SCOTTISH BORDERS COUNCIL V MR JOHN JOHNSTONE

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SCOTTISH BORDERS COUNCIL V MR JOHN JOHNSTONE

SCOTTISHSHERIFFDOM OF LOTHIAN AND BORDERS

Case Number: BJ60/13

2014SCEDIN61

Judgment by

SHERIFF PRINCIPAL

MHAIRI M STEPHEN

in the appeal

in the summary application

of the

SCOTTISH BORDERS COUNCIL

Applicant and Respondent

against

Mr John Johnstone

Respondent and Appellant

___________________________

Act: Mohammed, Advocate instructed by Scottish Borders Council

Alt: Bannerman, Solicitor

EDINBURGH, 18 November 2014

The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the sheriff's interlocutor of 4 March 2014; recalls the order for delivery of and destruction of the dog Finlay made in terms of section 9(2) of the Control of Dogs (Scotland) Act 2010; further, in terms of section 9(3) of said Act remits the case to the respondents, Scottish Borders Council, to serve a dog control notice on the appellant and proper person [P] in terms of said Act and directs that said notice specifies that the appellant [P] and anyone entrusted by [P] with charge of the dog known as Finlay must (a) keep the dog muzzled whenever it is in a place to which the public have access; (b) keep the dog on a lead whenever it is in such a place; (c) ensures that the said dog is kept muzzled and controlled in an effective manner to prevent its escape when in the garden of the family home at 68 Eildon Road, Hawick and (d) that the appellant [P], together with the dog Finlay, attend and complete a course of training in the control of dogs within six months from the date of the notice; meantime, directs that the undertakings given by the appellant and recorded in the interlocutor of 23 April 2014 be adhered to and will continue to be of effect pending service of the said dog control notice following which they will cease to have effect; finds the respondents liable to the appellant in the expenses of the appeal and in the expenses of the cause before the sheriff and allows an account thereof to be given in and once lodged remits same to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

NOTE:

This appeal involves the application of the Control of Dogs (Scotland) Act 2010 ("the 2010 Act") to the appellant and his dog Finlay following a serious incident on 8 May 2013 when a little girl M.F. (then aged 4) was bitten on the face by Finlay in Kenilworth Avenue Hawick.
At proof, the sheriff heard evidence for the local authority, Scottish Borders Council who are the relevant authority and for the appellant.Mr Smith, the respondent's authorised Dog Control Officer in terms of the 2010 Act gave evidence.The respondent led other witnesses in support of the local authority's summary application which asked that the court make the following orders:-
1. For the destruction of Finlay, a Airedale Terrier (in terms of section 9(2) of the 2010 Act);
2. Delivery of Finlay for the purpose of (1);
3. Interdict preventing the appellant from owning or keeping a dog for a period of three years (or such other period as the court shall determine);
4. For the expenses of kennelling and destroying Finlay;
5. For the expenses of the cause.
The appellant, who is the owner of Finlay and therefore the "proper person"[P] in terms of section 1(5) of the 2010 Act, opposed the grant of these orders.He argued that Finlay could not be categorised as "out of control and dangerous" and disputed that it was necessary to have Finlay destroyed.He maintains that he is a responsible dog owner;has a good history of controlling and caring for animals and therefore interdict is unnecessary.
The sheriff heard evidence over two days in October and November 2013 and heard parties' submissions on the evidence on 9 December 2013 when he made Avizandum.Immediately prior to the commencement of the proof the solicitor for the appellant conceded that the dog Finlay had bitten the child.Until then the appellant had denied the averment that the dog had caused the child's injury by biting.The appellant had not been present when the incident had occurred as the dog was being walked by his daughter K.J. when the incident occurred. Having considered the evidence the sheriff made an order in terms of section 9(2)(a) and (b) appointing a vet to undertake the dog's destruction and requiring that the dog be delivered up for that purpose.The sheriff made an order that the expenses of the kennelling and destruction be met by the appellant and also interdicted the appellant from owning a dog for a period of two years.The appellant was found liable to the respondents in expenses of the application but restricted to the appellant's legal aid contribution.
In so doing the sheriff made certain findings in respect of the incident on Wednesday 8 May 2013 when M.F. sustained the injury.This happened around 3pm when the appellant's daughter K.J. (then aged 19) was walking the dog.K.J. was walking Finlay on a lead however she was listening to music and talking to her boyfriend on the phone at the critical time.Finlay jumped up at the child knocking her to the ground and then bit her on the cheek.The child required immediate medical treatment followed by skin grafting.She is likely to have permanent scarring.Two days later K.J. was cautioned and charged with a contravention of section 3 of the Dangerous Dogs Act 1991.
Three witnesses gave evidence as to the incident on 8 May.The father of M.F. and Mr Elliot gave evidence for the Council.K.J. gave evidence as to her recollection of that day.She was on the phone, she did not see the dog jump up at the child but thought the child had fallen and indeed thought the injuries were caused by that fall.That is what she told her father when she returned home.
The sheriff accepted and preferred the evidence led on behalf of the respondents in respect of what happened in Kenilworth Avenue on 8 May.
The evidence of the dog control officer is important.The sheriff records the evidence from the Dog Control Officer, Mr Smith at pages 4 to 7 of the judgment.A local authority can only apply for an order for the dog's destruction "where it appears to an authorised officer that, in relation to a dog which is out of control and dangerous, serving a dog control notice (or a further dog control notice) would be inappropriate."Mr Smith did not speak to K.J. who had been walking the dog at the time of the incident however did speak to the appellant and examined the dog.He had spoken with the parents of the little girl.He did not elicit information from the appellant about dog training or dog obedience classes attended by Finlay.He did not make enquiries with the dog's regular veterinary surgeon.
On the important issue of the proper and necessary control the sheriff records this of Mr Smith's evidence
"He initially thought about a Dog Control Order but the evidence of the witnesses and the photograph changed his mind. The dog was out of control and a danger to the public. He thought that the dog had bitten the child and that an order would not suffice. As it was new legislation he had to take legal advice. His view was that destruction was the only option. The dog's owner had already voluntarily used a lead and muzzle. He came to the view that a notice was unsuitable in that it was a dangerous dog and as a muzzle was open to human error it would not correct this. The dog was already on a lead at the time of the incident."
Pending the hearing of the appeal, the respondents, Scottish Borders Council by motion sought immediate implement of the sheriff's order for delivery of Finlay ad interim.The reasons put forward by the respondents in support of that motion were firstly, the need to minimise fear and alarm and danger to the public especially to the residents living close to the appellant's home and secondly, the respondents considered that there was a risk that Finlay might attack members of the public if he is not kennelled with the local authority.
The motion was opposed and having heard parties I refused the motion in hoc statu.A significant reason for refusing the order sought related to the undertakings given by the appellant in relation to Finlay which are reflected in the interlocutor of 23 April 2014.In particular, the appellant undertook:-
"(i)    that in the normal course the said dog will be walked outwith the town limits of Hawick;

(ii)     that the said dog must be muzzled and controlled by a lead or halter whenever outwith the family home at 68 Eildon Road, Hawick;

(iii)    that the said dog must be muzzled and controlled in such a manner that prevents any escape when in the garden of the family home at 68 Eildon Road, Hawick;

(iv)    that the said dog is controlled at all times by a responsible person;

(v)     that for any necessary short walk, the said dog will be directed away from the town of Hawick and will not be taken in the vicinity of Burnfoot School, Kenilworth Avenue."

Grounds of Appeal
The appeal proceeded on amended grounds of appeal which I summarise as follows:-
1. That the sheriff erred in law by failing to apply or apply properly the dual test required before an order for destruction could be made.The sheriff made an error in not addressing both legs of the test namely that the dog was both "out of control" and "dangerous".It is necessary that both parts of the test are met.
2. In approaching the matter of whether the dog was "out of control" reference is made to section 1(3) of the 2010 Act and the statutory definition.It was proper to construe the word "consistently" in section 1(3)(a) as requiring proof of more than one instance of the dog not being controlled.
3. The sheriff erred in determining that Finlay was "dangerous" in terms of section 9(1) of the 2010 Act.
4. Even if the test was met the sheriff failed to consider a dog control notice in terms of section 1 of the 2010 Act as an alternative to destruction.
5. The sheriff erred in law or acted unreasonably in imposing a disqualification order on the appellant in terms of section 9(5) of the Act.
6. That it was incompetent to grant interdict preventing the appellant from owning a dog.The court only had power to disqualify.
7. That the sheriff failed to undertake a proper balancing exercise as to the evidence before him.He placed too much weight on the evidence of Mr Smith the Dog Control Officer whose evidence was irrational and inconsistent.He failed to have regard to the evidence favourable to the appellant and his training and handling of the dog.The sheriff placed too much weight on the unfortunate outcome of the incident on 8 May 2013 and failed to have regard to other evidence relating to the appellant and the dog.
  
  Ground (6) was conceded by counsel for the respondents at the appeal hearing. Interdict is not a competent order under the 2010 Act. Otherwise, the respondents argued that the orders made by the sheriff were justified and should be adhered to.
  
  Appellant's Submissions
Mr Bannerman argued the appeal on behalf of the appellant.He helpfully provided written argument for the appellant.Accordingly, I do not propose to set out at length the submissions.
Mr Bannerman's principal submission is that the appeal be allowed; and that I should recall the sheriff's interlocutors of 4 and 17 March 2014 and dismiss the application with expenses in favour of the appellant.The appellant's subsidiary submission is this - even if the sheriff was correct to find that the dog was dangerous and out of control an order for destruction was not necessary and on the evidence available to the sheriff a dog control notice would be appropriate in terms of section 9(3) and (4) of the 2010 Act.Finally, if I am against him on both his primary and subsidiary submission I should, in any event, recall the interdict preventing the appellant from owning or keeping a dog as the interdict is incompetent.Section 9(5) allows the sheriff to make a disqualification order however there is no basis on the evidence to do so.
Before the sheriff could consider making an order for the dog's destruction it was necessary in terms of section 9 of the 2010 Act that he be satisfied as to the dual test that dog was both "out of control" and "dangerous".If the answer to either part of that dual test is negative then the appeal should be allowed and the application dismissed. Even if the answer is in the affirmative the sheriff ought to have considered a dog control notice as the alternative remedy.
In approaching the dual test the concept of being "out of control" is set out in section 1 of the Act and that again requires all parts of the test in section 1(3) to be met namely that the dog is not being kept under control "effectively and consistently" by the proper person and secondly that it's behaviour gives rise to (i) alarm or (ii) apprehensiveness on the part of any individual.It was not suggested that in the event of the first two parts of the test being satisfied that the child's alarm or apprehension wouldbe anything other than reasonable.
Mr Bannerman argued that the inclusion of the word "consistently" implies that there needs to be more than one incident before the first part of the "out of control" test is satisfied.It is necessary that the proper person is not keeping the dog under control effectively and consistently.Consistently should be given its ordinary meaning of "acting in the same way over time".I was referred to the well-known authority of Pepper v Hart 1993 AC 593. In construing a statutory provision reliance may be placed on extraneous material such as explanatory notes or guidance.In Pepper v Hart it was decided that regard could be had to such material where there was an ambiguity or the ordinary construction of a statutory provision led to an absurd result.It was submitted that no such ambiguity arose in relation to the definition of the word "consistently".Accordingly, in so far as the sheriff appears to have relied on the guidance issued by the Scottish Government he was wrong to do so and this discloses an error.It appears that the sheriff did consider the examples given in the guidance to the 2010 Act issued by the Scottish Government.In that guidance certain situations are discussed by way of example.The sheriff gives inadequate reasoning as to his determination that the statutory test was satisfied. In this case where there was only one incident in which Finlay appeared to be out of control.
Turning to the question of whether it had been established that Finlay was "dangerous" the sheriff erred.There is no definition of the word "dangerous" in the Act and there was no material before the sheriff as to how the term should be defined.Although the incident involving the child M.F. was serious with significant consequences the sheriff failed to make a finding that this was an exceptional case in which a single act alone was sufficient to hold that Finlay was of a dangerous disposition and thus warranted destruction.The sheriff erred in failing to consider properly whether Finlay had a dangerous disposition or if this incident alone was sufficient to point to that conclusion.The evidence of the dog control officer was to the effect that there had been no previous incidents and that following his examination of the dog and on handling the dog he considered it to be placid and friendly.I was referred to Briscoe v Shattock [1999] 1WLR 432 and the Scottish case of McDonald v Munro 1951 JC 8.
In considering the danger posed by Finlay the sheriff erred by placing weight on irrelevant considerations, in particular, the appellant's proximity to a primary school and nursery and secondly that Finlay is a dog which requires a lot of exercise.Accordingly, the sheriff was not entitled to be satisfied that the dual test of Findlay being "out of control" and "dangerous" was met. If the test is met the order of destruction was neither justified nor proportionate on the evidence.
The sheriff ought to have considered all options in particular a dog control notice as an alternative to an order of destruction.The sheriff's reasoning for failing to consider a dog control order was inadequate and to the effect that the sheriff had little confidence that the appellant would obtemper the terms of a dog control order.There was no evidence that the appellant had failed to obtemper an order or had breached an order in the past.There was no basis upon which the sheriff was entitled to take that view and the sheriff had failed to make a proper and objective evaluation of the efficacy of a dog control order.
Finally, it was submitted that the sheriff erred in making a purported disqualification order against the appellant by pronouncing interdict.A disqualification order is only competent if an order for destruction is made and if the primary appeal point is successful the purported disqualification order would require to be quashed.
In any event, the sheriff had no basis upon which to disqualify Mr Johnston.There was no evidence that the appellant had any history of failing to control animals.There was evidence that the appellant had together with the dog attended dog obedience classes.He had considered showing the dog.He was not present when the incident involving M.F. occurred.

Respondent's submissions
Mr Mohammed appeared on behalf of Scottish Borders Council the original applicant.At the outset Mr Mohammed conceded that interdict was incompetent and proposed an amendment to Crave 3.Reference to interdict should be deleted and replaced with the word "disqualify".Accordingly, he conceded that the appeal should be allowed to that limited extent but otherwise the appeal should be refused.Section 9(7)(c) of the 2010 Act permits variation of a term of an order on appeal.
Mr Mohammed made certain general observations to the effect that this was an appeal purely on a question of law.The shorthand notes had not been produced and therefore the appellate court was limited to the sheriff's findings in fact.This was essentially a discretionary decision by the sheriff on the facts and it is well known that there is limited scope for interference on appeal.
Turning to the first ground of appeal - whether on the evidence the dog could be classified as "out of control" in terms of section 1(3) of the 2010 Act?If the appellant's argument is correct then there must always be more than one incident before any dog could be classified as out of control and an order for control or destruction made.This cannot be correct and it is clear from the terms of section 1(1) that when consideration is being given to issuing a dog control notice one incident is sufficient.The words "effectively and consistently" simply relate to the efficacy of the control of the dog.I was informed that although the sheriff is criticised for having regard to the guidance issued by the Scottish Government the sheriff was, indeed, invited by both parties to do so (See page 14 of the sheriff's judgment).
The sheriff was correct to take the view that had the dog been effectively and consistently under control then the biting incident would not have happened.
Turning to the question of what constitutes "dangerous".The evidence which points to danger is the evidence of what happened on 8 May involving the child.It was not argued before the sheriff that "dangerous" must relate to the character or disposition of the dog.The two authorities referred to by the appellant of Briscoe and McDonald were not before the sheriff.McDonald confirms that a one-off incident is capable of characterising a dog as dangerous, even though no order was made in that case.
The sheriff clearly considered a dog control notice as an alternative to a destruction order.His reasoning can be found at page 16 of the judgment.The sheriff gave considerable weight to the evidence of the Dog Control Officer, Mr Smith and gave three factors which he considered to be important firstly, the unprovoked attack by the dog whilst nominally controlled by way of a leash;secondly, proximity to the primary school and nursery and thirdly that Finlay was an energetic dog who required a lot of exercise.The sheriff also decided that the attitude of the appellant was important. The sheriff considered that the appellant was, to some degree, in denial and, of course, as "the proper person" he is responsible for the people to whom he chooses to delegate control of the dog. Accordingly, there was no error in law and his reasoning cannot be impugned.
With regard to the disqualification order the sheriff was entitled to base his view on his impression of the various witnesses.He was entitled to take the view that the appellant was in denial about the incident and may not obtemper a dog control notice.This must undermine his suitability to be a dog owner.Accordingly, there was a basis, albeit, a narrow one for the sheriff to make the disqualification order accepting entirely that the disqualification order depended on there being a destruction order.
Accordingly, I was asked to allow the appeal to the limited extent of varying the order for disqualification otherwise the appeal should be refused and expenses should follow success.I was asked to sanction the cause as suitable for employment of counsel for the respondent.This is an important matter.There had been no reported cases on the interpretation of the 2010 Act and the outcome of the case is of clear importance to local authorities in the exercise of their responsibilities under the Act.

Appellant's reply
Mr Bannerman took no issue with the suitability of the cause for the employment of counsel.If the appellant is found liable in expenses this should be as an assisted person.
Turning to the definition of "out of control" and "dangerous" care should be taken about placing too much reliance on section 1(1) of the 2010 Act.There is a clear distinction between section 1 and section 9.Section 1 relates solely to dog control notices whereas section 9 governs the exercise by the court of its powers under the 2010 Act.A straightforward interpretation of the term "out of control" requires that the dog is not being kept under control effectively and consistently.The use of the term "consistently" must point to a course of conduct.

DECISION
The context to this appeal is, sadly, an incident which caused a little girl serious injury.Although not part of the appeal, I have seen the photographs of her injuries.The outcome of the appeal will not change or minimise her injuries.The purpose of the appeal is to decide whether, on the evidence available to him, the sheriff correctly applied the statutory test and determined the correct method of controlling the risk posed by the dog, Finlay.
The principal and core ground of appeal relates to the statutory test whether the dog was both "out of control" and "dangerous".Standing the terms of the 2010 Act it is necessary to address that test. Section 9(1) is in the following terms:-
"9. Dangerous or unresponsive dogs
1. This section applies where it appears to an authorised officer that, in relation to a dog which is out of control and dangerous, serving a dog control notice (or further dog control notice) would be inappropriate."
In these circumstances the local authority may apply for an order for the dog's destruction.Accordingly, the sheriff requires to address that requirement.The test is an objective one.If a dog is out of control and dangerous the sheriff must consider the local authority's application for destruction of the dog.By virtue of sub-section 3 if the sheriff declines to make an order for destruction the sheriff may remit the case to the local authority for a dog control notice and in so doing the sheriff is to direct that any such notice includes steps to be taken by the owner [P] with a view to controlling the dog.Only if the sheriff decides to make an order for destruction under section 9(2) may the sheriff make a further order disqualifying the dog's owner [P] from owning or keeping a dog for such period as the sheriff thinks fit.
Section 1 which deals with dog control notices makes it clear for the purposes of the 2010 Act a dog is "out of control" if -
"1(3)
1. It is not being kept under control effectively and consistently (by whatever means) by the proper person;
2. It is behaviour gives rise to –
  1. alarm, or
  2. apprehensiveness, on the part of any individual and
3. The individual's alarm or apprehensiveness is, in all the circumstances, reasonable."
Section 1 also gives further guidance as to what constitutes apprehensiveness and sub-section 5 makes it clear that references to the "proper person" in relation to any dog are to its owner.
For the purpose of this appeal the live issue with regard to the control of the dog relates solely to section 1(3)(a).Namely, - a dog is out of control if it is not being kept under control effectively and consistently (by whatever means) by the proper person.The sheriff gives his reasons on page 15 of his note. The sheriff had no difficulty in finding that the test is met even on the evidence of K.J and that the dog was not being controlled effectively and consistently due to K.J. not paying attention. She was listening to music and talking to her boyfriend on the phone.However, the sheriff goes further and based on the evidence of Mr F and Mr Elliot he is able to make Finding in Fact 2 to the effect that the dog was able to jump up on the child knocking her to the ground, a finding which clearly points to lack of control.
I have little difficulty in accepting that the sheriff had ample material and findings in fact to entitled him to conclude that the dog was "out of control" when it bit the child.The legislation is designed to promote the important objective that dogs be kept under control not only to protect the safety of the public but to prevent people from becoming alarmed or apprehensive by dogs not properly controlled.
The use of the words "effective" and "consistent" appear to me simply to reinforce the duty on the owner or proper person that the manner and method of controlling the dog must have the effect of keeping the dog controlled so that the dog cannot bother, threaten or injure.The means of control must prevent the dog or the dog's behaviour causing alarm or injury or the apprehension of such injury.Thus, if a dog is in a garden he must be prevented from escaping by reliable and effective means.That may involve the physical design of the garden and fencing or may relate to the manner of the dog's tethering.Just as a car driver is or ought to be in control of the vehicle, that control ceases to be effective control if the driver does not keep a proper lookout or is distracted by a phone or whatever within the car.The word "consistently", in my view, does not imply anything other than the control being reliable when looked at objectively.It is indeed difficult to imagine that the sheriff would conclude anything other than the dog being out of control from his findings relating to the incident on 8 May last year.
The second part of the requirement is that the dog is "dangerous".The two authorities to which I was referred are Briscoe an English case and McDonald v Munro, a Scottish Criminal Appeal.As some reliance was placed on these authorities it is only proper that I say something about them.The facts of McDonald v Munro are at least superficially similar to the present case.A child of four sustained serious injury to her left cheek due to being bitten by a dog.The owner of the dog was prosecuted, the allegation being that the accused was the owner of a dog which is dangerous and not kept under proper control.On appeal the conviction was quashed and no order was made at all - not even one to keep the dog under control far less for the dog's destruction.In giving judgment the Lord Justice General (Cooper) observed that there was nothing in the facts which disclosed "that the dog's character, disposition or propensity was of the savage, ferocious or dangerous character".Adopting terminology normally used in cases of assault the Lord Justice General analysed the circumstances as being a good tempered peaceful animal momentarily exasperated or frightened or misled into committing an isolated act which may have been unintentional or accidental – or at worst in the dog's eyes he was serious provoked "by an apparent attempt to interfere with his bone". In that case the lack of evidence as to the dog's character or disposition being dangerous led the court to the conclusion that it was a misdirection to classify the dog as dangerous.Of course, the case related to a prosecution under the Dogs Act 1871;it is a criminal matter and in the current case there is no question of provocation. However, in common with McDonald v Munro the precise circumstances of the attack are somewhat unclear.Briscoe was a prosecution under the Dogs Act 1871.The term dangerous is not defined.In Briscoe Sedley, J stated: "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."
Both cases involve criminal prosecution under the Dogs Act 1871.Both cases emphasis the need to have regard to the facts and circumstances of the case.In McDonald v Munro the Lord Justice General accepts that "a single act may in some cases reveal a dangerous disposition".In the current case the sheriff requires to apply the provisions of legislation relating to the control of dogs.The legislation is recent and the remedies for control and destruction are civil remedies.In applying the legislation to the facts before him the sheriff in my view was entitled to conclude that this dog was dangerously out of control in a public place.That is amply evidenced by the way the dog behaved towards the child and the fact that it was not controlled by its handler.It follows that the principal argument on behalf of the appellant fails and the first three grounds of appeal fall to be rejected.
Nevertheless it is important to look at the remaining grounds of appeal.In concluding that the dog was out of control and dangerous the sheriff failed to consider properly a dog control notice as an alternative to destruction.In doing so the sheriff failed to undertake a proper balancing exercise as to the evidence before him and placed far too much weight on the evidence of Mr Smith the Dog Control Officer whose evidence was both irrational and inconsistent.The sheriff's reasoning can be found at page 16.The evidence of Mr Smith, as I have indicated, is narrated by the sheriff in his judgment.It is clear from the sheriff's narration of that evidence that Mr Smith effectively excluded proper consideration of a dog control notice once he learned that a child had been injured and he saw the photograph of her injury and the sheriff records his evidence in this way:-
"His view was that destruction was the only option. The dog's owner had already voluntarily used a lead and a muzzle. He came to the view that a notice was unsuitable in that it was a dangerous dog and as a muzzle was open to human error it would not correct this."

In my view that paragraph discloses that the dog control officer had fettered his own discretion as to the proper method of control. To exclude a dog control order because it was open to human error undermines the purpose and efficacy of dog control orders. Such orders require the owner or proper person to undertake measures with regard to the control of a dog which may include muzzling. There was no finding that the owner had failed to obtemper an order relating to the control of the dog. Nor was there evidence that the appellant had indicated an unwillingness to comply with such an order. There was some vague evidence about the dog not being muzzled when it ought to have been in the aftermath of the incident. However, the sheriff makes no finding about that. Reliance on Mr Smith's evidence appears to have led the sheriff into a similar error in deciding that the appellant would not obtemper the terms of a dog control order. The sheriff forms the impression that the appellant was in denial as to what had occurred. It appears that there was some considerable confusion as to what had occurred at the time of the incident. The appellant was not present at the time of the incident. He therefore relied on the account given by his daughter which proved to be incorrect. By the time the proof began the appellant accepted that the dog had caused the injury to the child by biting. The sheriff has nothing adverse to say about the appellant and acknowledges that it is the owner's responsibility to obtemper the terms of any order. The sheriff, of course, is entitled to have some concern about the involvement of K.J. in walking and controlling Finlay. Accordingly, it appears that the sheriff placed too much reliance on the evidence of Mr Smith, a witness who ought to have made an objective risk assessment as to the correct level and method of control and management of the risk which the dog presented. It appears from the evidence recorded that he excluded a dog control order for a perverse reason namely, that it raised the prospect of human error and that he failed to maintain an open and objective mind as to the question of control. Mr Smith had assessed the dog as friendly and good tempered. He had not interviewed the appellant's daughter as to her control of the dog. It is clear that her lack of control at the critical time was an important factor. The sheriff has little if any material on which to base his opinion of the appellant's compliance with any order. There are no findings in respect of the appellant's approach to compliance or non-compliance with an order. The narration of evidence discloses nothing adverse in that regard. Accordingly, I am persuaded that the sheriff's reliance on the evidence of Mr Smith and his approach to the appropriate order discloses an error and this ground of the appeal should be allowed.
It follows therefore that the appeal should be allowed as to the order disqualifying the appellant from owning a dog.On any view the sheriff's reasoning on disqualification appears inconsistent with the evidence.The sheriff is correct to state that there is a significant public interest in ensuring that dogs are controlled.The object of the legislation is to deal with irresponsible dog ownership.Looked at objectively there is no evidence adverse to the appellant and his control and care of dogs.The main criticism to be made of the appellant is that he accepted what his daughter said about the incident.On the other hand, there is clear evidence that the appellant had a responsible attitude to being a dog owner.He took the dog to training and obedience classes and there had been no previous incident involving Finlay.The evidence of Mr Smith indicates that the dog was biddable and friendly.The consequence of the sheriff's decision on disqualification would mean that the one person who can be criticised for failing to control the dog namely the appellant's daughter, living in the family with the appellant would be entirely free to have a dog in the household whereas her father the appellant who had no direct involvement in the incident would be prohibited from keeping a dog for reasons that are not based on fact but speculation.That would lead to an absurd outcome.Perhaps, the "household" dimension to dog ownership has been overlooked when the legislation was drafted.
It follows that careful consideration has to be given to the proper and effective control of the dog.I propose to make a direction that the local authority serve a dog control order which will impose an obligation on the appellant and any person to whom the appellant delegates control of the dog to ensure that the dog is controlled by a lead and muzzled at all times when outwith the house.It is open to the respondents to consider other conditions which they may wish to attach to the order.
It is important to record that this appeal proceeds on a point of law.The outcome of the appeal which is to reverse the order for destruction and substitute a control order does not derogate from the very significant consequences for M.F. following the incident in Kenilworth Road.This will be a very anxious matter.The measures to be put in place, especially the imperative that the dog must be muzzled at all times are designed to meet the need to reassure the public and the family of M.F. as to safety.
Finally, on the matter of expenses, this will follow the outcome of the appeal and I will make an award of expenses in favour of the appellant in respect of the proceedings before the sheriff and on appeal.

(signed) Mhairi M Stephen

SCOTTISH BORDERS COUNCIL V MR JOHN JOHNSTONE

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