APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Bowen Sheriff Principal Lockhart	[2009] HCJAC 101 Appeal No: XJ323/09 OPINION OF LADY PATON in APPEAL BY STATED CASE by ELIZABETH THOMSON Appellant; against PROCURATOR FISCAL, PETERHEAD Respondent: _______

Appellant: Mason; Drummond Miller LLP (for Sam Milligan & Co, Peterhead)

Respondent: CHS MacNeill QC, Advocate depute; Crown Agent

16 December 2009

Introduction

[1] The Dangerous Dogs Act 1991 provides:

"3. Keeping dogs under proper control

(1) If a dog is dangerously out of control in a public place -

(a) the owner; and

(b) 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 summary trial, the appellant was convicted on 8 January 2009 of an offence under the 1991 Act as follows:

"On 20 September 2007 at the grassed area outside 45 Slains Court, Peterhead, Aberdeenshire you ... were the owner of a dog, namely a Staffordshire terrier whereby said dog was dangerously out of control in a public place in respect that said dog did bite Anne Cross ... and her dog several times whereby said Anne Cross and her dog were injured:

Contrary to the Dangerous Dogs Act 1991, section 3(1)."

The minutes record that the sheriff imposed a fine of £350 and ordered that the Staffordshire terrier be kept on a lead, wear a check chain and be muzzled with a basket muzzle while in any public place.

[3] The appellant appeals against conviction, contending that there was insufficient evidence to establish grounds for reasonable apprehension that her Staffordshire terrier would injure anyone. A submission of no case to answer should have been sustained by the sheriff.

Evidence led by the Crown

[4] As the issue in this appeal is whether or not the sheriff was entitled to repel the submission of no case to answer made at the end of the Crown case, it is necessary to assess the evidence led by the Crown as narrated in the Stated Case.

[5] The Crown case comprised a joint minute together with evidence from the complainer Mrs Anne Cross (55); a resident in a nearby ground floor flat, Mrs Diane Johnstone (27); a visitor to the area, Tony Harold (23); and a police officer called to the scene, PC MacLennan (26). That evidence established that at about 7 pm on 20 September 2007, the appellant was walking her Staffordshire bull terrier named Moby. The dog was not on a lead. The appellant and her dog were at one end of a grassy area outside 45 Slains Court, Peterhead. At the other end of the grassy area, Mrs Anne Cross was walking her two dogs, a seven-year-old Collie and a young black Scottie. Neither dog was on a lead. The Collie and the Scottie disappeared out of her sight. After a short time, only the Collie returned. Mrs Cross ran to the other end of the grassy area to investigate, and found the Scottie clamped in the jaws of the appellant's dog Moby. Moby was biting the Scottie's throat and was tossing him about in the air. The Scottie was limp, not biting and not fighting back. The appellant was standing beside Moby. She appeared to be frightened and was doing nothing to intervene. Onlookers found the situation frightening.

[6] There followed a period of about eight minutes during which various persons used a number of methods to try to persuade or force Moby to open his jaws and release his grip of the Scottie. The precise order of events was not entirely clear. However the evidence of the appellant, Mr Harold, and Mrs Johnstone gave a picture of Mrs Cross's attempts to force Moby to drop the Scottie by putting a collar (provided by the appellant) round his neck and pulling. Mr Harold hit Moby hard on the head several times with a brush, to no avail. Mrs Johnstone filled a basin with cold water and carried it outside. She was not noted as having seen any injuries or blood at that stage. Mrs Johnstone gave the basin to Mr Harold. He threw the cold water over the dogs, but without success. Mrs Johnstone described the appellant as looking scared, and not taking any action despite being urged to do so by Mrs Cross. Mrs Johnstone went back to her flat to fetch more water. Mr Harold then wrapped a chain around Moby's neck and choked him for several minutes. That manoeuvre was eventually successful, and the Scottie was released. Mrs Johnstone returned with the second basin of water, to find that Moby had released the Scottie, and that Mrs Cross was by that time bleeding from bites to her hand.

[7] When the dogs were subsequently examined, the Scottie was found to have significant injuries at his throat. Moby had small puncture wounds around his throat and face. There was evidence that the appellant had told PC MacLennan during interview that Moby had been on a lead at the time and had been attacked by the Scottie. Moby had then slipped his lead during the ensuing fight. However having heard all the evidence the sheriff found as a fact that Moby had not been on a lead. The sheriff made no finding as to how the incident started.

Submission of no case to answer

[8] At page 6 of the Stated Case, the sheriff records the submission of no case to answer as follows:

"Ms McDonnell [solicitor for the appellant] advanced her submission of 'No case to answer'.

Firstly, there was no evidence that Moby was dangerously out of control.

Secondly there was, in her view, no evidence that [the appellant] had or should have had a reasonable apprehension that her dog would attack anyone. There was no evidence that the dog had previously bitten any person or other dog. The evidence pointed to a dog-fight during which Ms Cross was injured because she chose to put her hands into the middle of that fight. She referred me to s10(3) of the Act.

Finally, Ms Macdonnell referred me to the case of Tierney v Valentine. That case involved an untethered boxer dog, entering a children's play park, and biting 2 children. On appeal the High Court held that since this involved a single incident with no appreciable time gap, there was no stage at which there were grounds for reasonable apprehension that the dog would injure any person before it was put on the lead.

In response, the procurator fiscal submitted that at its highest, the Crown evidence was sufficient to allow the case to proceed. The Crown case is predicated on the nature of the incident, the duration of the incident, the severity of the attack and the extent of the injuries. This was a developing incident and techniques were used to separate the dogs, including throwing water over them, using a brush, and a choking manoeuvre. Despite strenuous efforts by members of the public, they could not secure the release of the Scottie for some time. The PF distinguished this incident from the Tierney case, in which the dog, having bitten children, was quickly brought under control and placed on a lead. This incident involving Moby lasted at least 8 minutes. It was a sustained and frenzied attack. Moby was ... completely and dangerously out of control and could not be controlled. It should have been obvious to the appellant that there was a reasonable apprehension that someone would be injured during this incident.

I repelled the submission. One of the aims of the Act is to protect the public from dogs dangerously out of control in a public place. I took the view that the evidence I have narrated in the preceding paragraphs was sufficient to entitle me to infer that Moby was dangerously out of control in a public place. Taking the evidence at its highest, the incident lasted at least 8 minutes. The appellant had lost control of Moby and was unable to bring him back in to control. This was a sustained, frenzied and vicious attack during which Anne Cross and her terrier pup were injured by Moby. The attack was brought to a conclusion through the efforts of others and not by the appellant. This is distinguishable from the Tierney case based on the nature and duration of the attack, the many unsuccessful efforts to control the dog, and the means by which Moby was eventually brought under control. It seemed to me that there were various stages at which the appellant ought to have formed a reasonable apprehension that Moby might injure someone and in particular those trying to separate the dogs."

[9] After repelling the submission, the sheriff heard defence evidence from Nicola Burnett, Joanne Burnett and Barry Chisholm. The appellant did not give evidence. The sheriff noted that none of the defence witnesses saw the incident. Their evidence related to the good characters of the appellant and Moby.

[10] At page 12 of the Stated Case, the sheriff poses the question for the opinion of the court as follows:

"In the light of the evidence led was I entitled to repel the submission made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995?"

Submissions on behalf of the appellant

[10] Counsel for the appellant submitted that there had been only one incident, albeit lasting some eight minutes. Prior to that one incident, there had been no reasonable apprehension that Moby would injure anyone. For such an apprehension to arise, the dog must have bitten someone before: cf Normand v Lucas, 1993 GWD 15-975, also reported at page 700 of 1994 SCCR 697. In the present case, the first time that any reasonable apprehension of injury to any person could have arisen was the moment when Mrs Cross was injured. The case of Tierney v Valentine, 1994 SCCR 697 illustrated a similar single incident during which a dog entered a playground and suddenly bit two children before the owner had any opportunity to intervene to bring the dog under control. Counsel conceded that McIlwaine v PF, Airdrie, 2000 GWD 31-1211 was a different type of case in that there had been some previous bad behaviour on the part of the dog towards the postman and the next-door neighbour. That previous behaviour was taken into account when assessing whether there was a reasonable apprehension of injury to any person. But in the present case there had been no such previous analogous conduct which could provide a basis for a reasonable apprehension of injury to a human being. There had been no previous aggressive behaviour towards humans. In the particular circumstances of the present case, therefore, the sheriff had erred in rejecting the submission of no case to answer.

Submissions on behalf of the Crown

[12] The Advocate depute argued that it was reading too much into Normand v Lucas to suggest that it vouched the proposition that a previous injury to a human being was a necessary prerequisite for a reasonable apprehension of injury. Any number of circumstances could give rise to reasonable grounds for apprehension of injury to someone. One relevant issue was the time interval between the type of behaviour and the injury to the person. Did the person in charge of the dog have time to form a reasonable apprehension of injury to any person. In the present case, the appellant had such time, beginning from the moment when Mrs Cross began walking from the other end of the grassy area to find out why her dog had not returned. The sheriff was correct to find (in Finding-in-Fact 7) that "there was an appreciable gap in time from when Moby first bit the Scottie to the intervention of Mrs Cross." Also, if one dog was getting the better of another dog, there must be a reasonable apprehension that the other dog's owner would intervene in an attempt to save her dog, and might suffer injury during the course of such an intervention.

Discussion

[13] The question whether there are grounds for reasonable apprehension that a dog will injure any person must depend upon the facts in each case. Circumstances may arise in which a dog has not previously injured someone, yet is acting in such a way as to give rise to such a reasonable apprehension. For example, there would be grounds for such an apprehension where an apparently rabid dog foaming at the mouth was running around a busy city area, biting and tearing at anything in its path. Similarly there would be grounds for such an apprehension where there had been previous aggressive and uncontrollable behaviour of the type described in McIlwaine v PF, Airdrie, 2000 GWD 31-1211. Situations may also be envisaged where events as they unfolded could be viewed as a single incident, yet the particular circumstances of the incident (including the length of the incident and the developments occurring during it) were such that grounds for reasonable apprehension that the dog would injure someone emerged at some point during the incident. Accordingly I do not accept that grounds for reasonable apprehension that a dog would injure any person cannot be said to have arisen simply because the dog had never previously bitten a human being, or because the event could be viewed as a single incident.

[14] In the present case, I accept that it was not clear how hostilities between the dogs started. It is possible that the Scottie was not blameless, as Moby was subsequently found to have small puncture wounds to his throat and face, consistent with dog bites. Nevertheless a significant period (commencing with the time when Mrs Cross began to run to the other end of the grassy area) passed during which Moby was single-mindedly and ferociously biting the Scottie's throat, wholly oblivious to all human commands, entreaties, and physical interventions seeking to stop his biting attack. The sheriff was, on the evidence, entitled to make Finding-in-Fact 7: "There was an appreciable gap in time from when Moby first bit the Scottie to the intervention of Mrs Cross". That finding-in-fact was not challenged in this appeal. Thus there was in my view ample time for any observer, including the appellant, to appreciate that Moby was out of control, and was refusing to respond to commands, entreaties, and physical discipline. There was further ample time for the appellant to appreciate that there were reasonable grounds for apprehension that the Scottie's owner, trying to save her dog, would be injured by Moby in his prevailing single-minded and savage behaviour coupled with his persistent refusal to allow himself to be brought under control.

[15] It follows in my view that the sheriff was correct to distinguish Tierney v Valentine, 1994 SCCR 697, where a dog which had never previously bitten anyone ran into a children's playground and inflicted four bites on two children in one brief incident before there was time for the owner to form a reasonable apprehension that the dog might injure someone and before he could bring the dog under control. By contrast, in the present case, there was an appreciable period of time during which clear grounds for reasonable apprehension that Moby would injure someone emerged - particularly in the context of the Scottie owner's intervention in an effort to save her dog. As the sheriff found in Findings-in-Fact 10 and 12, "The incident lasted 8 minutes ... The appellant did not control Moby and was unable to bring him under control ...".

[16] In all the circumstances, I am satisfied therefore that the evidence led by the Crown justified the inferences drawn and the conclusions reached by the sheriff, and in particular entitled the sheriff to refuse the submission of no case to answer.

Decision

[17] For the reasons given above, it is my view that the question posed by the sheriff at page 12 of the Stated Case should be answered in the affirmative, and that the appeal should be dismissed.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Bowen Sheriff Principal Lockhart	[2009] HCJAC 101 Appeal No: XJ323/09 OPINION OF SHERIFF PRINCIPAL E.F. BOWEN in APPEAL BY STATED CASE by ELIZABETH THOMSON Appellant; against PROCURATOR FISCAL, PETERHEAD Respondent: _______

Appellant: Mason; Drummond Miller LLP (for Sam Milligan & Co, Peterhead)

Respondent: CHS MacNeill QC, Advocate depute; Crown Agent

16 December 2009

[18] In terms of section 3(1) of the Dangerous Dogs Act 1991 the owner of a dog which is "dangerously out of control in a public place" is guilty of an offence and liable to a period of imprisonment or fine. Section 10(3) of the Act provides that,

"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".

[19] It is important to note that it is not sufficient for commission of the offence that a dog appears, on an objective view, to be "dangerously out of control"; there requires to be evidence from which an objective view can be reached that there are grounds for apprehension that the dog will cause personal injury. This normally requires knowledge of a previous incident in which the dog has shown characteristics of dangerous behaviour towards persons.

[20] It is also important that there should be an identifiable occasion to which the charge relates. Thus, in applying the statutory test, this Court has, in previous cases, acknowledged that where the circumstances founded on fall to be regarded as a "single incident" and there did not exist grounds for reasonable apprehension that the dog in question would cause injury at the outset, the essential basis for guilt does not exist. In Tierney v Valentine 1994 SCCR 697 a Boxer dog attacked and bit two children who were on a swing in a children's play park. The Court noted the following circumstances (which I take from the Opinion delivered by the Lord Justice General (Hope) at page 698G):

"The dog which was in the charge of the appellant entered the play area. It was not on a lead. It approached the swings and circled round them and then started to bark and jump at the two children. One of the children began to scream, whereupon the dog bit that child in the foot. It then bit the other child on the leg and bit the first child again on the leg. This child got off the swing and started to run away. The dog bit her arm. It was at that point that the appellant intervened, caught the dog and put it on a lead".

In convicting the appellant the sheriff noted the terms of section 10(3) and said,

"Having regard to the evidence, I took the view that during the course of the events on (the date of the incident) the dog became dangerously out of control because, as matters developed, there were grounds for reasonable apprehension that it would injure someone, although there were no such grounds at the outset".

[21] That approach was rejected on appeal. The Lord Justice General observed (page 700C):

"The occasion which arose in this case, to which the definition in section 10(3) should be referred, was the occasion of the incident described in the findings. That was a single incident and it was an incident at the beginning of which this dog was found not to be dangerously out of control. Since it was a single incident with no appreciable interval, there was no stage at which it could be said that there were grounds for reasonable apprehension that the dog would injure any person before it was all over and the dog was put on the lead. Accordingly, the essential basis for a finding of guilt on this charge was not present".

[22] The reference by the Lord Justice General to the absence of an appreciable interval was made by reason of the fact that the sheriff had considered herself bound by the decision in the previous case of Normand v Lucas 1993 GWD 15-975. The Opinion of the Court in that case is appended to the report of Tierney v Valentine in the Scottish Criminal Case Reports. The circumstances were that a lady who had fallen in the street was sitting on a wall when the appellant appeared, accompanied by a small Jack Russell dog. The lady who had fallen encouraged the dog to sit on her knee whilst she was on the wall. She leaned forward and the dog unexpectedly bit her face. Her husband left the scene to summon help from a relative, along with an ambulance. Other individuals appeared on the scene and at the stage when the injured lady was being put into the ambulance the dog bit someone else. The Court noted that while there may not have been evidence from which the sheriff could have inferred that the dog was dangerously out of control when it bit the first lady by the stage of the subsequent bite "there was material upon which the sheriff could have inferred that there were grounds for reasonable apprehension that the dog would injure someone". Although it does not appear that in Normand v Lucas the Court addressed in terms the question of whether there was a single incident that must be the implication of this reasoning. The "interval" between the first bite and the second was a space of time separating the two "occasions".

[23] The question was considered again in McIlwaine v Higson 2000 GWD 31‑1211 (29 September 2000). In that case a child was chased and mauled by a male Bull Mastiff, Winston, which, along with a female dog of the same breed had run out of the appellant's house on to a grassy area where children were playing. The appellant had chased after the dogs and managed to seize the male dog after it commenced an attack on one of the children. The dog then broke free and bit the child again. Unlike the sheriff, the Court (Lords Prosser, Penrose and Bonomy), took the view that this fell to be regarded as a "single incident". In paragraph 4 of the Opinion of the Court it is stated:

"The sheriff considered that this was not a 'single incident'; by grabbing the dog's collar, the appellant was seeking to re-establish her control over him and had succeeded in doing so for a brief period of a few seconds. The sheriff sees what followed as effectively a separate incident upon which conviction would be justified, even if it were not justified in relation to the previous stages of the attack. Having regard to the nature of the incident as a whole, both before and after the appellant's brief and ineffectual hold on Winston's collar, the Advocate Depute accepted that conviction would not be justified on the basis on the resumed attack alone. We are satisfied that the concession was rightly made, and the whole attack is to be regarded as a single incident".

[24] The question of whether there was a "single incident" in McIlwaine had arisen, no doubt, because there was something of a paucity of evidence of the dogs having displayed aggressive tendencies towards any persons before what was a very serious attack on the child took place. Recognising that there might be no basis for holding that at the outset of the incident there were grounds for reasonable apprehension as set out in section 10(3), an attempt appears to have been made by, or before, the sheriff to suggest that the incident could be divided, with the second attack on the child treated as a distinct "occasion". As previously observed this was rejected by the court. The case was nevertheless decided in favour of the Crown on the basis that previous incidents of noisy and aggressive behaviour on the part of the dogs which involved frightening a postman and hurling themselves at a 4 foot fence when a neighbour was hanging up washing, when taken with the size and combination of two dogs indicated that they were liable, on the loose, to behave in a way which would constitute a real risk of injury. The case is authority, if any is needed, for the view that a dog does not need to have bitten, or to have attempted to bite, anyone to create grounds for apprehension that it will injure someone.

[25] The circumstances of the present case as disclosed by the sheriff's Findings in Fact are that on 20 September 2007 the appellant was exercising her Staffordshire Terrier named Moby on a grassed area near Slains Court, Peterhead. A Mrs Cross was exercising two dogs, a Collie and a Scottie pup at the same time. Moby, who was not on a lead, bit the Scottie on the neck and ear then clapped his teeth on to the neck of the Scottie and refused to release him. Finding in Fact 7 is in the following terms:

"There was an appreciable gap in time from when Moby first bit the Scottie to the intervention of Mrs Cross. Mrs Cross tried to wrap a dog collar around the neck of Moby in an attempt to pull the dogs apart. The collar had been handed to her by the appellant. During this process, Moby bit Mrs Cross on her fingers, hands and left wrist, causing her injury. He resumed biting the Scottie."

Other witnesses appeared to have intervened in an attempt to separate the dogs, these attempts involving the use of cold water and the striking of Moby with a brush. Moby could not be removed until a chain was placed around his neck with a consequent choking effect. Finding 10 records that "The attack by Moby on the Scottie, during which Mrs Cross was injured, was sustained, frenzied and vicious. It frightened the witnesses who observed the incident. The incident lasted at least eight minutes. Finding 12 states "The appellant did not control Moby and was unable to bring him under control. Moby was dangerously out of control in a public place".

[26] In my view it is of no consequence in applying the statutory test that it may have taken eight minutes or more to separate the dogs. It is equally of no consequence that the witnesses found the incident frightening. The fact is that this was one incident at the beginning of which the dog was not dangerously out of control as defined by section 10(3). There is no finding to that effect. The sub-section speaks of "any occasion". One is entitled to ask, on which occasion were there grounds for reasonable apprehension that this dog would injure someone? On the facts found the question is not, in my opinion, answered.

[27] The argument advanced by the Advocate Depute, as I understood it, was that the case of Tierney v Valentine introduced the concept of an "appreciable interval", and that if such was proved to have occurred in an incident involving an aggressive dog the statutory test could be met. He pointed out that the sheriff had referred to an "appreciable gap in time" and equated this to "an appreciable interval". It appears to me that this both misconstrues the Lord Justice General's remarks in Tierney, as well as ignoring what the case decided. As observed, his Lordship referred to the absence of an appreciable interval in the sense that there was no breach in the sequence of events as there had been in Normand v Lucas; he was not talking about an appreciable period of time. The argument that the statutory test could be met because there was "an interval of time" during which "as matters developed" reasonable grounds for apprehension arose was the very argument which the Court in Tierney declined to accept.

[28] The sheriff's error, in my view, is to be found in an examination of Finding in Fact 12. The fact that the appellant did not control Moby, or was unable to control him on this occasion, does not address the statutory test. The appellant's failure to control him did not mean that he was dangerously out of control in a public place within the meaning of the 1991 Act.

[29] I am conscious that Moby's behaviour on this occasion and an earlier occasion which was the subject of Finding in Fact 16, indicate that he may have aggressive tendencies towards other dogs. It is only right that the appellant should take steps to keep him under close control in public to avoid incidents of the type which occurred, taking place. However, the underlying purpose of the provisions of the Dangerous Dogs Act is to protect persons from dogs which might have aggressive tendencies towards humans. Unless a dog falls into that category it is in my opinion fundamentally wrong to categorise the actings of its owner as criminal. Applying the interpretation of section 10(3) adopted in the case of Tierney to the circumstances of this case, meets, in my opinion, the purpose of the Act. I would answer the question for the Opinion of the Court in the negative and quash the conviction.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Bowen Sheriff Principal Lockhart	[2009] HCJAC 101 Appeal No: XJ323/09 OPINION OF SHERIFF PRINCIPAL B A LOCKHART in APPEAL BY STATED CASE by ELIZABETH THOMSON Appellant; against PROCURATOR FISCAL, PETERHEAD Respondent: _______

Appellant: Mason; Drummond Miller LLP (for Sam Milligan & Co, Peterhead)

Respondent: CHS MacNeill QC, Advocate depute; Crown Agent

15 December 2009

[30] I agree with the Opinion of Lady Paton for the reasons given by her. In particular, I concur with the views which she expresses at paragraphs [13], [14], [15] and [16]. The only ground of appeal before us is whether, on the basis of the Crown evidence, the sheriff erred in repelling the submission for the appellant that there was no case to answer. In this case, for there to be a case to answer, there requires to be evidence which, if accepted by the sheriff at the conclusion of the trial, would allow her to conclude that there existed grounds for reasonable apprehension that Moby would injure any person. The Crown evidence as narrated by the sheriff and recorded by Lady Paton at paragraphs [5], [6] and [7], would, in my opinion, entitled her to reach that conclusion. I consider the appeal falls to be refused.