The case concerns the admissibility of tracker dog evidence. Within minutes of a robbery, Ben, a police dog, searched an area surrounding a club and picked up a track. Both appeals were based on the contention that the judge was wrong to admit evidence concerning the tracker dog's actions.
The submission was that that evidence was, in effect or certainly analogous to, hearsay because there was only the handler's evidence of the actions or reactions of the dog; which could not be cross examined.
Alternatively it was submitted that the evidence with regard to such tracker dogs was unreliable, that a dog had a will of its own and might act mischievously or, even without that, might act in a way inconsistent with the Pavlovian reaction sought to be induced in the dog by its training.
The Court of Appeal ruled, (with safeguards); that if a dog handler could establish that the dog had been properly trained and, over a period of time, the dog's reactions indicated that it was a reliable pointer to the existence of a scent of some particular individual then that evidence should properly be admitted.
The Safeguards
1 A proper foundation had to be laid by evidence in detail establishing the reliability of the dog in question
2 The judge had, in giving his direction to the jury, to alert them, as mentioned in the cited cases, to the care they proceeded to take to look with some circumspection at evidence of tracker dogs, having regard to the fact that the dog might not be always reliable and could not be cross-examined.
The court's attention was brought to a number of authorities. There was R v White ([1926] 3 DLR 1) in British Columbia, which was overruled in R v Haas ((1962) 35 DLR (2d) 172) where a five-judge court held that, once the qualifications of a tracking dog to follow a scent and that of his trainer to handle the dog had been established, evidence of tracking the accused by scent from the scene of crime by such a dog was admissible on the trial of accused and the only question concerned the weight to be given to such evidence.
Other decisions included R v Lindsay ([1970] NZLR 1002), followed in R v McCartney ([1976] 1 NZLR 472) where it was stated that the judge had at least to draw the jury's attention to the nature of the conclusions to which they were asked to come on the tracker dog evidence and the risks of arriving at that conclusion from evidentiary material which had not to pass the acid test of cross-examination.
Consideration was given also to R v Montgomery ([1966] NI 120) and Roberts v State of Maryland ((1983) 469 Atlan Rep (2d) 442). In the present case the trial judge had held that, provided the proper foundation was laid for the reliability of the dog in question to be able to follow a scent by reason of its training and of experience, then the evidence should be admitted. Their Lordships agreed that the trial judge had taken the correct approach.
The dog's credibility
Another point taken concerned the evidence establishing the dog's credibility. When the judge had given his ruling on the point of principle he said he would require to have from the prosecution evidence to show that the dog was sufficiently reliable for its activities to be led in evidence. The prosecution produced a supplementary statement from the dog's handler.
The question for the Court of Appeal was whether the statement was a sufficient account of the training and reliability of the dog, Ben, to render the evidence concerning the dog admissible for the jury.
The insufficient evidence presented in this case
The witness said: "I have been a dog handler in the Thames Valley police since June 1985. I have worked with police dog Ben for 18 months following the departure of Ben's previous handler and the death of my previous police dog. Ben is a German shepherd and will be eight years old in December 1993. He commenced his training at a year old in the Thames Valley police force and had six and a half years experience of the work required from him in May 1993."
In their Lordships' judgment that statement was insufficient. It gave no account of the nature of the training he had been given or of the reliability of the dog, or of any tests that had been carried out in control conditions to see whether the training had produced a reliable response from the dog. Accordingly, bearing in mind the scrupulous care which had been set to be necessary before such evidence could properly be adduced, Their Lordships did not think that the foundations had been properly laid in the present case. To that extent, therefore, that evidence ought not to have been admitted. and there had been an irregularity. Nevertheless, in views of other evidence about the strap and bag. the irregularity was not material and other grounds of appeal failed and the appeals were dismissed.