Scottish High Court of Justiciary Decisons

JOANNE McILWAINE v. PROCURATOR FISCAL, AIRDRIE [2000] ScotHC 94 (29th September, 2000)

[1] On 27 August, 1999 the appellant went to trial before the sheriff at Airdrie on a charge under section 3(1) of the Dangerous Dogs Act, 1991. The charge was to the effect that:

The sheriff found the appellant guilty of this charge subject to the substitution of the words "one dog" for the words "said dogs" before the words "attacked Paul Higney". The sheriff inter alia made a compensation order for £3,000 in favour of the injured boy, and ordered the destruction of the dog which attacked him, in terms of section 4(1)(a) of the 1991 Act. He made no order regarding the other dog, but disqualified the accused from having custody of a dog for five years, in terms of section 4(1)(b) of the Act.

[2] In applying for a Stated Case, the appellant raised matters in relation both to conviction and sentence. As regards sentence, the only issue raised relates to the amount of the compensation order; we have not been addressed upon that matter at this stage. In relation to conviction, the basis upon which the Stated Case was sought was that the sheriff erred in holding that at the time of the incident libelled in the charge, the dogs owned by the appellant were dangerously out of control in terms of section 10(3) of the 1991 Act, in two stated respects to which we shall return. These are reflected in the first five Questions in the Case, the sixth and final Question relating to the compensation order. At the conclusion of the Crown evidence, it had been submitted that there was no case to answer. That submission was rejected; but no separate issue is raised in respect of the rejection of that submission.

[3] The sheriff describes the incident in his findings of fact 10 to 14. We summarise them. Paul Higney was playing with friends on a grassy area over the road from the appellant's house. She came home and opened her front door, and while she was putting some shopping on the floor, the dogs passed her and got out. She ran after them, but was unable to establish control as they ran from her property across to where Paul was playing. They ran towards him barking, and Paul ran but tripped. The male dog, Winston, attacked him, put him to the ground, and mauled and bit him. The appellant and a neighbour, Mrs. Kerr, ran to the incident, and the appellant got a hold of Winston's collar. Paul got up, but the dog broke free and resumed his attack. The appellant caught hold of him again and the attack ended. In the course of the attack, Winston had bitten Paul on the head. It is not necessary to describe the results in detail, but they are significant, both physically and psychologically.

[4] The principal issues raised in this appeal relate to the behaviour of the dogs, and the appellant's knowledge, prior to the incident. Before turning to these issues, we would mention one point which is now conceded by the Crown. The sheriff considered that this was not a "single incident": by grabbing the dog's collar, the appellant was seeking to re-establish her control over him, and had succeeded in doing so for a brief period of a few seconds. The sheriff sees what followed as effectively a separate incident, upon which conviction would be justified, even if it were not justified in relation to the previous stages of the attack. Having regard to the nature of the incident as a whole, both before and after the appellant's brief and ineffectual hold on Winston's collar, the advocate depute accepted that conviction would not be justified on the basis of the resumed attack alone. We are satisfied that the concession was rightly made, and that the whole attack is to be regarded as a single incident. In the circumstances Question 4 does not require to be answered.

[5] Findings 1 to 5 cover matters of factual background and history. The male dog, Winston, weighed 9 or 10 stone at the material time. The other dog, Honey, is female, and weighed about 6 stone. Both were about 28 months old, and had been owned by the appellant for about 6 months. Their previous owner had to give up their ownership on moving, and when they had lived with him they were gentle in nature and good with children. Findings 4 and 5 set out a history of aggressive behaviour on the part of the dogs, spoken to by the local postman for the appellant's address, and her next door neighbour, respectively. We shall return to certain aspects of that behaviour, but in relation to questions as to the appellant's knowledge, it is to be noted that the sheriff has found that neither the postman nor the neighbour complained to the appellant about the behaviour of the dogs. There is no other finding of prior aggressive behaviour.

[6] Section 3(1) of the 1991 Act provides inter alia that if a dog is dangerously out of control in a public place, the owner is guilty of an offence, or if the dog while so out of control injures any person, an aggravated offence. In terms of section 4(1), it is provided inter alia that where a person is convicted of an offence under section 3(1), the court may order the destruction of any dog in respect of which the offence was committed, and shall do so in the case of an aggravated offence under section 3(1). By section 10(3), it is provided that for the purposes of the 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..." subject to an exception which is not here in point. Before the sheriff, reference was made to certain cases, but there is no dispute as to the law: in relation to each dog, conviction of the appellant of an offence under section 3(1) would only be justified if on 9 April 1999 she had grounds for reasonable apprehension that that dog would injure any person. It is not disputed that if she was properly found guilty of such an offence in relation to the dog Winston, the offence was an aggravated one, injury having been caused to Paul.

[7] At finding 7, the sheriff has held that because of the size of the dogs, in particular Winston, there was a danger that, running, they might knock a child to the ground; and that the appellant was aware of this danger. At finding 8 he has held that if a dog of Winston's size, or even Honey's size, were to knock a child to the ground, it would be likely that the child would be injured. However, in terms of the first two questions in the Case, we are asked whether the sheriff was entitled to make finding 6, and finding 9. The relevant part of finding 6 is in the following terms:

[8] At finding 9, the sheriff holds that "The combination of the dogs' size together with incidents of aggressive behaviour by them made it likely that they would injure someone unless they were kept under control."

[9] In his Note, the sheriff says that finding 6 is an inference which he has drawn from findings 4 and 5; and that finding 9 is an inference drawn by him from finding 2 (dealing with the dogs' weight and age, and the length of time for which the appellant had owned them) and findings 4 to 8.

[10] On behalf of the appellant, it was submitted that the findings as to the dogs' prior behaviour were essentially irrelevant, and in any event insufficient to justify the inferences drawn by the sheriff in findings 6 and 9. No complaints having been made of the behaviour described in findings 4 and 5, knowledge of that behaviour could not be attributed to the appellant. And it was submitted that in any event the behaviour described in these findings could not be regarded as constituting grounds for reasonable apprehension that either dog would injure anyone. In particular, under reference to the words "on any occasion" contained in section 10(3), it was submitted that one was concerned with this particular occasion on 9 April 1999, and the past behaviour did not constitute grounds for reasonable apprehension that the dogs would injure anyone on that occasion. We are not persuaded that there is any substance in this latter submission: if the past behaviour of the dogs and the appellant's knowledge afforded grounds for apprehension that either dog would injure someone if it were out of control, there would be grounds for such apprehension on any occasion, such as arose on 9 April 1999, when they were out of control. We turn therefore to the main submission.

[11] We are entirely satisfied that the behaviour described in findings 4 and 5 can properly be regarded as objectively constituting grounds for reasonable apprehension that each of these dogs would injure someone if out of control. According to the postman, they jumped up on the garden fence and barked angrily at him. Like a number of dogs, they pulled mail through the letterbox. Sometimes they tore it up. He was in general not scared of dogs, but he was scared of these two dogs. On one occasion he had seen them loose in the street, and had waited round the corner until they had gone because of his apprehension regarding them. In his view they were the worst dogs on his round. On an occasion when the next door neighbour was hanging out washing in her back garden, Winston and Honey "hurtled themselves" at the 4 foot wooden lattice boundary fence, barking aggressively. Their paws were up on the fence. She was very frightened by the combination of the dogs' size and the noise they made. Their body language was frightening to her. She went in doors but came out again. They did as they had done previously, and she retreated for a second time. Eventually she hung her washing out when the dogs were not there. The fence was slightly damaged by the dogs in the course of this incident. In factual terms, we are thus satisfied that these matters justify the sheriff's inference in the first sentence of finding 6.

[12] It is, however, important to note that in concluding that injury was likely in the absence of control, the sheriff did not merely proceed upon the dogs' behaviour. Just as the neighbour was frightened by the "combination" of their size and the noise they made, the sheriff at finding 9 says that the "combination" of their size, together with incidents of aggressive behaviour made it likely that they would injure someone unless they were kept under control. On behalf of the Crown, it was submitted that the size and weight of the dogs, which would be evident and known to the appellant, constituted a real risk of injury to children if the dogs were out of control. Findings 7 and 8 could not be criticised. Section 10(3) was not concerned with aggression, but with apprehension of injury. With dogs of this weight, little more than their sheer weight would have to be established, for the requirements of section 10(3) to be met. The behaviour spoken to by the postman and the neighbour was in fact "aggressive"; but even if it had been unaggressive, it was behaviour which indicated that when out of the appellant's control, they were liable, on the loose, to behave in a way which would constitute a real risk of injury.

[13] These submissions appear to us to be well-founded. And turning from the fact of risk to the appellant's knowledge of it, we are satisfied that the appellant would not merely be aware of the weight of the dogs and the risk which this itself constituted if they were on the loose. Her appreciation of risk was in our opinion wider. While the neighbour spoke to one specific incident, the postman describes a course or pattern of behaviour. With the pulling of mail through the box and sometimes tearing it up, and the damage to the fence spoken to by the neighbour, findings 4 and 5, when added to the general fact of the dogs' weight and findings 7 and 8, justify the further inferences drawn by the sheriff. It is worth noting that when the dogs got out of the door on this occasion, the appellant ran after them. It was suggested that this might have an explanation in apprehension that the dogs themselves might come to harm, rather than that they would do harm. But even so, this is confirmation that the appellant appreciated that they were liable to behave in an uncontrolled or unpredictable way, and we regard it as confirming what is said in finding 7.

[14] We would also add that the actual difficulty experienced by the appellant in establishing control over Winston on this occasion illustrates the need for general control of such large dogs, rather than relying upon achieving control at the last minute. And in relation to the finding that the dogs were gentle and good when they lived with their previous owner, we note that this is very different from a finding that they were in general gentle and good, over the period of the appellant's ownership. There is no such finding. And with no such finding, and no general findings as to how the dogs coped with the change of ownership, or what changes of regime there may have been after the change of ownership, it does not appear to us that there is any material casting doubt on the appropriateness of the inferences drawn by the sheriff.

[15] In the whole circumstances we are satisfied that the sheriff was entitled to make findings 6 and 9, and we answer Questions 1 and 2 in the affirmative. We are satisfied that he was entitled to hold that the dogs were dangerously out of control in terms of section 10(3), and was entitled to convict in the terms which he did. We accordingly also answer Questions 3 and 5 in the affirmative, and the appeal against conviction is refused.