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Royal Courts of Justice

The Strand

London WC2

Thursday 21st August 1997

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE)

MRS JUSTICE STEEL

and

MR JUSTICE ASTILL

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R E G I N A

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ANTHONY ROGER HARTER

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MISS S CANAVAN appeared on behalf of the Appellant

MR J BISHOP appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 21st August 1997

LORD JUSTICE ROSE: On 13th November 1996, at Southend Crown Court, this appellant was convicted by the jury, by a majority, of being the owner of a dog dangerously out of control in a public place, contrary to section 3(1) of the Dangerous Dogs Act 1991. His Honour Judge Lockhart, before whom the trial had been conducted, imposed a fine of £500, and ordered the appellant to pay £500 in compensation to Mr. Bull, who had been bitten by the dog, and £508 towards the prosecution costs. A destruction order was made in relation to the dog. Against his conviction the appellant appeals by leave of the Single Judge, who refused leave to appeal against sentence.

There was a co-accused, the appellant's daughter, Lisa Harter. She too was convicted by the jury of a like offence and on a like majority, and a similar fine was imposed on her, and a similar order for compensation and costs made against her. Her application for leave to appeal against conviction and sentence was refused by the Single Judge and has not been renewed.

The circumstances were these. On 10th March 1995, Mr. Bull and his son-in-law, a Mr. Foster, attended a salvage yard called Cut Maple Salvage Yard, which was owned by the appellant, and where his daughter, the co-defendant, worked.

At the time of their visit the appellant was not there. The men saw, according to the evidence which they gave, a Rottweiler guard dog at that time on a chain attached to a running wire. It was the case for the Crown that, a little later on, Mr. Bull was attacked twice by the Rottweiler, when he was in the commercial yard at the premises.

It is necessary to explain a little of the geography which appears plainly from an aerial photograph before the Court. The premises are in three parts. To the left is an open yard with vehicles in it and some semipermanent building premises. That was referred to as the top yard. In the centre of the photograph is the private dwelling and garden of the appellant and his family. That contained a dog kennel. The dog kennel was not far from a gate which led from the garden into the commercial yard to the right. There was a post adjacent to the dog kennel and it was the defence case that the dog was on a running line attached to that post from where it could not, and did not, get into the commercial yard.

The commercial yard, it was common ground, was a public place within the meaning of the Dangerous Dogs Act 1991: that appears to the right of the photograph and contains a large number of vehicles. It was also common ground that the appellant's house and garden and the pathway through it were not a public place.

It follows that, if such attack as occurred took place in the garden, or any part of that area where the Rottweiler was supposed to be tethered according to the defence, that would not have been a public place attracting the provisions of the Act. Conversely, if the attack took place in the commercial yard, that would be a public place within the ambit of the Act.

Neither of the defendants saw the attack. The appellant, as we have said, was absent from the premises; his daughter was present. It was common ground that the dog was a family pet. There was some conflicting evidence as to the nature of the ownership of that dog. It was the daughter's case that she was the legal owner and she produced a document which was read by the judge to the jury in relation to its sale to her. It was the appellant's case, in general terms, that he was not the owner of the dog, although he gave an answer to the police to which we shall come which was not in accordance with that.

In the course of her final speech to the jury, Miss Canavan, then, as now, appearing for the appellant, addressed the jury on, among other bases, the statutory defence under section 3(2) of the Act, which is in these terms

:"In proceeding 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 an 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."

It is common ground that the judge did not canvass with counsel, notwithstanding that submission made by Miss Canavan, whether he ought to direct the jury as to the law in relation to the statutory defence. It is common ground that he gave no direction to the jury as to the statutory defence. The single issue which arises on this appeal, and it was ground 6 in the grounds of appeal, in specific relation to which the Single Judge gave leave, is whether the judge should have given such a direction and what the consequences, if any, of his failure to give such a direction are.

On behalf of the appellant, Miss Canavan draws attention to the evidence that the appellant was absent from the premises at the time of the attack, and to his evidence that his daughter or wife were in charge when he was absent. She accepts that the central plank of the defence was that the appellant was not the owner of the dog, within the meaning of the Act, though he did accept that it was the family pet.

In the light of that evidence, and in the light of the submission which she herself made to the jury in her speech, she submits that the learned judge should have directed the jury as to the statutory defence, so that the jury could decide, if they concluded contrary to the central plank of the defence that the appellant was not the owner, whether he was entitled to avail himself of the statutory defence. The statutory defence, she submits, was not inconsistent with the central plank of the appellant's defence.

On behalf of the Crown, Mr. Bishop, appearing in this Court, as he did below, for the prosecution, makes two submissions. First, he says that there was in the evidence to which we have referred, no basis sufficient to raise the statutory defence. Secondly, he submits that the statutory defence was inconsistent with the appellant's defence and therefore, in reliance on authority of R v. Courtnell [1990] Crim.L.R. 115, there was no requirement on the judge for him to direct the jury about it.

So far as that latter submission is concerned, it did not long survive the analogy which the Court drew in relation to a charge of murder, where the defence is that the defendant did not inflict the fatal injuries nor was party to them, but where, if the circumstances so require, and there is evidence to sustain the possibility, a judge is under an obligation to direct a jury as to provocation as a possible defence, if they conclude that it was the defendant who inflicted the fatal injuries.

We return, therefore, to examine the first of Mr. Bishops' submissions, in the light of the evidence and the terms of the summing-up. At page 9E the judge said this in relation to the first of the elements which the prosecution had to prove:

"...they have got to prove that the defendant concerned, Mr. Harter and then Miss Harter, was the owner of the dog in question. No argument about Miss Harter; she says she was. But this is an issue which Mr. Harter has raised at trial.

Pausing there for a moment, it may be that you will conclude that other members of the family were also owners. That does not in any way prevent you from arriving at verdicts on these two. You are dealing with just these two, but it is certainly possible for a thing like a dog to be jointly owned by members of a family."

At page 21A the judge returned to that topic by reference to the evidence and said this:

"...who owns the dog? That is the first thing you have to decide because, as I mentioned earlier, Lisa said, 'It was me' and she has got this letter to prove it. That letter indicates it was Lisa -- well, yes, 'Sold to Miss Lisa Harter, Vincent, this Rottweiler dog'.

It was suggested to you there is no evidence to the contrary about that. Is that right, because if you look at the two interviews, when Lisa was interviewed first of all by the Police Officer, she was asked the direct question: 'Who owns the dogs?' Answer: 'The whole family. They are family dogs. All five of us look after them and feed them.' That was what she said about them.

Mr. Harter, of course, was present during that interview. When he was asked this question in his interview: 'Are you the owner of the dogs?' he said: 'The Harter family own the dogs.' When asked to explain that when he was giving his evidence, he said, well, perhaps he spoke in haste then. Is that right? He had heard his daughter give what was a wrong answer to the Police sometime earlier, but that is something obviously for you to consider."

Pausing there it seems to us that the answer given by the appellant in interview "the Harter family own the dogs" was evidence that the appellant was an owner of the dog, contrary to the primary defence which he advanced before the jury. The learned judge went on at 22A to say this:

"If you conclude that what they said to the police is the truth, then they are both the owner of the dog or perhaps with other members of the family. That is a finding you have to make. If on the other hand you are not sure that Mr. Harter was the owner then the case against him finishes. The prosecution have got to prove the person facing the allegations is either owner or part owner of the dog so that is the first thing that you have got to decide."

It is at that point, in the submission of Miss Canavan, that the learned judge should have gone on and said to the jury, 'if you conclude that the appellant is an owner of the dog, then you should consider the terms of the statutory defence', and he should have given an appropriate directions in that regard. In our judgment, that submission is well-founded. No doubt the evidence was of a somewhat tenuous character, which may well not have satisfied the jury in relation to the matters which it was incumbent upon the appellant to prove if he was to avail himself of the statutory defence. But the question is not whether the statutory defence was likely to succeed, but whether the judge should have directed the jury about it. In our judgment, because it was raised, albeit tenuously, in the evidence and because it was expressly raised by counsel in her closing speech for the defence, it would have been preferable had the judge canvassed with counsel whether a direction should have been given. In our judgment, in the circumstances of this case, the failure to give such a direction was such as to amount to a material non-direction. Because that material non-direction went to a substantial potential defence, it necessarily, in our judgment, gives rise to a lack of safety in this conviction. Accordingly this appeal will be allowed and the appellant's conviction quashed.

LORD JUSTICE ROSE: Miss Canavan, you are successful in part, the contribution in relation to the appeal is remitted.

MISS CANAVAN: Thank you.