Bogdal v R

There are before us two matters arising out of the same background – an appeal by Mr Michael Bogdal against his conviction and sentence in the Hull Crown Court for three offences under the Dangerous Dogs Act 1991, and an application for judicial review of the same order of the Crown Court brought by his mother, Mrs Janina Bogdal. We are dealing with the former as the Court of Appeal (Criminal Division) and the latter as a Divisional Court. The primary issue which we have to decide is whether the location at which the offences of which Mr Bogdal was convicted was a “public place” within the meaning of the Act.

Mr Bogdal, who is aged 59, was at all material times the owner of a property called Wawne House in Hull. The only person living there at the material time was Mrs Bogdal, who is aged 87. Mr Bogdal does not live there himself but he is there a good deal. Wawne House lies a little way back from the main road with an extensive area of lawn as its front garden. In what used to be its back garden is a property called Sycamore House, which is a private care home for the elderly: it was built by Mr. Bogdal some years ago but subsequently sold by him. A broad tarmac driveway runs in a horseshoe shape to and from the road round the edge of the front garden of Wawne House and around the back to Sycamore House: one limb of the horseshoe is bordered by shrubs but the other is unscreened from the lawn. The driveway constitutes the main means of access to both buildings and may be used by any person with legitimate occasion to visit either Wawne House or Sycamore House. It is not a public right of way. There are no gates where the driveway meets the road, but there is a large sign for Sycamore House at the principal opening.

On three occasions in the summer of 2005 visitors walking on the shared driveway were attacked and bitten by an Alsatian dog. The first occasion was on 29^th May. The victim was a Ms Bowering, who was going to visit her mother, a resident in Sycamore House. She was on a bicycle. The dog was tethered to a rope which was attached to a stake driven into the lawn in front of Wawne House; but the rope was not short enough to prevent it from attacking her on the driveway. The second occasion was the following day. A police officer, WPC Atkinson, had come to investigate the incident involving Ms Bowering. The dog was again tethered to a stake in the front garden. While WPC Atkinson was talking to Mrs Bogdal at the door of Wawne House she saw that the dog was becoming excited by the presence of some children who were shouting at it. She went over to intervene. She remained on the driveway but the dog ran over to her and bit her on the buttock. She left and came back armed with a baton. As she did so, she saw Mr Bogdal gathering up the rope. He told her that the dog was now in its kennel. He said that he had seen the incident from the house and that he did not believe that she had been bitten. He told her that it was private land and that she should not have approached the dog. The third occasion was on 27^th August. The victim was a Ms Alexander. She was a district nurse who had gone in to Sycamore House to get directions for another care home which she was trying to find. As she walked back up the driveway to her car the dog jumped on her and bit her leg.

Arising out of those incidents Mr Bogdal was charged with three offences under sec. 3 (1) of the 1991 Act, which is in the following terms:

“(1)

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.”

Mr Bogdal was charged on the basis that he was the owner of the dog. Since the aggravated offence was charged, the offences were triable on indictment. He was also charged by way of alternative with three offences under sec. 3 (3) of the Act; but since these were not in the event proceeded with we need not deal further with that aspect.

When the matter came before the magistrates Mr Bogdal applied for the prosecution to be stayed, on grounds to which we will return in due course. The application was refused, and the case was committed to the Crown Court at Hull. Mr Bogdal apparently (although we do not have the details of this) applied for judicial review of the refusal by the magistrates to grant a stay, but permission was refused on the basis that he could renew the application in the Crown Court.

The case came on for trial on 15^th January 2007. Mr Bogdal was, apparently as a matter of deliberate choice, unrepresented. He renewed the application for a stay which he had made before the magistrates. We need not set out all the grounds on which he relied, since they are mostly no longer live before us; but they included a contention that the driveway on which the incidents had occurred was not a public place within the meaning of sec. 3 (1). The application was heard by Miss Recorder Otton-Goulder QC after the jury had been empanelled but before the case was opened. She dismissed the application and made what both she and the parties plainly regarded as a dispositive ruling to the effect that the driveway was a public place. She also made a ruling on the admissibility of certain disputed evidence. The following morning she gave, at Mr Bogdal’s request, a Goodyear indication.

In the light of the rulings and the Goodyear indication Mr Bogdal decided to plead guilty, on the express basis that he reserved the right to seek to appeal on the basis that the rulings were wrong. He duly pleaded guilty to the three offences under sec. 3 (1). The jury was directed to enter verdicts of not guilty on the alternative counts.

The Recorder proceeded to sentence Mr Bogdal to six months imprisonment, suspended for one year, on each of the three counts, to run concurrently. The sentence was subject to what the Recorder described as a “condition”, although strictly speaking we understand it to have been a “requirement” imposed under sec. 190 of the Criminal Justice Act 2003, to the effect that he should not “permit any dog owned either by you or by your mother to reside at Wawne House or to enter onto any of the land owned by you at or within two hundred yards of Wawne House including the green sward on which the dog was tethered at the time of the offences”. She ordered Mr Bogdal to pay costs of £1,500 and made an order under sec. 4 of the 1991 Act disqualifying him from keeping a dog for a period of one year.

We should say that both the Recorder’s rulings on the various issues which she dealt with on 15^th October and her sentencing remarks of the following day were set out with conspicuous clarity, paying full regard to the position of Mr Bogdal as an unrepresented party.

Mr Bogdal sought leave to appeal against both conviction (on the basis that the disputed rulings were wrong) and sentence. So far as sentence is concerned, he was given leave to appeal by the single judge. As regards conviction, he was given leave by the Full Court on 19^th June 2007, limited to the single question whether the driveway was a public place.

As we have set out, the terms of the “condition” of the suspended sentence order required Mr Bogdal not to permit any dog owned by himself “or his mother” to be kept at Wawne House. Mrs Bogdal commenced proceedings for judicial review of that order as it affected her, contending that the Recorder had no power to make an order having the effect that it did on someone who was not a party to the proceedings. Permission was given by Wilkie J on the papers on 4^th April 2007. At the leave hearing before this Court on 29^th June the Court constituted itself as a Divisional Court for the purpose of giving Mrs Bogdal interim relief by deleting from the Recorder’s order any reference to a dog owned by Mrs Bogdal. The Court observed that in practice the outcome of the application for judicial review was likely to depend on the outcome of Mr Bogdal’s appeals.

There are now before us both Mr Bogdal’s appeals against conviction and sentence and Mrs Bogdal’s application for judicial review. Mr Bogdal appears in person on his appeals. Mrs Bogdal is represented by Ms Plimmer of counsel. Mr Worsley of counsel appears for the Crown in both matters. Mr Bogdal and both counsel have submitted helpful skeleton arguments, for which we are grateful.

We start with the appeal against conviction. In loose terms, the issue which we have to determine is whether the driveway where the incidents occurred was a public place within the meaning of sec. 3 (1). However, that formulation conceals a potential difficulty. In principle that question would be for the jury to determine in the light of the evidence; and it could be said that the only question for the Recorder, and for this Court on appeal, was not whether the driveway was a public place but whether a reasonable jury could have found that it was. From a purist’s point of view the correct vehicle for Mr Bogdal’s application might have been a submission of no case to answer at the conclusion of the Crown’s case. However, there was no real dispute as to the relevant primary facts, which were set out in the prosecution statements (supplemented by information from Mr Bogdal which the Crown did not seek to challenge). In the circumstances of the present case – it might not be so in all cases – those facts left no room for questions of judgment or assessment which were properly within the province of the jury; and the question whether, on those facts, the driveway was a public place is to be characterised as a question of law. That being so, we can see no objection, and indeed some advantage, to the parties seeking a preliminary ruling on that question; and that is in practice what the Recorder gave, albeit in the context of refusing the application for a stay.

“Public place” is defined in sec. 10 (2) of the 1991 Act as follows:

“In this Act—

…

‘public place’ means any street, road or other place (whether or not enclosed) to which the public have or are permitted to have access whether for payment or otherwise and includes the common parts of a building containing two or more separate dwellings.”

We will refer to the final element of that definition, from the words “and includes”, as “the common parts provision”. The common parts provision is, so far as we are aware, unique to the 1991 Act, but the core of the definition is in a form employed (with insignificant variations) in a variety of statutes, dating back many years, which regulate conduct in a public place; and the definition has attracted a fair amount of judicial consideration. Not all the case-law was cited to us, but that no doubt showed a wise restraint on the part of counsel. We are satisfied that the cases to which we were referred were sufficient to allow the principles which were relevant for the resolution of the present case to be identified.

The application of sec. 10 (2) in circumstances similar to those of the present case has been considered in two previous cases - Fellowes v Director of Public Prosecutions, a decision of the Divisional Court (Kennedy LJ and Clarke J) dated 28^th January 1993 (briefly reportedin The Times for 1.2.93, but of which we have the full transcript); and R v C [2007] EWCA Crim 1757, a decision of this Court.

In Fellowes the complainant was a schoolboy delivering a newspaper to a maisonette. He was attacked by the defendant’s dog while he was on the path which led through from the defendant’s front gate to his front door. The path only served that particular dwelling and ran through an area of which the defendant had the exclusive use. It was argued for the Crown that the path was a “public place” because members of the public who had lawful business with the occupier had an implied invitation to use it in order to reach the front door. The Court rejected that submission. It relied on two earlier decisions in cases concerned with the definition of “public place” in other statutes.

The first was R v Edwards and Roberts (1978) 67 Cr. App. R. 228. In that case the defendants had engaged in abuse of a householder while standing on his front garden path. They were charged with an offence under sec. 5 of the Public Order Act 1936. The question was whether the conduct charged had occurred in a public place within the meaning of the section. Sec. 9 (1) of the 1936 Act provided that:

“'Public place' includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.”

This is therefore one of the many statutes referred to above applying the same core definition as sec. 10 (2) of the 1991 Act. (The only differences are that the governing verb is “includes” rather than “means” and that the 1991 Act definition adds the phrase “(whether or not enclosed)” – neither of which seem to us material for present purposes.) We should however note that the 1936 Act contained a definition of the term “private premises” which does not appear in the 1991 Act. At p. 231 in Edwards Bridge LJ said:

“Approaching the matter quite independently of any authority, and looking simply at the contrasting definitions of public place and private premises in the statute, it seems to this Court that it is quite impossible to hold that the expression "public place" can be construed as extending to the front gardens of private premises simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occasion for so doing. It is not qua members of the public that they thus enjoy access, it is qua lawful visitors. Indeed it is certainly only by permission of the owner, occupier or lessee of the premises that persons obtaining access to front doors in the manner referred to are entitled to access. That would bring the front garden such as this within the definition of private premises in the statute as opposed to bringing it within the definition of a public place.”

He then went on to show that that conclusion was supported by the decided cases.

Clarke J, delivering the leading judgment in Fellowes,observed that if the same approach as in Edwards fell to be applied under the 1991 Act the path would not be a public place because any member of the public using it would do so not qua member of the public but qua lawful visitor. But he accepted that it might be arguable that Edwards should be distinguished on the basis that Bridge LJ had taken into account the definition of “private premises” in the 1936 Act, which had no counterpart in the 1991 Act.

Clarke J then turned to consider Williams v Director of Public Prosecutions [1992] Crim. L.R. 503. (There is in fact a fuller report at (1992) 95 Cr. App. R. 415, from which we have taken the passage quoted below; but the differences from the report cited by Clarke J. are insignificant.). The defendant in that case was drunk and caused a disturbance on the landing of the tenth floor of a block of flats. Access to the block was only possible for persons who had a key or security code or who were admitted by the caretaker or one of the tenants using an intercom system. The defendant was charged with being drunk and disorderly in a public place contrary to sec. 91 of the Criminal Justice Act 1967. Sec. 91 (4) defined “public place” in identical terms to the definition in the 1936 Act; but there was no reference to “private premises”, so the parallel with the position under the 1991 Act was closer. The Divisional Court (Nolan LJ and Jowitt J) held that the landing was not a public place. Jowitt J, delivering the main judgment, said:

“In the present case, the issue is whether those who gained access or were permitted to have access to this block of flats went there as members of the public or in some private capacity.

The appropriate starting point to the resolution of the issue in this case is to ask who had or who was permitted to have access to this block of flats and why, and to ask whether the methods by which access was to be gained shed light on the answer to that question. Approached in this way, the question was the landing in this case a public place, admits of only one answer. It was not. People are not permitted to enter this building and be on the landings as they please. The manifest purpose of the control exercised over entry from the outer door (or it may be doors) from the street is to prevent entry, save by those who visit the building for social, business or professional dealings with those who live in the flats (for example, the friend, the milkman or the doctor) or for purposes connected with the building itself, such as maintenance. This connection with the occupiers or the building takes visitors out of the general public and gives a private (as opposed to public) nature to their access.”

Jowitt J noted that the justices had attached weight to the fact that a variety of members of the public other than the occupiers of the flat – such as postmen and tradesmen - would be entitled to access, but he said that that was not the point:

“To speak of tradesmen and postmen as being members of the public when they are on these premises, begs the question of whether such visitors are members of the public once they have entered the block of flats. We are all members of the public. It does not follow that all our actions and all our visits are performed as members of the public. It seems to me that here the justices were confusing numbers of visitors with purpose.”

Jowitt Jdistinguished the earlier decision in Knox v Anderton (1983) 77 Cr. App. R. 156, in which the Divisional Court had held that justices had been entitled to find that the upper walkway of a block of flats, forming part of a large estate, was a public place for the purpose of the Prevention of Crime Act 1953. The evidence in Knox v Anderton had been that members of the public had free access to the walkways, which were – to use Mr Worsley’s useful phrase - “pavements in the sky”, and were not approached through any gates or doors, irrespective of whether they had business with the particular flats that they served. It can be seen that Williams adopted an essentially similar approach to Edwards, making it clear that the crucial question was the capacity in which any members of the public had access to the place in question.

Having reviewed those authorities, Clarke J observed that, as we have already noted, the language of the definitions in the 1936 and 1967 Acts was substantially the same as that of sec. 10 (2) save as regards the common parts provision. That provision was not of course directly relevant on the facts of the case before the Court, and he said nothing about it save to observe that it had presumably been added to the definition in response to Knox v Anderton. (As to that, we permitted Mr Worsley to show us, de bene esse, the relevant passage in Hansard. This reveals, as might in any case have been inferred, that the common parts provision was introduced, by amendment of the original bill, in order to ensure that the Act applied to the presence of dangerous dogs in the common parts of blocks of flats. It was feared that such parts would not otherwise be a “public place” within the meaning of the definition.) Clarke J then said:

“In my judgment, in the light of the meaning which has been given to “public place” in the Public Order Act 1936, and particularly in the Criminal Justice Act 1967, the path leading to the appellant’s front door was not a public place within the meaning of section 10 (2) of the Dangerous Dogs Act 1991. [The complainant] visited it qua visitor and not qua member of the public. I do not think that it is possible to reach any different conclusion by a consideration of the purposes of the Dangerous Dogs Act 1991.”

The ratio in Fellowes thus is that a place which is of its nature private, such as a front garden or the common parts of a block of flats, will only be a “public place” if members of the public have access to it otherwise than at the invitation (express or implied) of the occupier. In reaching that conclusion the Court was applying the reasoning of this Court in Edwards and the Divisional Court in Williams.

In R v C (which was decided subsequently to Mr Bogdal’s conviction) the complainant had been attacked by two dogs in a fenced area, used for depositing rubbish, which lay off a pathway leading from a block of flats to the car park serving the flats. The area formed part of the common parts of the block of flats, in the sense that it was part of the communal area, but it did not form part of any building. Only occupiers of the flats or their licensees would be entitled to enter it.

On a prosecution under sec. 3 (1) the Judge in the Crown Court ruled that the area was not a public place within the meaning of the Act. He held that it was not caught by the terms of the common parts provision because it was not part of a building; and that it followed that :

“… the external parts are by the words of that Section specifically excluded and not, as [counsel for the Crown] contends, by implication included.”

The Crown applied to this Court for leave to appeal against that ruling under sec. 58 of the 2003 Act. The application was dismissed. Royce J, giving the judgment of the Court, expressly approved the Judge’s reasoning and observed that since this was a penal statute it had to be strictly construed. He said that that conclusion appeared to be consistent with Fellowes, of which he set out the key passage, although it was unnecessary for him to embark on any detailed analysis.

Royce J also referred to the decision of the Divisional Court in Harriott v Director of Public Prosecutions [2005] EWCA 965 (Admin). That case concerned the offence of carrying a bladed article in a public place contrary to sec. 139 of the Criminal Justice Act 1988. In it Sedley LJ said this:

“10.

While it would not be useful or wise for this court to attempt to substitute for the statutory phrase some definition or exegesis of its own, it seems to me that the principle which runs through all of these cases is that land may be either on the face of it public or on the face of it private land: a street would be an example of the former, the front garden or front area of a private dwelling an example of the latter. In the latter case, however, it is also clear that the ostensibly private character of the land may be negated by evidence that the general public - that is to say anyone who wants to - does in fact have access to it, whether by permission or not. This was the case in Knox v Anderton. It was not the case in the 1978 case of Roberts which concerned, as this case does, the enclosed but accessible area between a house and the highway.

11.

Does the nature of the offence make a difference, as [counsel for the Crown] was inclined to argue it did? In other words, may a public place have a different meaning depending on whether the charge is driving a motor vehicle there, being drunk and disorderly there, or carrying a bladed article there? The decision in the 2003 case of R v Roberts suggests not. It would, moreover, be disruptive of legal certainty if a phrase repeatedly used by Parliament, albeit for different purposes, were given differential meanings in this way.”

(“The 1978 case of Roberts” must, we think, be a reference to Edwards, in which the second defendant was a Mr. Roberts. The “2003 case” is R v Roberts [2004] 1 WLR 181, a case in this Court, also on sec. 139 of the 1988 Act, in which Edwards was followed.)

R v C is not on its facts a case where, as in Fellowes, members of the general public had access to the place in question. But the restrictive approach to the construction of sec. 10 (2), and the observations from Harriott which Royce J adopted, are highly material. It is also, as appears below, directly relevant to one aspect of the Recorder’s reasoning.

The Recorder was referred to Fellowes, though only in the very abbreviated report in The Times. She believed that it should be distinguished on the basis that in the present case the driveway which is the relevant “place” constituted the access not only to Wawne House but also to Sycamore House, and could be used by lawful visitors to either property, whereas the path in Fellowes (and indeed in Edwards) only served one dwelling. She said:

“If the ratio of the garden path case - that is, the Fellowes case - is that it is a matter of invitation, whether explicit or implied, that cannot arise when one is dealing with a shared drive, because while a person may be implicitly or explicitly invited by let us say the owners of Wawne House, so far as Sycamore House is concerned there is no invitation whatsoever, whether explicit or implicit, and the same of course applies vice versa.”

She further said that the terms of the common parts provision showed, “by analogy”, that common access routes of this kind fell within the terms of sec. 10 (2).

With respect to the Recorder, we cannot accept that reasoning.

Taking first the fact that use of the driveway was shared as between Wawne House and Sycamore House, we do not believe that that is a relevant distinction having regard to the ratio of Fellowes as we have identified it. The driveway was plainly, to use Sedley LJ’s phrase in Harriott, “on the face of it private”; and members of the public were only entitled to use it as visitors to Wawne House or Sycamore House. We cannot see that it can make any difference in principle that there are two properties served by the driveway: the right of members of the public to use it remains qua visitor, whichever property they happened to be visiting. The position is no different from that in Williams. In that case there were a large number of flats in the block, and members of the public will have used the lifts and landings in order to visit any one of a number of different properties, but the Divisional Court made the point expressly that that did not alter the private capacity in which they did so (see the second passage quoted in para. 19 above).

As for the common parts provision, the Recorder accepted that it had no direct application, no doubt because even if the driveway could have been described as constituting “common parts” as between the two properties, it was not part of a building (as subsequently confirmed in R v C). Her “analogy” point was, as we understand it, that since the internal common parts of a building were a public place within the meaning of the Act it would be odd if a path or drive of which visitors to more than one dwelling had the use were not also a public place. We see the sense of that, but we do not think that it can be reconciled with the way that the section is drafted. Parliament has, in the inclusionary words of the common parts provision, specified in express terms the extent to which common parts would fall within the terms of the definition – namely if they are parts “of a building”. It cannot be legitimate then to rely on that very provision as requiring the main core of the definition to be extended to cover external common parts or other “analogous” land. That seems indeed to be the same argument which was rejected in R v C.

We therefore do not think that the decision in Fellowes can be distinguished as the Recorder sought to do. Since it is a decision of the Divisional Court, we are not as such bound by Fellowes, but its reasoning is based on Edwards, which is a decision of this Court; and although Edwards was concerned with a different statute we see much force in the point made by Sedley LJ in Harriott that it is undesirable that substantially identical words should be given different meanings in different statutes. The only material difference between the language considered in Edwards and that of sec. 10 (2) is the common parts provision; and, for the reasons given above, that is of no relevance save in those cases to which it directly applies. In our view Fellowes was rightly decided and its reasoning applies equally to the facts of the present case.

The distinction which we thus accept between access qua member of the public and access qua visitor may at first sight seem a gloss on the terms of the statute. But, as we have shown, it is well-established by authority: there are indeed several other cases to a similar effect not cited to us (of which perhaps the most helpful is Director of Public Prosecutions v. Vivier [1991] R.T.R. 205). And on closer consideration such a distinction can be seen to be essential if the concept of a “public place” is not to lose touch with ordinary usage and with important liberties. If every householder’s front garden was a “public place” by reason only of the fact that the postman or the Jehovah’s witness has an implied invitation to make their way to the front door, the result would be that not only could he not keep his dangerous dog outside but that he could neither carry a knife within his own curtilage nor enjoy the pleasure of being drunk and disorderly on his own front lawn.

We should mention two submissions advanced by Mr Worsley, though they formed no part of the reasoning of the Recorder.

His first submission was that the only question under the definition is whether there was any physical barrier to members of the public accessing the “place” in question: if not, then members of the public will “have access” even if they may not be “permitted to have access”. That cannot be right. Whatever the precise effect of the formula “have or are permitted to have”, it certainly does not mean that any place that a member of the public can physically access, however obviously private it may be, is a public place: otherwise every front drive that was not barred by a gate would be a public place.

His second submission was that the fact that Sycamore House was a care home meant, or in any event might mean, that the driveway giving access to it was – again using Sedley LJ’s phrase – “on the face of it public”. We do not accept this. There are of course many kinds of commercial or institutional premises to which members of the public, or a class of members of the public, have access as such – examples from the decided cases include football grounds, public car-parks, shops, and places of entertainment – but not every institution is of that character. The borderline between public and private places may not always be easy to define, and there will be some doubtful cases. But we cannot see that it is arguable that the public as such has access to a private care home – or, still less, to a driveway leading to such a home through a private garden.

We must accordingly allow this appeal and quash Mr Bogdal’s conviction on all three counts. We appreciate that the effect of our doing so is that in cases of the present kind, where occupiers of neighbouring private properties and their visitors have the use of shared access paths or roads, users of such common access will not have the protection of the provisions of the 1991 Act (though they may of course have other protections including under the Dogs Act 1871). But Parliament chose, for reasons that we can understand, to limit the effects of the Act to cases where dogs are let out of control in a “public place” (using a well-tried statutory definition) even though, as the facts of the present case and of Fellowes show, dangerous dogs may also be a menace in private places. It may be anomalous that one particular kind of private space – namely the common parts of a building shared by more than one dwelling – should have been specially brought within the statutory definition when others are not; but this is a notoriously ill-conceived statute, and it is not for us to seek to re-draft it.

However, we wish in conclusion strongly to encourage Mr and Mrs Bogdal to take steps (if they have not already done so) to ensure that there is no repetition of the incidents which gave rise to the prosecution and that the dog in question does not pose a risk to legitimate users of the driveway serving Wawne House and Sycamore House. The fact that that driveway is not a public place does not mean that they may not incur civil liabilities arising out of its behaviour or get into trouble with the law in other ways than under the 1991 Act.

With the quashing of the conviction the appeal against sentence becomesredundant.

Since Mrs Bogdal’s challenge was to the terms of the requirement imposed on Mr Bogdal under sec. 190 of the 2003 Act the quashing of his conviction also removes the need for any relief; and, sitting as a Divisional Court, we accordingly make no substantive order on her application. If Mrs Bogdal seeks any consequential order, she should lodge written representations with the Administrative Court within 14 days of the hand-down date of this judgment.