Scottish Borders Council V Mr John Johnstone
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi Stephen |
| Court | Sheriff Court |
| Date | 18 November 2014 |
| Docket Number | BJ60/13 |
| Published date | 28 November 2014 |
| SCOTTISHSHERIFFDOM OF LOTHIAN AND BORDERS
Case Number: BJ60/13 2014SCEDIN61 | |
|
| Judgment by
SHERIFF PRINCIPAL MHAIRI M STEPHEN
in the appeal in the summary application of the
SCOTTISH BORDERS COUNCIL
Applicant and Respondent
against
Mr John Johnstone Respondent and Appellant
___________________________
|
Act: Mohammed, Advocate instructed by Scottish Borders Council
Alt: Bannerman, Solicitor
EDINBURGH, 18 November 2014
The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the sheriff's interlocutor of 4 March 2014; recalls the order for delivery of and destruction of the dog Finlay made in terms of section 9(2) of the Control of Dogs (Scotland) Act 2010; further, in terms of section 9(3) of said Act remits the case to the respondents, Scottish Borders Council, to serve a dog control notice on the appellant and proper person [P] in terms of said Act and directs that said notice specifies that the appellant [P] and anyone entrusted by [P] with charge of the dog known as Finlay must (a) keep the dog muzzled whenever it is in a place to which the public have access; (b) keep the dog on a lead whenever it is in such a place; (c) ensures that the said dog is kept muzzled and controlled in an effective manner to prevent its escape when in the garden of the family home at 68 Eildon Road, Hawick and (d) that the appellant [P], together with the dog Finlay, attend and complete a course of training in the control of dogs within six months from the date of the notice; meantime, directs that the undertakings given by the appellant and recorded in the interlocutor of 23 April 2014 be adhered to and will continue to be of effect pending service of the said dog control notice following which they will cease to have effect; finds the respondents liable to the appellant in the expenses of the appeal and in the expenses of the cause before the sheriff and allows an account thereof to be given in and once lodged remits same to the Auditor of Court to tax and to report.
(signed) Mhairi M Stephen
NOTE:
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This appeal involves the application of the Control of Dogs (Scotland) Act 2010 ("the 2010 Act") to the appellant and his dog Finlay following a serious incident on 8 May 2013 when a little girl M.F. (then aged 4) was bitten on the face by Finlay in Kenilworth Avenue Hawick.
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At proof, the sheriff heard evidence for the local authority, Scottish Borders Council who are the relevant authority and for the appellant.Mr Smith, the respondent's authorised Dog Control Officer in terms of the 2010 Act gave evidence.The respondent led other witnesses in support of the local authority's summary application which asked that the court make the following orders:-
- For the destruction of Finlay, a Airedale Terrier (in terms of section 9(2) of the 2010 Act);
- Delivery of Finlay for the purpose of (1);
- Interdict preventing the appellant from owning or keeping a dog for a period of three years (or such other period as the court shall determine);
- For the expenses of kennelling and destroying Finlay;
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For the expenses of the cause.
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The appellant, who is the owner of Finlay and therefore the "proper person"[P] in terms of section 1(5) of the 2010 Act, opposed the grant of these orders.He argued that Finlay could not be categorised as "out of control and dangerous" and disputed that it was necessary to have Finlay destroyed.He maintains that he is a responsible dog owner;has a good history of controlling and caring for animals and therefore interdict is unnecessary.
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The sheriff heard evidence over two days in October and November 2013 and heard parties' submissions on the evidence on 9 December 2013 when he made Avizandum.Immediately prior to the commencement of the proof the solicitor for the appellant conceded that the dog Finlay had bitten the child.Until then the appellant had denied the averment that the dog had caused the child's injury by biting.The appellant had not been present when the incident had occurred as the dog was being walked by his daughter K.J. when the incident occurred. Having considered the evidence the sheriff made an order in terms of section 9(2)(a) and (b) appointing a vet to undertake the dog's destruction and requiring that the dog be delivered up for that purpose.The sheriff made an order that the expenses of the kennelling and destruction be met by the appellant and also interdicted the appellant from owning a dog for a period of two years.The appellant was found liable to the respondents in expenses of the application but restricted to the appellant's legal aid contribution.
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In so doing the sheriff made certain findings in respect of the incident on Wednesday 8 May 2013 when M.F. sustained the injury.This happened around 3pm when the appellant's daughter K.J. (then aged 19) was walking the dog.K.J. was walking Finlay on a lead however she was listening to music and talking to her boyfriend on the phone at the critical time.Finlay jumped up at the child knocking her to the ground and then bit her on the cheek.The child required immediate medical treatment followed by skin grafting.She is likely to have permanent scarring.Two days later K.J. was cautioned and charged with a contravention of section 3 of the Dangerous Dogs Act 1991.
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Three witnesses gave evidence as to the incident on 8 May.The father of M.F. and Mr Elliot gave evidence for the Council.K.J. gave evidence as to her recollection of that day.She was on the phone, she did not see the dog jump up at the child but thought the child had fallen and indeed thought the injuries were caused by that fall.That is what she told her father when she returned home.
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The sheriff accepted and preferred the evidence led on behalf of the respondents in respect of what happened in Kenilworth Avenue on 8 May.
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The evidence of the dog control officer is important.The sheriff records the evidence from the Dog Control Officer, Mr Smith at pages 4 to 7 of the judgment.A local authority can only apply for an order for the dog's destruction "where it appears to an authorised officer that, in relation to a dog which is out of control and dangerous, serving a dog control notice (or a further dog control notice) would be inappropriate."Mr Smith did not speak to K.J. who had been walking the dog at the time of the incident however did speak to the appellant and examined the dog.He had spoken with the parents of the little girl.He did not elicit information from the appellant about dog training or dog obedience classes attended by Finlay.He did not make enquiries with the dog's regular veterinary surgeon.
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On the important issue of the proper and necessary control the sheriff records this of Mr Smith's evidence
"He initially thought about a Dog Control Order but the evidence of the witnesses and the photograph changed his mind. The dog was out of control and a danger to the public. He thought that the dog had bitten the child and that an order would not suffice. As it was new legislation he had to take legal advice. His view was that destruction was the only option. The dog's owner had already voluntarily used a lead and muzzle. He came to the view that a notice was unsuitable in that it was a dangerous dog and as a muzzle was open to human error it would not correct this. The dog was already on a lead at the time of the incident."
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Pending the hearing of the appeal, the respondents, Scottish Borders Council by motion sought immediate implement of the sheriff's order for delivery of Finlay ad interim.The reasons put forward by the respondents in support of that motion were firstly, the need to minimise fear and alarm and danger to the public especially to the residents living close to the appellant's home and secondly, the respondents considered that there was a risk that Finlay might attack members of the public if he is not kennelled with the local authority.
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The motion was opposed and having heard parties I refused the motion in hoc statu.A significant reason for refusing the order sought related to the undertakings given by the appellant in relation to Finlay which are reflected in the interlocutor of 23 April 2014.In particular, the appellant undertook:-
"(i) that in the normal course the said dog will be walked outwith the town limits of Hawick;
(ii) that the said dog must be muzzled and controlled by a lead or halter whenever outwith the family home at 68 Eildon Road, Hawick;
(iii) that the said dog must be muzzled and controlled in such a manner that prevents any escape when in the garden of the family home at 68 Eildon Road, Hawick;
(iv) that the said dog is controlled at all times by a responsible person;
(v) that for any necessary short walk, the said dog will be directed away from the town of Hawick and will not be taken in the vicinity of Burnfoot School, Kenilworth Avenue."
Grounds of Appeal
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The appeal proceeded on amended grounds of appeal which I summarise as follows:-
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That the sheriff erred in law by failing to apply or apply properly the dual test required before an order for destruction could be made.The sheriff made an error in not addressing both legs of the test namely that the dog was both "out of control" and "dangerous".It is necessary that both parts of the test are met.
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In approaching the matter of whether the dog was "out of control" reference is made to section 1(3) of the 2010 Act and the statutory definition.It was proper to construe the word "consistently" in section 1(3)(a) as requiring proof of more than one instance of the dog not being controlled.
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The sheriff erred in determining that Finlay was "dangerous" in terms of section 9(1) of the 2010 Act.
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Even if the test was met the sheriff failed to consider a dog control notice in terms of section 1 of the 2010 Act as an alternative to destruction.
- The sheriff erred in law or acted unreasonably in imposing a disqualification order on the...
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That the sheriff erred in law by failing to apply or apply properly the dual test required before an order for destruction could be made.The sheriff made an error in not addressing both legs of the test namely that the dog was both "out of control" and "dangerous".It is necessary that both parts of the test are met.
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