SCOTTISH BORDERS COUNCIL V MR JOHN JOHNSTONE [2014] ScotSC 110 (28 November 2014)

SCOTTISH BORDERS COUNCIL V MR JOHN JOHNSTONE [2014] ScotSC 110 (28 November 2014)

The sheriff erred by failing to properly consider a dog control notice as an alternative to destruction and by placing undue weight on the evidence of the Dog Control Officer, who had not made an objective risk assessment. There was no evidence that the appellant would not comply with a control order, and the sheriff's reasoning for disqualification was inconsistent with the evidence. The proper remedy was to remit the case for a dog control notice with specific conditions rather than destruction or disqualification.

Citation
[2014] ScotSC 110
Parties
Applicant and Respondent: Scottish Borders Council; Respondent and Appellant: Mr John Johnstone
Jurisdiction
Scotland
Judgment Date
28 November 2014
Procedural Posture
Summary Application Appeal / Appeal Decision
Outcome
Appeal allowed; sheriff's orders for destruction and disqualification recalled; case remitted for service of a dog control notice with specified conditions; expenses awarded to appellant.
Legal Topics
Dog Control, Destruction Orders, Disqualification From Dog Ownership, Dog Control Notices, Interpretation of Control of Dogs (scotland) Act 2010
Animal Law Administrative Law Civil Procedure Dog Control Destruction Orders Disqualification From Dog Ownership Dog Control Notices Interpretation of Control of Dogs (scotland) Act 2010

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Parties

Scottish Borders Council

Applicant and Respondent

Mr John Johnstone

Respondent and Appellant

Procedural Posture

Summary Application Appeal / Appeal Decision

Legal Issues

  1. 1 Whether the dual statutory test of 'out of control and dangerous' under section 9 of the Control of Dogs (Scotland) Act 2010 was properly applied
  2. 2 Whether a destruction order was necessary or a dog control notice was a suitable alternative
  3. 3 Whether the sheriff erred in law by imposing a disqualification order/interdict

Ratio Decidendi

The sheriff erred by failing to properly consider a dog control notice as an alternative to destruction and by placing undue weight on the evidence of the Dog Control Officer, who had not made an objective risk assessment. There was no evidence that the appellant would not comply with a control order, and the sheriff's reasoning for disqualification was inconsistent with the evidence. The proper remedy was to remit the case for a dog control notice with specific conditions rather than destruction or disqualification.

Court Disposition

Appeal allowed; sheriff's orders for destruction and disqualification recalled; case remitted for service of a dog control notice with specified conditions; expenses awarded to appellant.

Orders

  • Recall of sheriff's interlocutor of 4 March 2014
  • Recall of order for delivery and destruction of the dog Finlay