Royal Mail Group Ltd v Richard Watson
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr,Saini J |
| Judgment Date | 28 July 2021 |
| Neutral Citation | [2021] EWHC 2098 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2101/2020 |
[2021] EWHC 2098 (Admin)
Lady Justice Carr
and
Mr Justice Saini
Case No: CO/2101/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Beggs QC and Alexander dos Santos (instructed by Royal Mail Group Limited) for the Appellant
Simon Spence QC and Matthew Edwards (instructed by Barricella Hughes Marchant Solicitors) for the Respondent
Hearing date: 20 July 2021
Approved Judgment
Introduction
On 8 May 2017 a Royal Mail postal worker, Mr Gavin Murrell (“Mr Murrell”), was delivering mail to the home address of the Respondent, Mr Richard Watson (“Mr Watson”), at Sycamore Drive, Ipswich. As Mr Murrell pushed the mail through the letter box, one of his fingers was bitten by the Respondent's Boxer-type dog (“the dog”).
Mr Watson was prosecuted by the Appellant, Royal Mail Group Limited (“Royal Mail”), for being the owner of a dog which was dangerously out of control and whilst so out of control injured Mr Murrell, contrary to s. 3 of the Dangerous Dogs Act 1991 (as amended by s. 106 of the Anti-Social Behaviour, Crime and Policing Act 2014) (“s. 3”) (“the 1991 Act”) (“the 2014 Act”). He came before District Judge (Magistrates' Court) Julie Cooper sitting at Ipswich Magistrates' Court (“the District Judge”) on 14 February 2020. She acquitted him.
This is an appeal by way of case stated under s. 111 of the Magistrates' Court Act 1980 against that acquittal. The District Judge has framed three questions for this court as follows:
“1. In circumstances where a postal worker fails to use a postal stick and in consequence of this failure places his or her fingers into a property, does this amount to trespass?
2. In the circumstances set out above, was I correct to apply the “Householder” defence in accordance with sections 3(1A) and 3(1B) of the 1991 Act as amended?
3. In the event that the answers to questions 1 and 2 above are No, was I correct in finding that the postal worker must have used “due diligence” in establishing if a dog was present in the house before inserting his fingers through the letter box or is the offence one of strict liability?”
As set out below, the law under s. 3 is now clearly established. However, the issues raised on this appeal (and the nature of the arguments advanced below) demonstrate that there appears still to be a lack of understanding on the part of defendants as to the strict nature of the liability to which the legislation gives rise. That liability does not require findings of fault on the part of the defendant or, for example, prior knowledge of the dangerousness of a dog. These are all matters that might be relevant to mitigation upon conviction; but they do not give rise to a defence in law.
It is said that this decision is therefore of some importance, providing an opportunity for the correct position to be emphasised.
The findings below
The District Judge found the following facts:
i) The dog barked;
ii) Mr Murrell placed his finger through the letter box of Mr Watson's home;
iii) Mr Murrell possessed but did not use a postal peg (also referred to as a posting stick);
iv) The Royal Mail requires postal workers to use a postal peg when posting mail into homes where dogs are present;
v) The dog bit Mr Murrell's finger.
She went on to state that “[b]y placing his fingers into the property [Mr Murrell] committed a trespass”. Having gone on to record the parties' submissions, the District Judge held:
i) That Mr Murrell did not use due diligence. In failing to use a postal peg, he committed a trespass by putting his fingers into the property. His finger was inside the folded paper which was posted through the letter box;
ii) Mr Watson was afforded a defence by virtue of that trespass;
iii) Mr Murrell was aware of the dog;
iv) Had Mr Murrell used the postal peg, he would not have committed a trespass.
The trespass was committed because the property owner's consent to the delivery of mail relied upon postal workers using due diligence, not placing themselves at risk which inevitably places the householder at risk of prosecution. By placing his finger in the house, the postal worker placed himself at risk and the homeowner of prosecution.
The parties' respective positions
For the Royal Mail it is contended in summary:
i) The householder defence does not apply. Putting fingers through a letter box does not amount to a trespass. The presence of a letter box is a clear indication of an implied permission to approach the door and place items through it, including fingers to aid the process. There is no “material, rational difference” between putting fingers and a postal peg through a letter box, or any proper basis on which to conclude that the licence to access the letter box was limited to use by a postal worker of a postal peg;
ii) There is no defence of “due diligence” either expressly or impliedly in s. 3.
For Mr Watson it was contended in writing in summary:
i) What is trespass for the purpose of burglary suffices for the purpose of the 1991 Act “on the basis of consistency across the criminal law”. Reference is made to R v Jones and Smith [1976] 3 All ER 54 (“ Jones”) where it was stated (at 675D-E) that:
“a person is a trespasser for the purpose of s. 9(1)(b) of the Theft Act 1968 if he enters the premises of another knowing that he is entering in excess of the permission that has been given to him to enter, providing the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser.”
ii) No householder would give permission for anyone delivering letters or leaflets to put hands or fingers through an open window or any aperture if there was a dog present, because of the inherent risk attached. Here Mr Murrell knew that there was a dog present, had a postal peg but was disinclined to use it and posted a note with his hand. He was therefore reckless as to whether or not Mr Watson would have consented to such a delivery method and so was a trespasser;
iii) The issue of “due diligence” goes to causation as addressed in R v Robinson-Pierre [2013] EWCA Civ 2396 (“ Robinson-Pierre”) and ( Royal Mail v Jake Goddard 29 May 2020, unreported) (“ Goddard”). The prohibited state of affairs did not arise until Mr Murrell put his hand through the letter box. In doing so he failed to exercise due diligence: he knew a dog was present, he declined to use the postal peg that he had been trained to use. This was an action over which Mr Watson had no control and which he had no power to prevent. This therefore was a situation of third party intervention. To deny a defence on the basis of strict liability would place an “intolerable” burden on householders and their insurers and potentially have animal welfare implications. It would be unusual, if not inconsistent, with the criminal law: strict liability offences are often summary and carry financial penalties only, in contrast to offences under s. 3 (which carry a sentence of up to 5 years' imprisonment on conviction on indictment for an aggravated offence).
In short, it was said for Mr Watson:
i) The presumption that a dog was dangerously out of control because it caused an injury is rebuttable;
ii) Here, the facts can rebut the presumption and thus the acquittal can be upheld on that basis (even if not argued below – see Whitehead v Haines [1965] 1 QB 200 (“ Whitehead”);
iii) Anyone who exercises permission to enter another's property can become a trespasser if they act recklessly in exceeding that permission;
iv) Here Mr Murrell acted recklessly and so was a trespasser;
v) Mr Murrell's failure to exercise due diligence in his duties amounted to a third party action beyond Mr Watson's control. The answer to question 3 should be “yes”.
In his oral submissions, Mr Spence QC for Mr Watson modified these submissions substantially. First, he withdrew the submissions identified at paragraph 9i) and ii) above. He altered the submissions at 9iii) and iv), by narrowing his position simply to the proposition that Mr Murrell exceeded the scope of the implied permission to enter Mr Watson's property.
The legislative framework and relevant authorities
The long title of the 1991 Act provides:
“An Act to prohibit persons from having in their possession or custody dogs belonging to 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 as serious danger to the public; to make further provision for securing that dogs are kept under proper controls; and for connected purposes.”
S. 3 provides:
“(1) If a dog is dangerously out of control in any place in England or Wales (whether or not 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.
(1A) A person (“D”) is not guilty of an offence under subsection (1) in a case which is a householder case.
(1B) For the purposes of subsection (1A) “a householder case” is a case where—
the dog is dangerously out of control while in or partly in a building, or part of a building that is a dwelling or is forces accommodation (or is both), and
at that time—
the person in relation to whom the dog is dangerously out of control (“V”) is in, or is entering, the building or part as a trespasser, or
D (if present at that time) believed V to be in, or entering, the building or part as a...
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