Derek Adam V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Brodie,Lord Menzies |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] HCJAC 14 |
| Court | High Court of Justiciary |
| Published date | 14 February 2013 |
| Docket Number | XC50/12 |
| Date | 14 February 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Menzies Lord Brodie Lord Wheatley | [2013] HCJAC 14 Appeal No: XC50/12 OPINION OF THE COURT delivered by LORD MENZIES in APPEAL AGAINST CONVICTION by DEREK ADAM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Fyffe, Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: A Brown, Q.C. A.D.; Crown Agent
14 February 2013
Introduction
[1] On 9 December 2011, following a trial which lasted several days before a sheriff and jury at Dundee Sheriff Court, the appellant was convicted by the unanimous verdict of the jury of the following two charges:
"(001) On 29 August 2010 at Linton Road, Ettrick Crescent and Dryburgh Street, all Dundee, you DEREK ADAM were the owner of two dogs namely two Rottweilers named Big Boy or Fat Boy and Pretty Girl, whereby said dogs were dangerously out of control in a public place in respect that said dogs, in Ettrick Crescent, Dundee attacked another dog and in Dryburgh Street, Dundee, attacked and repeatedly bit and mauled Rhianna Kidd, born 1 June 2000, care of Tayside Police, Dundee, all to her severe injury, permanent impairment and permanent disfigurement; CONTRARY to the Dangerous Dogs Act 1991, Section 3(1).
(003) On 29 August 2010 at Linton Road, Ettrick Crescent, and Dryburgh Street, all Dundee, you DEREK ADAM did fail to comply with an order under Section 2 of the Dogs Act 1871, namely to keep 2 dogs named Big Boy or Fat Boy and Pretty Girl under proper control, made on 3 March 2010 at Dundee Justice of the Peace Court in that in Ettrick Crescent, Dundee attacked another dog and in Dryburgh Street, Dundee, attacked and repeatedly bit and mauled Rhianna Kidd, born 1 June 2000, care of Tayside Police, Dundee, all to her severe injury, permanent impairment and permanent disfigurement; CONTRARY to Section 1(3) of the Dangerous Dogs Act 1989"
[2] In respect of charge (001), the appellant was sentenced to 12 months imprisonment, and in respect of charge (003), he was admonished and disqualified from keeping a dog for life. No appeal is taken against these sentences. Three grounds of appeal were maintained before us against conviction, the first two being directed against the appellant's conviction on charge (001), and the third being directed against his conviction on charge (003). These may be summarised as follows:
Ground 1 (a) alleges that the sheriff misdirected the jury in relation to the defence contained within section 3(2) of the Dangerous Dogs Act 1991 ("the 1991 Act"). In particular, the statute should be "read down" in accordance with section 3 of the Human Rights Act 1998 so as to place an evidential burden on the appellant, rather than a legal burden.
Ground 1(b) alleges that the sheriff misdirected the jury by directing them that the appellant required to prove that the person whom he had placed in charge of the dogs was a fit and proper person to be in charge of them. The appellant merely required to prove that he had a reasonable belief that the person in charge at the material time was a fit and proper person to be in charge of the dogs.
Ground 2 alleges that the sheriff misdirected the jury as to the requirements of section 1(3) of the Dangerous Dogs Act 1989 ("the 1989 Act"), and in particular that this section created a strict liability offence.
[3 ] It was submitted to us that each of these misdirections amounted to a miscarriage of justice, and accordingly that these convictions should be quashed.
The relevant statutory provisions
[4] Section 3 of the 1991 Act provides inter alia as follows:
"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.
(2) In proceedings for an offence under subsection (1) above against a person who is the owner of a dog but was not at the material time in charge of it, it shall be a defence for the accused to prove that the dog was at the material time in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it."
[5] Section 1(3) of the 1989 Act provides as follows:
"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."
The relevant passages of the sheriff's charge to the jury
[6] There are four passages in the sheriff's charge to which reference was made in submissions before us, and which it is convenient to set out at this stage. Between pages 42 and 46 of his charge, the sheriff directed the jury as follows:
"So if you accept that Pretty Girl and Big Boy were involved in the attacks on Mr Gaffney's dog and on Rhianna Kidd, then Derek Adam cannot pretend that he should not have grounds for reasonable apprehension that these dogs might injure someone if given the chance. However, if he proves, and remember what I said to you earlier about the onus of proof normally being on the prosecution, so this is an exception to that general rule, if he proves, in accordance with the provisions of Section 3, Sub-section 2 of the Dangerous Dogs Act 1991 that, though he was the owner, he was not, at the material time, in charge of these dogs and, this is a two-stage test, as has been said to you already, that they were, at the material time, in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of the dogs, then that is a defence to Charge 1. He does not have to prove his defence to the usual criminal standard of "beyond reasonable doubt", nor does he require corroboration. The standard of proof for such a defence is the balance of probability, that is that what he says is more likely to be true than not true and, if he achieves that standard, then his defence succeeds.
So what would he have to prove? Well, it's my direction to you that he would have to prove that he had transferred responsibility for the charge of these dogs to Sarah Kerr, or some other person, that that person would, therefore, have to know that they were expected to take charge of the dogs, for the whole concept of being in charge is about having the control of, and responsibility for supervising. So whether or not a person is in charge of anything is a question of fact. The law uses the expression, "drunk in charge of a motor vehicle", for instance, and there's a logical linguistic inconsistency in that because, by definition, if you're in drunk, then you don't, if, if you're drunk, you don't possess the ability to control and supervise, whether it's a motor vehicle or a dog. But it's not a qualitative test that's being applied. It's a question of fact. The question is, was that person, irrespective of their fitness, notionally in charge, as a matter of fact, at the material time? So that's the first part of the defence that you have to think about and weigh up the evidence in relation to.
Now, the second part is that he has to prove also, on the balance of probability, that the person concerned and, in this case, that's obviously got to be Sarah Kerr, was a fit and proper person to be in charge of the dogs, that is to say, was she capable of keeping them under control, both generally and at the material time. If he succeeds with this line of defence, then he is entitled to be acquitted on Charge 1. If he does not succeed in this defence, and you're satisfied beyond reasonable doubt on the basis of the evidence led by the Crown from two or more sources that Big Boy and Pretty Girl were involved in the attack on Rhianna, then Derek Adam is guilty and should be found guilty in terms of Charge 1 as it's now been amended, because this is an offence of what we call strict liability, and there's no issue about what his intention may have been arising in this case.
If, on the other hand, you are in reasonable doubt as to whether these dogs attacked Rhianna, then he must be acquitted and, similarly, if you think he's transferred responsibility for being in charge of the dogs to Sarah Kerr, and that at the material time, the time of the incident, she was a fit and proper person to be in charge of these dogs, then he would have to be acquitted on this charge, but if you think that she was not a fit and proper person, and he could not reasonably have believed that she was a fit and proper person, then he would be guilty, because he would have attempted to transfer the charge of these dogs to a person that he did not reasonably believe was capable of looking after them."
[7] At page 49/50, the sheriff gave the following directions regarding charge (003):
"Now, finally, turning to Charge 3, this involves Derek Adam alone. It alleges that he failed to comply with a Justice of the Peace court order made on 3rd March 2010 to keep Big Boy/Fat Boy and Pretty Girl under proper control. If Big Boy and Pretty Girl were involved in the attacks on either or both Rhianna Kidd and Mr Gaffney's dog, they were not under proper control, and he would be guilty. For this charge, it is of no consequence whether the dogs were under the control of any other person. I think Mr Houston inadvertently hinted that it was, but it's not. The offence is one, again, of strict, if not absolute, liability, and you cannot delegate your responsibility to anyone else, so there is no defence of that. So if you believe these dogs attacked Rhianna and attacked Mr Gaffney's dog, that is an end of it. He would be guilty of the offence in Charge 3. But if you're in any...
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