Graeme Dickson V. Procurator Fiscal, Stirling
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lady Dorrian,Lord Drummond Young |
| Neutral Citation | [2013] HCJAC 157 |
| Date | 27 August 2013 |
| Docket Number | XJ356/13 |
| Court | High Court of Justiciary |
| Published date | 28 November 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 157 | |
| Lady Smith Lady Dorrian Lord Drummond Young | Appeal No: XJ356/13 OPINION OF THE COURT delivered by LADY SMITH in APPEAL BY STATED CASE AGAINST CONVICTION AND SENTENCE by GRAEME DICKSON Appellant; against PROCURATOR FISCAL STIRLING Respondent: _______ |
Appellant: Collins; Capital Defence, Edinburgh
Respondent: Prentice QC AD; Crown Agent
27th August 2013
Background
[1] The appellant was convicted at Stirling Sheriff Court, on summary complaint, on 21 February 2013, of the following charge:
"on 7th March 2012 on agricultural land, at Lower Greenyards Farm, Old Station Road, Bannockburn, Stirling, you ...were the owner of ..dogs namely, huskies which worried livestock, namely sheep by ..attacking and killing same and injuring others;
CONTRARY to the Dogs (Protection of Livestock) Act 1953, Section 1(1) and (6)."
Two Siberian husky dogs were involved, a male and a female. The appellant had one analogous previous conviction in 2009, for contravention of the same statutory provisions; the same female husky was involved on that occasion. The accused knew that the dogs might attack sheep if they escaped.
[2] The circumstances of the offence were as follows.
[3] On 7 March 2012, the dogs were found to be at large in a field on the farm specified in the charge at about 7am. They chased sheep there. They attacked sheep. They killed three sheep. Seven sheep were severely injured by the dogs. The injuries included neck tears, puncture wounds, a nose having been bitten off, and faces, ears and bellies having been bitten. The vulva of one of the sheep had been bitten and chewed. Many ewes who had been in lamb aborted as a result of the attack by the dogs. The farmer incurred losses in excess of £3,000 in respect of the value of the sheep, veterinary bills and removal of the carcasses.
[4] The dogs were normally kept in a run at the rear of the appellant's home in Fallin. There is a gate to the run which is normally secured by a padlock. The sheriff made the following important findings in fact in relation to the escape of the dogs:
"(9) When the dogs are in the run, the gate is normally secured by a four‑digit combination padlock
(10) The accused was informed that the dogs were not within the run at about 5.30 that morning when his wife was getting ready for work.
(11) The gate to the run was open and the padlock open and hanging on the gate mesh by the shackle.
(12) Only the accused and his wife know the combination number of the padlock, which was in good working order.
(13) There was no evidence of damage to the padlock or the gate to indicate that the security had otherwise been overcome.
(14) By inference from findings in fact (9), (11) and (12), it is inherently unlikely that anyone would have correctly guessed the combination and let the dogs out.
(15) By inference from findings in fact (9) to (14) , the accused has omitted to lock the gate the previous night as a result of which the dogs had access to the rear garden between the run and the house."
[5] It was evident that, having escaped, the dogs made their way to the farm either via the front of the house or via the gardens of neighbouring properties into which they could have jumped once out of their run.
[6] Regarding the appellant's wife, it is clear from the stated case that her evidence was to the effect that the first she knew of the padlock being unsecured was at 5.30am on 7 March 2012 upon which she immediately woke her husband. It was not put to her that she had unlocked the padlock after her husband had secured it the previous evening. There was no suggestion in the evidence that that was what had occurred.
Stated Case
[7] In the stated case, the sheriff explains that the appellant gave evidence that he had, as usual, secured the padlock the previous night. The sheriff rejected his evidence and concluded that, contrary to his usual practice, the accused had failed to lock the gate thereby allowing the dogs to escape.
[8] The sheriff found the accused guilty. He considered that the offence was one of strict liability because (i) section 1(1) was in peremptory terms, (ii) section 1(3) provided a defence that was indicative of a need for mens rea to be proved in the particular circumstances outlined in that subsection, (iii) that the defence provided by subsection (4) was also indicative of a need for mens rea to be proved but only in the limited circumstances there referred to and (iv) in these circumstances, section 1(1) fell to be interpreted as excluding any requirement for proof of mens rea. He referred to the discussion by Sir Gerald Gordon QC at paragraph 8.70 of Criminal Law 3rd edition. He also found support in the case of Stephen v Milne 1960 SLT 276. However, even if the offence was not one of strict liability, the Crown had proved that the accused had failed to take all reasonable steps to secure the dogs and that was sufficient for conviction.
[9] The sheriff fined the accused £500. He also ordered that the accused pay a compensation order of £3,000.
[10] The sheriff also ordered destruction of the dogs, having raised that issue with parties and continued the hearing to enable the appellant's solicitor and the Crown to address him on the matter. That is, the Crown did not seek an order for destruction of the dogs. The sheriff concluded that, although the Dogs (Protection of Livestock) Act 1953 ("the 1953 Act") did not confer power to order the destruction of a dog which had worried sheep, that power could be found in what he referred to as the legislative framework of the Control of Dogs (Scotland) Act 2010 ("the 2010 Act") and section 1(4) of the Dogs Act 1906 ("the 1906 Act"). At paragraph 30 of the stated case, he explains:
"I interpret the present legislative framework as providing, in section 1 of the Dogs Act 1906, a shortcut to the determination that a dog is dangerous in the event it is proved to have chased sheep in a criminal trial which would otherwise have been determined by an application by an authorised officer of the local authority in terms of the 2010 Act scheme. It does not offend against the provisions of the 2010 Act for there to be such a shortcut where proof of a dog chasing sheep has arisen in the context of a criminal trial requiring a higher standard of proof and corroboration."
In rejecting a submission by the appellant's solicitor that a control order[1] should be imposed rather than an order for destruction, the sheriff appears to have considered that the imposition of such an order was also within his power although he does not explain his reasons for that conclusion. He stated that he felt that he could not distinguish between the two dogs because this was the second occasion of escape and the female dog had attacked sheep on the previous occasion which gave rise to the appellant's conviction in 2009.
Relevant Statutory Provisions
[11] The relevant provisions of section 1 of the 1953 Act are as follows:
" 1 Penalty where dog worries livestock on agricultural land
(1) Subject to the provisions of this section, if a dog worries livestock on any agricultural land, the owner of the dog, and, if it is in the charge of a person other than its owner that person also, shall be guilty of an offence under this Act.
(2) For the purposes of this Act worrying livestock means -
(a) attacking livestock, or
(b) chasing livestock in such a way as may reasonably be expected to cause injury or suffering to livestock or, in the case of females, abortion .......; or
(c) Being at large ( that is to say not on a lead or otherwise under close control) in a field in which there are sheep.
.......................
(3) A person shall not be guilty of an offence under this Act by reason of anything done by a dog, if at the material time the livestock are trespassing on the land in question and the dog is owned by, or the charge of, the occupier of that land or a person authorised by him, except in a case where the said person causes the dog to attack the livestock.
(4) The owner of a dog shall not be convicted of an offence under this Act in respect of the worrying of livestock by the dog if he proves that at the time the dog worried the livestock it was in the charge of some other person whom he reasonably believed to be a fit and proper person to be in charge of the dog.
...................."
Section 1(6) provides that a person guilty of an offence under the Act is liable, on summary conviction, to a fine. The Act makes no provision for the payment of a compensation order. Nor does it empower the sheriff to order destruction of any dog or, indeed, to make any order in relation to the dog.
[12] The Dangerous Dogs Act 1871 ("the 1871 Act") sec 2 was enacted to provide "further protection ...against dogs" and empowered any court of summary jurisdiction to order the owner of a dangerous dog to keep it under control or to destroy it and, as originally enacted, also provided that any person failing to comply with such order was liable to a financial penalty. The Dogs Act 1906 ("the 1906 Act"), a consolidating statute, made provision for circumstances where livestock was injured by dogs. In particular, section 1(4) of the 1906 Act provided that where a dog was proved to have chased sheep, it could be dealt with under section 2 of the 1871 Act as a dangerous dog.
[13] The 1871 Act was, however, repealed in its entirety by the 2010 Act which makes provision for the control of dogs. The 2010 Act introduces a scheme which is new in detail but accords with the principle enshrined in sec 2 of the 1871 Act namely that dangerous dogs need either to be properly controlled or destroyed. The 2010 Act provides for a system whereby a person authorised by the relevant local authority (an "authorised officer") may, if a dog has been out of control on more than one occasion, serve a "dog control notice" on the owner or other person who has day to day charge of the...
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