APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 266/99
OPINION OF THE COURT
delivered by LORD McCLUSKEY
VICTORIA HILARY LITTLEJOHN
PROCURATOR FISCAL, PERTH
Appellant: M.E. Scott; Alex Morison & Co.
Respondent: D.A.Y. Menzies, Q.C., A.D.; Crown Agent
14 July 1999
This is an appeal against the conviction of the appellant of an offence under section 3(1) of the Dangerous Dogs Act 1991. The charge in the complaint was that the appellant did on 1 July 1998 on a road in Errol
"being the person for the time being in charge of a dog, namely a Chesapeake Bay Retriever, allow the said dog to be dangerously out of control in a public place whereby said dog repeatedly bit Thomas Graeme Crumb...on his body to his injury."
At the trial, on 14 December 1998, the agent acting for the appellant made a submission in terms of section 160 at the close of the Crown evidence that there was no case to answer. The Justice rejected the submission. No further evidence was led and on the Crown evidence the Justice found the appellant guilty.
The evidence of Mr. Crumb was that he was walking along the said road when he saw the appellant coming towards him with the dog. At that stage the dog was on a lead. The Justice records (finding in fact 4(ii)) "He saw that the appellant was having difficulty keeping the dog under control." Finding in fact 4(iii) is in the following terms,
"When Mr. Crumb was approximately 10 feet away from the appellant, the dog broke free and lunged at him."
The Justice found that the dog bit Mr. Crumb four or five times on the back, hip, shoulder and thigh. It also tore his pullover. Apart from the evidence of Mr. Crumb, the only other evidence about the facts came from Police Constable Mackie who, having been informed that a man had been attacked by a dog, went into Errol to look into the matter. On the way he was stopped by the appellant who appeared to him upset and agitated. She told him that her dog had just bitten someone. He also saw the dog and described it in the same terms as Mr. Crumb had done, namely as a large brown dog similar to a Retriever and approximately the size of an Alsatian. He also recovered Mr. Crumb's torn pullover.
Miss Scott, for the appellant, submitted that there was insufficient evidence that the dog was dangerously out of control within the meaning of the 1991 Act. Section 3(1)(b) of the Act makes it an offence to allow a dog to be dangerously out of control. Section 10(3) provides,
"For the purposes of this Act a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so...".
Miss Scott submitted that the allegation that the dog was dangerously out of control was the essence of the charge against the appellant. The Crown had to prove that and it was a fact which required to be corroborated. The Advocate depute conceded that this was an essential matter which required corroboration. Miss Scott conceded that the evidence of Mr. Crumb, if corroborated, could provide a basis for a finding that at some stage the dog became dangerously out of control within the meaning of the 1991 Act. But she submitted that there was no corroboration whatsoever of his evidence in relation to the circumstances in which the dog had come to cease to be under the control of the appellant and had attacked Mr. Crumb. In particular, she submitted that the mere fact that the dog bit Mr. Crumb could not itself amount to evidence that the dog was at any earlier stage dangerously out of control within the meaning of the Act. She referred to Tierney v Valentine 1995 S.L.T. 564, 1994 S.C.C.R. 697. In that case the dog entered a play area where children were playing on a swing. It was not then on a lead. It approached the swings and circled round them before starting to bark and jump at the children. When one of the children screamed, the dog bit that child's foot. It then bit the other child on the leg and again bit the first child, this time on the leg. When that child started to run away the dog bit her arm. There were thus four distinct bites. The appellant caught her dog then and put it on a lead. The court regarded the whole incident as a single incident and held,
"It was an incident at the beginning of which this dog was found not to be dangerously out of control. Since it was a single incident with no appreciable interval, there was no stage at which it could be said that there were grounds of reasonable apprehension that the dog would injure any person before it was all over and the dog was put on the lead. Accordingly the essential basis for a finding of guilt on this charge was not present."
In so finding, the court distinguished the case of Normand v Lucas (reported in an appendix to Tierney v. Valentine). In that case, as was explained in the opinion of the court in Tierney v. Valentine,
"There was time to form a reasonable apprehension that the dog might injure somebody and it was therefore open for the sheriff in that case to consider that by the time of the second bite this was a dog which was dangerously out of control".
In the present case, however, there was no evidence to suggest that the dog was dangerously out of control within the meaning of the Act prior to its breaking free from the appellant and lunging at Mr. Crumb. Furthermore, there was no corroboration of Mr. Crumb's evidence that when he saw the appellant coming towards him with the dog, and while the dog was still on the lead, the appellant was having difficulty in keeping the dog under control. As the Crown required to corroborate such evidence as Mr. Crumb gave to show that there were grounds for reasonable apprehension that the dog would injure some person, the Crown, it was submitted, must fail.
The Advocate depute accepted the broad approach which Miss Scott had urged upon us; but he submitted that the injuries themselves could provide the necessary corroboration. There were several injuries and the jumper had been damaged in several places. It was plain from the inflicting of the injuries and damage that the dog had become out of control; and he submitted that, in the whole circumstances, standing the clear evidence of Mr. Crumb, it could be inferred that the dog was out of control within the meaning of the Act as the appellant and Mr. Crumb approached each other on the service road. In essence, his submission was that the clear evidence that Mr. Crumb had been bitten several times was sufficient to provide the necessary corroboration.
We have come to the conclusion that, as proof of the fact that there were grounds for reasonable apprehension that the dog would injure some person was essential and required corroboration, the appeal must succeed. The evidence of Constable Mackie tells us no more than that the appellant conceded that her dog had just bitten someone. That evidence sheds no light at all upon when, prior to the attack upon Mr. Crumb, there existed grounds for reasonable apprehension that the dog would injure any person. We accept, as was made plain in Tierney v. Valentine, that the fact that the dog bit a person does not prove that there was time at some earlier stage to form a reasonable apprehension that the dog might injure somebody. There was, in the present case, no evidence of a significant interval between the first bite and any later bite to indicate that the appellant had time to form a reasonable apprehension that the dog might injure somebody. In these circumstances the appeal must succeed. The conviction will, therefore, be quashed.