Dangerous Dogs,Postal Workers and the “Householder” Defence

Introduction

The present case has received some coverage in the print and online media (see, for example, ‘Royal Mail wins appeal over Ipswich postman dog bite’ at https://www.bbc.co.uk/news/uk-england-suffolk-58010953) (29 July 2021)), which is perhaps not so very surprising given that dog attacks on postal workers are by no means an uncommon event. Indeed, it has been reported on the Royal Mail’s website that there were 1690 such attacks in 2020/21. Although this represents a 31% fall from the previous year, the Royal Mail is of the view that this is largely due to “the move to contact free deliveries during the pandemic”, whereby mail and parcels have been delivered at the doorstep whilst maintaining social distancing. Of the reported dog attacks in 2020/21, the greatest number took place at the front door of a property (41%). More than 20% took the form of the attack in the present case, i.e. through the letterbox: see https://www.royalmail.com/personal/dog-awareness.

In its original form, the Dangerous Dogs Act 1991 was concerned with dog attacks which occurred in public places. As a result, there were a number of occasions when the courts were required to determine the meaning of ‘public place’: see, for example, Fellowes v DPP (1993) 157 JP 936, Bates v DPP (1993) 157 JP 1004 and R v Bogdal [2008] EWCA Crim 1. Now, however, as a result of an amendment made by s.106(2)(a)(i) of the Anti-social Behaviour, Crime and Policing Act 2014, the s.3 offences may be committed in ‘any place’, i.e. public and private places. As a result of this reform, dog attacks on postal workers who are delivering mail on private property now fall within the scope of the s.3 aggravated offence. Since the change in the law, the Royal Mail has shown itself willing to bring private prosecutions against owners whose dogs attack its workers, as the present case demonstrates. Indeed, the Royal Mail claims to have “carried out over 25 private prosecutions” since May 2014. Such an approach is consistent with its online proclamation that it is “committed to ensuring the welfare and safety of our people who provide a valuable service to our customers across the length and breadth of the UK and in every community”.

The ‘Householder Defence’

As a result of extending the scope of the s.3 offence in terms of the location where it may be committed, it was necessary for the Anti-social Behaviour, Crime and Policing Act 2014 to address what Parliament considered to be an undesirable consequence of this reform; that a dog owner could potentially be criminally liable where the victim of an attack was a trespasser. Accordingly, s.3(1A) of the 1991 Act provides that a person is not guilty of a s.3 offence in a “Householder case”. For the purposes of s.3, a “Householder case” arises where a dog is dangerously out of control while in, or partly in, a building which is a dwelling or forces accommodation, and the victim is either a trespasser in the building, or is believed to be so (by the defendant if present at the time): see s.3(1B)(a) and (b)(i) and (ii). As Bleasdale-Hill and Dickinson note, however, the 1991 Act is silent as to the meaning of ‘dwelling’ in the present context, with the result that potential uncertainties may arise, such as whether an open porch area amounts to part of a dwelling: see ‘“Dangerous dogs”: different day, same lamppost?’ (2016) 80 J Crim L 64 at 69–70.

In Watson, in commenting on the “Householder” defence, Carr LJ noted that it is “most obviously intended to apply to situations involving residential burglars and unwanted intruders into dwellings” (at [33]). On the facts, the letter box had constituted an open invitation, or implied licence, to post mail through it. An implied licence is, of course, a defence to an action in trespass. In a number of cases the courts have employed a range of similar expressions to describe persons who may be said to have an implied licence or permission to enter onto property. Thus, in Robson v Hallett [1967] 2 QB 939, Diplock LJ (as he then was) remarked that an unlocked garden gate “gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business” (at 953–954). Similarly, in the Australian case of Halliday v Neville (1984) 155 CLR 1, it was suggested that an implied licence was held by those with a ‘legitimate purpose’ for going onto the property in question. This would clearly encompass the door-to-door salesperson, the charity collector or the police officer conducting house-to-house enquiries. It would also apply to persons delivering items to the relevant address, such as the post.

In Watson, whilst the provision of the postal peg “may have been germane” in the context of the employment relationship between the postal worker and the Royal Mail, it was held to have “nothing to do with the scope of the permission granted to him as a lawful visitor to the property for the purpose of posting mail through the letter box” (at [34]). Thus, in the judgment of Carr LJ, since the postal worker had not exceeded the scope of his implied licence to enter the property, he was therefore not a trespasser at the time that he was bitten. Accordingly, the present case did not fall within the scope of the “Householder” defence. As Carr LJ noted, such a conclusion was consistent with the earlier decision in Royal Mail v Goddard (29 May 2020, unreported), where William Davis J had observed:

“Whether it is a postman or someone putting a free newspaper or someone distributing leaflets of whatever kind, there will be occasions when a person goes to a house and uses the letter box in a way that, for a short time, exposes their fingers to a dog within the building. Before the judge in the Crown Court it was conceded that such a person is not a trespasser. That concession was properly made. If such a person is bitten by a dog within the house, that dog will be dangerously out of control …”.

It would have made little sense had it been held in Watson that the act of pushing mail through the letter-box turned a postal worker into a trespasser, as the defendant argued, simply because their fingers had crossed the threshold of the property. Had Parliament considered the matter at the time that the “Householder” defence was being debated, it seems highly unlikely that it would have thought it applied to the facts of the present case. Although the point was not pursued orally, for the sake of completeness Carr LJ observed that the facts of the present case were “very far removed” from those in R v Jones and Smith [1976] 3 All ER 54, where the defendant son of a homeowner had forced entry into the property (along with another) and had stolen two television sets. Whilst the defendant in that case had general permission to be in the property, stealing clearly exceeded it. Here, by contrast, the actions of the postal worker “did not begin to transgress the permission that he had in the same manner or to the same extent” (at [37(i)]).

Carr LJ was of the opinion that the conclusion that the “Householder” defence was not available did not lead to unacceptable consequences. Thus, it did “not mean that householders are unable to leave their dogs unattended”. Rather, it meant that if they were to be so left, “simple measures, such as the installation of a wire guard or adjustment to the height of the letter box itself, can be taken” (at [36]). These remarks resonate with some of the online advice which the Royal Mail provides to householders with dogs. Thus, amongst its ‘Top Tips for Dog Owners’, it is stated that: “If your dog likes to attack your mail, consider installing a wire letter receptacle. It will protect your post, and your postman’s or postwoman’s fingers”.

Strict Liability

A line of authority, which includes R v Bezzina and others [1994] 1 WLR 1057, had previously established that liability for the simple and aggravated versions of the s.3 offence is strict. It is a little surprising, therefore, that the present appeal was said to have been a decision of “some importance” in that it provided the Divisional Court with an opportunity to emphasise the legal position regarding s.3.

On behalf of the respondent, it had been suggested that the 1991 Act creates a rebuttable presumption that a dog causing injury without forewarning was dangerously out of control. Although the matter was not pursued in oral argument, Carr LJ nevertheless considered it necessary to address the substance of the argument on the basis that “it may be raised again elsewhere” (at [31]). Thus, in her judgment, the alleged rebuttable presumption does not exist due to the strict liability nature of the offence. In support of this observation, Carr LJ referred to Rafiq v DPP (1997) 161 JP 412, which in her judgment “makes it clear that a bite (even without reasonable apprehension beforehand) is sufficient to impose liability” (at [31]).

For the purposes of the aggravated offence, Carr LJ remarked that “the requirement that the dog is dangerously out of control is satisfied by the very fact that the dog bites a person” (at [16]). It was therefore unnecessary to have to establish that the owner of the dog either knew or ought to have anticipated that the dog would be dangerously out of control at the relevant time. Carr LJ also noted that “whilst liability under s.3(1) is strict, it is not absolute” (at [17]). Thus, in order to be guilty of a s.3 offence, “there must be 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” (at [17). The same formulation of words is to be found in the earlier case of R v Robinson-Pierre [2013] EWCA Civ 2396, per Pitchford LJ at [42], where it was held that whilst the s.3 offence imposes strict liability, it falls short of imposing absolute liability. Thus, in that case, the Court of Appeal quashed D’s conviction on the basis that the attacks in question had only occurred after his front door had been broken down by police officers using a battering ram and his dog had escaped. In these particular circumstances, affixing the defendant with criminal liability would have been an unjust outcome.

Due Diligence

The third issue raised by the present appeal concerned the District Judge’s finding that the postal worker had not acted with due diligence in failing to establish whether a dog was present inside the house prior to posting the mail with his hand. In dismissing this submission, Carr LJ rightly drew attention to the fact that the 1991 Act does not provide for a defence of lack of due diligence on the part of the victim. Moreover, it is difficult to disagree with her subsequent observation that, “to imply one would have a significant and unwarranted impact on the scope and effect of the legislation” (at [38]). Patently, if a due diligence defence were deemed to be an appropriate inclusion, that is a matter for Parliament to address through the legislative process rather than the courts. Despite the submission in Watson, it remains the case, therefore, that “the only circumstance in which the legislation recognises that there is a defence because the victim bears some responsibility is when they enter a dwelling as a trespasser” (at [41]).