A 20-YEAR-OLD woman has been cleared of being in charge of a dog which was dangerously out of control when a four year old child was attacked.

Little Mackenna Frew was physically and mentally scarred for life after she was pounced upon by an Airedale Terrier as she walked home from her nursery class in Hawick.

Karissa Johnstone, who was on her mobile phone at the time of the attack, was accused of being in charge of a dog which was dangerously out of control, leading to the severe injury and permanent disfigurement of the child in May 2013.

Although no-one saw the dog, called Finlay, bite the child both the sheriff and the defence lawyer accepted it could be inferred the dog did - resulting in Mackenna suffering a severe cheek injury.

But following legal submissions during a jury trial at Selkirk Sheriff Court last week, the case against Johnstone was thrown out.

A witness said he saw the Airedale Terrier, which was on a lead held by Johnstone, jump onto the child “out of the blue”.

Sheriff Kevin Drummond agreed with defence lawyer Iain Burke saying Johnstone could have no “reasonable apprehension” the dog was dangerous and found her not guilty under the terms of the Dangerous Dogs Act.

Earlier this year, another sheriff ordered six-year-old Finlay to be destroyed after Scottish Borders Council raised a civil action against the dog’s owner John Johnstone, 42, who is Karissa’s father. But that decision has been appealed and a ruling is awaited from the Sheriff Principal.

Sheriff Peter Grant-Hutchison, who also imposed a two year ban on Johnstone owning a dog, said he had considered evidence from Karissa Johnstone, from Hawick, who said she did not see what happened as she had been texting and listening to music at the time.

In his judgement he said: “If I were to accept this explanation then I would have no difficulty in finding that Finlay was not being controlled effectively and consistently in the course of that walk.” After the collapse of the criminal prosecution, Mackenna’s mum Kimberley Mullin, 33, said she was “sickened” by the outcome and that the legislation should be tightened up. She said: “It is so unfair and Mackenna has had no justice. This has been going on for 15 months and we have got nowhere. They have never apologised and in fact have said it was our fault as no-one was holding her hand at the time.

“But Mackenna was at the edge of the pavement waiting for her father to catch up before crossing the road. She has done nothing wrong but has suffered this terrible injury.

“We wanted something done about it so another child would not suffer the same thing. The law should be looked at again - tightened up to prevent this from happening again.” Ms Mullin said the child, now five, still had nightmares about the attack and was afraid of dogs.

During the trial witness Brian Elliot said he saw several children walking home from school at his home in Eildon Road, around 3pm on May 8. He said: “The girl was standing at the edge of the pavement as the dog went past. The dog turned and jumped up and put both paws on the wee girl and she went down like a ton of bricks.” The 49-year-old builder added the incident happened “out of the blue”.

Another witness Natasha Elliot said in May 2012 Finlay had attacked her labrador pup and she had to kick him to get him off.

During cross-examination, Mr Burke pointed out that Mr Johnstone was in charge of Finlay at the time and Karissa Johnstone was not present.

After the Crown closed their case, Mr Burke made a no case to answer submission citing previous cases and that there could be no “reasonable apprehension” for Karissa Johnstone to know the dog was dangerously out of control.

Sheriff Drummond said: “There was nothing in the circumstances that suggested reasonable apprehension that it could injure a person. Accordingly I sustain Mr Burke’s submission that there is no case to answer and I find the accused not guilty.”