A Royal Mail postal worker had his finger bitten by a dog as he was posting mail through the letterbox of the dog owner’s house. The dog owner was prosecuted for being the owner of a dangerously out of control dog which had injured the postal worker, contrary to section 3(1) of the Dangerous Dogs Act 1991. The district judge found that the dog had barked, that the postal worker had not used a “postal peg” to put the mail through the letterbox, contrary to the requirements of Royal Mail when for postal workers when posting mail into homes where dogs were present, that accordingly the postal worker had not used due diligence, and that he had committed trespass by placing his fingers into the property through the letterbox as the property owner's consent to the delivery of mail relied upon postal workers using due diligence and not placing themselves at risk which inevitably places the householder at risk of prosecution. She concluded that the owner could rely on the “householder defence” under section 3(1A) and (1B), which applied where the injured person was a trespasser, and she acquitted the owner accordingly. The prosecutor appealed by way of case stated. The issues for determination included: (i) whether a postal worker who put their fingers through the letterbox of a private property in order to push letters in thereby acted as a trespasser; and (ii) whether a defence was available to the dog owner because the postal worker failed to use due diligence.
On the appeal by way of case stated—
Held, appeal allowed. (1) Section 3 of the Dangerous Dogs Act 1991 created an strict liability offence so that, if the dog was dangerously out of control in circumstances which the owner had caused or permitted, then strict liability on the owner would follow. Although the aggravated offence additionally required proof of injury, in such circumstances the requirement that the dog be dangerously out of control was satisfied by the very fact that it had bitten a person. The criminal liability arose out of a prohibited state of affairs and it was not necessary to establish that the owner knew or ought to have anticipated that the dog would be dangerously out of control in the circumstances arising. Parliament had chosen to put the burden on those who owned, or were in charge of, a dog to ensure that effective steps were taken, by doing whatever was appropriate in the circumstances, to ensure that the dog was kept under control and did not cause injury to anyone (paras 4, 16, 31, 32, 39–41, 44, 45, 46).
(2) The householder defence was most obviously intended to apply to situations involving residential burglars and unwanted intruders into dwellings. It did not apply to the circumstances of the present case, where the letterbox was an open invitation to visitors to post mail through it, something which could involve the insertion of fingers for a short time. There was no basis for limiting the implied permission to do so in the case of a postal worker who had been provided with a postal peg. The provision of the postal peg was irrelevant to the scope of the permission granted to him as a lawful visitor to the property for the purpose of posting mail through the letterbox. While the position might have been different had there been a suitably worded exclusory sign on the property, in the absence of such a sign the postal worker had not exceeded the permission to enter the dog owner’s property and he was not a trespasser for the purpose of section 3(1B) of the 1991 Act. That did not mean that homeowners were unable to leave their dogs unattended the adoption of simple measures, such as installation of a wire guard or adjustment to the height of the letterbox itself, might suffice (paras 32–36, 41, 45, 46).
(3) The conduct of the injured person in terms of culpability was irrelevant and thus questions such as due diligence or recklessness on their part did not arise. The only circumstance in which the legislation recognised that there was a defence because the victim bore some responsibility was when they enter a dwelling as a trespasser, that being a separate and distinct issue covered by section 3(1B). The degree of care taken, or not taken, by the injured person could not affect the scope of the implied permission. The 1991 Act contained no defence of lack of due diligence on the part of the victim and there was no justification for implying one. It followed that it was not a defence to prove that, but for carelessness on the part of the victim, the injury would not have occurred (paras 32, 37, 38, 41, 45, 46).
John Beggs QC and Alexander dos Santos (instructed by Royal Mail Group Ltd) for the prosecutor.
Simon Spence QC and Matthew Edwards (instructed by Barricella Hughes Marchant Solicitors, Ipswich) for the dog owner.