Elizabeth Mclaughlin Against Procurator Fiscal, Paisley

JurisdictionScotland
JudgeLord Drummond Young,Sheriff Principal Brian A Lockhart,Lady Paton
Neutral Citation[2014] HCJAC 98
Docket NumberHCA/2014
CourtHigh Court of Justiciary
Published date12 September 2014
Date12 September 2014

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 98

HCA/2014/002349/XJ

Lady Paton

Lord Drummond Young

Sheriff Principal Lockhart

OPINION OF THE COURT

delivered by LADY PATON

in the cause

ELIZABETH McLAUGHLIN

Appellant;

against

PROCURATOR FISCAL, PAISLEY

Respondent:

Appellant: Tait; Capital Defence Lawyers (for McGeehan & Co, Paisley)

Respondent: Fairley, QC, AD; Crown Agent

12 September 2014

Dangerous Dogs Act 1991

[1] The Dangerous Dogs Act 1991 as amended provides:

“3. Keeping dogs under proper control

  1. If a dog is dangerously out of control in any place (whether or not a public place) –
  1. the owner;and
  2. 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 a summary trial at Paisley Sheriff Court, the appellant was convicted on 21 January 2014 of the following offence:

“On 25th August 2013 at K Avenue, Linwood you … were the owner of a dog, namely a boxer cross breed whereby said dog was dangerously out of control in any place in respect that said dog did jump up on Vivienne Wallace … knock her to the ground, bite and scratch her on the head and body whereby she was injured and … bite a dog whereby said dog was injured;

contrary to the Dangerous Dogs Act 1991, section 3(1) as amended by the Control of Dogs (Scotland) Act 2010, section 10.”

[3] The minutes record that on 28 February 2014 the sheriff ordered the appellant to be disqualified from having custody of a dog for a period of one year; to pay a compensation order of £90 to Vivienne Wallace; to pay a fine of £250; and to have the boxer cross breed dog known as Reggie destroyed.

[4] The appellant appeals against conviction. She contends that:

“[t]he sheriff erred in law repelling the submission of no case to answer. There was insufficient evidence led by the Crown to sustain a conviction. There was no evidence before the court in relation to the dog having a previous history of a violent disposition either towards humans or dogs.”

Evidence led by the Crown

[5] One issue in this appeal is whether or not the sheriff was entitled to repel the submission of no case to answer at the end of the Crown case. It would normally be necessary to focus solely on the narration of the Crown evidence given by the sheriff in the stated case. However as no defence evidence was led, it is possible in this particular case to ascertain the Crown evidence not only from the sheriff’s note, but also from the formal findings-in-fact. In what follows, any reference to pagination in the stated case is a reference to the manuscript figure at the top right hand corner of the page.

[6] The Crown led five witnesses, namely the complainer (Vivienne Wallace), three of the appellant’s neighbours (Diane Craig, Douglas Craig, and Jason Docherty) and one police officer, PC Caroline Harrod.

[7] The evidence established that Reggie was a boxer cross breed dog, approximately 3 feet in height, muscular and strong, with a broad chest and a flat face and jaws (finding-in-fact 2). Prior to 25 August 2013, Reggie and another dog were regularly left on the veranda of the appellant’s ground floor flat at 344 K Avenue, Linwood. The veranda was enclosed by steel panels about 3½ feet high. Whenever another dog walked past, Reggie would bark loudly and continuously, and would leap up, with all four legs in the air, sometimes coming close to getting over the veranda enclosure (finding-in-fact 3 and page 6 of the stated case). The evidence of the appellant’s next-door neighbours was summarised at page 9 of the stated case as follows:

“ … evidence about Reggie’s behaviour prior to the incident … was given by the appellant’s next door neighbour Mr Craig, who had known Reggie since around 2009/10 when he was a puppy and who saw him outside on the veranda at the appellant’s home on a daily basis. [Mr Craig gave] evidence that, when outside in an enclosed veranda, Reggie would jump up vigorously and bark whenever other dogs passed by. Mrs Craig also said that Reggie would be left out on the veranda during the day and, if dogs walked by, would try to jump up and get over to them.”

[8] Mrs Craig gave evidence that, just before the attack on the complainer, Reggie ran out of the appellant’s garden gate, and did not respond to the appellant’s commands to come back (foot of page 9 of the stated case). The appellant did not chase after Reggie to retrieve him and bring him back home (ibid). She stood at her gate and shouted at the dog. When the dog failed to respond to her commands, she turned around and walked back to her house, telling her son to go and “effing get him” (finding-in-fact 5 and page 7 of the stated case).

[9] The complainer gave evidence that she was walking in the vicinity. The sheriff’s findings-in-fact are as follows:

"6. On 25th August 2013 at approximately 8.30 to 8.45pm the complainer, Vivienne Wallace, who also lives in K Avenue, was walking her small shiatsu dog in K Avenue. She noticed Reggie urinating against a tree.

7. Ms Wallace recognised Reggie. She had previously seen the dog walking with and under the control of the appellant in the same area on quite a few occasions. Ms Wallace was immediately frightened because no one was with the appellant's dog or in control of him.

8. As soon as Reggie turned round Ms Wallace feared for the safety of her dog and lifted him up. Reggie immediately ran towards Ms Wallace who turned to run back to her own house.

9. Ms Wallace was unable to start running as the appellant's dog had already reached her and gone onto its back legs, jumping up at Miss Wallace and snapping at her face. Ms Wallace tried to turn away with her own dog in her arms but Reggie followed her round wherever she turned and kept lunging towards her and jumping up continuously at her, biting and scratching her. During the attack Reggie also took hold of Ms Wallace's dog's leg.

10. Reggie's attack caused Ms Wallace to fall to the ground. While she was on the ground, Reggie continued to attack her as she lay in the foetal position, screaming loudly, 'please make it stop'.

11. Ms Wallace's cries for help were heard by various people, including neighbours who were inside their homes, who ran up to assist her. One man crouched down at Reggie's back legs and pulled Reggie by his tail. Another man, Mr Docherty, took hold of the dog's collar. Reggie was pulled away from Ms Wallace.

12. While the attack by the appellant's dog upon Ms Wallace was ongoing, the appellant went outside and walked up her path. She did not run. She then stood just outside her garden gate and shouted at her dog. One of her neighbours shouted to her 'go and get your effing dog'.

13. The appellant waited for Reggie to be returned to her, took her dog by the collar and her partner then took Reggie from her and returned him to the appellant's house. About 10 minutes thereafter, the appellant's next door neighbour, Mr Craig, found Reggie out alone in the unenclosed back garden behind the appellant's house. Mr Craig took hold of Reggie and put him in his own garden which is enclosed. Mr Craig then saw the appellant in her veranda, watching people give statements to the police, and he asked her to take her dog back. As Mr Craig opened the gate of his garden to let the dog out to go to the appellant, Reggie tried to run away again. The appellant saw this but did not call her dog back. Mr Craig had to grab him and the appellant then came from her veranda to take Reggie into her house.

14. The attack upon Ms Wallace, from the time when Reggie ran towards her to the time when the dog was pulled away from her, lasted between approximately six to ten minutes.

15. Immediately after the attack, Ms Wallace had blood running from her face and there was a gash to her forearm. An ambulance was called and Ms Wallace was taken to hospital. Ms Wallace was found to have sustained injuries to her face, left forearm and right hand as a result of being bitten and scratched by the appellant's dog. She was treated at hospital and...

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2 cases
  • R Alex Andrews v Chief Constable of Thames Valley Police
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 29 March 2022
    ...the fact that it was not controlled by its handler.” 28 The Act has also been considered in the Scottish courts in McLaughlin v Harvey [2014] HCJAC 98, the Appeal Court of the High Court of Justiciary explained at para.12 that: “The Dangerous Dogs Act 1991, properly construed, sets an objec......
  • Pauline Reid Against Procurator Fiscal, Perth
    • United Kingdom
    • High Court of Justiciary
    • 30 June 2015
    ...whole circumstances, to conclude that there are grounds for reasonable apprehension that the dog would injure someone (McLaughlin v Harvie 2014 SLT 961). [9] Before the sheriff the submission of no case to answer focused on whether there was corroborated evidence that there were grounds for......

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