Level 2 dog bite case involving children
It is alleged that your children were bitten by a Doberman Pinscher at your home. The dogs were kept by a dog sitter and you would have expected that the dogs would have been kept on a leash when your children were in the vicinity. Were the dogs kept on a leash?
The dog sitter has not yet been interviewed but her husband, who was at work on the night in question, did give evidence. He told the court that the couple had only ever kept two dogs, a Doberman Pinscher and a Jack Russell Terrier. He admitted that the Jack Russell had recently been treated for fleas.
The Doberman Pinscher was found to have had a large bite mark on her neck on which she was attended to at the vet.
At a later date the wife was given more details about the incident by her husband. He said that he and the dog sitter went out to buy dog food at the evening.
The incident occurred after the sitter left a mobile phone message on the husband’s answer phone to say she would be away until the next day, but had instructed him not to ring back. This was before she went out to buy dog food.
About half an hour later the husband heard noises in the garden and went out. He saw the husband of the sitter. The sitter, he said, then told him that the dogs had got into the neighbours’ garden. She then left the garden.
A few minutes later, he heard his wife cry out. He ran round the back of the house to find the wife lying on the floor, and he found the two dogs with her.
You have asked me to give you my views on your defence. At the first hearing, which was a criminal trial and had resulted in the dog sitter being acquitted, your barrister made two arguments. Firstly, that the prosecution had been guilty of misleading the defence as to the location of the bite mark. Secondly, that the prosecution had misinformed the court that it had been a dog belonging to the defence which had bitten the victim. The defence had argued that the second defence statement had prejudiced their case in that it had removed the prosecution’s case from the category of self-defence. This was a legitimate defence. The prosecution was obliged to prove that the defence was not a reasonable defence to the crime.
The Court considered that the second defence statement had not misled the Court and that the law did not require that it had.
I have said that the law does not place a duty on a prosecutor to disclose information. I have also said that it is likely to have an adverse effect on the defence if such information is disclosed. I have considered the case of Re R (G)  1 WLR 29, which may have the effect of restricting the prosecution in such matters. I have heard the case and have expressed a view, although it is a view that I believe should be expressed by the Lord Advocate.
At the earlier hearing, the dog sitter did not challenge the decision that the prosecution should proceed with the charges of assault occasioning Grievous Bodily Harm. The issue was to prove that there was a reasonable belief that she had been bitten by one of her dogs. She was found not guilty because of the way in which she had described her own dog. The prosecution had argued that the description given to the police by the defendant, if accepted, would enable the dog to be identified and located. This was because it was believed that the dog’s collar contained its name and address.
One of the arguments made by the defence at the trial was that the case against the dog sitter should not have been allowed to continue after the decision that the prosecution should proceed with the charges of assault occasioning Grievous Bodily Harm. This was because of the potential adverse effect of the publicity on the defence of the prosecution. However, it was accepted that this reasoning was unlikely to succeed because of the nature of the publicity surrounding the case, including interviews on Crimewatch and news reports.
The decision in Re R (G)  1 WLR 29, the decision of Lord Rodger which led to that outcome, makes a number of points. First, he stated that the public interest may in some cases be sufficient to justify disclosing the identity of the person who has made a complaint against the defendant. In that case, there was no question of a third party being directly affected. Second, he stated that a court must be satisfied that it is in the public interest to allow the identity of a complainant to be revealed. If it is in the public interest, it may be disclosed if that is necessary to protect the person’s life, or to protect their physical or mental health. Third, he said that a court may order disclosure of the identity of the complainant in certain circumstances, and that courts should take care to be certain that such a decision will be open to an effective appeal, and that disclosure will not deprive a person of any basic human right, such as access to the court, access to justice or privacy. In Re R (G)  1 WLR 29, 30.
The case for disclosure
The decision for disclosure, in Re R (G)  1 WLR 29, said that while it was recognised that a complainant is not a suspect, a complaint may have a serious effect on the life of the complainant if it is disclosed. This was a case where an allegation had been made, and the dog sitter would need to investigate it and seek legal advice. It was accepted that the dog sitter would make it difficult for him to do that, so there was a clear and present danger that the dog sitter might not be able to investigate the allegations, which would affect the complainant’s life, and that was sufficient to make it necessary to disclose the identity of the complainant. Similarly, if the complainant’s physical or mental health were in danger, for example if their home was to be raided and they were to be arrested, this might leave them unable to assist in a prosecution or to access legal advice. It was accepted that the need to take action would need to be balanced with the need for the identity of a complainant to remain confidential in order to protect them from further harm.
The case for disclosure is that the need for disclosure outweighs the need to maintain confidentiality. It is also recognised that in very limited circumstances, disclosure may be necessary, for example if a complainant has been murdered, and their identity may be crucial to the case against the murderer. Similarly, if disclosure is necessary to prevent the real perpetrator of a serious offence from being re-victimised, and the identity of the person being re-victimised may not be necessary in order to disclose this, that may be relevant information.
Where the disclosure does not involve disclosure of the complainant’s identity, any of the grounds set out in paragraphs 3 and 4 below will be relevant.
3.2 Disclosure may be appropriate to protect the rights of third parties in the following circumstances:
3.2.1 If the person making the disclosure is subject to a threat of harm.
3.2.2 If the disclosure is necessary in order to allow someone else to act to prevent or mitigate the threat.
3.2.3 If the disclosure is necessary in order to prevent or mitigate harm to a person’s physical or mental health or personal safety.
3.2.4 If the disclosure is necessary to secure treatment for the person, or to seek appropriate social care for the person.
3.2.5 If the disclosure is necessary to