Environment, Food and Rural Affairs Committee Further supplementary written evidence submitted by Association of Chief Police Officers (ACPO)

When ACPO attended the EFRA Select Committee, the issue of dog bite incidents on private property was raised. The ACPO Dangerous Dogs Working Group has undertaken a good deal of work on this specific issue and at the request of the Chair of the Select Committee we enclose a paper prepared by a member of the working group, Mr James Clarke, Legal Advisor to Merseyside Police for the Committee’s consideration.

Secondly we noted that in a further Select Committee meeting there was debate concerning the usefulness of the Dogs (Prevention of Livestock) Act 1953. I would be grateful if our concern regarding the limitations of this Act are brought to the attention of the Committee and the attached paper includes a summary of our concerns.

Dog Bite Incidents on Private Property

Dog bite incidents on private property and the subsequent proposed change in legislation have been the subject of much debate amongst practitioners and enforcers. Whilst the overwhelming majority are in favour of such changes, there remain some concerns that home/land owners may find themselves subject to prosecution should their dog bite a trespasser or person entering the property with unlawful intent.

The Association of Chief Police Officers (ACPO) response to the DEFRA consultation included annex A, a précis of the current legislation available, and suggested drafting of future legislation covering the extension of dangerously out of control to private property.

This was drafted by Mr James Clarke, Legal Advisor to Merseyside Police and representative of the ACPO Dangerous Dogs Working Group.

An extract of this work proposing an alternative is as follows;

Extract from Annex A, ACPO response to DEFRA consultation on promoting more responsible dog ownership, June 2012

The proposed redraft in the bill1 being considered (draft 14a) reads as follows:
“If a dog is dangerously out of control in any private place the person(s) responsible for the dog shall be guilty of an offence, or if the dog while so out of control injures any person an aggravated offence under this subsection”

For the purposes of this Act a dog shall be regarded as dangerously out of control on any occasion where there are grounds for reasonable apprehension that it will injure any person or protected animal whether or not it actually does so.

Existing legislation uses the same definition as dangerously out of control but excludes dogs being used for a lawful purpose by a constable or servant of the Crown. A redraft in this form would ensure the possibility of prosecution of any owner or person responsible for a dog that caused injury if the evidence were available. Any question over the merit or public interest in doing so would be for the CPS.

Other options might include consideration of public and private places but would raise different issues. We have lived with public place responsibility for a long time and it is unlikely that this would need to be changed. The question of responsibility for private places might be better dealt with in a separate clause to any redrafted bill.

The controversies are over the extension of the criminal offence to include private places at all and more specifically the question of prosecution of owners for injuries caused by dog attacks certain categories of person.

Therefore, there could be a benefit in limiting the scope of liability to balance the rights of both the occupier and the acceptable visitor. It is difficult to propose a short general description that provides clarity as well as answering competing concerns.

Most people would agree that a visitor who is entitled to be on the property should enjoy a degree of protection. Other visitors may be unexpected but not unwelcome. Yet, the scope of any new legislation is not easily defined by requiring lawfulness of the presence or the permission of the occupier. Even seeking to imply permission does not cover all situations where the victim of an attack might expect to be protected to include for example:

A Police officer executing a search warrant would be a lawful visitor but may well be very unwelcome by the occupier.

A child collecting a football from the garden may be a trespasser but one who the occupier might tolerate in the circumstances.

A bogus official thief may be on premises with the consent of a duped occupier but for a clandestine unlawful purpose. Is consent negated by the deception as it would be in the case for a burglary charge?

A violent partner or ex partner may be lawfully on premises but for less than lawful reasons.

New legislation might also consider whether the criminal liability should attach to the owner on private premises to the same degree that it does in a public place. Should an owner on private premises be criminally liable in the event only of injury to another, or liable for the dog causing fear on the part of another or simply for any dangerous behaviour in the presence of another regardless of whether neither injury or fear results?

Consider this proposed re‐draft, which begins to illustrate the difficulty in defining an acceptable guest by way of a range of examples.

1. If a dog in any private place while dangerously out of control injures any person (B) (to which this section applies), the person or persons responsible (A) for the dog shall be guilty of an aggravated offence under this subsection

2. If a dog in any private place while dangerously out of control causes any person (B) (to which this section applies) to fear that it will injure them or any other person, the person or persons responsible (A) for the dog shall be guilty of an offence under this subsection

3. If a dog is dangerously out of control in any private place the person or persons responsible for the dog (A) shall be guilty of an offence under this subsection

4. For the purposes of this part a dog shall be regarded as dangerously out of control on any occasion where there are grounds for reasonable apprehension that it will injure any person (B) or protected animal whether or not it actually does so.

5. For the purposes of being identified as a person within category (B) this section shall include:

Or

6. For the purposes of being identified as a person within category (B) this section shall not include:

The introduction of the (A) and (B) labelling system found favour in some recent legislation and allows the consideration of a variety of categories of person and the application of the statute to situations in a methodical way. The “protected list” could be expanded to or reduced following debate of the need to protect categories of person with the implication that people who choose to enter properties for an unlawful purpose would do so at their own risk.

Proving in which category the injured person belonged would normally be for the prosecution. Hence there are different issues in having a protected list (CPS to show that the injured party was entitled to protection with the owner being able to challenge that on an evidential basis) and an excluded list (placing an additional burden upon the CPS to rebut a claim that there had been an unlawful entry).

So, who is covered? In other words, if the category of person in the left column were injured as a result of the dog being dangerously out of control, could the owner of the dog be liable?

DDA 1991

DA 1871

Redraft 14a

New model

A resident family member of person or other person normally resident at the premises

no

no

Yes, unless person responsible for the dog

Yes

An invited guest

no

no

Yes

Yes

An invited guest notwithstanding that they have wandered beyond the area into which they can reasonably be expected to remain

no

no

Yes

Yes

Children

no

no

Yes

Yes

A person on the property at the invitation, express or implied, of the occupier (postman, milkman, tradesman, canvasser)

no

no

Yes

Yes

Police officer exercising a lawful power of entry

no

no

Yes

Yes

Intentional trespasser for other than unlawful purpose (child collecting football)

no

no

Yes

Yes

Unintentional trespasser (eg drunk who gets the wrong house)

No

No

Yes

Yes

A trespasser for unlawful purpose (theft, assault or damage)

No

No

Yes

Yes

Any person threatening unlawful violence against the occupier

No

No

Yes

No

Meanwhile, the question of whether a dog is dangerously out of control is a matter of fact for a court to determine. It is a relatively high standard and the current legislations DDA 1991 and DA 1871 have different definitions.

The latter accepts that a dog would be classed as dangerous if it was a threat to another animal (although possible not a small animal that a dog would normally be expected to chase and kill by its nature). Thus this legislation is a tool of choice for law enforcement agencies in seeking to impose controls upon dogs before they injure a human. Any new legislation that did not encompass private places but which repealed the Dogs Act 1871 would in fact reduce the range of current policing powers.

Should the definition of dangerously out of control consider the fact of whether the dog is protecting the owner or the property? How could we determine the animal’s motivation? Should the standards be different?

For many people, even a list of protected categories of visitor would not be enough to guarantee protection. In the light of the current drive towards responsible ownership, should the criminal legislation mirror the civil and make it an offence not to take reasonable steps to ensure the safety of anyone who enters onto premises by ensuring that a dog is adequately separated or secured?

This would mirror the current law in relation to guard dogs.

Conclusions

It is apparent that the issue of extending the criminal law into private premises is likely to be a controversial question for the legislature.

There is also difficulty in trying to “please all of the people” in that there are competing interests over the protection of life and limb of people, the method best used to motivate owners to take responsibility for their animals and the rights of citizens to enjoy their own property and possessions without undue interference from the state. There is the fact that this issue crosses into the question of how far individuals should be able to protect themselves and their property.

This appendix does not provide a clear answer. However, it will hopefully highlight some of the factors to be considered in the debate in deciding whether and how an extension to the existing legislation could be achieved.

If anything, it perhaps shows that the “all or nothing” approach is unworkable and that a considered approach to a range of situations may be required.

It is the belief of ACPO that the above approach would allow for;

7. Peace of mind of responsible dog owners within their own home, that they would not face criminal charges should their dog attack and defend them and their property against persons on their property with unlawful intent.

8. Individuals lawfully on private property may enjoy an element of protection.

9. Clear guidance to both prosecutors and the courts.

10. Children and vulnerable people are afforded a degree of protection even when entering the property as a trespasser with no unlawful intent.

With regards to point 4 above, it should be noted that even though the legislation exists to prosecute a homeowner for an attack on such a trespasser, the individual case must still pass the test of being in the public interest to prosecute.

A person who has placed signs on their fence warning of the presence of a dog, and taken all steps to secure their dog and their property, and yet a drunk scales his garden fence believing it to be his house receiving minor injuries from the resident dog, is unlikely to face prosecution as it would not be in the public interest.

A person residing next to a school or play area who is fully aware that the dog in his back garden is unsociable, but has minimal fencing and nothing to deter children from recovering a football, may find themselves subject to a prosecution under this section.

A further area that appears to have been the subject of much debate during the EFRA Inquiry, has been that of farm land and farm buildings. Although ACPO is sympathetic to the predicament that many farm owners find themselves in, being victims of crime such as theft in secluded areas, they too, as with homeowners for example, have a duty of care over lawful visitors to their property.

Should a property remain open to allow people access to the frontage of a farm house for example, then the owner of the property has a duty to ensure the safety of any visitor to the property, such as postal workers. Should they wish not to have people approaching the property for security reasons, then adequate security measures and signage should be in place, along with an alternative mail box for example.

The Dogs (Prevention of Livestock) Act 1953 (PLA)

The PLA is widely accepted amongst practitioners as being an outdated and ineffective piece of legislation. Farming and livestock have changed dramatically in the past 60 years, so too has the threat to animals and the public as a result of irresponsible dog ownership. This change does not just affect our inner cities, but all of our communities, including those in rural areas.

Areas of the PLA that are now outdated and frustrating to enforcers are;

1. Definition of livestock. There are now animals routinely being farmed in the United Kingdom that are not included within the definition of the PLA. Dog attacks on Lamas have already been raised as an issue, with DEFRA seeking advice from ACPO as to how they might advise on future incidents.

2. The requirement of a Chief Officer to consent to proceeding being taken against a person suspected of an offence is unnecessarily bureaucratic at a time when police time and resources is at a premium.

3. Once the owner of a dog is identified, there is no power of retention for the dog in question. Should this dog be continually chasing livestock in a field adjacent to a busy road there are serious public safety issues.

4. There are no powers for the courts to apply control measures onto the dog. A requirement to keep an offending dog on a lead is a simple but greatly effective way of reducing the danger to livestock and the livelihood of those who depend on it.

5. There are no powers for the court to order the dog’s destruction under the PLA. This is a necessary element of any dog related legislation aimed, especially legislation implemented to deal with one of the most hardwired or behaviour patterns, the chase, and consequently one of the most difficult behaviours to successfully modify.

A thorough change is required on the value we place on the welfare of animals that are regularly subjected to attacks by dogs that are either allowed, or encouraged, to behave in an aggressive manner. This change should then be supported by legislation that is fit for purpose to allow enforcers to deal with incidents effectively, yet proportionately, and restore public confidence in this area.

November 2012

Prepared 14th February 2013