Dog whistle: A warning call for all dog owners

A dog, it is said, is man’s best friend – but it seems he is not a friend of the Administrative Court. Their recent decision (Royal Mail Group Ltd v Richard Watson [2021] EWHC 2098 (Admin)) potentially significantly widens criminal liability for anyone who leaves their dog unattended at home with access to the letterbox if the dog takes a nip at the postman.

The Act

The Dangerous Dogs Act 1991 was enacted in response to public concerns about uncontrolled dogs attacking people in public – and, in particular, certain breeds of dog. The Act was amended by s.106 of the Anti-Social Behaviour, Crime and Policing Act 2014, so that the offence can now be committed in a private as well as a public place, including someone’s own home. The amendment includes a ‘householder defence’ which enables a dog owner to avoid liability if the person injured is a trespasser – similar to the ‘householder defence’ in Section 76 Criminal Justice and Immigration Act 2008 dealing with self-defence in relation to assault allegations. Both enactments are, perhaps, rather too vague in their scope – and as a result may lead to injustice. Certainly, Popplewell J was not a fan of the unamended legislation, describing it in Rafiq v DPP (1997) WL 1106030 as: “a piece of Delphic legislation which is even worse than some of the Directives coming out of Europe”.

The initial decision

The decision in Watson clearly envisages the definition of ‘trespasser’ to be very narrow – and does not include anyone putting something through your letterbox.

The facts of Watson are all too common. Mr Watson had left his dog at home while he went to work. The dog was free to roam around the house, including the hallway. The postman was the regular one – who knew that Mr Watson had a dog. On the day in question, on the findings of the District Judge who heard the case, the delivery to a neighbour caused that dog to bark, which set off Mr Watson’s dog. The postman was therefore aware than the dog was at home and in the house. Although provided with a ‘posting peg’ for use at houses where dogs lived, the postman chose to put the post through the letterbox with his hand – and got bitten.

At trial, the District Judge concluded that the householder’s consent for use of the letterbox was dependent on anyone using it to exercise ‘due diligence’ to avoid injury to themselves. Given that the postman knew a dog was in the house and chose, for no good reason, not to use the posting peg provided by Royal Mail, he had not exercised due diligence, had thereby exceeded the permission implicitly granted by the householder – and was therefore a trespasser for the purposes of the Act. As a result, the District Judge acquitted Mr Watson.

The decision on appeal

This approach did not find favour with the Administrative Court, who considered the matter following an appeal by way of case stated by Royal Mail. The court concluded that there were no limitations on a householder’s consent to the use of the letterbox – and the actions of the user were irrelevant to the issue of the criminal liability of the householder. This raised potentially significant issues about the circumstances in which someone could be deemed to be a trespasser. What of the neighbour’s child who kicks a ball over the fence and climbs over to retrieve it – when nobody is at home other than the dog in a secure garden?

This decision is the first to consider the amended version of the legislation – and potentially significantly widens the criminal liability of dog owners. In its submission, Royal Mail relied on a decision of Davis J, who granted a Voluntary Bill of Indictment following a successful application to dismiss in the Crown Court in very similar circumstances (R v Goddard, 29 May 2020). This case remains to be heard in the Crown Court – and the trial judge’s directions to the jury, and the verdict itself, will be of significant interest.

In their application for the Voluntary Bill, Royal Mail cited, unusually, extracts from Hansard – in which some backbench MPs seemed to think that the amended legislation made it mandatory for householders with dogs to attach wire guards to their doors, or in some other way prevent dogs from having access to the letterbox. Whilst it was open to Parliament to enact such a requirement, it is to be observed that they did not – and any view that this is mandatory is misconceived. It does appear, however, to have influenced the Administrative Court in Watson, as did the long title of the 2014 Act, which states, ‘to make further provision for securing that dogs are kept under proper controls’ (sic).

The judgment

In her judgment, Carr LJ said,

“As confirmed in the authorities, liability for the simple offence under s. 3(1) is strict. It follows upon proof of i) ownership (or charge) of a dog ii) that is dangerously out of control. The liability thus arises out of a prohibited state of affairs. Liability for the aggravated offence under s. 3(1) is also strict but additionally requires proof of injury whilst the dog is dangerously out of control. The requirement that the dog is dangerously out of control is satisfied by the very fact that the dog bites a person. It is not necessary to establish that the owner knew or should have anticipated that the dog would be dangerously out of control in the circumstances arising. Whilst liability under s. 3(1) is strict, it is not absolute. There must be 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.”

The implications

It would seem that the Court considered allowing a dog access to the letterbox to be a sufficient act or omission to establish liability. This runs the risk of turning what is clearly an offence of strict liability into one of absolute liability – which is of concern, given that, if injury is caused, the maximum sentence is one of 5 years’ imprisonment.

The primary significance of this decision is that it appears to move away from the principle that the actions of a third party could, in effect, break the ‘chain of causation’ – even if the actions of the third party were lawful. This was the basis for an appeal being allowed in R v Robinson-Pierre [2013] EWCA Crim 2396, in which the Court of Appeal (considering the unamended legislation) decided that there must be some causal connection between having control of the dog and the prohibited state of affairs. In that case, the police, breaking down a door when executing a search warrant – which allowed the dog to escape and bite police officers – broke the causal connection and, as the trial judge had thereby misdirected the jury, the conviction was quashed. It is difficult to reconcile this decision with the recent one, which clearly indicates that the actions of the third party are irrelevant. It will be of considerable interest to see how Royal Mail approaches its prosecution policy in light of the ruling in Watson. It is of note that both Watson and Goddard are private prosecutions following a police/CPS decision not to prosecute or, in the case of Mr Watson, to resolve the matter by way of a Community Resolution, requiring him to fit a guard around his letter box, which he did before Royal Mail prosecuted him. I strongly suspect that Royal Mail will feel fortified by the decision in Watson – and we shall see more (otherwise entirely law-abiding) dog owners being taken to court.

Simon Spence QC FRSA is a silk with Red Lion Chambers: redlionchambers.co.uk