Robinson-Pierre v R [2013] EWCA Crim 2396 (20 December 2013)

Police forced entry into Mr Robinson-Pierre’s home, releasing his pit bull which attacked officers in the street. Convicted under the Dangerous Dogs Act 1991, he appealed. The Court of Appeal held section 3(1) creates strict but not absolute liability, requiring some causal act or omission by the owner, and quashed the convictions.

Facts

On 22 March 2012 police officers attended the appellant’s home at 36 Albert Square, London, to execute a search warrant. Using an enforcer, they broke open the front door of the locked private house. A pit bull terrier belonging to the appellant descended from the first floor and attacked PC Corderoy inside the premises. The dog then attacked PC Merritt in the garden area and subsequently attacked PCs Bush, Garrard and Bones as events moved out into the street, a public place. All officers suffered injuries.

The prosecution accepted that the house was locked, that the dog was effectively confined inside before police entry, and that the first attack occurred on private property. The indictment was amended to four counts under section 3(1) and (4) of the Dangerous Dogs Act 1991, each relating to a different injured officer. Count 1 (relating to PC Merritt) was withdrawn at half-time on the basis that the attack occurred in a private, not public, place. The jury convicted on counts 2–4 concerning the attacks in the street. The appellant did not give evidence.

The trial judge directed the jury that the offence under section 3(1) was one of strict liability and that the prosecution did not need to prove any fault, act, or omission by the appellant in relation to the dog’s presence in a public place or its being dangerously out of control.

Issues

The central legal issue was the nature and extent of liability under section 3(1) of the Dangerous Dogs Act 1991:

• Does section 3(1) impose strict liability merely on proof that the defendant is the owner (or in charge) of a dog which is dangerously out of control in a public place (and causes injury in the aggravated form), regardless of how it came to be there?
• Or must the prosecution prove that the defendant, by some voluntary act or omission, caused or contributed in more than a minimal way to the dog being dangerously out of control in a public place?

A linked issue was whether the judge had misdirected the jury by removing from them any consideration of the appellant’s acts or omissions in relation to the dog’s escape and continued presence in the street.

Judgment

Statutory framework and previous case law

The Court analysed sections 1, 3 and 10 of the Dangerous Dogs Act 1991. Section 3(1) provides that if a dog is dangerously out of control in 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, an aggravated offence, under this sub-section.”

Section 10(3) defines when a dog is regarded as “dangerously out of control” and adopts an objective test based on grounds for reasonable apprehension of injury.

The Court reviewed the earlier authorities:

• Bezzina, Codling & Elvin [1994] 99 Cr App R 356, where the Court of Appeal held that section 3(1) created a strict liability offence and imposed an objective standard, but specifically reserved for another day the problem of escape caused solely by a third party (for example a burglar).
• Rafiq v Folkes and Gedminintaite and Collier, which addressed the meaning of “dangerously out of control” and the relationship between injury and reasonable apprehension.
• Greener v DPP (section 3(3)), where the Divisional Court held that “allows” does not import mens rea but requires some act or omission contributing to the dog entering the prohibited place, while acknowledging that intervention by a third party might, on different facts, excuse liability.

The Court also considered more general principles of criminal responsibility discussed in authorities such as Sweet v Parsley, and comparative reasoning on strict and absolute liability including Kilbride v Lake, Strowger v John and the Supreme Court’s analysis of causation in aggravated statutory offences in Hughes (section 3ZB of the Road Traffic Act 1988).

Strict liability and state of affairs offences

The Court confirmed that section 3(1) is an offence of strict liability, in the sense that no mens rea is required regarding the dog’s being dangerously out of control in a public place. However, it rejected the proposition that this necessarily made the offence one of absolute liability, where no causal contribution by the defendant is required.

The Court accepted that Parliament can, in principle, create “state of affairs” offences where criminal liability attaches merely to the existence of a prohibited situation, irrespective of causation, citing discussion of cases such as Larsonneur and Winzar v Chief Constable of Kent. The real question was whether Parliament intended section 3(1) to be such an offence.

Construction of section 3(1)

Analysing the structure of section 3 as a whole, the Court placed particular weight on:

• The dual liability under section 3(1) of both the owner and the person “for the time being in charge” of the dog, and the specific defence in section 3(2) for an owner not in charge who had reasonably entrusted the dog to a fit and proper person.
• The use of “allows” in section 3(3), which, although not importing mens rea, nevertheless assumes some act or omission by the person in charge leading to the dog’s presence in the prohibited private place.

From this, the Court inferred that Parliament did not intend to impose liability entirely irrespective of the owner’s or handler’s capacity to control the dog. Instead, the statutory scheme assumed that someone would normally be in charge of the dog and in a position to exercise control.

The Court concluded:

“There must, in our view, be some causal connection between having charge of the dog and the prohibited state of affairs that has arisen. In our view, section 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.”

Thus, while no mental element is required, liability under section 3(1) is not absolute. The prosecution must show that the defendant’s act or omission, even if entirely blameless, made a more than minimal contribution to the dog being dangerously out of control in a public place.

Application to the facts and misdirection

The Court summarised the key facts relevant to causation:

• The dog was securely enclosed within a locked house.
• The police, acting lawfully under a warrant, broke open the door, allowing the dog to escape.
• The dog initially attacked within the house and garden and then continued its attack as officers retreated into the street.

These facts squarely raised the question whether the appellant had done or omitted to do anything that contributed, in more than a minimal way, to the dog being dangerously out of control in a public place.

However, the trial judge had directed the jury that the offence was purely one of strict liability and that it was sufficient to prove that:

“the defendant is the owner of the dog: that is accepted; secondly, that the dog was dangerously out of control; and, thirdly, that the place that the dog was out of control was a public place, and for there to be an aggravated offence there must also be proved some injury.”

He further told the jury:

“There is no requirement … for the prosecution to prove that the dog owner was at fault in any way, either in opening the door to let the dog out or letting go of his lead or not tethering him properly or the muzzle being inadequate in some way.”

and

“If it does get out and does go into a public place and behave like that, whether through the owner’s fault or failure or through no fault of the owner but through the inaction or action of somebody else, it simply does not matter, if it is your dog and if it is dangerously out of control in a public place then you are criminally responsible for that.”

The Court held that these directions effectively withdrew from the jury the question whether any act or omission by the appellant had caused or permitted the dog to be dangerously out of control in a public place. This was an error of law, because, on the Court’s construction of section 3(1), proof of such causal contribution was required, albeit without any need to prove fault.

The Court accepted that, if properly directed, the jury might well have concluded that the appellant’s failure to attempt to control the dog after its escape (when he appeared in the doorway during the attack in the garden) contributed to the prohibited state of affairs. But the jury had not been asked to consider liability on that basis, and the appellant had not had the opportunity to give evidence addressing that specific allegation.

Accordingly, the Court stated:

“We cannot in these circumstances be sure that the verdicts of the jury were safe.”

Implications

The decision clarifies the nature of liability under section 3(1) of the Dangerous Dogs Act 1991. The Court of Appeal confirmed that:

• The offence is one of strict liability: the prosecution need not prove fault or mens rea regarding the dog’s behaviour or its presence in a public place.
• Nevertheless, liability is not absolute; the prosecution must prove that the defendant, as owner or person in charge, by some voluntary act or omission (even if blameless) made a more than minimal causal contribution to the dog being dangerously out of control in a public place.
• Where the prohibited state of affairs arises solely from the act of a third party, without any causal act or omission by the owner or person in charge, section 3(1) will not be satisfied.

The case also underscores the importance of accurate jury directions where strict liability offences intersect with questions of causation and third-party intervention. Trial judges must distinguish between the absence of any requirement of mens rea and the continuing need to prove that the defendant’s conduct, in a factual sense, contributed to the prohibited situation.

Finally, the case refines the earlier understanding from Bezzina and related authorities, resolving the hypothetical problem of third-party intervention that those cases had left open and providing clearer guidance for prosecutions under the Dangerous Dogs Act.

Verdict: Appeal against conviction allowed; the convictions under section 3(1) and (4) of the Dangerous Dogs Act 1991 were quashed.

Source: Robinson-Pierre v R [2013] EWCA Crim 2396 (20 December 2013)