Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 98

HCA/2014/002349/XJ

Lady Paton

Lord Drummond Young

Sheriff Principal Lockhart

OPINION OF THE COURT

delivered by LADY PATON

in the cause

ELIZABETH McLAUGHLIN

Appellant;

against

PROCURATOR FISCAL, PAISLEY

Respondent:

Appellant:  Tait;  Capital Defence Lawyers (for McGeehan & Co, Paisley)

Respondent:  Fairley, QC, AD;  Crown Agent

12 September 2014

Dangerous Dogs Act 1991

[1]        The Dangerous Dogs Act 1991 as amended provides:

“3.  Keeping dogs under proper control

1. If a dog is dangerously out of control in any place (whether or not a public place) –

1. the owner;and
2. if different, the person for the time being in charge of the dog,

is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection …

10.  Short title, interpretation, commencement and extent

… (3) 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 …”

[2]        After a summary trial at Paisley Sheriff Court, the appellant was convicted on 21 January 2014 of the following offence:

“On 25^th August 2013 at K Avenue, Linwood you … were the owner of a dog, namely a boxer cross breed whereby said dog was dangerously out of control in any place in respect that said dog did jump up on Vivienne Wallace … knock her to the ground, bite and scratch her on the head and body whereby she was injured and … bite a dog whereby said dog was injured;

contrary to the Dangerous Dogs Act 1991, section 3(1) as amended by the Control of Dogs (Scotland) Act 2010, section 10.”

[3]        The minutes record that on 28 February 2014 the sheriff ordered the appellant to be disqualified from having custody of a dog for a period of one year;  to pay a compensation order of £90 to Vivienne Wallace;  to pay a fine of £250;  and to have the boxer cross breed dog known as Reggie destroyed.

[4]        The appellant appeals against conviction.  She contends that:

“[t]he sheriff erred in law repelling the submission of no case to answer.  There was insufficient evidence led by the Crown to sustain a conviction.  There was no evidence before the court in relation to the dog having a previous history of a violent disposition either towards humans or dogs.”

Evidence led by the Crown

[5]        One issue in this appeal is whether or not the sheriff was entitled to repel the submission of no case to answer at the end of the Crown case.  It would normally be necessary to focus solely on the narration of the Crown evidence given by the sheriff in the stated case.  However as no defence evidence was led, it is possible in this particular case to ascertain the Crown evidence not only from the sheriff’s note, but also from the formal findings-in-fact.  In what follows, any reference to pagination in the stated case is a reference to the manuscript figure at the top right hand corner of the page.

[6]        The Crown led five witnesses, namely the complainer (Vivienne Wallace), three of the appellant’s neighbours (Diane Craig, Douglas Craig, and Jason Docherty) and one police officer, PC Caroline Harrod.

[7]        The evidence established that Reggie was a boxer cross breed dog, approximately 3 feet in height, muscular and strong, with a broad chest and a flat face and jaws (finding-in-fact 2).  Prior to 25 August 2013, Reggie and another dog were regularly left on the veranda of the appellant’s ground floor flat at 344 K Avenue, Linwood.  The veranda was enclosed by steel panels about 3½ feet high.  Whenever another dog walked past, Reggie would bark loudly and continuously, and would leap up, with all four legs in the air, sometimes coming close to getting over the veranda enclosure (finding-in-fact 3 and page 6 of the stated case).  The evidence of the appellant’s next-door neighbours was summarised at page 9 of the stated case as follows:

“ … evidence about Reggie’s behaviour prior to the incident … was given by the appellant’s next door neighbour Mr Craig, who had known Reggie since around 2009/10 when he was a puppy and who saw him outside on the veranda at the appellant’s home on a daily basis.  [Mr Craig gave] evidence that, when outside in an enclosed veranda, Reggie would jump up vigorously and bark whenever other dogs passed by.  Mrs Craig also said that Reggie would be left out on the veranda during the day and, if dogs walked by, would try to jump up and get over to them.”

[8]        Mrs Craig gave evidence that, just before the attack on the complainer, Reggie ran out of the appellant’s garden gate, and did not respond to the appellant’s commands to come back (foot of page 9 of the stated case).  The appellant did not chase after Reggie to retrieve him and bring him back home (ibid).  She stood at her gate and shouted at the dog.  When the dog failed to respond to her commands, she turned around and walked back to her house, telling her son to go and “effing get him” (finding-in-fact 5 and page 7 of the stated case).

[9]        The complainer gave evidence that she was walking in the vicinity.  The sheriff’s findings-in-fact are as follows:

"6.          On 25^th August 2013 at approximately 8.30 to 8.45pm the complainer, Vivienne Wallace, who also lives in K Avenue, was walking her small shiatsu dog in K Avenue.  She noticed Reggie urinating against a tree.

7.            Ms Wallace recognised Reggie.  She had previously seen the dog walking with and under the control of the appellant in the same area on quite a few occasions.  Ms Wallace was immediately frightened because no one was with the appellant's dog or in control of him.

8.            As soon as Reggie turned round Ms Wallace feared for the safety of her dog and lifted him up.  Reggie immediately ran towards Ms Wallace who turned to run back to her own house.

9.            Ms Wallace was unable to start running as the appellant's dog had already reached her and gone onto its back legs, jumping up at Miss Wallace and snapping at her face.  Ms Wallace tried to turn away with her own dog in her arms but Reggie followed her round wherever she turned and kept lunging towards her and jumping up continuously at her, biting and scratching her.  During the attack Reggie also took hold of Ms Wallace's dog's leg.

10.          Reggie's attack caused Ms Wallace to fall to the ground.  While she was on the ground, Reggie continued to attack her as she lay in the foetal position, screaming loudly, 'please make it stop'.

11.          Ms Wallace's cries for help were heard by various people, including neighbours who were inside their homes, who ran up to assist her.  One man crouched down at Reggie's back legs and pulled Reggie by his tail.  Another man, Mr Docherty, took hold of the dog's collar.  Reggie was pulled away from Ms Wallace.

12.          While the attack by the appellant's dog upon Ms Wallace was ongoing, the appellant went outside and walked up her path.  She did not run.  She then stood just outside her garden gate and shouted at her dog.  One of her neighbours shouted to her 'go and get your effing dog'.

13.          The appellant waited for Reggie to be returned to her, took her dog by the collar and her partner then took Reggie from her and returned him to the appellant's house.  About 10 minutes thereafter, the appellant's next door neighbour, Mr Craig, found Reggie out alone in the unenclosed back garden behind the appellant's house.  Mr Craig took hold of Reggie and put him in his own garden which is enclosed.  Mr Craig then saw the appellant in her veranda, watching people give statements to the police, and he asked her to take her dog back.  As Mr Craig opened the gate of his garden to let the dog out to go to the appellant, Reggie tried to run away again.  The appellant saw this but did not call her dog back.  Mr Craig had to grab him and the appellant then came from her veranda to take Reggie into her house.

14.          The attack upon Ms Wallace, from the time when Reggie ran towards her to the time when the dog was pulled away from her, lasted between approximately six to ten minutes.

15.          Immediately after the attack, Ms Wallace had blood running from her face and there was a gash to her forearm.  An ambulance was called and Ms Wallace was taken to hospital.  Ms Wallace was found to have sustained injuries to her face, left forearm and right hand as a result of being bitten and scratched by the appellant's dog.  She was treated at hospital and had two sutures applied to her facial wound and nine sutures to her left forearm.  Her right hand was cleaned and dressed and she was prescribed antibiotics.  Ms Wallace's face and forearm have been scarred.  Ms Wallace is now very anxious when she hears dogs barking and is terrified of meeting any dog.

16.          One of her neighbours took Ms Wallace's dog to a vet.  Her dog had staples inserted in puncture wounds and was treated for shock.  The veterinary costs amounted to in excess of £176.  This was covered by pet insurance but Ms Wallace had to pay a £90 excess".

Submissions for the appellant

[10]      For the appellant it was accepted that the dog was “out of control”, as it had run away and not responded to the appellant’s commands.  It was accepted that the incident had lasted a number of minutes (6 to 10 minutes) and that the dog was responsible for the complainer’s injuries.  However it was submitted that there was insufficient evidence entitling the sheriff to find that the appellant herself had a “reasonable apprehension that [the dog would] injure any person”.  While it was not essential that there had been violent attacks in the past, finding-in-fact 3 (Reggie barking at other dogs and nearly getting over the enclosure of the veranda) was not in itself capable of supporting a reasonable apprehension on the appellant’s part.  It was not clear from the findings-in-fact at what point the appellant became aware that her dog was attacking someone:  thus Thomson v Hutchison 2010 SLT 158 could be distinguished, for in that case the dog-owner had been present throughout the entire attack which lasted for about 8 minutes.  This submission assumed that the “reasonable apprehension” in section 10(3) of the 1991 Act referred to the owner’s apprehension.  Esto the phrase was not restricted to the owner, then in the circumstances of the present case, the only apprehension would be concern by other dog-owners for the safety of their dogs, and not for their own personal safety. 

Submissions for the Crown

[11]      The advocate depute submitted that the test in section 10(3) was an objective one: cf Greener v DPP 1996 TLR 84.  Were it otherwise, the odd and unacceptable result would be that the complainer’s (and others’) fears and apprehension would not be taken into account.  Moreover section 10(3) was not an exhaustive definition (R v Gedminintaite [2008] EWCA Crim 814, paragraph 10).  In the present case, the sheriff was well entitled to conclude that the dog was dangerously out of control.  Finding-in-fact 3 (prior behaviour), together with the fact that the complainer was frightened as soon as she saw the dog with no-one in control of him, were factors which the sheriff was entitled to take into account.  The prolonged attack itself, lasting as it did 6 minutes, was also evidence that the dog was dangerously out of control.  There was a case to answer.  The sheriff had not erred.

Discussion

[12]      In our opinion the Dangerous Dogs Act 1991, properly construed, sets an objective test, namely whether there were, in the circumstances of the case, grounds for reasonable apprehension that the dog would injure any person.  The apprehension is not, in our view, restricted to the owner’s apprehension; rather it is a question whether the court is entitled, in the whole circumstances, to conclude that there were grounds for reasonable apprehension that the dog would injure someone.

[13]      In assessing whether the Crown had met that test in the present case, the sheriff was entitled to take into account all the evidence, including the following:. 

• The size and strength of the dog:Reggie was approximately 3 feet tall when on four legs, muscular, and with a broad chest.When he stood on his hind legs, his jaws were level with the complainer’s face. It took two men to haul the dog off the complainer.
• The dog’s propensities:On the evidence, the dog had previously shown highly excitable behaviour towards other dogs passing by the veranda.He had barked loudly and continuously at them, and jumped up, all four paws off the ground, in an attempt to get over the veranda panelling so that he could get to them.In our view it can be inferred from that behaviour that any dog in Reggie’s vicinity would be likely to be the focus of his aggressive attention, and that any owner accompanying such a dog and seeking to fend off that aggressive attention might suffer injury, either physical or psychological, unless Reggie was restrained by his owner.Injury which might reasonably be apprehended as a result of an unrestrained onslaught from such a large powerful animal would include being jumped at and knocked over, being bitten or scratched, and being subjected to a very frightening experience involving unwanted physical contact with a large, undisciplined, powerful dog.
• The dog’s refusal to obey his owner’s commands on the day:Once Reggie escaped from the appellant’s ground floor home, and ran out unaccompanied into the neighbourhood, the appellant did not chase after him in order to retrieve him and control him.What she did (namely, shouting at the dog and ordering him to return to her) simply demonstrated the extent to which Reggie was undisciplined and out of control, for he ignored her commands.The appellant reacted to his disobedience by turning her back on the dog and telling her son to “effing get it”, thus leaving the dog free to roam, unaccompanied and uncontrolled, in a residential area where there were many other people and many other dogs.
• The apprehension engendered by the dog:When the complainer, walking with her small dog, saw Reggie roaming unaccompanied, she was immediately frightened and apprehensive.She stopped her walk, picked her dog up and tried to get home, but was almost instantly attacked by Reggie, as described in the findings-in-fact.The fact that the complainer felt such immediate apprehension at the sight of Reggie unsupervised was evidence which the sheriff was entitled to take into account.
• The nature and length of the attack upon the complainer:Reggie’s attack upon the complainer and her dog lasted for a considerable time, anything from 6 to 10 minutes, whilst neighbours and passers-by struggled to pull him off.The fact that it took so many people so long to extricate the complainer is, in our view, a significant item of evidence pointing to the fact that Reggie was dangerously out of control, as he ignored their actions and commands and continued single-mindedly with his attack upon the complainer and her dog (cf the circumstances in Thomson v Hutchison 2010 SLT 158).

[14]      For the purposes of assessing whether or not there was a case to answer, the sheriff was entitled to take the Crown case at its highest.  On the basis of the evidence led by the Crown, the significant features of which are noted above, the sheriff was, in our view, well entitled to conclude that there was sufficient evidence prima facie satisfying the objective test set by the 1991 Act, and that the evidence showed that Reggie was “dangerously out of control” at least from the moment he escaped from the appellant’s home and disobeyed all commands thereafter.  The sheriff was therefore entitled to repel the submission of no case to answer:  cf Greener v DPP 1996 TLR 84;  R v Gedminintaite [2008] EWCA Crim 814;  McIlwaine v PF, Airdrie 2000 GWD 31-1211;  and paragraph [13] of Thomson v Hutchison 2010 SLT 158.  It was then, of course, open to the appellant to lead evidence on her own behalf in order to rebut, or lessen the impact, of the evidence led on behalf of the Crown.  In fact, no defence evidence was led.

Decision

[15]      In the result therefore we answer the questions posed by the sheriff at page 12 of the stated case as follows:

Question 1:  On the facts stated was I entitled to repel the defence submission of no case to answer:  Yes, for the reasons given above.

Question 2:  On the facts stated was I entitled to find that prior to the attack upon the complainer the appellant had grounds for reasonable apprehension that her dog would injure anyone:  As noted in paragraph [12 ] above, it is our opinion that the test set by the 1991 Act is not restricted to the reasonable apprehension of the appellant.  Accordingly we consider that Question 2 is not properly framed.  For completeness, we record our view that, on the basis of the evidence referred to in the first four bullet points of paragraph [13] above, the court was entitled to find that, prior to the attack upon the complainer, there existed grounds for reasonable apprehension that the dog would injure someone.

Question 3:  On the facts stated was I entitled to find that the appellant’s dog was dangerously out of control:  Yes, for the reasons given above.

[16]      Accordingly the appeal against conviction is refused.  We continue the appeal against sentence to a date to be fixed.  The appellant must lodge specific grounds of appeal relating to sentence within two weeks of today’s date.  Those grounds should be remitted to the sheriff with a request for a supplementary report on the question of sentence.

Addendum

[17]      Following upon the appeal hearing on 1 July 2014, an English Appeal Court judgment concerning the Dangerous Dogs Act 1991 (namely R v Robinson-Pierre [2014] 1 WLR 2638) was published.  That decision focused on the issues arising where a third party caused the dog to be dangerously out of control in the relevant place.  In our view, the decision does not affect the present appeal.  Accordingly we do not consider it necessary to arrange a further hearing for submissions concerning Robinson-Pierre.