Appellant: Gilfedder, Solicitor Advocate; MFY Partnership, Airdrie

Respondent: Di Emedio AD; Crown Agent

1 September 2010

[1] The appellant is the subject of a complaint in the Justice of the Peace Court at Cumbernauld in the following terms:

"The charge against you is that:

(001) on 18 April 2009 at Peel Place, Coatbridge you ... were the owner of a dog, namely Staffordshire Bull Terrier, which was dangerous and not kept under proper control in that it escaped your garden into Peel Place, a public place, and thereafter entered the private garden of 46 Peel Place, Coatbridge and attacked a pet dog and a pet rabbit;

CONTRARY to the Dogs Act 1871, Section 2, as amended; whereby you are liable to be ordered to keep said dog under proper control, or to destroy it."

The appellant took a plea to the competency of proceeding by way of summary criminal complaint in a matter which does not involve conviction but an order to keep a dog under proper control or destroy it. The Justice of the Peace rejected what he considered to be an objection to the competency and relevancy of the charge and thereafter granted leave to appeal to this court. On 1 September 2010 we refused the appeal.

[2] The Dogs Act 1871 section 2 is in these terms:

"Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed."

Until 1989 the section went on to provide:

"and any person failing to comply with such order shall be liable to a penalty not exceeding twenty shillings for every day during which he fails to comply with such order."

These words were repealed by section 2(3)(a) of the Dangerous Dogs Act 1989, which also included in section 1 new provisions setting out the consequences of failure to comply with an order under section 2 of the 1871 Act. The relevant parts of section 1 of the 1989 Act are these:

"1. - (1) Where a magistrates' court makes an order under section 2 of the Dogs Act 1871 directing a dog to be destroyed it may also -

(a) appoint a person to undertake its destruction and require any person having custody of the dog to deliver it up for that purpose; and

(b) if it thinks fit, make an order disqualifying the owner for having custody of a dog for such period as is specified in the order.

(2) An appeal shall lie to the Crown Court against any order under section 2 of that Act or under subsection (1) above; and, unless the owner of a dog which is ordered to be delivered up and destroyed gives notice to the court that made the order that he does not intend to appeal against it, the dog shall not be destroyed pursuant to the order -

(a) until the end of the period within which notice of appeal to the Crown Court against the order can be given; and

(b) if notice of appeal is given within that period, until the appeal is determined or withdrawn.

(3) Any person who fails to comply with an order under section 2 of the said Act of 1871 to keep a dog under proper control or to deliver a dog up for destruction as required by an order under subsection (1)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale and the court may, in addition, make an order disqualifying him for having custody of a dog for such period as is specified in the order.

...

(7) This section shall apply to Scotland subject to the following adaptations -

(a) in subsection (1) for the words 'magistrates' court' there shall be substituted the words 'court of summary jurisdiction';

(b) in subsection (2) -

(i) for the words 'shall lie to the Crown Court' there shall be substituted the words 'may be made to the High Court within a period of 7 days commencing with the date of the order';

(ii) for paragraph (a) there shall be substituted -

'(a) until the end of the said period of 7 days; and'."

[3] In a submission confined largely to propositions based on the basic distinction between civil jurisdiction and criminal jurisdiction, Mr Gilfedder for the appellant argued that what was envisaged was a two stage process whereby a court exercising civil jurisdiction and applying standards appropriate to civil proceedings, such as proof on a balance of probabilities and no requirement for corroboration, should make an administrative order which could become the subject of criminal proceedings if breached. He drew support from procedure such as that provided for by Part 5 of the Proceeds of Crime Act 2002. The Advocate depute pointed to the standard practice which had apparently been accepted over many years of dealing with both stages by complaint in summary criminal proceedings in which an order of the type sought was commonly made.

[4] A plain reading of the terms of section 1 of the 1989 Act points clearly to the jurisdiction invoked being that of the criminal courts. Subsection (2), as modified by subsection (7) for proceedings in Scotland, provides for an appeal against an order under either section 2 of the 1871 Act or section 1(1) of the 1989 Act to be made to the High Court in Scotland. That appeal is from a "court of summary jurisdiction", which in the context is clearly a reference to a court in Scotland exercising summary criminal jurisdiction. Having made his broad submission Mr Gilfedder, quite properly in accordance with his duty to the court, drew our attention to the terms of section 133 of the Criminal Procedure (Scotland) Act 1995 which recognises the power of summary criminal courts in Scotland to pronounce orders of the type envisaged by section 2 of the 1871 Act as amended and applies the summary criminal procedure provisions of Part IX of that Act to proceedings for such an order. He also drew our attention to section 7(3) and (5) of the Act conferring jurisdiction in such proceedings on Justice of the Peace courts. We note that these sections are the current expression of a power provided for in successive statutes relating to summary criminal procedure, e.g. the Summary Jurisdiction (Scotland) Act 1908, section 4. In light of these various statutory provisions, we consider that, proceeding by way of summary criminal complaint in the terms of the complaint in this case, including the order sought, is a competent course.

[5] That is entirely consistent with the long recognised practice followed in Scottish courts of summary criminal jurisdiction. Issues of life and death affecting dogs have long been determined there. In the two authorities cited to the Justice of the Peace and referred to before us - Walker v Brander 1920 JC 20 and Haldane v Allan 1956 JC 41 - while different issues of relevancy and competency arose, there was never doubt expressed about the competency of proceedings for an order under section 2 of 1871 Act being initiated by summary criminal complaint. As Lord Clyde said in Haldane in relation to section 2 of the 1871 Act, at page 44:

"In my view, that section contemplates two quite separate proceedings, both of which may take place before a Court of summary jurisdiction and both of which may be initiated by the Procurator-fiscal. The first is an administrative process involving no question of any offence or penalty, but involving an order by the Court in regard to what is to be done with the dog. The second proceeding envisaged in the section is of quite a different character. It is a criminal process for a penalty in respect of failure to comply with an administrative order. As Lord Mackenzie said in the case of Walker v Brander at page 24: 'Now, the matter to be dealt with under section 2 is, in the first instance, the propriety of making an order in a summary way directing that a dog is to be kept by the owner under proper control or destroyed. That can be done, if it appears to the Court having cognisance of the complaint that the dog is dangerous. Down to that point all that the Court has to do is to ascertain the facts and pronounce the order defining the duty of the owner of the dog. There is no question of any offence, and no question of any penalty. Although that is so, I think the Procurator-fiscal has a title to present a complaint. Were this not the case the Act would be a dead letter. It is only if any person fails to comply with such an order that that person becomes liable to a penalty not exceeding 20s. for every day during which he fails to comply with the order. At that stage the proper realm of criminal jurisdiction would be reached.' A similar view was expressed by the Lord Justice-Clerk in the case of White v Main (1897) 2 Adam 348. He says (at p.352): 'The first part [of the section] does not involve any offence at all. The statute proceeds upon the footing that, if a dog has been proved to the satisfaction of a magistrate to be dangerous, the magistrate may pronounce an order requiring the owner of that dog to keep it under proper control or destroy it. So far there is nothing in the nature of an offence at all. It is merely a matter of civil administration. I do not appreciate the difficulty suggested about the form of proceedings to be adopted. The complainer has merely to say that A.B. has a dog which is dangerous, and which is not kept under proper control, and end with a prayer that an order may be pronounced that A.B. should either keep that dog under proper control or destroy it. Until such an order had been pronounced and had been disregarded, the appellant was not in a position to be dealt with under the penalty clause of the statute.' "

What the 1989 Act has done is clarify and amplify the procedures to be followed upon the making of an order and in the event of its breach.

[6] Since the Justice of the Peace quite rightly rejected the appellant's plea, we refused the appeal.