THE USE of Section 3 of the Dangerous Dogs Act to prosecute a minor biting offence was ruled inappropriate by magistrates in a recent court hearing of an alleged incident, involving a Lurcher.

In summer 2001, Brindle, owned by Jamie Prince of Lyme Regis, Dorset, was being walked along the beach by family friend Simon Rosier. Another dog - described as a Boston terrier - was walking past with its owner and then, according to Mr Rosier, attacked Prince. The terrier’s owner intervened and claimed that he was bitten by Brindle. The owner reported the matter to the police and Mr Rosier was charged under Section 3 of the DDA, as he was in charge of Brindle at the time, for ‘allowing’ the dog to be “dangerously out of control in a public place”.

Mr Rosier contacted the Fury Defence Fund and appointed solicitors Milne and Lyall of Bridport. They in turn appointed barrister Owen Jenkins to act for Mr Rosier in court.
The matter came before local magistrates on May 1 this year.

Mr Jenkins addressed the court saying: “The key issue was - could the defendant have reasonably expected anyone to be apprehensive, or for Brindle to be a danger to members of the public, given his past excellent behaviour?”

The central premise of Mr Jenkins’ argument was crucial to the case, being that could anyone reasonably have expected to be bitten? This, in turn, reflected on the Crown Prosecution Service’s decision to prosecute yet another minor biting incident under the DDA, instead of under the less draconian 1871 Dogs Act.

The prosecution, in turn, cited a High Court Ruling made by Lord Justice Kennedy saying: “There must have been a moment, even if it was only a second before the person got bitten, when one could apprehend that someone would have been bitten.”

Mr Jenkins countered this argument by quoting a ruling by Lord Justice Auld: “Lord Justice Kennedy must be wrong, because if he is correct whenever someone is bitten, a case could be brought under the 1991 Dangerous Dogs Act.”

After hearing all the evidence and legal argument from the higher courts of justice, the magistrates retired and deliberated for one and a half hours, during which time both the Clerk of the Court and both Counsels were called for assistance. They returned to deliver their verdict which was read out: “Brindle was in a public place, there is no dispute about that, Brindle was not under direct control, but we do not believe under the interpretation of the law that Brindle was dangerously out of control. Therefore, the case is dismissed.”

Jamie Prince was delighted and much relieved at the outcome, as was Simon Rosier, the defendant. Jamie praised her solicitors and Mr Owen Jenkins for his superb legal ‘footwork’. She also thanked the Fury Defence Fund for all its support during this ordeal.

Although rulings made in magistrates’ courts cannot set a legal precedent, the argument put forward so eloquently by Mr Jenkins could well be used as a line of defence argument in future cases of this nature.