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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> DEREK ADAM v. HER MAJESTY'S ADVOCATE [2013] ScotHC HCJAC_14 (14 February 2013)
URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC14.html
Cite as: [2013] HCJAC 14, 2013 JC 221, 2013 SCL 349, 2013 SCCR 209, 2013 SLT 235, [2013] ScotHC HCJAC_14

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Menzies

Lord Brodie

Lord Wheatley

 

[2013] HCJAC 14

Appeal No: XC50/12

 

OPINION OF THE COURT

 

delivered by LORD MENZIES

 

in

 

APPEAL AGAINST CONVICTION

 

by

 

DEREK ADAM

 

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

 

_______

 

 

Appellant: Fyffe, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: A Brown, Q.C. A.D.; Crown Agent

 

14 February 2013

 

Introduction

[1] On 9 December 2011, following a trial which lasted several days before a sheriff and jury at Dundee Sheriff Court, the appellant was convicted by the unanimous verdict of the jury of the following two charges:

"(001) On 29 August 2010 at Linton Road, Ettrick Crescent and Dryburgh Street, all Dundee, you DEREK ADAM were the owner of two dogs namely two Rottweilers named Big Boy or Fat Boy and Pretty Girl, whereby said dogs were dangerously out of control in a public place in respect that said dogs, in Ettrick Crescent, Dundee attacked another dog and in Dryburgh Street, Dundee, attacked and repeatedly bit and mauled Rhianna Kidd, born 1 June 2000, care of Tayside Police, Dundee, all to her severe injury, permanent impairment and permanent disfigurement; CONTRARY to the Dangerous Dogs Act 1991, Section 3(1).

 

(003) On 29 August 2010 at Linton Road, Ettrick Crescent, and Dryburgh Street, all Dundee, you DEREK ADAM did fail to comply with an order under Section 2 of the Dogs Act 1871, namely to keep 2 dogs named Big Boy or Fat Boy and Pretty Girl under proper control, made on 3 March 2010 at Dundee Justice of the Peace Court in that in Ettrick Crescent, Dundee attacked another dog and in Dryburgh Street, Dundee, attacked and repeatedly bit and mauled Rhianna Kidd, born 1 June 2000, care of Tayside Police, Dundee, all to her severe injury, permanent impairment and permanent disfigurement; CONTRARY to Section 1(3) of the Dangerous Dogs Act 1989"

 

[2] In respect of charge (001), the appellant was sentenced to 12 months imprisonment, and in respect of charge (003), he was admonished and disqualified from keeping a dog for life. No appeal is taken against these sentences. Three grounds of appeal were maintained before us against conviction, the first two being directed against the appellant's conviction on charge (001), and the third being directed against his conviction on charge (003). These may be summarised as follows:

Ground 1 (a) alleges that the sheriff misdirected the jury in relation to the defence contained within section 3(2) of the Dangerous Dogs Act 1991 ("the 1991 Act"). In particular, the statute should be "read down" in accordance with section 3 of the Human Rights Act 1998 so as to place an evidential burden on the appellant, rather than a legal burden.

Ground 1(b) alleges that the sheriff misdirected the jury by directing them that the appellant required to prove that the person whom he had placed in charge of the dogs was a fit and proper person to be in charge of them. The appellant merely required to prove that he had a reasonable belief that the person in charge at the material time was a fit and proper person to be in charge of the dogs.

Ground 2 alleges that the sheriff misdirected the jury as to the requirements of section 1(3) of the Dangerous Dogs Act 1989 ("the 1989 Act"), and in particular that this section created a strict liability offence.

[3 ] It was submitted to us that each of these misdirections amounted to a miscarriage of justice, and accordingly that these convictions should be quashed.

 

The relevant statutory provisions
[4] Section 3 of the 1991 Act provides inter alia as follows:

"3. Keeping dogs under proper control


(1) 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 while so out of control injures any person, an aggravated offence, under this subsection.

 

(2) 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 1(3) of the 1989 Act provides as follows:

 

"Any person who fails to comply with an order under section 2 of the said Act of 1871 to keep a dog under proper control or to deliver a dog up for destruction as required by an order under subsection (1)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale and the court may, in addition, make an order disqualifying him for having custody of a dog for such period as is specified in the order."

 

The relevant passages of the sheriff's charge to the jury
[6] There are four passages in the sheriff's charge to which reference was made in submissions before us, and which it is convenient to set out at this stage. Between pages 42 and 46 of his charge, the sheriff directed the jury as follows:

"So if you accept that Pretty Girl and Big Boy were involved in the attacks on Mr Gaffney's dog and on Rhianna Kidd, then Derek Adam cannot pretend that he should not have grounds for reasonable apprehension that these dogs might injure someone if given the chance. However, if he proves, and remember what I said to you earlier about the onus of proof normally being on the prosecution, so this is an exception to that general rule, if he proves, in accordance with the provisions of Section 3, Sub-section 2 of the Dangerous Dogs Act 1991 that, though he was the owner, he was not, at the material time, in charge of these dogs and, this is a two-stage test, as has been said to you already, that they were, 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 the dogs, then that is a defence to Charge 1. He does not have to prove his defence to the usual criminal standard of "beyond reasonable doubt", nor does he require corroboration. The standard of proof for such a defence is the balance of probability, that is that what he says is more likely to be true than not true and, if he achieves that standard, then his defence succeeds.

 

So what would he have to prove? Well, it's my direction to you that he would have to prove that he had transferred responsibility for the charge of these dogs to Sarah Kerr, or some other person, that that person would, therefore, have to know that they were expected to take charge of the dogs, for the whole concept of being in charge is about having the control of, and responsibility for supervising. So whether or not a person is in charge of anything is a question of fact. The law uses the expression, "drunk in charge of a motor vehicle", for instance, and there's a logical linguistic inconsistency in that because, by definition, if you're in drunk, then you don't, if, if you're drunk, you don't possess the ability to control and supervise, whether it's a motor vehicle or a dog. But it's not a qualitative test that's being applied. It's a question of fact. The question is, was that person, irrespective of their fitness, notionally in charge, as a matter of fact, at the material time? So that's the first part of the defence that you have to think about and weigh up the evidence in relation to.

 

Now, the second part is that he has to prove also, on the balance of probability, that the person concerned and, in this case, that's obviously got to be Sarah Kerr, was a fit and proper person to be in charge of the dogs, that is to say, was she capable of keeping them under control, both generally and at the material time. If he succeeds with this line of defence, then he is entitled to be acquitted on Charge 1. If he does not succeed in this defence, and you're satisfied beyond reasonable doubt on the basis of the evidence led by the Crown from two or more sources that Big Boy and Pretty Girl were involved in the attack on Rhianna, then Derek Adam is guilty and should be found guilty in terms of Charge 1 as it's now been amended, because this is an offence of what we call strict liability, and there's no issue about what his intention may have been arising in this case.

 

If, on the other hand, you are in reasonable doubt as to whether these dogs attacked Rhianna, then he must be acquitted and, similarly, if you think he's transferred responsibility for being in charge of the dogs to Sarah Kerr, and that at the material time, the time of the incident, she was a fit and proper person to be in charge of these dogs, then he would have to be acquitted on this charge, but if you think that she was not a fit and proper person, and he could not reasonably have believed that she was a fit and proper person, then he would be guilty, because he would have attempted to transfer the charge of these dogs to a person that he did not reasonably believe was capable of looking after them."

 

[7] At page 49/50, the sheriff gave the following directions regarding charge (003):

"Now, finally, turning to Charge 3, this involves Derek Adam alone. It alleges that he failed to comply with a Justice of the Peace court order made on 3rd March 2010 to keep Big Boy/Fat Boy and Pretty Girl under proper control. If Big Boy and Pretty Girl were involved in the attacks on either or both Rhianna Kidd and Mr Gaffney's dog, they were not under proper control, and he would be guilty. For this charge, it is of no consequence whether the dogs were under the control of any other person. I think Mr Houston inadvertently hinted that it was, but it's not. The offence is one, again, of strict, if not absolute, liability, and you cannot delegate your responsibility to anyone else, so there is no defence of that. So if you believe these dogs attacked Rhianna and attacked Mr Gaffney's dog, that is an end of it. He would be guilty of the offence in Charge 3. But if you're in any reasonable doubt and that, then he's entitled to be acquitted."

 

[8] At page 67 the sheriff directed the jury as follows:

"Now, that relates to the defence which I told you is open to Mr Adam in relation to Charge 1, to the effect that an owner of a dog who was not in charge of it at the material time has a defence which he has to prove on the balance of probability, to the effect that the dogs were, at the material time, in the charge of a person whom he reasonably believes to be a fit and proper person to be in charge of the dogs."

 

[9] The last relevant passage is at pages 68/69, in the following terms:

"It seems to me, and this is my direction to you, that in the present case, the critical time is the time when the dogs got out of the back garden at 47 Linton Road in the mid-morning of 29th August 2010, for once they were out of that back garden, they were no longer under anyone's control, and it's for you to decide whether, at that time, Sarah Kerr could be said, viewed objectively and with the application of common sense, to be a fit and proper person to care for these two Rottweilers. 'In charge' must mean able to control. If you don't know that the dogs are in your garden, you're not able to control them. If you don't have a lead for them and can't control them by means of verbal commands, you're not in control of them. If you find Big Boy is hard to handle at the best of times, you're not in control of him. If you're not able to control these dogs, you're not a fit and proper person to be in control of them, and if that is your conclusion, then Mr Adam's defence would have failed. It's a matter for you, ladies and gentlemen."

 

Submissions for the appellant
[10] In relation to ground of appeal 1(a) Mr Fyffe accepted that on an ordinary reading of its terms, section 3(2) of the 1991 Act appears to impose a legal burden of proof on the appellant. However, he submitted that the imposition of such a burden would unfairly impinge upon the presumption of innocence and was incompatible with article 6(2) of the European Convention on Human Rights. Accordingly the terms of the statute require to be read down as imposing an evidential burden only - R V Lambert [2001] UKHL 37, [2002] 2 AC 545; Henvey v HM Advocate [2005] HCJAC 10; 2005 SLT 384; 2005 SCCR 282. It was accepted that article 6(2) does not, as a general rule, prohibit the use of legal burdens of proof, but the use of such "reverse burdens" required careful examination of (a) the relevant statutory provisions in each case, (b) the measures that are taken in those provisions directed at the activity in question which is made an offence, and (c) what justification can be made out for a departure from the presumption of innocence, balancing the interests of the public and the individual's fundamental rights - Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264; Glancy v HM Advocate [2011] HCJAC 104; 2012 SCCR 52.

[11] It was submitted that it would be disproportionate and unfair to criminalise all owners of dogs which became dangerously out of control if the owners themselves were not responsible for the failure to control the dog at the material time. If section 3(2) of the 1991 Act is read as providing a legal burden, a conviction might rest on conduct which was not in any way blameworthy - ie mere ownership of a dog which was dangerously out of control. The defence contains two parts: first, that the owner had transferred control of the dog to another person at the material time, and second that the owner had a reasonable belief as to the fitness of the transferee. The first part is a straightforward question of fact, and is not peculiarly within the knowledge of the accused. This question of fact is a matter that the Crown would have to prove if, as happened in the present case, the Crown also prosecuted another individual who was not the owner but was said to be in charge at the material time. In relation to the first part of the defence, it goes further than necessary to impose a legal burden on the accused. In relation to the second part of the defence, it is accepted that the question of whether the accused held a belief that the transferee was a fit and proper person is a matter within his knowledge, but it is not uncommon for similar matters relating to belief or knowledge to be proved beyond reasonable doubt by the Crown. A legal burden is not necessary to fulfil the purpose of the 1991 Act - the legitimate aim of the legislation can be achieved by reading the statute down so that only an evidential burden is imposed.

[12] Turning to ground of appeal (1)(b), the solicitor advocate for the appellant accepted that the sheriff's directions to the jury must be read in the context of the charge as a whole. He accepted that the sheriff did on occasions in his charge refer correctly to the question of whether the appellant had a reasonable belief that the person in charge of the dogs was a fit and proper person to be in charge of them (see page 43 lines 3 to 7, page 45 line 24-46 line 7, and pages 67 and 68. However, at other passages in his charge the sheriff appears to suggest that the issue was whether the person in charge of the dogs at the material time was in fact a fit and proper person to be in control of the dogs. In particular, the sheriff appeared to direct the jury to this effect in his final remarks about the defence contained in section 3(2), at pages 68-69 of his charge, when he was bringing all the factors together. These were significant misdirections, and when the charge was considered as a whole, it was at least apt to confuse.

[13] Turning to ground 2, the essentials of the offence created by section 1(3) of the 1989 Act were (1) that the accused is the owner of a dog, (2) that the dog is subject of an order under section 2 of the 1871 Act, and (3) that the accused failed to comply with that order. In the present case it was not disputed that the accused owned the dogs, nor that they were the subject of an order under section 2 of the 1871 Act. The crucial question was whether the appellant failed to keep the dogs under proper control. Failure is a matter of fact to be determined by the jury; it is not simply a question of whether the dogs were actually out of control. The jury would be entitled to consider the appellant's position that he had left the dogs in the care of someone he reasonably believed to have been a fit and proper person to have control of the dogs. The sheriff misdirected the jury when he told them that it was of no consequence whether the dogs were under the control of any other person, and that the offence was one of strict liability.

 

Submissions for the respondent
[14] The advocate depute dealt first with the second ground of appeal, which he invited us to refuse. No such defence as was argued for by Mr Fyffe had been inserted into the 1989 Act. Had it been Parliament's intention that such a defence should exist, it would have been simple to insert such a provision. Parliament provided such a defence to section 3(1) of the 1991 Act by enacting section 3(2). There was no similar provision in the 1989 Act. The sheriff was correct to direct the jury that section 1(3) of the 1989 Act created an offence of strict liability.

[15] With regard to ground of appeal 1(a) the advocate depute 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 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...'."

 

[16] Against this background, the imposition of a legal burden of proof on an accused in section 3(2) of the 1991 Act is neither unreasonable nor disproportionate. He referred to paragraphs 21, 31 and 40-41 of the speech of Lord Bingham of Cornhill in Sheldrake v DDP in support of this proposition. In this case, the Crown have to prove that the accused was the owner of the dogs, and that the dogs were dangerously out of control; the imposition of a legal burden on the accused does not go beyond what was necessary. The accused's belief that the person in charge of the dogs at the material time was a fit and proper person to be in charge of them, and the grounds for that belief, were matters which were within the accused's knowledge and which were for him to prove. It would place a very difficult, if not impossible, onus on the Crown to require it to lead evidence on these matters. The real issue was whether there was a fair trial. Cases which were concerned with the onus of establishing the statutory defence provided by section 49(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 relating to whether a person has a reasonable excuse for having a bladed article with him in a public place, or section 5(2) of the Road Traffic Act 1988 concerning the onus of proving that there was no likelihood of a person driving a vehicle while over the statutory limit, were closely analogous. The factors identified by the court in Glancy v HMA (at paragraph [8]) were satisfied in the present circumstances. The sheriff was correct to categorise the burden of proof on the accused as a legal burden, and there was no misdirection in this regard.

[17] The advocate depute accepted in relation to ground of appeal 1(b) that the sheriff's choice of language might have been more focused in some passages of his charge. However, the sheriff made it clear on repeated occasions that what the jury was concerned with was whether the appellant had established that his co-accused was, in his reasonable belief, a fit and proper person to care for the dogs. Apart from the passages quoted above, the sheriff emphasised this towards the end of his charge. At page 74, in a passage in which he was addressing the evidence of the appellant, the sheriff observed that "he told you that Sarah was, in his reasonable belief, a fit and proper person to care for the dogs, notwithstanding that they could be like elephants and could pull a person off their feet." Looking at the charge as a whole, it is clear that the sheriff had emphasised to the jury that the important consideration is whether the appellant reasonably believed his co-accused to be a fit and proper person to be in charge of the dogs at the time.

[18] In any event, there was a significant divergence between the evidence of the accused and that of his co-accused. The co-accused stated that the dogs were not in her charge. She was acquitted on charge (002) on the indictment (which was a charge that she contravened section 3(1) of the 1991 Act as the person being in charge of the dogs at the material time) as the jury were not satisfied that she was in charge of the dogs. Had they been so satisfied, they would have convicted her. Accordingly, the question of the appellant's reasonable belief was not material, as the jury did not accept that control of the dogs had been transferred by the appellant. Accordingly, even if, contrary to his principal submission, there was any misdirection by the sheriff on this matter, this did not result in a miscarriage of justice. The court should not interfere with the conviction.

 

Discussion
Ground 1(a)
[19] The relationship between article 6(2) of the European Convention on Human Rights and reverse onus clauses has been the subject of much consideration over the last two decades. A helpful review of the authorities on this subject was carried out by this court in Glancy v HMA. This review included consideration of Salabiaku v France (1988) 13 EHRR 379; R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326; R v Lambert [2001] UKHL 37, [2002] 2 AC 545; L v Director of Public Prosecutions [2001] EWHC Admin 882, [2003] QB 137; R v Matthews [2003] EWCA Crim 813, [2004] QB 690, and Sheldrake v Director of Public Prosecutions. In light of this, we do not consider that it is necessary to repeat the passages here to which reference was made in Glancy. It is however worthwhile repeating two passages of the speech of Lord Bingham of Cornhill in Sheldrake, and one passage from the opinion of the court in Glancy, which give a clear indication of the factors which the court should have in mind when addressing the compatibility of a reverse onus clause with article 6(2).

[20] Lord Bingham of Cornhill made the following observations at paragraph 21 of his speech in Sheldrake:

"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on unreasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in the application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption ... The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."

 

[21] His Lordship went on to consider the application of those principles to section 5(2) of the Road Traffic Act 1988, and at paragraph 41 he made the following observations:

"It may not be very profitable to debate whether section 5(2) infringes the presumption of innocence. It may be assumed that it does. Plainly the provision is directed to a legitimate object: the prevention of death, injury and damage caused by unfit drivers. Does the provision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my view, it plainly does. I do not regard the burden placed on the defendant as beyond reasonable limits or in any way arbitrary. It is not objectionable to criminalise a defendant's conduct in these circumstances without requiring a prosecutor to prove criminal intent. The defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that imposition of a legal burden went beyond what was necessary."

 

[22] At paragraph 8 of the opinion of this court in Glancy v HM Advocate, having considered Sheldrake and the other authorities, the court observed that what was required was:

"a careful examination of (a) the relevant statutory provisions in each case,

(b) the measures that are taken in those provisions directed at the activity in question, which is made an offence, and (c) what justification can be made out for a departure from the presumption of innocence, balancing the interests of the public and the individual's fundamental rights."

 

[23] In the present case, as the solicitor advocate for the appellant accepted, an ordinary reading of the words in section 3(2) of the 1991 Act results in a legal burden of proof on an accused person. As is apparent from the Long Title to the 1991 Act, it was enacted to deal with what was perceived to be a serious problem of dogs attacking particularly children (as in fact happened in this case). One of the purposes of the Act was to prevent a serious danger to the public. To this extent it is analogous to the purpose of section 5 of the Road Traffic Act 1988, which was concerned with the prevention of death, injury and damage caused by unfit drivers, and with section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995, which was to protect the public from persons carrying bladed articles in public places who may use such articles to cause injury or threaten others.

[24] In light of this legitimate object of the 1991 Act, we see nothing objectionable in a requirement on a person accused of an offence under section 3(2) to discharge the legal burden of proving that at the material time the dog (or, in this case, dogs) was at the material time in the charge of another person, and that the accused reasonably believed that other person to be a fit and proper person to be in charge of the dog. The accused has a full opportunity to show that he had transferred control of the dog to another person at the material time, and that he had a reasonable belief as to the fitness of the transferee. In Lord Bingham of Cornhill's words in Sheldrake, these are matters so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove them on the balance of probabilities, rather than for the prosecutor to prove beyond reasonable doubt that he had no reasonable belief as to the fitness of the transferee.

[25] In all the circumstances, balancing the interests of the public and the appellant's fundamental rights, we do not consider that the imposition of a legal burden in section 3(2) of the 1991 Act is unacceptable, unreasonable or disproportionate. There is accordingly no need to read down the sub-section so as to place only an evidential burden on the appellant. It follows that there was no misdirection by the sheriff in this respect, and this ground of appeal must fail.

 

Ground 1(b)
[26] The advocate depute accepted that the sheriff's choice of language in regard to the section test in section 3(2) of the 1991 Act might have been more focused than it was. We agree with this observation. However, it is necessary to look at the charge as a whole and in light of the evidence which the jury had heard over a trial lasting many days. There were several passages in the sheriff's charge in which he emphasised to the jury that what the appellant required to prove in terms of section 3(2) of the 1991 Act was that the dogs were 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 them. The test of reasonable belief was clearly stated by the sheriff at pages 43, 46, 67 and 74. Taking the sheriff's charge to the jury as a whole, we are unable to reach the conclusion that the sheriff misdirected the jury.

[27] In any event, even if the passages relied on by the solicitor advocate for the appellant amounted to a misdirection (contrary to the conclusion expressed in the preceding paragraph), we are unable to conclude that it resulted in a miscarriage of justice. As the advocate depute submitted to us, the appellant and his co-accused took different positions in their evidence. The appellant stated that he had placed the dogs in the charge of his co-accused, and that he reasonably believed her to be a fit and proper person to be in charge of them. The co-accused stated in evidence that the dogs were not in her charge. The fact that the jury returned a unanimous verdict of guilty of charge (001) against the appellant, but found the co-accused not guilty of charge (002), is only consistent with the explanation that they were not satisfied that the co-accused was in charge of the dogs at the material time. Had they been satisfied that she was in charge of the dogs at the material time, they would have convicted her of charge (002). In these circumstances, the second test in section 3(2) of the 1991 Act did not arise. The question of whether the owner of a dog has a reasonable belief that the transferee was a fit and proper person to be in charge of the dog only becomes an issue once it has been established that the owner had in fact transferred control of the dog to that person. Clearly the jury were not persuaded that control had been transferred to the co-accused, so the second test did not arise.

[28] For these reasons this ground of appeal must also fail.

 

Ground of appeal 2
[29] We do not consider that there is any merit in this ground of appeal. Parliament did not see fit to include a provision in section 1 of the 1989 Act in any way analogous to the terms of section 3(2) of the 1991 Act.

[30] The solicitor advocate for the appellant submitted to us that in the circumstances of this case the jury, when considering their verdict on charge (003), would be entitled to consider the appellant's position that he had left the dogs in the care of someone he reasonably believed to have been a fit and proper person to have control of the dogs. We see no justification for such a proposition in the terms of the 1989 Act, and no authority was provided to us which might support the proposition. The sheriff directed the jury that the offence was one of strict liability, and we consider that he was correct to do so. Issues of reasonable belief as to whether the dogs had been left in the care of a fit and proper person do not arise in the context of section 1(3) of the 1989 Act. For these reasons we do not consider that there has been any misdirection by the sheriff in this regard, and this ground too must fail.

 

Conclusion
[31] It follows that the appeal must be refused.

 

 

 

 

 

 


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