DANGEROUS DOGS, DOMESTIC VIOLENCE AND STRICT LIABILITY
Written by: Neil Corre, Barrister, Redbourne Chambers
The title of this article may sound like a particularly difficult question from Round Britain Quiz or Only Connect, but there is a connection between these apparently disparate subjects.
It is five years since s.106 of the Antisocial Behaviour, Crime and Policing Act 2014 amended s.3 of the Dangerous Dogs Act 1991. The offence of failing to keep a dog under proper control may now be committed in a private as well as a public place. Section 3(1) now reads: 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 or assistance dog, an aggravated offence, under this section.
Section10(3) provides…. A dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so….
Since the amendment of the section cases have arisen where the owner or person in charge of a dog is both the victim of a domestic assault and the defendant in s.3 proceedings as a result of the dog’s reaction to their being assaulted.
It is no defence to say that it is the nature of a dog to protect its owner or conversely that it is out of character for it to be out of control. It is the human and not the dog who is on trial. On a literal interpretation of s.3 the owner or person in charge of a dog is absolutely liable for the simple offence if a dog is dangerously out of control or of the aggravated offence if it injures any person or assistance dog while so out of control.
In R –v- Gedminintaite [2008] EWCA Crim. 814 the Court of Appeal referred to the earlier authorities of Rafiq –v- DPP (1997) JP 161 and R –v- Bezzina [1994] 3 All ER 964. In the latter case, Kennedy LJ held that the offence is one of strict liability and is committed if a dog is dangerously out of control and acts in a way that gives grounds for reasonable apprehension that it would injure anyone. If injury does result, then there must have been, immediately before the injury, grounds for reasonable apprehension that injury would follow.
Popplewell J, in Rafiq, dissented from that approach. If the dog bites without reasonable apprehension before the bite, there are grounds for reasonable apprehension that it will injure another person. In the same case, Auld LJ held that the act of a dog causing injury is itself capable of giving grounds for reasonable apprehension of injury.
In Gedminintaite, Keene LJ noted that the definitions section, s.10, is not exclusive. It does not state that “a dog shall ONLY be regarded as dangerously out of control…”
In R –v- Robinson-Pierre [2013] EWCA Crim. 2396, the Court of Appeal reviewed the authorities and considered whether the offence was one of strict or absolute liability. The court considered a situation where a dog was dangerously out of control entirely by reason of the deliberate act of a third party and where D had not contributed to the prohibited state of affairs. Although the judgment predates the amendment to s.3, it is submitted that this is precisely the position of a dog which is dangerously out of control following an assault on its owner in a private place typically, although not exclusively, within the context of domestic violence.
The court rejected the proposition that a defendant must be shown to have caused the prohibited state of affairs but upheld the proposition that there must be a causal connection between owning the dog or having charge of the dog and the prohibited state of affairs that has arisen. It cited a category of offences in which the actus reus is represented by a state of affairs. Those authorities include the case much beloved of law students in which the police removed a drunken man from hospital, placed him on the highway and then arrested him for being drunk on the highway. His conviction for an offence contrary to s.12 of the Licensing Act 1872 of being found drunk on a highway was upheld by the Divisional Court (Winzar –v- Chief Constable of Kent (The Times, March 28, 1983)).
The Court of Appeal concluded that s.3(1) requires proof by the prosecution of an act or omission of the defendant (with or without fault) that to some (more than minimal) degree caused or permitted the prohibited state of affairs to come about. Liability is strict but not absolute.