Bogdal v R

For the purposes of the Dangerous Dogs Act 1991, access to a place is public only where it is access by the general public as such. Land that is facially private does not become a public place merely because lawful visitors may use it. A shared driveway serving two private properties remains private where each user enters only as a visitor to one property. The statutory inclusion of common parts applies only to common parts of a building; it cannot be extended by analogy to external shared accessways.

The appellant owned a dog which bit three visitors using a shared driveway serving his mother’s house and a private care home. He was charged as owner with three aggravated offences under section 3(1) of the Dangerous Dogs Act 1991.

At Hull Crown Court, the Recorder ruled before trial that the driveway was a public place. After that ruling and a Goodyear indication, the appellant pleaded guilty while reserving his right to challenge the ruling. He was sentenced to suspended imprisonment and disqualified from keeping a dog. His mother also sought judicial review of a requirement which affected dogs owned by her.

The central issue was whether a shared private driveway used by lawful visitors to either property was a public place within the statutory definition.

1. Appeal allowed. The court quashed all three convictions. The agreed primary facts left no evaluative issue for a jury. Whether the driveway was a public place was therefore a question of law capable of preliminary determination.

2. Section 10(2) of the Dangerous Dogs Act 1991 distinguishes access by the public as such from access by a person acting as a lawful visitor. The court followed Fellowes v Director of Public Prosecutions (The Times, 1.2.93). A place which is facially private is not public merely because visitors have an express or implied invitation to enter it for business with an occupier.

3. The shared driveway remained facially private. Its use by visitors to either Wawne House or Sycamore House did not alter the capacity in which they entered it. They used it as visitors, not as members of the general public. The number of properties served by the driveway was immaterial. Nor did the absence of gates make every physically accessible private driveway a public place.

4. The Recorder could not rely by analogy on the provision which includes common parts of a building containing separate dwellings. That express extension did not cover an external shared driveway. The court treated R v C ([2007] EWCA Crim 1757) as confirming that external communal land is not brought within the definition merely by analogy with internal common parts.

5. The appeal against sentence became redundant. Sitting as a Divisional Court, the court made no substantive order on the mother’s judicial-review application because quashing the convictions removed the need for relief.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed the three convictions: [2008] EWCA Crim 1. The appeal against sentence was redundant.
• Divisional Court — On the related application for judicial review, made no substantive order after the convictions were quashed.
• Hull Crown Court — The Recorder ruled that the driveway was a public place, after which the appellant pleaded guilty to three offences under section 3(1) of the Dangerous Dogs Act 1991 and received concurrent suspended sentences.
• Magistrates’ court — Refused the appellant’s application for a stay and committed the case to the Crown Court.