“Dangerous” Dogs

18 January 2013 No Comments

Dangerous Dogs Act 199 Section 1

Section 1 of the Act deals with the prohibition of four types of dog: the Pit Bull Terrier, Japanese Tosa, Dogo Argentino and Fila Braziliero. Note that it is not necessary to prove that the dog is of a prohibited breed – in the case of a Section 1 prosecution the burden of proof is reversed; there is a presumption that the dog is of a prohibited “type” unless the defence proves that it isn’t.

If a dog is suspected of being of a prohibited type the police will most likely seize it and keep it in secure kennels. The owner will not be given access to the dog or even told where it is being kept. A police expert will examine the dog and provide their opinion on whether it conforms to type. The most common type of prohibited dog is the pit bull terrier. The reason that the pit bull is the most commonly seen prohibited type is that the dog does not have to be pure-bred, and most dogs that are seized are cross-breeds.

The criteria for deciding if the dog is a pit bull terrier type has been laid down by The Queen’s Bench Divisional Court in the case of Regina v Knightsbridge Crown Court, ex parte Dunne: Brock v Director of Public Prosecutions. This case decided that a dog could be recognised as the pit bull terrier type “so long as its characteristics substantially conformed to the standard set for the breed by the American Dog Breeder’s Association (ADBA)”.

 The ADBA sets the standard for the American Pit Bull Terrier, the purpose of which is to provide the conformation for dogs bred for fighting other dogs. This document lays down the shape and size of an ideal fighting pit bull terrier. If a dog substantially conforms to this standard it will be regarded as a pit bull terrier type. Therefore the only way to challenge the police expert’s view that a dog is a pit bull terrier is to have an independent expert compare it to the ADBA standard, and this may be paid for from public funds if the owner qualifies for Legal Aid. Although there is some allowance for the behaviour (temperament) of the dog, it is only part of the assessment and it is the physical conformation of the dog that bears most weight. Ironically the ADBA standard for the pit bull terrier disqualifies a dog that shows “man aggression” – pit bulls are expected to be friendly. Likewise the dog does not have to have committed any dangerous act for the owner to be prosecuted. Many friendly cross-bred family pet dogs fall foul of this law.

If a dog is found to be of a prohibited breed there is a presumption that it must be destroyed unless the owner can show that it does not constitute a danger to public safety. In order to provide that evidence it is usual to have an independent expert examine the dog’s behaviour. This behavioural assessment can be done at the same time as the assessment for “type” and also be paid for through Legal Aid where applicable.

If the court is convinced that the dog, even although a pit bull type, does not constitute a danger to public safety, it may make a contingent destruction order. If the dog does unfortunately have the conformation of a pit bull terrier type the prosecution very often accept the expert’s view that it does not constitute a danger to public safety. This is because the police have experts in determining “type” but do not hold themselves to be experts in dog behaviour, although they may instruct an expert themselves if they think the dog may be dangerous when handed back.

A contingent destruction order means that the dog will be destroyed unless the owner conforms to certain conditions. In the case of a Section 1 prohibited dog the court must order that the dog be entered onto the Index of Exempted Dogs. This entails having the dog neutered, microchipped, tattooed and insured, not allowing it to be off a lead or un-muzzled in a public place and then applying to Defra, who currently manage the Index. The owner cannot transfer ownership of their dog to any other person. Failure to comply with the order is another criminal offence and can result in the destruction of the dog.

Dangerous Dogs Act 1991 Section 3

Section 3 of the Act applies to all dogs, regardless of breed or type, and states that it is a criminal offence to be the owner or person in charge (if different) of a dog that is dangerously out of control in a public place. The police may seize the dog, although they may need a warrant to enter private premises do so, but it will largely depend upon the perceived seriousness of the offence and local police practice.

“Dangerously out of control” means where there are “grounds for reasonable apprehension that it will injure any person”. Note that it is not necessary for the dog to injure anyone, nor is it necessary for the dog to act aggressively – a big dog jumping up might be enough to form reasonable apprehension that it will injure someone.

If injury is actually caused the aggravated offence is committed and there is a presumption in favour of a destruction order. To avoid the court imposing a destruction order it must be satisfied that the dog does not constitute a danger to public safety. The best way to evidence that is to have an independent expert in dog behaviour assess the dog and provide an expert witness report for the court. Provided the owner qualifies, this can be paid for through Legal Aid.

If the court is satisfied that the dog does not constitute a danger to public safety it may issue a contingent destruction order, that is an order to keep the dog under proper control, and may add conditions such as muzzling and keeping on a lead in public. An expert can give an opinion on what measures may be suitable in the case of a particular dog.

“Public place” means any place to which the public has access, but under subsection (3) can be any place (including private places) where the dog is not permitted to be.

Dangerous Dogs Act 1991 (as amended): Section 4B

Section 4B is available to the police to deal with dogs they suspect may be the prohibited types listed in Section 1. It is a civil application to the court (and therefore not available for Legal Aid) and the police will provide evidence from their expert that the dog is of the “type”; as there is no presumption in their favour they will have to prove the case on the balance of probabilities unless the owner agrees it.

As in Section 1 the owner will need to show that the dog does not constitute a danger to public safety. An independent expert witness can again provide their testimony, but will not be paid for through Legal Aid.

Also as in Section 1 the court may issue a contingent destruction order for the dog to be entered onto the Index of Exempted Dogs, with all the additional conditions that entails.

The police do not have to offer Section 4B and some forces never do, always preferring Section 1.

The Dogs Act 1871: Section 2

Section 2 of the Dogs Act 1871 applies to all dogs of whatever breed, type or cross. It is not a criminal offence but is proceeded by way of a complaint to the Magistrates Court. It applies to any place, public or private, and states that if the Court finds that the dog is dangerous and not kept under proper control it may make an order for the owner to keep it under proper control or be destroyed.

This is the Act that led to the myth that a dog was allowed one “free” bite. This was never the case, but often Magistrates were reluctant to make a destruction order on the first complaint, but less so on the second. Magistrates always had and still do have the option of a destruction order on the first complaint (although they still rarely do).

However unlike the 1991 Dangerous Dogs Act it applies everywhere, can only be brought against the owner (not “person in charge”) and there is no presumption in favour of a destruction order, even if injury was caused. The dog does not have to show danger to a person, but can be judged dangerous on its behaviour towards other animals. The police may not seize the dog and the only court sanction is an order (no fine or imprisonment).

The particulars of this Act mean that it is most often used when the danger was to a person on private property – usually the owner’s premises – or when the danger was to another dog – perhaps aggression towards a dog that did not cause reasonable apprehension that it would injure a person.

As it is a civil complaint no Legal Aid will be available, but an owner may well be advised to seek an expert opinion to prevent the Magistrates ordering a destruction order.

Scotland

The Control of Dogs (Scotland) Act 2010 repealed the 1871 Dogs Act and made Section 3 of the Dangerous Dogs Act apply to any place (public or not). Section 1 and 4B remain unchanged.

It also introduced Dog Control Notices (DCNs), which can be served on anyone to bring and keep a dog under proper control, by a local authority authorised officer (usually a dog warden).

A DCN can be issued if the dog has been out of control on at least one occasion, meaning that it is not being kept under control effectively and consistently, that its behaviour gives rise to alarm or apprehensiveness on the part of any individual, and the individual’s alarm or apprehensiveness is, in all the circumstances, reasonable.

DCNs can specify similar conditions to those imposed under Sec 3 and it is an offence to breach an order. There is an additional ability to apply to the Sheriff for an immediate destruction order if a DCN would be inappropriate.

 

 

 

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