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Sheriff Appeal Court (Criminal) Opinions


You are here: BAILII >> Databases >> Sheriff Appeal Court (Criminal) Opinions >> Appeal by Stated Case against Conviction by Janet MacFarlane against Procurator Fiscal Inverness (Sheriff Appeal Court Criminal) [2025] SACCRIM 4 (27 May 2025)
URL: http://www.bailii.org/scot/cases/ScotSAC/Crim/2025/2025saccrim4.html
Cite as: [2025] SACCRIM 4

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SHERIFF APPEAL COURT
[2025] SAC (Crim) 4
SAC/000014/AP
Sheriff Principal A Y Anwar KC
Appeal Sheriff I M Fleming
Appeal Sheriff D A C Young KC
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL AISHA Y ANWAR KC
in
Appeal by Stated Case against Conviction
by
JANET MACFARLANE
Appellant
against
PROCURATOR FISCAL, INVERNESS
Respondent
Appellant: Osborne; Faculty Services Limited (for Craig Wood Solicitors Ltd, Inverness)
Respondent: Prentice KC (sol adv) AD; Crown Agent
27 May 2025
Introduction
[1]
The appellant is the owner of a German Shepherd named Diego. On 4 September
2024, the appellant was found guilty of the following charge:
"on 14 April 2023 at [locus] you were the owner of a dog, namely a German
Shepherd whereby said dog was dangerously out of control in any place in respect
that the said dog did bite [the complainer] and did cause him injury;
CONTRARY to the Dangerous Dogs Act 1991, section 3(1) as amended."
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[2]
The sheriff imposed an order for contingent destruction of the dog in terms of
section 4A of the 1991 Act requiring that Diego is kept on a lead and muzzled when in
public places. The sheriff also made a compensation order in the sum of £600.
[3]
Section 10(3) of the 1991 Act provides that
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.
The appellant appeals her
conviction on the basis that there were no grounds for a reasonable apprehension that Diego
would injure any person.
The circumstances of the offence and the trial
[4]
On 14 April 2024 the complainer attended at the appellant's property to deliver a
parcel. He approached the front gate and saw the appellant's dog. The dog was barking
and had his two front paws up on the gate of the property. A man in the garden of the
property shouted a command to the dog. The dog left the gate and disappeared towards the
house. The appellant walked towards the complainer at the gate, which remained closed,
with the complainer on the street side. As the complainer passed the parcel over to the
appellant, the dog put his head through the bars of the gate and bit the complainer's right
hand.
[5]
There were four warning signs erected at the entrance of the appellant's property.
These read: "BEWARE OF THE DOG"; "Private"; "Beware of the Dog. It may bite. You
have been warned"; and one sign bore the image of a dog.
[6]
The sheriff made the following findings in fact which are relevant for the purposes of
this appeal:
3
"6.
In returning [to the gate] Diego did not obey a command to leave the gate.
...
8.
The complainer told the appellant that her dog had just bit him. The
appellant seemed not at all concerned by this. She pointed to the sign... in
order to advise the complainer he had been warned of (sic) by that sign.
...
15.
Prior to 14 April 2023 the dog Diego had never been dangerously out of
control and had never bitten nor injured any person or other animal.
16.
There were grounds for reasonable apprehension that the dog Diego would
injure a person at the locus on 14 April 2023.
17.
The dog Diego was dangerously out of control at the locus on 14 April 2023
when it bit the complainer."
[7]
The sheriff heard evidence from: the complainer; two police witnesses; and the
appellant. She concluded that there was a reasonable apprehension that the dog would
injure a person on the basis of: (a) the signs displayed at the appellant's property; (b) the
dog's failure to obey a command by returning to the gate; (c) the dog's breed, size and
strength; and (d) the appellant's evidence that it was her normal practice to put the dog in a
car when anyone attended at the property. The sheriff did not accept the appellant's
evidence that the signs displayed at the property had been erected by the previous owners
of the property.
[8]
The following questions have been stated by the sheriff for the opinion of this court:
1.
Upon the evidence was I entitled to make finding in fact 16?
2.
Upon the evidence, was I entitled to make finding in fact 17?
3.
Upon the facts found to be admitted and proved was I entitled to find that
there was a reasonable apprehension that the appellant's dog would injure
someone?
4.
Upon the facts found to be admitted and proved was I entitled to find that the
appellant's dog was dangerously out of control?
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Submissions
[9]
On behalf of the appellant it was submitted that the findings in fact did not support
the sheriff's assessment that there had been a reasonable apprehension that the dog would
injure a person. The test in section 10(3) was an objective one: McLaughlin v Harvie 2014
SLT 961. It required the court to look at the whole circumstances of the case. For reasonable
apprehension to be established, the facts must give rise to a concern which emanates from
the circumstances prior to the incident or the nature of the incident, the duration of the
incident and the failure of the dog to desist during an evolving incident: Reid v
Murphy [2015] HCJAC 60 and Thomson v Hutchison 2010 SLT 158. The evidence before the
court did not indicate anything concerning in the dog's behaviour prior to the incident.
Until the incident, the dog was under control and had obeyed a command to leave the gate.
The complainer had stated in evidence that he was not concerned by the dog's behaviour
prior to the incident. The incident was an instantaneous episode, involving a single bite and
one moment of contact with the dog appearing from behind the complainer when the
incident occurred. There was no evidence that any intervention had been necessary to bring
the incident to an end. There had been no opportunity for the appellant to issue a command
to the dog to desist. The police officers who attended after the incident did not assess the
dog as aggressive. In light of finding in fact 15, the assessment of reasonable apprehension
required to be determined by the sheriff on the evidence available of the incident as it
unfolded on that day. There was no direct evidence before the sheriff of any prior
concerning behaviour of the dog or of its behaviour during the incident which would justify
a determination that there was a reasonable apprehension of injury. While finding in fact 15
was not determinative, in the absence of any direct evidence of the dog's prior behaviour or
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of the nature of the incident, the objective test in section 10(3) had not been met. Finding in
fact 15 restricted the evidence before the court to the events of the day in question.
[10]
On behalf of the respondent, reference was made to a number of English authorities
namely, R v Bezzina [1994] 1 WLR 1057, Rafiq v DPP 1997 WL 1106030, R v
Gedminintaite [2008] EWCA Crim 814; however, it was submitted that there was no
difference of approach between the English and the Scottish courts. The relevant question is
whether the dog was under control. In the present case, the dog had bitten the complainer
who exhibited no provocative behaviour. Finding in fact 15 was not fatal; there does not
require to have been a previous incident to assert reasonable apprehension (Thomson v
Hutchison 2010 SLT 158). The test in section 10(3) was an objective one. The sheriff had been
entitled to have regard to the dog's size and strength, its propensities and its refusal to obey
a command by returning to the gate. The sheriff had been entitled to make finding in fact 17
on the basis that the dog was not in control when it returned to the gate and bit the
complainer. The appellant had failed to keep control of the dog by failing to issue a further
command for it to return to the house.
Decision
[11]
The question for this court is narrow and focussed; each of the questions posed in
the stated case is directed at the same central issue: was the sheriff entitled to find that there
were grounds for a reasonable apprehension that the dog would injure anyone?
[12]
The correct approach to section 10(3) of the 1991 Act has been considered on a
number of occasions. The following general principles can be distilled from the authorities:
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(a)
whether there are grounds for a reasonable apprehension that a dog will injure
someone is an essential fact which requires corroboration (Littlejohn v
McLeod 1999 JC 333; Reid v Murphy);
(b)
whether such grounds exist will turn on the facts of each case (Thomson v
Hutchison);
(c)
grounds for a reasonable apprehension that a dog will injure someone can arise
even if the dog has never previously injured anyone (Thomson v Hutchison;
Murdoch v Corrins 2024 SC (SAC) 79), provided there is evidence giving rise to a
reasonable apprehension that the dog will do so (Thomson v Hutchison);
(d)
that evidence may include previous aggressive or uncontrollable behaviour
(McIlwaine v Higson, High Court of Judiciary, unreported, 2000 GWD 31-1211);
(e)
the size, strength and breed of the dog is a relevant consideration (Reid v
Murphy; McIlwaine v Higson);
(f)
grounds for a reasonable apprehension that a dog would injure someone might
emerge at some point during the course of a single incident; the particular
circumstances of the incident, including the length of the incident and a failure
by a dog to respond to commands or discipline before or during the incident
are relevant considerations (Thomson v Hutchison);
(g)
whether or not there is a basis for such reasonable apprehension is a matter for
the court on the evidence available and is not restricted to the owner's
apprehension or to his perception of the dog's character (Murdoch v Corrins;
Reid v Murphy). The test is section 10(3) is an objective one (Reid v Murphy).
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[13]
Applying these principles to the present case, the sheriff was entitled to conclude
that there was a reasonable apprehension that the dog would injure someone and the appeal
falls to be refused.
[14]
We accept that finding in fact 15 may be apt to lead to confusion and sits unhappily
with findings in fact 16 and 17. However, findings in fact do not exist in isolation; they are
made upon a consideration of the evidence which has been accepted or rejected. The sheriff
was entitled to reject the appellant's evidence that she had only installed one of the signs
displayed at the property; the sheriff assessed the appellant's evidence that the remaining
signs had been displayed by the previous owners of the property as lacking in credibility.
The sheriff was entitled to accept the evidence of the complainer that after he had been
bitten by the dog, the appellant had shrugged her shoulders and walked away; she then
returned to the gate and pointed to a sign in order to advise the complainer that he had been
warned of the danger presented by the presence of the dog. The sheriff had regard to the
terms of the appellant's reply to caution and charge to the effect that she normally places her
dog into a car if someone approaches the gate of the property. While that reply to caution
and charge ought to have formed a distinct finding in fact, it was an adminicle of evidence
which supported the sheriff's finding that there were grounds for reasonable apprehension
that the dog would injure a person. We note that finding in fact 15 was inserted into the
draft stated case by way of an unopposed adjustment proposed by the appellant. Properly
understood, in light of the sheriff's other findings, and in particular finding in fact 8, finding
in fact 15 simply reflects the evidence, namely that the dog had never previously bitten nor
injured any person or animal; the use of the words "had never been dangerously out of
control" while reflecting the statutory language of section 3 of the Act, are not directed at
any inference or finding in terms of section 3.
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[15]
The presence of signs alone would, in our judgment, be a precarious basis upon
which to seek a conviction under section 3 of the Act. Warning signs can be displayed for a
number of reasons by responsible and considerate dog owners, including to warn those who
dislike or are nervous of dogs, for security purposes or to warn other dog owners who may
be concerned and may wish to ensure their own dog is on a leash when passing. In the
present case, however, the evidence before the sheriff did not comprise the signs alone.
[16]
The sheriff carefully considered the evidence in light of the principles set out in the
authorities. She had regard to the signs displayed at the property, and in particular to: the
warning that the dog may bite; the appellant's reaction to the complainer's injury; the dog's
failure to obey a command to stay away from the gate; the appellant's normal practice of
commanding the dog to remain in a car when anyone attended at the gate which was
indicative of an unusual level of concern about its behaviour; and she had regard to the
dog's breed, size and strength. There was sufficient evidence pointing to knowledge on the
part of the appellant prior the incident as to the dog's potential behaviour to allow the
sheriff to find that there were grounds for reasonable apprehension that the dog would
injure someone.
[17]
Accordingly, we shall answer questions 1 to 4 in the affirmative and refuse the
appeal.
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