R v Bezzina ; R v Codling ; R v Elvin

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE KENNEDY
Judgment Date02 December 1993
Judgment citation (vLex)[1993] EWCA Crim J1202-3
Date02 December 1993
Docket NumberNo 93/3992/W3 92/6026/W4

[1993] EWCA Crim J1202-3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Before: Lord Justice Kennedy Mr Justice Waterhouse Mrs Justice Ebsworth

No 93/3992/W3

93/3262/Y3

92/6026/W4

Regina
and
Anthony Bezzina
Regina
and
Sadie Codling
Regina
and
Eric Everton Elvin

MR R F FORTSON appeared on behalf of the Appellant Bezzina.

MR WYETH appeared on behalf of the Crown (in Bezzina).

MR P OZIN appeared on behalf of the Appellant Codling.

MR P KING appeared on behalf of the Crown (in Codling).

MR A BLAKE appeared on behalf of the Appellant Elvin.

MR F MITCHELL appeared on behalf of the Crown (in Elvin).

1

(As Approved)

2

Thursday, 2nd December, 1993

LORD JUSTICE KENNEDY
3

In these three appeals there is a common point of law and that is the proper construction of Sections 3 (1) and 10 (3) of the Dangerous Dogs Act 1991. We can, therefore, start by looking at those two sections. Section 3 (1), so far as it is material, provides:

"If a dog is dangerously out of control in a public place —

(a) the owner ….. is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence ….."

4

Before going to Section 10 (3), it is convenient to look at two remaining parts of Section 3 itself. Section 3 (2) provides:

"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 3 (3) provides:

"If the owner or, if different, the person for the time being in charge of a dog allows it to enter a place which was not a public place but where it is not permitted to be and while it is there —

(a) 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."

6

Turning now to Section 10 (3) to (5):

"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 ….."

7

On the face of it, therefore, when the words "dangerously out of control" are encountered in Section 3 (1) of the Act, one turns to Section 10 (3) to find out what they mean. One finds those words which we have just cited. Accordingly, it would seem that this Act, by Section 3 (1), imposes strict liability on the owners of dogs of all sorts which are in public places and are dangerously out of control within the meaning of Section 10 (3) which, on the face of it, imposes or sets an objective standard of reasonable apprehension, not related to the state of mind of the dog owner.

8

The objection to that interpretation which is taken before us on behalf of each Appellant to a greater or lesser extent, although Mr Ozin on behalf of his client realises its limitations, is that this involves no element of mens rea on the part of the dog owner who is, in effect, the offender. There is a long legal history of authorities which suggest that criminal offences are rarely of that type. The history begins with Sherras v De Rutzen (1895) 1 QB 918 and, in more recent times, moves to Sweet v Parsley (1970) AC 132 where Lord Reid said:

"It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary."

9

Before we leave Sweet v Parsley it might be appropriate to refer also to part of the speech of Lord Diplock who said, at page 163:

"….. where the subject matter of a statute is the regulation of a particular acitivity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care."

10

It may be thought that the ownership of a dog is an activity in which persons can choose to participate or not. As we said, in more recent times there has been further consideration given to this aspect of the law by the Privy Council in Gammon (HK) Ltd v Attorney General of Hong Kong (1985) AC 1. In that case Lord Scarman, having reviewed the earlier authorities, said (at page 14):

"….. (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by neccessary implication the effect of the statute; (4)

the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5)

even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

11

Shortly after the decision in Gammon (HK) Ltd v Attorney General of Hong Kong the matter was again considered by the House of Lords in Wings Ltd v Ellis (1985) AC 272. In that case Lord Scarman, again, in his speech, said this:

"What the relevant circumstances are may now be said to have been settled in a line of cases of which the greatest is Sweet v Parsley and the most recent the decision of the Privy Council in a Hong Kong appeal, Gammon (HK) Ltd v Attorney General of Hong Kong (1985) AC 1. At the end of the day the question whether an offence created by statute requires "mens rea," guilty knowledge or intention, in whole, in part or not at all, turns on the subject matter, the language and the structure of the Act studied as a whole, on the language of the particular statutory provision under consideration construed in the light of the legislative purpose embodied in the Act, and on 'whether strict liability in respect of all or any of the essential ingredients of the offence would promote the object of provision.'"

12

So much for the decided cases.

13

It is common knowledge that the Dangerous Dogs Act 1991 was enacted to deal with what was perceived to be a serious problem of dogs, particularly of an unruly and savage type, attacking particularly children. The Long Title of that Act reads:

"An Act to prohibit persons from having in their possession or custody dogs belonging to the types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dog which present a serious danger to the public; ….."

14

and here come the words which are material for present purposes,

"….. to make further provision for securing that dogs are kept under proper control; and for connected purposes."

15

Section 3 (1) itself bears the side-note:

"Keeping dogs under proper control."

16

Section 10 (1) is described:

"Short title, interpretation, commencement and extent."

17

Returning to the words of Lord Scarman in Gammon, it seems to us that although the presumption must be carefully regarded and is a presumption which, as he says, applies to statutory offences, it can be displaced where this is clearly the effect of the statute. And in our judgment that is clearly the effect of this statute.

18

Dealing with his fourth proposition -

"the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;" -

19

that seems to us to be precisely the situation that applies in relation to this piece of legislation.

20

The fifth proposition:

"even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of...

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18 cases
  • R v Robinson-Pierre
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 20 December 2013
    ...was included in the offence then it would be one of strict liability, whereas it was observed by the Court of Appeal in the case of R v Bezzina & Others [1994] 1 WLR 1057 at 1062 by way of dictum, section 3 (3) did import the concept of mens rea. However, in the context of that case it seem......
  • Graeme Dickson V. Procurator Fiscal, Stirling
    • United Kingdom
    • High Court of Justiciary
    • 27 August 2013
    ...provision if section 1(1) did not create an offence of strict liability . [27] The advocate depute referred to the case of R v Bezzina [1994] 1WLR1057 at p 1062B - C which was directly in point and supported his submission. The sheriff was, accordingly, correct to reject the submission that......
  • Derek Adam V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 14 February 2013
    ...submitted that the 1991 Act was enacted to protect the public from a serious danger. He referred to the case of Antony Bezzina (1994) 99 Cr. App R. 356, in which Kennedy LJ observed that: "It is common knowledge that the Dangerous Dogs Act 1991 was enacted to deal with what was perceived to......
  • R Alex Andrews v Chief Constable of Thames Valley Police
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 29 March 2022
    ...of seizure of the dog under s.5 and in each case the dog had exhibited behaviour that was clearly dangerous. 24 In R v Bezzina [1994] 1 WLR 1057, the appellant had been convicted of an aggravated offence of being the owner of a dog which was dangerously out of control, causing injury contr......
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1 books & journal articles
  • The Dangerous Dogs Act 1991: The Police Dog Exemption: R v PY [2019] EWCA Crim 17
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 83-2, April 2019
    • 1 April 2019
    ...will almost inevitably result in a conviction for an aggravated offence given that s. 3 imposes strict liability:see R v Bezzina [1994] 1 WLR 1057. Assuming that this is so, there are various potential consequencesfor both handler and police dog. A person convicted of an offence under the 1......

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