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(Updated 7/9/01)

'Inappropriate' use of DDA sees dog found guilty


A GERMAN Shepherd was convicted by magistrates of being 'dangerously out of control in a public place' under Section 3 of the Dangerous Dogs Act for an alleged incident which took place on private property and which should have been dealt with under the 1871 Dogs Act.

Elaine Marks lives with her partner and her rescued GSD Bruno in a Victorian house in Ealing, west London. The house is converted into four flats, two at ground floor level and two at first floor level. To gain access to one's flat, each resident has to enter via a double front door and then into a hallway, and then into one's own flat via an individual front door.

Bruno is a rescued dog and was subjected to abuse in the past. As he is somewhat nervous and wary of people, Ms Mark muzzles him when she takes him for a walk.

The alleged incident occurred on September 28th 2000. Ms Mark's partner accidentally left the flat front door open and Bruno wandered into the hallway. Ms Marks heard screams from her neighbour, Miss Tracey Keithley and hurried out to see what was wrong. Miss Keithley screamed that Bruno had grabbed her arm and damaged the leather coat she was wearing. Miss Marks brought Bruno inside and went to Miss Keithley's flat to apologise. Whilst there, she could not see any damage to the leather coat. Miss Marks alleged that Tracey Keithley's boyfriend became very abusive.

The police called on Miss Marks a few days later in connection with the alleged incident and she made a statement. Soon afterwards, a summons arrived charging Miss Marks under Section 3 of the Dangerous Dogs Act, for allowing Bruno to be 'dangerously out of control in a public place'. Miss Marks contacted the Fury Defence Fund for help and support and received a home visit from FDF members Juliette Glass and Christine Crichton. She engaged the services of well-known solicitor Trevor Cooper.

The case finally came to court 11 months later on August 6th 2001, before a bench of three magistrates at Ealing Magistrates' Court. Miss Marks was represented in court by defence barrister Glen Parsons.

Inappropriate

Mr Parsons immediately made an application to the bench saying that the matter should be stayed as an Abuse of Process because of the "totally inappropriate" use of the DDA. Mr Parsons pointed out that there had been numerous Home Office guidelines that the 1871 Dogs Act was to be used for minor dog control incidents, and suggested that the use of the DDA in this case prevented the defendant from bringing evidence as to the dog's character, adding that it was, on the prosecution's part, "a sledgehammer to crack a nut."

The Prosecution barrister argued that it was down to the Crown Prosecution Service to determine which legislation they would use. The bench retired for a short time to consider this matter and returned stating: "It is for the Crown to bring a case and determine which charge, it is not for the court to fetter that right and we are satisfied that there has been no manipulation."

The case proceeded, with Tracey Keithley giving evidence, stating that the bite by Bruno had not broken her skin, but left a large red mark that developed into a painful bruise.

Under cross-examination, Miss Keithley became visibly irritated, saying that she was "surprised" that her leather jacket had not been damaged, although the red mark was seen by a policeman. Twice Miss Keithley interjected across Mr Parsons saying: "I suffered psychological damage."

When asked about the lack of medical treatment, Miss Keithley said she was "extremely nervous" entering her home. "As far as I was concerned, I wanted the dog out of the house."

Mr Parsons: "So, of course, make an allegation like this and it gets the dog out of the house. I would suggest it was extremely minor... I have to say you are exaggerating to achieve your aim to have the dog removed out of the house."

Miss Keithley's partner Roy Bagshaw gave evidence, but could not seem to recall whether it was Miss Keithley's right or left arm, which had been grabbed by Bruno.

The next prosecution witness, PC Nolan from Acton Police Station read from his notes of the incident, which prompted a query from Mr Parsons that the defence had been seeking the notes as evidence and had been told they were lost. There was some dispute as whether PC Nolan cautioned Miss Marks when he interviewed her on two occasions, which caused PC Nolan to say that the "whole case file was lost." The Prosecution interjected quickly to say that the officer probably couldn't deal with that particular point.

Mr Parsons attempted to halt proceedings, saying: "My submission is there is no case to answer against Miss Marks. The only person said to be in the hallway at the time was Peter Young, nobody seems to be saying that she was in charge of the dog at the time... there are inconsistencies as to where the injuries were, Miss Keithley said on the left arm, Mr Bagshaw on the right arm. Documents, despite innumerable requests to the police have not been presented. There is no case to answer."

The prosecution responded that, under the DDA, "...the burden of proof falls on the defendant, all the Prosecution have to do is prove she was the owner or in charge of the dog. The Prosecution have established a prima facie case at this stage."

The chairman of the Bench said that on the evidence they had heard, there was a case to answer and that it would proceed.

Elaine Marks gave evidence in her defence, outlining how she heard Miss Keithley scream and that she did not hear Bruno bark during the alleged incident. "I went up (to Miss Keithley's flat) to see if I could help. I have been bitten by dogs, the first thing you do is have tetanus. I did offer to buy her a coat if it was damaged but the offer was declined. I never saw the coat. I saw a bruise on her arm. It was not a dog bite, it was a bruise, it was on the left arm, not the right arm. They don't like dogs. The dog is mine, he is protective of me, I can't deny that."

Miss Marks added that the only way to gain access to each flat was via the shared hallway.

Mr Parsons, for the defence, summed up saying that the Prosecution had failed to discharge their burden that the dog was dangerously out of control and that there was no evidence of an attack whatsoever. "We have seen no clothing, we have seen no bite marks, we have seen nothing.... If indeed, the bruise was caused by this dog, we don't know if this was the case, we are entitled to see some medical evidence. Miss Keithley said she wanted the dog out of the house. She didn't report the incident to the police on the same day....

Public place?

"The issue that remains, was this (the hallway) a public place? This is not a place where you and I can go; this is a place where you have to have keys. In my submission is NOT a public place in any event."

The bench retired for twenty-five minutes to consider their evidence. The Chairman of the bench made a short, curt statement, saying: "Miss Marks accepts she was in charge of the dog. This incident happened in a public place. We find Miss Marks guilty of being the owner of a dog dangerously out of control in a public place."

The magistrates handed down a Conditional Discharge to Miss Marks, ordering her to pay 100 to Miss Keithley and 250 costs. Bruno was ordered to be on a muzzle and lead at all times in a public place."

Juliette Glass of the Fury Defence Fund was in court with her colleague Christine Crichton to offer support to Elaine Marks. Both said they were "astounded" at the Bench's decision.

Christine Crichton was involved in a case which bore striking similarities to that involving Bruno, concerning Peter Fellowes' Rottweiler 'Louis'. Mr Justice Clark who tried the case ruled that the 1991 Dangerous Dogs Act only applied where dogs were "dangerously out of control in a public place." In this case, the attack took place in the front garden of Mr Fellowes home, which could not be categorised as a public place. "Parliament has expressed this offence in narrow terms and it is not wide enough to include those events which occur in places to which people are invited to attend as visitors whether by express or implied licence."

Mr Fellowes' appeal against conviction was allowed; the conviction was quashed, along with the magistrates' order for the destruction of Louis.

Christine Crichton told OUR DOGS: "When a front garden is not regarded as a public place, how on earth can the hallway of a private Victorian house - albeit containing four flats - possibly be regarded as a public place. We are very disappointed that Elaine Marks has been found guilty, the only consolation being that she was given a Conditional Discharge and has not got a criminal conviction."

It is understood that Miss Marks may lodge an appeal to Crown Court against her conviction and that representations are to be made to the Home Office regarding the inappropriate use of the DDA by the Crown Prosecution Service.