Read a free chapter from ‘A Practical Guide to Dog Law for Owners and Others’ by Andrea Pitt

CHAPTER THREE
DANGEROUS DOGS

In this Chapter I look at the area which brings most concern for owners – dogs which are dangerous. I will look at the definitions and penalties for criminal offences and a civil complaint. I will also look at Breed specific legislation.


If your dog is involved in an incident the police may become involved and you may end up in court in a number of ways. The most common are:

A complaint may be made that your dog was dangerous and not under proper control – Dogs Act 1871.

A criminal charge for being the owner or in charge of a dog dangerously out of control – Dangerous Dogs Act 1991.

It is important to understand the differences between the two; not only are the penalties vastly different but also the way they are prosecuted and this is dealt with in the chapter eleven, ‘Legal Procedures’.


Dogs Act 1871

This Act gives a Magistrates Court the ability to make an order that a dog be kept under proper control or be destroyed. In order to do so the court must be satisfied that the dog is dangerous AND not kept under proper control.

Whether a dog is under proper control is a question of fact not law although there is some guidance in the case law, for example if your dog is not on a lead it may be said to not to be under proper control. In relation to dangerousness, unlike the DDA (Dangerous Dogs Act), no injury has to be proved, or it can be an injury to another dog. It is for this reason that it is frequently used. Be aware that if your dog chases sheep or injures cattle it will be considered to be dangerous. You should also be aware that the fact that you did not know your dog was dangerous is not a defence, nor is the ‘but it’s never happened before’ observation although it may be mitigation.

Many owners are concerned by the phrase ‘or destroyed’. It is usual, save in exceptional cases, after a first incident, for an order to keep the dog under proper control. This may include conditions which are wide ranging but may include neutering if male, muzzling, keeping on a lead and prohibition from certain places, such as public parks.

In addition you may be disqualified from having custody of a dog for a period of time. Note this doesn’t prevent ownership but that for the period of disqualification the dog must live with and be walked by someone else.

It is a criminal offence to breach any orders made. If found guilty you could be fined and if not previously ordered, disqualified from having custody of a dog.

Penalty

There is no financial penalty as such, although you may be asked to pay costs associated with bringing the case to court. The penalty is the risk to your dog, which is discussed later.


Dangerous Dogs Act 1991

This is the act you are probably more aware of and if you fall foul of any of its provisions there are serious consequences for you and your dog.

The Act was introduced ‘to prohibit persons from having in their possession or custody dogs belonging to types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dog which present a serious danger to the public; to make further provision for securing that dogs are kept under proper control; and for connected purposes’. It arose out of concerns in relation to dog attacks particularly on children and to fill in the gaps in the Dogs Act 1871


Banned Breeds

The most controversial part of the act is section 1, relating to ‘banned’ breeds. There is often confusion about which dogs it applies to. It is headed ‘Dogs bred for fighting’ which gives an indication of those it is directed at. It specifies any dog of the type known as pit bull; any dog of the type known as a Japanese Tosa and any dog ‘being a type appearing …to be bred for fighting OR to have the characteristics of a TYPE bred for that purpose’. Dogo Argentino and Fila Brazilero have been added as banned breeds by the Secretary of State under this part of the Act.

This is where the confusion lies, your dog does not have to be a pit bull or one of the other types to fall foul of the section, but simply to have the characteristics of a pit bull. How is this established? Your dog will be examined by an expert, usually the Dog Legislation Officer – a police officer who has experience and training in all areas of dog law. He will assess your dog in accordance with the American Dog Breeders Association standard of conformation. In order to be a ‘type’ your dog must have a substantial number of characteristics which makes it more pit bull terrier than any other type.

If your dog is considered to be a pit bull type it may be seized by the police or local authority until its breed or type is established. This can be done by agreement or via the courts. If you wish to challenge the authorities you will invariably need evidence from a suitable expert. The presumption is that the dog is the breed/type alleged unless you can establish it is not.

However, if you have any of the dogs listed you MUST not breed; sell or exchange; advertise for sale or exchange; or abandon. In a public place the dog MUST wear a muzzle to prevent biting and must be on a lead held by a person over 16 years of age.

When the act first became law it was possible to have dogs exempted, rather than destroyed. The exemption applies only to dogs born before the act came into force. This makes sense as since that date it is an offence to breed such dogs.

However IF your dog is seized and you are prosecuted for one of the offences it is possible for the court to order your dog to be placed on the Exemption Register. You cannot apply (as you might for a driving licence) to exempt your dog.

An exemption, if granted, is subject to conditions. The dog must be neutered, whether male or female. This must be carried out by a vet who shall provide the dog with a permanent identification to the effect the operation has been carried out. You must have third party liability insurance.

Once you have an exemption certificate there are ongoing requirements as to notification of ownership and address, muzzling and keeping on a lead. The dog must be kept securely to ensure it cannot escape and it must be tattooed and microchipped.

Even if you comply with all the requirements, remember you are still subject to the laws concerning dangerous dogs.

The maximum penalty for you is 6 months imprisonment and or a level 5 fine (unlimited amount since March 2015).


Dogs not under proper control

This is the section that most people are aware of and it is the one you are most likely to fall foul of.

Section 3 places a duty on an owner or a person in charge to ensure that their dog is kept under control in a public place. It is set out below:

(1) If a dog is dangerously out of control in any place in England or Wales–

(a) The owner; and

(b) If different, the person for the time being in charge of the dog,

Is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection.

(2) In proceedings for an offence under subsection (1) above against a person who is the owner of a dog but was not at the material time in charge of it, it shall be a defense for the accused to prove that the dog was at the material time in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it.

(3) If the owner or, if different, the person for the time being in charge of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there–

(a) It injures any person or an assistance dog; or

(b) There are grounds for reasonable apprehension that it will do so,

He is guilty of an offence, or, if the dog injures any person, an aggravated offence, under this subsection.

This makes it a criminal offence to own a ‘dangerous dog’.

What is a dangerous dog? The act makes it clear that your dog is dangerous if:

On any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so’.

This is quite a wide definition and deliberately so. It means that all cases will turn upon their own unique facts. The first point to note is that the dog does not have to actually cause an injury, there simply has to be an apprehension (fear) that it will. That fear must be reasonable, that is to say if viewed by another person it was likely to happen. So it is clear that a dog on dog attack MAY fulfil the criteria to be a dangerous dog if someone fears that they, themselves, may be injured.

What does that mean? The comments in relation to the Dogs Act, above, are relevant. I always advise people that if they cannot bring their dog immediately to heel they do not have control of it, however this of itself does not make it dangerous.

Shortly after the act was introduced the concept was examined by the courts on a specific point of law called ‘strict liability. The facts of the cases are useful examples of what may be considered dangerous.

Mr Bezzina was exercising his Rottweiler dog, at the time, off its lead, in a small grassy compound. Some teenagers were nearby. There was some sort of confrontation between them Mr Bezzina. At some stage during that confrontation Mr Bezzina’s dog suddenly chased after one of those teenagers and bit his back, causing injury, and continued to chase the teenager until he managed to escape into a nearby police station.

In the next example there appeared no reason for the incident. The dog owner, Ms Codling, was walking her dog off lead. A Mr Green was also walking his dog. It seems there was an incident involving the dogs during which Mr Green was bitten. There was no explanation as to why Ms Codling’s dog had bitten him.

The final example relates to a Mr Elvin. It appears he was the owner of two powerful and dangerous pit bull dogs, which the Judge considered to have been left in ‘inadequately secured’ premises, who got out and bit a male who was nearby. The important point here is that Mr Elvin believed he had secured the dogs, but this was not a valid defence.

What we learn from these three cases is that once the facts of the case have been established – that the dog is in a public place; that the owner has been correctly identified and that the dog was dangerously out of control – it matters not if you, the owner or person in charge, were not aware the dog would act in this way. The Judge, Lord Justice Kennedy, said that the onus is on the owner to ensure that he takes effective steps to ensure that it does not happen, for example keeping the dog on a lead or ensuring the premises are sufficiently secure to keep the dog inside.

In the criminal law this is called strict liability; it means that it doesn’t matter what your intention was. If the facts are proved then you are guilty.

He gave an example. If a child pokes a stick at your dog and it reacts he suggested you would be guilty.

The law however is never static and has now moved on due on to a case involving Mr Robinson-Pierre. The facts are that RP was at home and his dog, a pit bull was secure inside the property. The police attended and lawfully entered the house using an enforcer. The dog which was upstairs came down and immediately attacked that officer who was backing away. The dog went on to attack other officers, outside of the house, who went to the aid of the first. When RP appeared and was asked to call the dog off he told officers there was nothing he could do. In all, five officers were injured. When he was arrested RP said ‘it wasn’t the dog’s fault you should have knocked’. The first incident inside the house was dismissed because it occurred inside private property. (This was 2013 before the law changed as you will see later). RP argued he shouldn’t be responsible for the actions of the dog because he had done nothing to allow the dog to escape OR cause it to be dangerously out of control. He was convicted and appealed because under Bezzina, although the owner had done nothing wrong, the dog was dangerously out of control.

The Court of Appeal re-examined the Bezzina case (and the others) and concluded that there may be circumstances where the rule didn’t apply. The court said that an owner will only be guilty if they by ‘act or omission had made more than a minimal contribution to the prohibited state of affairs’. If the owner did nothing to bring about the state of affairs or by inaction allowed the state of affairs to arise. RPs conviction was overturned, however it is possible that he would still be guilty because he did nothing to get the dog off the officers after he became aware of the situation.

Looking at all this in layman’s terms; if your dog for no reason attacks another dog or a person, your dog will undoubtedly be ‘dangerously out of control’. If we take the example of the child poking a stick at a dog; you may still be guilty if you did nothing to stop it by telling the child not to do that. However it is unlikely you will be guilty if, as in Mr Elvin’s case, the dogs had been adequately secured on the property.

If you do find yourself before the court the CPS will have to prove not only that you were the owner of the dog involved, but also that the dog is correctly identified as the one responsible. For example if there are two black Labradors on a field and one bites a person the CPS have to prove it was YOUR black lab.

The penalty for you is different depending on which court hears your case and how serious it is. In the Magistrates Court you can be imprisoned for 6 months and/or fined at Level 5.

If the case is dealt with at the Crown Court and the case is where a person has died as a result of the injury you may be sent to prison for 14 years and be fined. If a person was injured as a result of the dog you may be sent to prison for 5 years.

Finally, as already noted, if the dog is owned by someone under 16 years of age the act makes the ‘head of the household’ responsible. This means that if your 15 year old son owns a dog and walks it and there is an incident you could find yourself in court!


Defences

It is a defence if, as an owner, you were not in charge of the dog at the time of the incident but had left it with a person you reasonably believed was a fit and proper person so that you are not responsible. This could be a professional dog walker or your partner. A word of caution however – if you allow your 10 year old daughter to walk your dog, even a very small breed, on her own and there is an incident it is likely that this defence will not apply.


The Householder defence

It has been well publicised that the Dangerous Dogs Act had a major flaw when it was first introduced, as can be seen from RP. It only applied in public places which meant many of those horrific cases involving young children did not fall within the ambit of the law. The Act was changed to take out the words ‘public place’ and make it any place in England and Wales. This extension meant that an offence could be committed inside a property.

Having looked at the cases above it is clear that this might leave people open to prosecution in circumstances where it may be considered morally wrong. The law therefore provides for what is called the householder defence. The section provides

(1A) A person (D) is not guilty of an offence under subsection (1) in a case which is a householder case

(1B) For the purposes of subsection 1A “ a householder case” is a case where

(a) The dog is dangerously out of control while in or partly in a building , or part of a building ,that is a dwelling or is forces accommodation (or is both), and

(b) At that time

(i) The person to who the dog is dangerously out of control (V) is in or entering the building or part as a trespasser, or

(ii) D if present at the time believed V to be in, or entering, the building or part as a trespasser.

The defence only applies to a dwelling that is a place somewhere where people live. It will not apply to other places such as a warehouse and it does not apply to any land around your home, such as your garden or a paddock.

It only gives you a partial defence towards people who are trespassers or you believe to be trespassers. Two issues arise here – who is a trespasser, and what is meant by ‘believe’?

A trespasser is defined as a person who enters your property without your consent, whether this is a deliberate entry or they were negligent in entering your property or reckless in entering. If we go back to the situation in RP; the officers would not be trespassers because they had a warrant to enter. If they didn’t have a warrant then the defence would apply. Although simply stated ‘believed’ seems easy to understand, however it will be for you to establish that you did believe the person was a trespasser and this will depend on the facts of each case.


Assistance Dogs

After some attacks on assistance dogs there is, now, a specific offence in relation to assistance dogs. There is no definition of assistance dogs but it is likely to cover guide dogs, hearing dogs etc.


Control Orders and Destruction

Under both the Dogs Act and the Dangerous Dogs Act the court has power to make the following orders – a control order, a destruction order, or a contingent destruction order. Section 4 gives the court the power to destroy, and when it first came into force it was mandatory for an offence under section 1 or an aggravated offence under section 3. However the law has been relaxed by the insertion of the subsection 4(1A):

Nothing shall require the court to order the destruction of a dog if the court is satisfied

(a) That the dog would not constitute a danger to public safety

(b)[Where the dog is prohibited] there is a good reason why the dog has not been exempted.

Where the court was previously required to make a destruction order it may now make a Contingent Destruction Order; that is an order that the owner keeps the dog under proper control or it will be destroyed. The courts may, and usually do, impose conditions on how this is to be achieved. These may include neutering, muzzling and keeping on a lead. This is not an exhaustive list and may include ensuring a dog is kept securely to prevent escape.

It addition, a court may order a dog destroyed where a dog has been seized, even if the owner is not convicted, because they cannot be found, or for any other reason or because the dog is a prohibited breed. Again the court does not have to order destruction if it is satisfied that the dog would not constitute a danger to public safety.

The issue of destruction was considered by the Court of Appeal in Flack. The following guidance was given on how a court should approach an application for destruction:

(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1) (a) of the 1991 Act.

(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4a (4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed (“a suspended order of destruction”).

(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4(a)(5) of the 1991 Act.

(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog’s history of aggressive behaviour and the owner’s history of controlling the dog concerned in order to determine what order should be made.

This makes it clear that a court should not make an order for destruction unless a suspended (or contingent) order would ensure the safety of the general public.

Ferocious Dogs

Although seldom used these days there is an additional law you need to be aware of – the Town and Police Clauses Act. It is still on the statute books so be aware.

It is an offence to let an unmuzzled ferocious dog be at large so that it obstructs or annoys the residents or passengers in the street or puts them in danger, or to urge any dog to attack worry or put in fear any person or animal.

This act does include incidents involving other animals so it is useful to be aware of it. ‘At large’ is not defined but will probably mean dogs NOT on a lead. The dog doesn’t have to actually cause fear or injury, but simply obstruct or annoy, which should be given their ordinary meaning.

There is no provision for the dog to be destroyed and it merely carries a fine as penalty, so is little used today.


Summary

Any dog owner can find themselves before the court if they do not have proper control of their dog whilst out in public. It can be a minor incident or much more serious, especially if it involves a child. The answer is to always be aware of where your dog is, perhaps don’t use Facebook or the phone when walking, but concentrate on your dog and you should be ok.

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