Anti-Social Behaviour, Crime and Policing Bill

Written evidence by David Tucker (ASB 07)

Submission relating to Part 7: Dangerous Dogs

Biographical note

1. I was a Solicitor from 1973, a Crown Prosecutor and Senior Crown Prosecutor from 1988 to until retiring in 2008. In CPS I was also an accredited trainer and worked on the in-house guidance for various Acts. My specialisations included dangerous dogs and I have delivered training and published a number of articles on this including in the Criminal Law Review. I have previously submitted written evidence to the Commons Select Committee on the Environment, Food and Rural Affairs on Cm 8601 proposed amendments to Section 3 of the Dangerous Dogs Act 1991.

Summary

1. Amending section 3 of the Dangerous Dogs Act 1991 (DDA) by simply extending it to incidents in private is not the best solution to the problem of dog incidents on private land. The language appropriate to events in public will not work well in a private context because "control" or lack of it is not the right test for criminal liability.

2. The "householder" defence is flawed, complicated and in particular will work badly when a child is the victim in an incident.

3. The section 3 offence is one of strict liability and the existing very limited defence should be replaced by a defence of due diligence, ideally linked to a code akin to the Highway Code, setting out clearly what is expected of a dog owner or handler.

4. Rather than the concept of "out of control" and "under control", a better approach is language focussing on the impact of a dog’s behaviour coupled with a Code setting out the responsibilities of the owner and handler and a defence of due diligence to exonerate those who meet the Code’s standards.

5. The maximum penalty for an aggravated offence under section 3 is 2 years’ prison and that is insufficient. By comparison with the penalties for causing death by careless or dangerous driving a maximum penalty of 10 years is appropriate.

6. Consolidation of the law relating to the welfare and control of dogs is preferable to piece-meal and rapidly constructed changes to scattered legislation.

The proposed wording of section 3 DDA

Keeping dogs under proper control

(1)If a dog is dangerously out of control in any place in England or Wales (whether or not a public place)-

(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 or assistance dog, an aggravated offence, under this subsection.

(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 D is 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 in relation to whom the dog is dangerously out of control ("V") is in, or is entering, the building or part as a trespasser, or

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

Section 76(8B) to (8F) of the Criminal Justice and Immigration Act 2008 (use of force at place of residence) apply for the purposes of this subsection as they apply for the purposes of subsection (8A) of that section (and for those purposes the reference in section 76(8D) to subsection (8A)(d) is to be read as if it were a reference to paragraph (c)(ii) of 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 defence 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.

(4)A person guilty of an offence under subsection (1) or (3) above other than an aggravated offence is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both; and a person guilty of an aggravated offence under either of those subsections is liable-

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

The problem of "out of control" in a private place

2. Under the proposed amendment, Section 3 becomes a tangled and confusing section, but is basically the original section 3 as enacted in the 1991 Act with the restriction to public places removed and the addition of a householder defence related to other provisions designed to exempt from criminal liability a householder who protects himself and his family from an intruder.

3. The core concept in section 3 therefore remains that of a dog which is "dangerously out of control." It follows that the law contemplates that a dog is either "under control" or "out of control."

4. In a public place, a dog in the charge of a responsible person is "under control" at all times. Control is achieved by having the dog adequately held on a lead or subject to voice or similar commands which ensure that the dog will go or not go, move or stay, as the owner or handler directs. That concept does not transfer happily to what happens in a private place such as a house or a garden, when the degree of direct and visible control over the dog will be much more relaxed or even non-existent, so that the dog will for significant periods of time therefore be "out of control" even though the owner is doing nothing unusual or reckless and is not acting in an irresponsible way – the mischief the law wishes to criminalise and thereby prevent.

5. Lawyers sometimes use language and see things differently from lay people. I have been asking dog owners about the concept of being "in control of" a dog in a private place. The consistent response is that when the dog is in its box or kennel and the owner is either in the house elsewhere or even out of the house, to describe the owner as "in control" of the dog is not the right language, albeit the owner remains at all times responsible for the dog and its actions.

6. If a dog owner leaves his dog safely at home and goes out, it is stretching language too far to say that the dog is under the control of the owner, and it follows that that dog is "out of control" because no one is at that time "controlling" it. It would follow that whenever the owner is away from a dog that is not on a lead or tether or contained in a secure cage, the dog is out of control. A dog asleep in a garden is "out of control". As the section 3 offence is one of strict liability, requiring no specific mens rea, that puts the owner at risk if unexpected events occur. It follows that testing whether a dog is "under control" or "out of control" is not the appropriate test for incidents taking place in private. A better approach for incidents in both public and private can be formulated.

Due diligence and a Code for the Welfare and Control of Dogs

7. It is remarkable that section 3 creates an offence of strict liability and yet the only defence available to the owner is to pass the buck to another person by showing that another person believed to be fit for the task was in charge of the dog. Such a narrow defence creates the prospect of injustice where an owner technically commits an offence but is morally blameless.

8. One dog owner told me of an incident where he had left the dog secure in the garden, but the gardener, despite instructions, had left the gate open and the dog got out. Had the dog attacked someone the owner would be guilty of an offence. It is not sufficient, in my submission, for the justice of the matter to be in the realms of a CPS decision that a prosecution was not required in the public interest. Rather, there should be a wider form of defence available to both a dog owner and a person in charge of a dog, namely a defence of due diligence.

9. That would work most effectively if accompanied by clear guidance on the standards to be expected of a dog owner or handler. There is a Defra publication, but it would not be sufficient for this purpose. I have in mind a document analogous to the Highway Code, with the same statutory status, which would be readily available and would be the touchstone for an investigating police officer, a reviewing prosecutor or court to determine if a suspect or defendant had done all that could reasonably be expected of him in a particular case. It would be a document specifically designed to give clear guidance to owners and handlers, and to be used in the course of an investigation, in deciding whether to prosecute and in court. An extract from my draft Code is in the Schedule to this submission.

The "householder" defence

10. The original draft of this provision in Cm 8601 contemplated only the situation where the owner of the dog was present on the premises when the dog was dangerously out of control. That was quickly seen as too narrow and the words "if present at that time" were added.

11. A serious flaw in this drafting relates to the child who enters premises without permission and is in law a trespasser. Such a child will be treated in the same way as a burglar, even though below the age of criminal responsibility and in law incapable of crime. That would be unjust if the child had entered premises innocently, for instance opening an insecure door to look for a friend.

12. A further flaw relates to the limitation of the defence to trespass or perceived trespass in a dwelling. If I store valuable items outside a building but on private land – farmer keeps tractor in farmyard for example, or boat owner keeps it on a trailer in the garden - should I as the owner of a dog be at risk of prosecution after an incident with an intruder in the farmyard, although if the item had been in a dwelling, for instance in an integral garage, I would not? It seems an illogical distinction and the wrong point at which to "draw the line".

An alternative proposal

13. I respectfully submit that there is a better and simpler way of dealing with the issue.

14. After reading the recent report of the Commons Select Committee on Cm 8601, I set to drafting a consolidated Dogs Bill as recommended by the Committee. Starting with a fresh mind, in formulating an offence which applies to dogs in private places as well as public, I have abandoned the concept of "dangerously out of control" in the DDA 1991, itself a throwback to the wording of the 1871 Act. I have focussed the offence on the impact on others of the behaviour of the dog as that will more readily make sense in a private place than "out of control". This formulation works equally well for incidents in public, and  also addresses the deliberate use of a dog, while fully under the control of an owner or handler, to behave aggressively.

15. I have also taken a simpler approach to the question of the trespasser issue. The aim is clearly that a person of criminal intent takes the risk of there being a dog at premises he targets. Exempting the owner from liability whatever the reason for the trespass, eg error, and whatever the age of the trespasser, eg 6 years old, is in my view too wide and likely to lead to continuing public displeasure with the operation of the law relating to dogs and safety.

16. The maximum penalty for an aggravated offence under section 3 DDA is 2 years’ prison. For causing death by careless driving it is 5 years, and for causing death by dangerous driving it is 14 years. In my draft I have provided for a maximum penalty of 10 years’ prison for a section 3 aggravated offence. That would only be appropriate in a case where there had been both severe neglect of responsibility by the owner and serious consequences such as death or severe life-long disfigurement or disablement. The Sentencing Council would issue suitable guidance for courts. It is not be sufficient to say that there are already offences of causing grievous bodily harm and manslaughter, because the elements of those offences might not be made out, and victims or their families would remain without the access to justice which the public clearly want in dangerous dog cases, as evidenced by the public reaction to cases of severe injury and death where no prosecution is possible.

17. I have tried to create law which is clear to understand and can be effectively enforced. However there is no doubt in my mind that a consolidation of the existing scattered, out of date and poorly known law is a better way forward. The gains would be

• Increased public confidence in the law as a tool for providing an adequate framework for the welfare and control of dogs

• The ability to take effective preventive action when the welfare of a dog is at risk or the dog presents a risk to other people or animals

• The ability of the law to provide an adequate penalty and remedy after an incident, especially one involving serious injury or loss

• Discouragement of the use of dogs as trophy animals

• Monitoring through an expected decrease in the number of incidents of dog attacks and admissions to hospital

Extract from draft Dogs Bill - section to replace (inter alia) section 3 DDA

Dog behaving in a dangerous or threatening manner or causing injury

18.(1) If a dog behaves in a manner that is dangerous or threatening towards a person, including a person in or on a vehicle or riding an animal, the owner and any other person in charge of the dog at that time is guilty of an offence, or, if the dog injures a person, an aggravated offence.

(2) If a dog behaves in a manner that is dangerous or threatening towards an animal the owner and any other person in charge of the dog at that time is guilty of an offence, or, if the dog injures an animal of a type usually kept for commerce or an assistance dog, an aggravated offence.

(3) It shall be a defence for any person charged under this section to prove on a balance of probabilities that he used all due diligence to prevent the commission of an offence of the type alleged.

(4) The owner of a dog and any person in charge of the dog is not guilty of an offence under this section in respect of a person if that person is or was immediately beforehand a trespasser being of the age of criminal responsibility and being on private land or in a building for the purpose of a crime of dishonesty or violence.

(5) A person guilty of an offence under this sub-section (1) or (2) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or, in the case of an aggravated offence, a fine not exceeding level 5 on the standard scale or on indictment to imprisonment for a term not exceeding ten years or a fine or both.

(6) For the purposes of this section an assistance dog is a dog that has been accredited to assist a disabled person by a charity or organisation approved for this purpose by the Secretary of State.

(7) If a dog appears to an authorised officer to be behaving or to have behaved in a manner prohibited by subsection (1) or (2) above, he may take control of the dog and arrange for it to be taken to a suitable place for its welfare, and it shall remain the responsibility of the authorised officer unless and until it is returned to its owner or placed with an organisation for rehoming or destroyed.

(8) A person who was the owner of the dog or was in charge of it at the time it was taken by an authorised officer shall be liable to pay for the costs of the kennelling and welfare of the dog for so long as it remains the responsibility of the authorised officer.

18. NB: authorised officer is elsewhere defined as a dog warden, police constable or RSPCA officer.

19. If this proposal is considered too wide, a narrower exemption would be achieved by removing "on private land or in a building" and substituting "in a dwelling", but beware anomalies – for instance dog’s kennel and valuable property are in an outbuilding which is separate from the dwelling-house, compared with dog’s kennel and valuable property are in a garage which is integral to the dwelling-house .

Schedule

Extract from draft Code for the Welfare and Control of Dogs

The dog at home

31. Where you keep your dog must be sufficiently secure to prevent it from escaping. A garden or yard must be sufficiently fenced and gated. The security of the perimeter must be regularly checked and maintained in good repair.

32. Entrances must be gated. Put a sign on or by each gate asking users to shut the gate to prevent the dog from straying. Consider putting a delivery box by an entrance for post, newspapers etc, so that deliveries can be made without someone opening the gate.

33. Ensure that the dog cannot stray out while gates are open for a vehicle to drive in or out.

Control

40. It is vital for the safety of a dog and of people and other animals that you and anyone that you place in charge of the dog should be able to control it adequately.

41. A dog that is not adequately controlled may cause an accident or harass or attack people or other animals.

42. You must be able to keep your dog under control when at home and elsewhere.

43. You and anyone in charge of the dog must be able to

• Make it come to heel on a signal of command, or keep the dog on a lead

• Make it sit or lie down

• Make it wait

• Attach a lead to its collar

• Make it walk to heel on a signal of command

• Control barking

• Make it defecate in a controlled way and not on pavements.

44. When you go out with a dog, always take a suitable lead, so that you can control the dog under any circumstances that may arise

45. When you take a dog out in public, always keep it on a lead unless it has been sufficiently trained for you to be able to control it whilst off the lead and conditions make it suitable for it to be off its lead. In particular make sure that there is no requirement where you are to keep it on a lead.

46. Use a suitable muzzle on your dog if it is required or if a vet advises that you should do so.

A dog and other people

47. You should respect the needs and expectations of other people. Some people are frightened of dogs. Respect the reaction of people if they do not like the presence of a dog.

A dog and babies and children

48. Never leave a dog unattended with a baby or child.

49. You must ensure that a dog is suitably controlled or restrained if there is a baby or child nearby. Ensure that the person in charge of the baby recognises the need to keep the baby or child safe, in particular by not letting the baby or child come too close to the dog.

50. A dog may mistake a baby for a small animal and think that it should be caught and killed.

51. A child may see a dog as a toy and treat it in a way that angers or harms the dog and provokes a reaction. A child may not be aware of its ability to injure a dog or of a dog’s ability to injure it if alarmed or hurt.

52. If you are in charge of a dog, you must closely supervise any play between a child and a dog. Do not assume that whoever is looking after the child will necessarily be aware of the risk.

Letting someone else have charge of a dog

56. The primary responsibility for the welfare and control of a dog always lies with the owner. Someone else who takes charge of a dog also assumes that responsibility.

57. If you let someone else take charge of a dog, you should make sure that that person understands those responsibilities and understands what is expected and required of him or her.

58. Before you let someone else take charge of a dog, ensure that he or she knows how to control the dog safely, and is physically able to do so.

59. Be particularly wary of letting a child or young person take charge of a dog. Children may see a dog as a playmate and source of fun without realising either the dog’s own limitations or the risk to others of inadequate control and restraint. A child or young person may also lack the physical ability to restrain a dog. Two or more children in charge of a dog are no substitute for one adult.

60. Remember that if a dog is in public and therefore required to be on a lead, the person holding the lead must be at least 16 years of age.

61. If any special conditions apply to the welfare or control of a dog you own, such as conditions in a Dog Welfare and Control Direction, ensure that anyone you place in charge of the dog knows and understands the conditions and will comply with them.

62. Before you take charge of a dog, ensure that you know about its character and temperament.

June 2013

Prepared 20th June 2013