Appellant: S McCall; Capital Defence, Edinburgh

Respondent: Shand QC, Advocate depute; Crown Agent

7 August 2012

[1] The issue in this appeal under the Dangerous Dogs Act 1991 is whether the appellant, aged 17 at the time of the offence on 13 August 2011, knew that there had been a previous incident involving the dog in question and a child who had put his arm out to the dog through the garden fence.

[2] The stated case notes the following findings in fact:

"1. In early July 2011, the appellant, Ronald Church, and his family took delivery of a Weimaraner dog, named Bailey, from people in the Edinburgh area.

2. At the time, the appellant was living at 22 Guthrie Park, Brechin, with his mother and stepfather.

3. On one occasion during the period that Bailey was at 22 Guthrie Park, Brechin, the dog had bitten the hand of a child, the hand having been out through the garden fence at 22 Guthrie Park. As a direct result of that incident, and to prevent a repeat of that incident, the garden fence at 22 Guthrie Park had been heightened. In addition, the appellant's stepfather, his mother and the appellant would only walk the dog in public places, if the dog was muzzled.

4. There is waste land near Scott Street, Brechin, to which the public have access. The said ground has shrubs and trees and children walk and play there.

5. On 13^th August 2011 at about 9 p.m., the appellant was exercising and in charge of the Weimaraner dog, Bailey, within the said waste land near Scott Street, Brechin. The dog had been on a lead until it was in the waste land. In the said waste land, there were also Chloe Jane Bennett, aged 12, her sister, Rebecca Louise Bennett, aged 14, and their friend, Edith Purden, also aged 14.

6. Within said waste ground, the dog was not on a lead, nor was it muzzled. It ran over towards the girls, and barked and jumped up at Chloe Bennett. It also bit her on the hand."

[3] In a "no case to answer" submission, the defence argued that unless the appellant was proved to have had knowledge of the previous incident, the Crown had not established "grounds for reasonable apprehension that [the dog would] injure any person" in terms of section 10(3) of the Dangerous Dogs Act 1991. In particular it was submitted that the only information as to the dog's previous misbehaviour was given by the appellant's stepfather, Mr Allison. He had not said in terms that the appellant was aware of the previous incident.

[4] As noted in paragraph [45] of the stated case, the procurator fiscal made submissions in reply:

"She submitted that the following evidence demonstrated that the appellant lived at 22 Guthrie Park, Brechin and was aware that there was a reasonable apprehension that the dog would injure someone;-

·        The evidence of the appellant's stepfather that the appellant lived in family with his mother and stepfather.

·        The police interview with the appellant, which took place on 19^th October 2011, took place at the 'accused's home address', (to quote from the agreed police statements of P.C. Pattie and P.C. McDonald).

·        It would be a reasonable inference from what was said by Mr. Allison that the appellant was residing in the house when the higher fence was erected prior to this incident, during the 6 weeks period when Bailey had been at 22 Guthrie Park, Brechin.

·        As at the date of the incident, the dog had been for 6 weeks at 22 Guthrie Park, Brechin. The appellant must have commenced the exercise of the dog from those premises.

·        In any event, from the evidence of his stepfather, the appellant knew that Bailey ought to have been muzzled when he was out for exercise. The child, Chloe, was bitten. It must therefore follow that - at the time she was bitten - there was no muzzle on the dog."

[5] The sheriff rejected the submission of no case to answer. He ultimately made finding in fact 10 as follows:

"On 13 August 2011, within the said waste or woodland accessed from Scott Street, Brechin, the appellant was in charge of a Weimaraner dog named Bailey, which said dog was dangerously out of control in that, whilst it was not on a lead and when it was not muzzled, it approached Chloe Jane Bennett, then aged 11 years, and began barking and jumping towards her, jumped on her and bit her on the hand to her injury".

[6] The sheriff further observed at paragraph [56] of the stated case:

"I would add that finding in fact number 10 proceeded on an inference that I drew from the evidence, but it was an inference that I felt as justified in all the circumstances of this case, and the evidence that I had heard."

[7] Before us, counsel for the appellant reiterated the submission that the Crown had failed to prove knowledge on the part of the appellant of the previous incident. The incident comprising the offence on 13 August 2011 had been brief - about a minute, according to the complainer. There had been no aggressive or uncontrollable behaviour leading up to the incident. Unless therefore the appellant knew of the previous incident, there were no grounds for reasonable apprehension that the dog Bailey would injure anyone. There had been no evidence and no finding in fact that the appellant had such knowledge.

[8] It appears from the stated case that the only witness who gave evidence about the previous incident, the heightened fence and the reason for muzzling Bailey when taking him for walks (and incidentally for muzzling a second Weimaraner called Kaya, a dog which had never troubled anyone) was the appellant's stepfather David Allison. Mr Allison did not say that the appellant had been present when that previous incident had occurred, nor did he say that he had told the appellant about it, or discussed with him the reasons for the heightened fence, or for the muzzling of both dogs when being taken for walks.

[9] The standard of proof in criminal cases is "beyond reasonable doubt". It is our opinion that the evidence, as outlined in the stated case, was insufficient to enable the court to draw the inference beyond reasonable doubt that the appellant knew about the previous incident. Indeed, as Miss McCall pointed out, there was no formal finding in fact that the appellant had such knowledge. That leaves the incident comprising the offence, which was on the evidence fairly brief (lasting about one minute) and not preceded by any aggressive or uncontrollable behaviour. In those circumstances we find this case indistinguishable from Tierney v Valentine 1995 SLT 564. As we are not satisfied that the Crown established grounds for reasonable apprehension that the dog would injure any person, it follows that the conviction cannot stand. We accordingly answer the questions in paragraph [58] of the stated case in the negative, allow the appeal, and quash the conviction.

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