Appeal by bulldog owner against destruction of dog after attack refused by Sheriff Appeal Court

About this case:

• Citation:
  [2024] SAC (Crim) 1
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

James Murdoch, the owner of a microchipped America Bulldog named Storm, argued that the sheriff was not entitled to make the finding in fact that the dog was dangerously out of control at the time of the attack, nor that the offence was aggravated in terms of section 3(1) of the Dangerous Dogs Act 1991.

The appeal was heard by Sheriffs Principal Catherine Dowdalls and Gillian Wade, along with Appeal Sheriff Fiona Tait. C Neilson, advocate, appeared for the appellant and A Cameron, solicitor advocate, for the Crown.

Short space of time

After Storm attacked another dog in January 2022, the appellant was made subject to a Dog Control Notice requiring him to keep Storm collared and muzzled and on a fixed lead no longer than 1.5 metres when outside the curtilage of his home. On 14 February 2023, after managing to escape from the appellant’s garden, Storm attacked another dog owned by a passerby, JS. The appellant arrived shortly thereafter and succeeded in prising Storm’s jaws apart after a struggle of around 10 seconds.

Both JS and her dog received injuries, with the dog requiring veterinary treatment for puncture injuries to its head and around one eye. Police officers attended at the address the following day and seized the dog from the appellant’s ex-wife’s address in Crieff. On 14 September 2023, the sheriff sentenced the appellant to pay a fine of £400; to pay a compensation order of £500 to JS; and to have Storm destroyed.

Counsel for the appellant submitted that the facts and circumstances spoke to a momentary and brief attack of JS’s dog by Storm, in which JS was indirectly injured. The case was similar to Tierney v Valentine (1995) in that the incident ended within a short space of time. If the conviction was upheld, a destruction order was excessive, as measures had been taken to prevent Storm from escaping the appellant’s property again.

For the Crown it was submitted that the sheriff was right to find that Storm was dangerously out of control, having left the house of his own volition without the appellant in control. The position in Scotland was that a dog could be seen as dangerously out of control based on its behaviour in a single incident, and the first thing Storm had done upon leaving the property was to attack another dog.

Reasonable apprehension

Sheriff Principal Dowdalls, delivering the opinion of the court, began: “The appellant submits that the facts and circumstances of this case were such that it could not be said that there was a reasonable apprehension that Storm would injure a person. We reject that submission. Where a dog has not injured a person before, that does not preclude reasonable apprehension that it might do so.”

She continued: “On the facts of this case, as found by the sheriff, we are satisfied that there were grounds for reasonable apprehension that Storm would injure a person and therefore that, in terms of section 3(1) of the 1991 Act, was dangerously out of control. It was not necessary for the sheriff to find that Storm had previously injured a person to establish reasonable apprehension.”

Noting the control measures already in place, the Sheriff Principal added: “JS was injured as a result of trying to rescue her dog. There was no need to show direct injury to JS. That is not a requirement of section 3(1) of the 1991 Act. Storm’s behaviour was sufficiently connected to JS’s injuries to establish that Storm was dangerously out of control. But for Storm’s attack upon her dog, which she tried to rescue by pulling on the lead, JS would not have suffered injury.”

She concluded: “The sheriff was entitled to hold that Storm’s attack amounted to an aggravated offence in terms of section 3(1) of the 1991 Act, to make finding in fact 13 and to convict of the aggravated offence. Having concluded that the offence was aggravated in terms of section 3(1) of the 1991 Act, the sheriff had no option but to make the order for destruction.”

The appeal against conviction and sentence was therefore refused.