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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Briscoe v Shattock [1998] EWHC Admin 929 (7th October, 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/929.html Cite as: [1998] EWHC Admin 929 |
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1. LORD
JUSTICE BROOKE: This is an appeal by Mr Briscoe, by way of Case Stated, from a
direction made by the Taunton Justices, on 1st April 1998, that he keep his
Japanese Akita dogs, Hank and Hannah, under proper control. The Justices had
found proved complaints by the prosecutor, David Shattock, that on 30th May
1997 at Biscombe, Churchstanton, Somerset he was the owner of the two dogs
which were dangerous, and that they were not kept under proper control.
2.
The Case Stated shows that the Justices found the following facts the
Appellant was the owner of two powerful Japanese Akita dogs Hank and Hannah at
all relevant times. These dogs were large and their combined weight sixteen
stone. The Appellant had taken steps to contain his dogs by means of five foot
six fences at his property, to control them by leads devised by himself and
collars and by continuing to take them to dog training classes. He always kept
the dogs on leads when he took them out.
3.
At about 6.30pm, on 30th May 1997, he was with his dogs on their leads in
Rainbow Lane in Biscombe, Somerset near
4. Mr
Lenthall's House. Mr Lenthall's children, who knew his dogs, had taken their
dog, a four year old Jack Russell named Toby, on a lead for a walk in the same
lane. Toby was not an aggressive dog. Mr Lenthall had never had such a quiet
Jack Russell. As the Jack Russell approached the Appellant and his dogs the
Appellant tried to grab his dogs' collars and pull their feet off the ground.
Hank wrestled his head out of his collar and the dog fight ensued. The
Appellant fell on top of the Jack Russell and his own dogs pitched in and
attacked both him and the Jack Russell. Mr Lenthall appeared on the scene at
this point having heard his children screaming. He retrieved his dog and took
it to a veterinary surgeon. The Jack Russell sustained severe injuries
consisting of multiple bite wounds and severe shock. It died the following day
at the veterinary surgery. The Appellant paid the veterinary surgeon's bill.
5.
There had been other occasions when the Appellant's dogs had behaved
aggressively: once towards a Mr Morley's puppy and once an attack by his dogs
upon a Mrs Strange's Collie bitch that caused injury to its shoulder and loss
of its collar, which the Appellant failed to stop. The dog, Hank, had also
been involved in an incident described by the Appellant in which a straying
sheep of Mr Willacott's had sustained injury.
6.
The Case Stated contains a lengthy recital of the evidence. This is
followed by a recital of the contentions of the parties, the cases and statutes
to which the justices were referred and the advice they received. The Case
Stated then continues:
7.
In these circumstances the Justices found the complaint proved and made
Orders under section 2 of the Dogs Act 1871 that the Appellant keep both dogs
under proper control. They also ordered that the Appellant pay £675 by way
of costs to the Respondent.
9. I)
Whether the evidence before the Magistrates' Court could support their decision
that the dogs Hank and Hannah were dangerous and not kept under proper control.
10. II)
Whether the Dogs Act 1871, as amended and applied, permitted a finding that the
dog was dangerous and not under proper control when only a fight between dogs
took place and no person or other animal was endangered or injured."
11.
I will take the second question first. This is a question of law which
relates to the meaning of the word "dangerous" in section 2 of the Dogs Act
1871. There is no statutory definition of the word and the Justices were
merely advised that they were to be construed in the ordinary, everyday meaning
of the word. They were not advised that they had to consider the meaning of
the word through the eyes of the draftsman who drafted the Act in 1871,
although I doubt if this makes much difference.
12.
In those days the common law of England made a distinction between animals
ferae naturae and animals mansuetae naturae, so far as an owner's civil
liability for damage caused by his animal was concerned. As every reader of
the works of the PG Wodehouse will know, by the common law of England every dog
was allowed one bite. In
Applebee
v Percy
(1874) 9 LR CP 647 Brett J explained the distinction in these terms at page 650:
13.
In 1865 Parliament decided to tighten up the law relating to the liability
of the owners of dogs (which were animals mansuetae naturae) for injuries their
dogs did to cattle and sheep. By section 1 of the Dogs Act 1865, which was to
extend to England and Wales only, it was no longer to be necessary for a party
seeking damages from a dog owner, in such circumstances, to show a previous
mischievous propensity in the dog in question, or the owner's knowledge of such
a propensity, or that the injury was attributable to neglect on the owner's part.
14.
Six years later Parliament enacted the Dogs Act 1871, whose long title is
an Act to provide further protection against dogs. That Act applied to
Scotland as well as to England and Wales. Section 1 of the Act gave a police
officer power to take possession of and detain:
15.
This section first came to be considered in Scotland in
Henderson
v McKenzie
[1876] 3 R page 623. That case was concerned with a situation in which a dog
was alleged to have injured one sheep and scared the rest of a flock by chasing
it, and the question of law for the opinion of the Court of Session was, among
others:
18.
That decision is of value because the law of Scotland was different from
the law of England. It had a different source in Roman law and it did not
include the variations introduced by statute into the law of England by the
1865 Act, which provided a particular protection for the types of livestock
described in the Act from the usual 'a dog is allowed one bite rule. The
Scottish judges clearly, when interpreting this United Kingdom Act, took the
view that the meaning of the word "dangerous" must not be tightly defined as to
include only danger to human beings and that it was a matter for the Court,
which was the tryer of fact, to consider all the evidence before it and to
decide whether or not the dog in question was dangerous in the sense that it
had a dangerous disposition.
19.
The Act came before this Court south of the border in
Williams
v Richards
[1907] 2 KB 88. A complaint was made to the Swansea Justices, under section 2
of the 1871 Act, in relation to the conduct of a dog which had been seen to
kill sheep and lambs. The Justices dismissed the complaint on the basis that
no evidence had been adduced before them to show that the dog was dangerous to
mankind, but this Court remitted the matter to them to hear and deal with the
complaint on its merits. Lord Alverstone CJ said at page 90:
20. Although
Mr Pickford has drawn our attention to the Dogs Act 1906, and indeed also to
the Animals Act 1971, the modern statute which replaced subsections (1) to (3)
of the 1906 Act and related to civil liability of the owners of dogs for injury
to cattle, section 1(4) of the 1906 Act, which is still on the statute book,
provides:
21. Although
that section, which was not yet in force, was cited to the Justices and to this
Court in
Williams
v Richards
,
which came before this Court in March 1907, Lord Alvertone said that the
Justices appeared not unnaturally to have been misled by it, but, for the
purposes of that case, it was not necessary to consider what was the meaning of
that section.
22.
Mr Pickford sought to argue that in some way the English statutes, which
were concerned with dogs, concentrated, in so far as they were only concerned
with danger to mankind, on danger to the various items of livestock which were,
from time to time, singled out for special protection by Parliament. He argued
that even before 1906, although
Williams
v Richards
was decided before the 1906 Dogs Act came into force, the language of that
section meant that from that time onwards at least the only element of
dangerousness the Magistrates' Court could properly take into account, apart
from dangerousness to mankind, was dangerousness to the livestock mentioned in
section 1(4) in the sense of the dog having been proved to have injured cattle
or chased sheep, and by a later amendment in 1928 poultry was also included.
23.
In my judgment, bearing in mind that the 1871 Act was not only concerned
with the law of England and Wales, I can see no reason for limiting it in that
way. The language of this Court in
Williams
v Richards
,
and the language of the Court of Session in
Henderson
v McKenzie
,
leads to the conclusion that the Justices at Taunton in 1998 were correctly
directed by their clerk that the word "dangerous" was to be construed in the
ordinary every day meaning of the word and not to be limited to dangerousness
for mankind or for particular species of animals and birds.
24.
Mr Pickford drew our attention to the case of
Tallents
v Bell & Goddard
[1944] 2 All ER 474 where the Appellant kept rabbits for the purpose of selling
them to butchers and it was proved that on two occasions dogs broke into the
rabbit hutches and did considerable injury to his rabbits. On the second
occasion only two dogs belonging to the Respondent were actually found in the
hutches and the Appellant contended
inter
alia,
in a case brought in the Worksop County Court, that the damage came within the
meaning of sections 1 and 7 of the Dogs Act 1906. The Court of Appeal held,
not surprisingly, that the expression "cattle" did not include rabbits kept for
commercial purposes and therefore sections 1 and 7 of the Dogs Act 1906 did not
apply.
25.
For my part I can see no way in which that decision, on the line of
statutes concerned with civil liability for the activities of dogs in England
and Wales, can assist us in the interpretation of the 1871 Act. It is
noticeable, however, that Finlay LJ, who gave the judgment with which the other
two members of the Court of Appeal agreed, said at 476A:
27.
It was put to Mr Pickford in the course of argument that if a dog was known
to have a disposition to attack pet rabbits, and had done it on a number of
occasions, it was hard to see why, in theory at any rate, that dog might not,
in certain circumstances, be described as dangerous. At that stage Mr Pickford
resiled from his earlier contention, and submitted that an examination of the
civil cases concerned with civil liability was not going to assist us very much
in the interpretation of the 1871 Act.
28.
That case was mainly concerned with the difference between the meaning of
the word "ferocious" in the 1839 Act and the meaning of the word "dangerous" in
the 1871 Act. However, it is noticeable that this Court referred, without
disapproval, to the Court of Session case of
Henderson
v McKenzie
and concluded that what the Justices needed to examine, in the context of a
complaint under section 2 of the 1871 Act, was whether the dog in question had
a dangerous disposition or propensity. At page 191, after citing Lord
Moncreiff speech (he was the Lord Justice-Clerk in
Henderson
v McKenzie)
Fenton Atkinson J said:
29. Lord
Parker CJ agreed, making observations on a particular aspect of Lord
Moncreiff's judgment in
Henderson
v McKenzie
.
30.
The final case to which I would refer in this part of the judgment, is the
Scottish case of
MacDonald
v Munro
[1951]
SLT Reports 48 in that case a dog bit a 4-year old girl under circumstances
indicating that she had attempted to play with the dog while it was eating a
bone, and that she might have interfered with the bone. Three months
previously the dog had snarled at the child's father over a garden fence. The
lower Court found the accused dog to be dangerous and not kept under proper
control. The case went up to the High Court and, on the facts of that case,
Lord Cooper, Lord Justice-General, said that:
31. The
ground on which the Magistrate had justified the extreme Order which he had
pronounced was as follows:
34.
Standing back from all these cases it appears to me that Mr Pickford's
attempt to confine the meaning of the word "dangerous" in section 2 of the 1871
Act is not justified by the authorities and not by the ordinary principles of
interpretation. As I have said, Mr Pickford first sought to confine the
meaning of the Act by reference to the English common-law and the way that the
English common-law had been varied by statute in 1865, 1906, 1928 and so on.
Since the Dogs Act 1871 is an Act which applies to both sides of the border,
and the law of Scotland was different, that was, in my judgment, an unpromising
attempt to confine the meaning of a clear English word.
35.
It appears to me that the approach of the Courts on both sides of the
border show that what the Court is to be concerned with is an analysis of the
question whether, on the facts produced by the complainant, the Magistrates are
satisfied that the dog or dogs in question, are dangerous in the sense that
they have a dangerous disposition. As the Lord Justice-General said in
MacDonald
v Munro
in an exceptional case "a single act may... reveal a dangerous disposition."
In other cases it may be that the Justices would not be satisfied if evidence
was only produced of a single act, but would require further evidence to
satisfy them that the dog was dangerous within the meaning of the 1871 Act. At
any event, I am satisfied that the meaning of the word "dangerous" should not
be confined as meaning dangerous to mankind or dangerous to the livestock
identified for particular protection by Parliament in relation to the law of
England. Dangerous is a word which the Magistrates are entitled to apply
whatever the evidence is before them. Accordingly I would answer the second
question by the Justices:
36.
I turn now to the first question and this requires an analysis of the
evidence. The evidence which was before the justices is set out on pages 3 to
22 of the Case Stated. It must be remembered that Mr Pickford accepted that
the Appellant could only succeed on this ground of his appeal on a point of law
if he was able to show that there was no evidence which could support the
Justices' finding that the two dogs were dangerous and not kept under proper
control. If there was some evidence which might support that finding it was a
matter for the Justices to decide how much weight to give them. The parties
put their arguments in diametrically opposite ways. Mr Mason, who appears for
the Crown, submitted in his skeleton argument, that:
38.
Mr Mason submitted in all the circumstances that the answer to the first
question posed by the Justices must be in the affirmative.
39.
Mr Pickford, in contrast, submitted the evidence to very careful scrutiny.
He said that the way that the Justices should have approached the case was that
there was a dog fight. Evidence about the dog fight was adduced from Mr
Briscoe, Mr Lenthall and Mr Wembridge, a friend who had come on the scene with
Mr Lenthall towards the end of the fight. Mr Pickford submitted that there was
no significant difference between them. It was not a question of choosing
which witness was to be preferred but of seeing their evidence as a whole.
40.
Mr Lenthall's dog was injured, and he stressed the point that Mr Briscoe
described the whole fight and the other witnesses only the end of it because
they arrived on the scene late. He made a point of the fact that Mr Lenthall's
three stepchildren, aged 9, 11 and 13, who had care of his dog, did not give
evidence. He said that the evidence showed that the child who held the dog's
lead let go of it when it pulled away at a considerable distance from the other
dogs.
41.
In those circumstances Mr Pickford complains that the Justices in
considering the evidence and making their findings of fact failed to include
specific mention in the facts, that the Lenthall dog which had been held on a
lead had been let go. He pointed out correctly that this was common ground
between the witnesses, but said that it was not considered by the Justices in
reaching a decision. Mr Pickford says that the evidence showed, and this was
not brought out in the Justices' finding, that Mr Briscoe was standing at the
Lenthall's gate with both his dogs on leads when the children approached at
about 30 yards away. It was their dog which broke away from the boy who was
holding the lead and ran to where Mr Briscoe's two dogs were, which he regarded
as his (the Jack Russell's) home territory. Complaint is made that this, too,
is omitted from the facts found by the Justices and was not taken into account
in their decision. It is said that Mr Briscoe, who had been asked a question
by the Justices, told them that the Jack Russell, as it came down the lane, was
growling and barking and it came at speed. Complaint is made that this fact,
too, was omitted from the facts set out in the case.
43.
It is said that Mr Lenthall's evidence confirmed Mr Briscoe's evidence as
far as it could. The children were screaming because of the dog fight and the
Jack Russell had started the dog fight. Mr Lenthall said that he pulled one of
Mr Briscoe's dogs away and hit it, and there was no hostile reaction and no
question of Mr Lenthall being in any danger or feeling in danger. Mr Pickford
submits that this confirms that Mr Briscoe's dogs were not dangerous and that
contrasted with the behaviour of Mr Lenthall's dog.
44.
Mr Pickford complains that none of this evidence in favour of the Briscoe
dogs by the complainant's lead witness, Mr Lenthall, was included in the facts.
All the evidence contradicts the Justices' opinion that the Briscoe dogs were
the aggressors. As a result of that view the Justices came to the wrong
conclusion that there was something that he should, or could, have done to stop
the fight.
45.
After making a number of submissions based on his earlier contention that
the word "dangerous" must refer to dangerous to mankind, he points out that
there was no evidence that Mr Lenthall and Mr Wembridge knew about the Briscoe
dogs having to defend themselves. He went on to make a number of submissions
which were really based upon the same point that Mr Briscoe and his two dogs
were standing near Mr Lenthall's gate, that the incident had been initiated
because the Jack Russell came down the lane barking at them, and that all that
happened was that Mr Briscoe's dogs behaved in a reasonable way when they were
being harried.
46.
Mr Pickford submits that the Justices were wrong to draw adverse inferences
from the five and a half foot fence, the special leads, or the special
training, and saw that his client was acting responsibly in attending to these
matters. He complains that the Justices did not understand the nature of dog
training. He complains that the mistake that Mr Briscoe made, which allowed
one of his dogs to escape from his collar, was nothing more than that. The
dog wrestled loose because it was being attacked. It acted in a defensive way.
Even when it was loose from the collar he said that the dog did not leave his
side. He cited the Oxford English Dictionary for the meaning of the word
"harry" which means "vex by repeated attacks". He submits that Mr Briscoe's
friendly act, in paying for the care of Mr Lenthall's dog by the veterinary
surgeon until it died, was not a matter which the Justices should have taken
into account against him.
47.
In my judgment these matters were very much matters for the Justices on
which the Justices were to to be entitled to reach conclusions on the facts
they heard. They were clearly impressed by Mr Lenthall's evidence both as a
dog owner and as the owner of this particular dog. They made it clear that
they accepted his evidence that Toby was not an aggressive dog and that Mr
Lenthall had never had such a quiet Jack Russell, and Mr Lenthall told the
Justices that he had had Jack Russells all his life. That was a feature of the
case that the Justices were entitled to take into account.
48.
Even if the Jack Russell behaved in a predictable way by going down the
lane and barking and harrying the dogs, which were at what he regarded as his
home gate, it would very much be a matter of fact for the Justices to determine
whether the fact that the two eight stone Akita dogs behaved in such a way that
in a very short space of time the Jack Russell was, for all practical
purposes, dead, was evidence from which they could conclude that those dogs had
a dangerous disposition in the sense in which the Courts have approached the
meaning of the word "dangerous" in the past. The Justices would have heard the
evidence from Mr Hunt who gave evidence on behalf of the Defendant. He was an
animal handler who had experience in dog's behaviour and he said in
cross-examination:
49. Although
he went on to say, "This applies to all dogs", that was evidence which the
Justices were entitled to take into account. They were also, in my judgment,
entitled to bear in mind the evidence by Mr Lenthall, a witness who clearly
impressed them, when he had referred in his statement to the police, which was
put to him in cross-examination, to the fact that one of the dogs was attacking
the Jack Russell with the sole intention to kill it.
50.
Mr Wembridge, his friend, who watched the matter and said that,"It was like
a seen scene from a horror movie", also referred to a sole intention. He said
that "The sole intention was of savaging Toby." These were matters very much
for the Justices to take into account. I would certainly not be disposed to
criticise the Justices for not making voluminous findings of fact. They heard
all the evidence. They came to their conclusion, and their conclusion was,
after hearing all the evidence, that the dog fight ensued when Hank wrestled
his head out off his collar, the Appellant fell on top of the Jack Russell and
his own dogs pitched in and attacked both him and the Jack Russell. In my
judgment the evidence is there. It was a matter for the Justices to form their
own opinion what to make of that incident with evidence from which they could
conclude that these two large dogs were the dangerous disposition.
51.
It is now necessary to look at the other matters on which the Justices
relied. The first occasion when the Appellant's dogs had behaved aggressively
was towards Mr Morley's puppy. Mr Morley gave evidence to them. He was a vet
who lived 400 yards away from the Lenthalls in the other direction from Mr
Briscoe's home, so that he lived more than half a mile from Mr Briscoe. He
told the Justices he had met Mr Briscoe's dogs out and about and he had been
warey of them. They did not have the same body language as other dogs he had
experience of and he said that the most worrying aspect was that before the
incident, when he walked by Mr Morley's house:
52. He
said at the end of his evidence-in-chief, that he was not confident of Mr
Briscoe's ability to control the two dogs in public. In cross-examination he
said he had never seen the dogs without their leads or breaking away. He
thought Mr Briscoe did his best to control them but they were extremely
powerful. He said that their own dog was off its lead in their garden, and he
described an incident when it shot out once when the gates were open, although
he did not see any encounter with the Briscoe dogs on that occasion. He
accepted that he had no experience as a behaviourist with dogs and he would not
hold himself out as an expert.
53.
Mr Pickford complains that although Mr Morley said that the Briscoe dogs
were "quite aggressive", there was no evidence of any incident. The incident
of which Mr Morley complained was the incident in which his puppy was out in
the garden and the Briscoe dogs going past had behaved aggressively towards him
through the fence. Although that was as far as the episode went, the justices
would no doubt have taken into account the general tenor of Mr Morley's
evidence. Mr Briscoe reminds us that Mr Morley accepted that he did not
understand the body language and had confirmed that the dogs were not off their
leads and had never broken away from him.
54.
It appears to me that for what it was worth the Justices were entitled to
take into account Mr Morley's evidence in relation to the disposition of these
dogs and the need to keep them under proper control, although that particular
part of the evidence cannot have weighed very heavily with them.
55.
The next matter that the Justices referred to was an attack by Mr
Briscoe's dogs on a Mrs Strange's Collie bitch which caused injury to her
shoulder and loss of its collar which the Appellant failed to stop. Mrs
Strange is a local farmer who lived three miles away from Mr Briscoe. On one
occasion she visited Briscombe where Mr Briscoe lives to inspect sheep in a
field that she was renting there. She said in her examination-in-chief she had
one of her dogs with her, a Collie bitch about two years old, who was kind
natured and never in any trouble with any other dogs. She had never started a
fight. Mrs Strange told the Justices she parked her pick-up in the lane and
got out with the dog and saw Mr Briscoe in the lane. Her dog was not on a
lead, she was five or six yards from her:
56. Mrs
Strange was cross-examined at some length. She accepted that Mr Briscoe's two
dogs were on leads, and she also said that a second dog of hers jumped out of
the pick-up truck and she accepted she may have omitted to think of that at the
time. She denied that that second dog nipped one of Mr Briscoe's dogs. She
said:
58.
Mr Pickford showed us, during his examination of the evidence, how his own
client had given the justices rather a different account of this incident. He
had said that Mrs Strange's dog had come up among them all snarling and that
her dog was barking. So far as the gash on her dog was concerned, he would say
that she was lying or that she did not remember. He accepted that Hank had
grabbed the fur on the back of the dog's neck, but Mrs Strange had told him
that there was no injury and had said that the dog was all right.
59.
As we pointed out to Mr Pickford during the course of his submissions, it
is entirely a matter for the Justices to decide whose evidence they believe.
They clearly found, as a fact, that Mrs Strange's Collie bitch had been
attacked by Mr Briscoe's dogs and that it had injury caused to its shoulder and
the loss of its collar, which although the dogs were on their leads, the
Appellant had failed to stop. This again, in my judgment, was a matter which
the justices were entitled to take into account in deciding whether to conclude
that Mr Briscoe's dogs were dangerous within the meaning of the Act.
60.
Mr Pickford has suggested that the point about Mrs Strange was not
supported by her evidence. The general tenor of Mr Pickford's submissions
appeared to be that if his client had two eight stone dogs which he was
accustomed to take around with him outside his own premises and other dogs ran
up to them, then if his client's dogs, even when they were still on a lead, did
damage to the other very much smaller dogs it was unfair and improper to call
them dangerous within the meaning of the 1871 Act. In my judgment this
submission is not well-founded. It is entirely a matter for the Justices to
try as a fact and to conclude whether the behaviour of a dog in question does
show that it has a dangerous disposition. It may very well be that Mr Briscoe
was causing the risk of danger, or the risk of an adverse finding under the
1871 Act, when he thought that he could take these two large dogs out together
among the public.
61.
The final point relates to an incident described by the Appellant where a
straying sheep of Mr Willacott's had sustained an injury. There was very
little evidence about this episode. It only came from Mr Briscoe himself and
it referred to an episode where a sheep had been chased by his dog, Hank, and
it caught itself on a metal spike. The sheep was on Mr Briscoe's own land and
the sheep ran against it turning. Although the Justices said that the dog,
Hank, had also been involved in an incident described by the Appellant as a
straying sheep of Mr Willacott's which had sustained injury, that could not be
said of the other dog and it is hard to think that that particular incident,
which had only affected one of the dogs, would have weighed very heavily with
the Justices when they made their finding that both dogs were dangerous within
the meaning of the Act.
62.
In my judgment Mr Pickford set out on an almost impossible task when he
sought to challenge the Justices' findings on the facts, in this Court on a
point of law. It may be that if there is an appeal to the Crown Court under
section 2 of the Dogs Act 1871, the Crown Court might have taken a different
view of the facts, but in this Court all we can consider is whether there was
evidence on which a Bench of Justices could reasonably reach the conclusion
which they did, and, in my judgment, there certainly was.
65. MR
JUSTICE SEDLEY: The word "dangerous" in section 2 of the Dogs Act 1871 is not a
term of legal art. In my judgment a dog is shown to be dangerous by evidence
which satisfies the Justices that the description applies to it within the
ordinary limits of the English language. The meaning of the word has not
changed appreciably since 1871. What will have changed, as society has
changed, are the circumstances in which a dog may be a source of danger. The
contrasting language of the preceding section of the 1871 Act, now repealed, by
employing the phrase "savage or dangerous" in relation to straying dogs on the
highway, disposes of any argument that in section 2 Parliament meant the
material danger to be restricted to danger to human beings. The latter is a
purpose to which the word "savage" would, if anything, have been more
appropriate.
66.
The Court of Session came to the same view of section 2 in
Henderson
v McKenzie
[1876] 3 R 623, without reference to section 1, and so independently did the
Divisional Court in
Williams
v Richards
[1907] 2 KB 88. The additional provision made by section 1(4) of the Dogs Act
1906, upon which Mr Pickford has relied, is in the main, therefore, a
declaratory subsection. In any event, the meaning of the 1871 Act remains a
matter for the Court and not for a subsequent Parliament. The substantive
addition to the law made by section 1(4) of the 1906 Act is the chasing of sheep.
67.
If, however, the danger envisaged by section 2 were, contrary to my Lord's
and my view, confined to human beings, then the Justices' findings of fact
would still have justified their making the Order which they did. A dog-fight
can be a direct danger to the public. It can cause a traffic accident. It may
cause people to risk injury in trying to separate the animals or passers-by may
simply get bitten. One has only to ask what would have happened here if the
Appellant had not thrown himself on to the Jack Russell terrier to try to
protect it and the three Lenthall children had tried themselves to rescue their
pet.
68.
The Appellant's two dogs were found by the Justices to have had a history
of aggression. This satisfied the test in
Keddle
v Payn
[1964] 1 All ER 189. But it is necessary to bear in mind that a dog may
demonstrate a dangerous propensity in the very incident which leads to the
section 2 proceedings: see
MacDonald
v Munro
[1951] SLT 48 at 49. The old law of scienter which required the dog to have
given prior proof of the propensity does not govern section 2 of the 1871 Act.
This is not to say that evidence of previous acts of aggression, or creation of
danger, if such evidence exists, is irrelevant. It is to say that the scienter
case cited by Mr Pickford, does not assist with the interpretation or the
application of the Act of 1871.
69.
The purpose of section 2 is not, as it is in section 1(3) of the Dangerous
Dogs Act 1991, to make it an offence to have a dangerous dog. Section 2 is not
a penal section. It bites only where a dog is shown to have been both dangerous
and not under proper control. The Justices' powers are correspondingly limited
to directing the owner to keep the dog under proper control, or where they
conclude that it cannot be realistically controlled by the owner, to having it
destroyed. Many dogs which are ordinarily docile may be dangerous in the
relevant sense that unless kept under control they may cause real harm. The
statutory purpose is thus simply to require dog owners, by exercising suitable
control, to prevent such harm from occurring, and if they cannot, to have the
dog put down.
70.
So far as concerns the other limb of this appeal, an attempt on the
Appellant's behalf to compel the justices to restate the case was rejected by
Laws J in July of this year. In my view Mr Pickford's lengthy address to us on
the merits was an impermissible attempt to circumvent Laws' J rules and to
re-canvass facts which it was for the justices alone to find. The evidence
was, as my Lord has demonstrated, ample to support the findings, and the
findings as a matter of law justified the Justices' Order. The evidence which
my Lord has set out, in dealing with Mr Pickford's submissions, should not be
taken as some kind of a benchmark of liability in dangerous dogs' cases. Each
case will be different. Each must be separately decided by the legal standard
set out in the Act and the judgments of this Court.
71.
For these reasons, as well as those given by my Lord, I agree that both
questions should be answered in the affirmative and the appeal be dismissed.
72. MR
MASON: There is an application, my Lord, on the part of the Respondent, for his
costs in encountering the appeal in this matter.