Scottish High Court of Justiciary Decisons

KAREN MARIE ANDERSON v. PROCURATOR FISCAL, GLASGOW [2001] ScotHC 4 (8th February, 2001)

[1] The complainer Karen Marie Anderson appeared in the Sheriff Court at Glasgow on 10 March 2000, when she stood trial and was found guilty on a charge in the following terms:

She was fined £50.

[2] The appellant had gone to a shop with the dog, Patch. He had a lead attached to his collar. She tied the lead to a pole and told the dog to wait. She did not tie the lead securely. As a result he escaped. He was thus loose in Leithland Road, with a lead attached to his collar, but unattended. Christopher McAloon was outside his house in Leithland Road with a friend. They had a kitten which they intended to return to its owner. Christopher saw the dog in the next door garden unattended. He was concerned that the presence of the kitten might disturb the dog. He went over and patted the dog, to keep it calm, while his friend cradled the kitten in his arms, trying to avoid the dog detecting it. Christopher turned from the dog, to walk back to his friend, whereupon the dog jumped on his back and bit his neck. The sheriff has held that the two boys acted responsibly throughout, and did nothing to annoy or excite the dog, and this is not disputed. While the dog was attacking Christopher, the appellant was in the shop.

[3] These may be called the primary facts. There are, however, a number of other factual matters which require comment. First, Patch was apparently a mongrel collie, and fairly big, although the sheriff has not made a formal finding to this effect. It is perhaps implicit in the whole facts that he is a domestic pet rather than a working sheep dog or the like. There is, however, no suggestion that breed, size or other characteristics such as age have any bearing upon this case. Secondly, it is to be noted that the sheriff has found that Christopher "had had problems" with the dog in the past, and more specifically that the dog has attacked him on another occasion. There is, however, no indication that these facts had been drawn, or come, to the appellant's attention; and there was no suggestion from the Crown that she was to be regarded as having any actual or imputed knowledge of any past trouble or misbehaviour on the dog's part. Thirdly, the sheriff in his Note says that "From what the appellant said about tying the dog to a pole, then discovering it 'had broken its lead' it was clear that she accepted the need to secure the dog properly and that failing to do so had important consequences which she ought to have foreseen." In the absence of any indication that she was aware of the dog having misbehaved in the past, or that it was in any way ill-trained or unreliable, the fact that she had tied the dog to a pole does not in our opinion justify any inference that there was a "need" to secure him, or that the appellant accepted such a need. Even upon the hypothesis that there was some such need or perceived need, we see no basis for inferring that any such need related to mischiefs of the kind dealt with by section 49(1) of the 1982 Act. Still less do we see any basis for any inference that the consequences of the appellant failing to secure the dog were matters which the appellant "ought to have foreseen". In the absence of any past facts about this dog, actually or imputedly known to the appellant, which would lead her to foresee his behaving as he did, any assertion that his behaviour should have been foreseen would apparently have to depend upon some generalised view about dogs. No such view is expressed, either in the findings or in the sheriff's Note, and we see no basis upon which any such finding could have been made. Neither upon the evidence in this case, nor upon any basis that we can envisage, is every dog owner expected to keep it on a leash at all times, or even watch the dog at all times, in public places, or to foresee on the basis of general theory behaviour which actual experience would not suggest is to be expected.

[4] The offence constituted by section 49(1) of the Civic Government (Scotland) Act 1982 is committed by any person "who suffers or permits any creature in his charge to cause danger or injury to any other person who is in a public place or to give such person reasonable cause for alarm or annoyance." The advocate depute conceded that the phrase "suffers or permits" requires on the part of the person in charge of the creature knowledge that, if the creature were to be loose and unsupervised in a public place, there was a risk that it would cause at least alarm or annoyance to a person there. It would be sufficient if the person in charge of the creature were to turn a blind eye to that risk. The Crown's position in the present case appeared to be that even if danger or injury were unforeseeable in the circumstances, it might nonetheless be foreseeable that the dog would give reasonable cause for alarm or annoyance to Christopher, and that imputed awareness of that kind would mean that by failing to secure the dog, the appellant would have permitted that event, and would have the requisite mens rea.

[5] It is not difficult to see the distinction between foreseeing that the dog may cause danger or injury, and foreseeing merely that it may give reasonable cause for alarm or annoyance. But in the present case, while both phrases are included in the charge, it goes on to specify the particular matter relied upon. It is "in respect that said dog had bitten him on the neck." The charge is not in our opinion well framed. But there is no suggestion that the conviction was based upon, or should be restricted to, guilt of permitting the dog merely to give reasonable cause for alarm or annoyance. And as we have indicated, the basis upon which the sheriff proceeded was that the appellant's failure had "important consequences which she ought to have foreseen." In our opinion, the establishment of this charge depends upon the foreseeability of the dog causing danger or injury of the kind which he did cause by biting Christopher.

[6] We are not persuaded that there was sufficient material even for a finding that the appellant had the requisite knowledge that the dog would or might "give reasonable cause for alarm and annoyance". Far less can we see any foundation for holding that the appellant foresaw or should have foreseen that the dog might cause danger or injury to anyone if it was tied insecurely and got loose.

[7] Charges brought in terms of section 49(1) will vary in their terms, and there will no doubt be a wide variation between cases, not only upon the actual facts but upon what the Crown succeed in establishing about the accused's actual or imputed knowledge of the dog's character and propensities. On the terms of the present charge, and what was and was not established, we are satisfied that the conviction cannot stand, but we do not see this as a case suited to any general determination of principle. We should mention that our attention was drawn to Carswell v. Procurator Fiscal, Dumfries, unreported 6 April 2000. That case appears to us to have turned upon the specific terms adopted in the charge, as well as the facts established. We have misgivings as to the usefulness of the expression "proper" control (which was used in that case) or such words as "did not properly secure" which are used by the sheriff in the present case. It may not be clear whether the reference is to simple efficacy, or to some level of securing or controlling which will meet the requirements of the statute. (The same may be said of the expression "took insufficient steps to secure the dog" which is used by the sheriff in the first question in the present stated case). At all events, Carswell does not appear to us to be of assistance in determining the present case.

[8] In our opinion, the sheriff was not entitled to hold that the appellant breached section 49(1), and was not entitled to convict her. In these circumstances, we answer the second and third questions in the case in the negative, and quash the conviction. The meaning of the first question is uncertain as we have indicated, and we do not feel it necessary to answer that question.