The dangers in identifying animals, be it a poodle or a pit bull, are akin to those of identifying humans rather than inanimate objects. There is no reason why a court should not apply Turnbull to animals and every reason why it should do so. For if a man is wrongly identified it can be corrected on appeal as a miscarriage of justice. If a dog is wrongly identified, no appeal could reverse destiny if his sentence is death.

Although the primary legislation concerned with dangerous dogs is the Dangerous Dogs Act 1991 (DDA), the Dogs Act 1871 (DA) can fill any lacunae left by the DDA. The DA is activated by a civil complaint that the dog is “dangerous” and “not kept under proper control”. The advantage for the authorities is that a complaint only needs to meet the civil burden of proof. So it can be used where the evidence does not amount to the criminal standard or if a criminal offence has not been committed. The DA is a remedy that extends to areas that the DDA may not reach as it applies to all places, private and public.

Yet in R. v. Huddart [1999] Crim. L.R. 568 the Court of Appeal refused to apply Turnbull to cases of identification of animals. They followed R. v. Browning [1992] 94 Cr. App. R. 109 where the court held Turnbull did not apply to inanimate objects such as motor vehicles. Glidewell LJ explained in Browning, ‘As to the car, unlike a human being, the appearance of a car remains constant unless it is deliberately altered by having its colour changed or by having some pieces added to it.’ However that is a false analogy. Unlike a mass-produced car every dog has its own characteristics and appearance.

Indeed the point was accurately described by Pill J in Hunt v. Wallis [1994] PIQR 128 in relation to ‘dangerous animals’ under the Animals Act 1971. In considering the case of harm done by a Border Collie he compared the particular dog with the general breed: ‘Where there is an identifiable breed of dog, a breed of long standing with acknowledged and identifiable characteristics, at least where it is a breed whose qualities are recognised as beneficial to man, the comparison should be with that breed or sub-species.’

You would not identify a bald burglar among a parade of twelve hirsute Goth rockers. Equally it is wrong to identify a dog just because it ‘looks like the one that bit me.’

The problem was brought into sharp focus in June 2009 when Carol Cameron was walking her schnauzer dog in Lily Park in Bracknell when ‘a rather large brown dog’ approached her and attacked her dog. Cameron was somewhat moxie as the dog soon discovered. She got between them and ‘launched my dog into a rhododendron bush to save him.’ The dog then attacked her. Cameron decided, ‘I was not going down without a fight...So I bit the dog...I bit the back of his neck.’ After she was released from hospital she had to attend a ‘dog parade’: she had to identify the animal in the back of a police van. While the principle is commendable the practice is similar to placing a single ginger-haired man on a parade to identify him. Moreover it would have been elementary to have forensic evidence of the wound and an orthodontist examination of Carol’s gnashers. Then unlike this identification, based on memory borne of fear and panic, it would place the case of which dog she had bitten beyond question. Who is to say she is right if the now dead dog did not inflict the critical bite?

Just over a decade ago in Bristol Crown Court counsel relied upon an ‘alibi’ for a dog. The defence was that it was a case of mistaken identity. A dog was alleged to have knocked a woman off her bike and then bitten her. The woman claimed it was ‘Patch’. The owner of Patch denied it was his dog, claiming that Patch was in a distant meadow at the crucial time. All the cross-examination and evidence as to the alibi was called as if Patch was on trial. So the real question for the jury was simply: Was it this dog? After a trial, the defendant - and his dog - were acquitted. I know because, like the soldier in the song, I was that defence counsel.

This article was first published in New Law Journal (www.newlawjournal.co.uk).

Nöel Sweeney, Veritas Chambers