Karen Rafiq v Inspector Alan Folkes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,MR JUSTICE POPPLEWELL,MR JUPP |
| Judgment Date | 22 April 1997 |
| Judgment citation (vLex) | [1997] EWHC J0422-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4172/96 |
| Date | 22 April 1997 |
[1997] EWHC J0422-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Auld
-and-
Mr Justice Popplewell
CO/4172/96
MISS T PANAGIOTOPOULO (instructed by Cooper and Company Solicitors, London WC2A 2LL) appeared on behalf of the Appellant.
MR J JUPP (instructed by the Legal Department of the Luton County Council) appeared on behalf of the Respondent.
(as approved)
Tuesday, 22nd April 1997
Popplewell J will give the first judgment.
This is an appeal by way of Case Stated from the Crown Court sitting at Luton in respect of a decision on an appeal itself from the Justices for Bedford.
On 24th January 1996 there was an information preferred by the Respondent against the Appellant that he was the owner of a certain dog named Venom, which, on 23rd December 1995, at Souldrop in Bedford, was dangerously out of control in a public place and caused injury to Jane Rusen contrary to section 3(1) of the Dangerous Dogs Act 1991.
On 27th June 1996 the Justices heard the information, convicted the Appellant of the said offence and conditionally discharged him in respect thereof for 12 months, but under the Act ordered that the dog should be destroyed and the Appellant should pay some costs.
The appeal by the Crown Court was heard on 19th August 1996 and the following facts were found. On 23rd December 1995 the Appellant was the owner of a German Shepherd dog named Venom. He was the proprietor of a petrol filling station and shop known as Souldrop Garage at Souldrop in the county of Bedford. At all material times the filling station and shop were in the sole charge of the Appellant's daughter.
At about 5 o'clock in the evening on 23rd December 1995 Ms Rusen parked her car in the forecourt and entered the shop with a view to purchasing one of the Christmas trees displayed for sale on the forecourt. She found Venom loose on the forecourt and with the oral permission of the Appellant's daughter let him into the shop. She then purchased and paid for a number of items and returned to the shop in order to return a knife that she had borrowed. As she was passing it over the counter, Venom, who was on the side of the counter to which the public had access, jumped up and bit her on the thigh causing a small puncture wound thereto. The Crown Court found, most particularly, that prior to jumping up and biting Jane Rusen, Venom had given no indication at all of his intention to do so.
There were two arguments then put forward on behalf of the Appellant: first, that under section 10(2) the dog would not have been in a public place and secondly, under section 10(3) the dog was not dangerously out of control. The Crown Court found that the dog was in a public place and that argument has not been pursued before us. The Crown Court said:
"We were of opinion that the said passage [referred to by Kennedy LJ in the case of Bezzina [1994] 1 WLR 1057 at 1061] was not, as contended by the Appellant, obiter dicta but embodied the ratio decidendi of the case and that we were accordingly bound thereby to hold that the said dog was dangerously out of control in a public place notwithstanding that he had shown no sign of aggression prior to inflicting the said injury."
The statutory provisions governing this case can be shortly stated. The Dangerous Dogs Act 1991 was, as is well-known, introduced in great haste by Parliament to deal with a number of unpleasant incidents in which a number of fierce dogs had seriously injured small children. It is a piece of Delphic legislation which is even worse than some of the directives coming out of Europe. Section 3(1) reads:
"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 whilst so out of control injures any person, an aggravated offence, under this subsection."
Subsection (3) reads:
"If the owner or, if different, the person for the time being in charge of a dog allows it to enter a place which is not a public place but where it is not permitted to be and whilst it is there-
(a) it injures any person; or
(b) there are grounds for reasonable apprehension that it will do so,
he is guilty of an offence, or, if the dog injures any person, an aggravated offence, under this subsection."
The phrase "dangerously out of control" is subject to interpretation by section 10(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…"
It is the Appellant's submission, well presented to this Court by Miss Panagiotopoulo, that absent any finding that there was reasonable apprehension it was not open to the Crown Court to find this dog was dangerously out of control. That submission is based on a construction of section 3(1) and of section 10(3). It is pointed out that it would be very simple in section 3(1) to say that a dog is "out of control" if it injures any person. Further section 3(1)(b) would not read, as it does, if injury to a person constituted a dog "being out of control" per se. She drew our attention to section 3(3) where there is a separate distinction made between injury to a person and grounds of reasonable apprehension. She observes that the wording in section 1(b) is different. More particularly in section 10(3) it is clear, she says, on a true construction that there have to be grounds for reasonable apprehension, and that injury is irrelevant. If it had been intended that injury should result in a finding of "dangerously out of control" nothing would have been easier than in the interpretation section, so to say.
She accepted, I think under some pressure from the Court, that the argument is totally devoid of logic for this reason: there may be cases when a dog behaves in such a way as to cause reasonable apprehension without doing an injury. She accepts that if the dog does that, without any forewarning, the owner will be guilty of an offence. Secondly, that if there is reasonable ground for apprehension and somebody is then bitten and there is no prior warning, again the owner will be guilty of an offence. However, if the dog, without any prior warning and without the injured person, or anyone, having a reasonable apprehension that the dog will injure somebody, does in fact injure somebody, the owner is not guilty of an offence. Therefore, in the absence of forewarning in one sense the more dangerous the dog, in the sense that he has bitten, the less responsibility, it is said, there...
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R v Robinson-Pierre
...to be a fit and proper person to be in charge of it." 17 The Divisional Court (Auld LJ and Popplewell J) considered section 3 (1) in Rafiq v Folkes, 22 April 1997, CO/4172/96. A customer visited a garage shop on whose counter the owner had permitted a dog to sit. On the approach of the cust......