to succeed under section 3(3) the Crown have to prove that the locus was a place which is not a public place, and the Advocate Depute accepted that this was an essential part of the Crown's proof. It is perhaps unfortunate in the present case that the alternative charge read in the following terms: "Did allow said dog to enter Easter Carmuirs Primary School where said dog was not permitted to be and while there said dog bit and injured ....". There is no reference in that charge to the primary school being a place which was not a public place, and it may therefore be because of that omission from the charge that neither the prosecutor nor indeed the sheriff applied their minds to the appropriate question for the purposes of this case. The Advocate Depute has pointed to various parts of the Stated Case where the sheriff has dealt with the question of public place. He pointed to the evidence of the only witness who was a member of the staff of the school, who said that so far as access to the playground was concerned, the school gates were always kept open, including at lunch intervals. The Advocate Depute accepted that the inference from that might well be that the place was a public place rather than otherwise. It appears that the local authority dog warden gave evidence to the effect that in his view the school was not a public place but of course it is the sheriff's view that matters rather than the evidence of the dog warden. The sheriff makes a finding in fact no. 3 that the playground was not a public place. No other persons had business there other than pupils and staff and persons attending in connection with school business. However, as the Advocate Depute accepted, what has to be looked for is the evidence to support such a finding rather than the bold assertion contained in the finding. What the sheriff says in his note is "there was in any event no evidence led neither (sic) by the Crown nor the defence that the playground was a public place". That being so it appears to us that the evidence was not directed towards the proper question and indeed the