2 Clause 1: Offences on private property
6. It is an offence under the DDA to have an
out-of-control dog in a private place only if the dog is not permitted
to be there. This means that attacks in the home cannot be prosecuted
in the same way as attacks that occur in a public place, or in
a private place where the dog is not permitted to be. In line
with the majority of respondents to Defra's 2012 consultation
on this issue, most witnesses to our previous inquiry supported
the extension of offences to private property; an approach which
our report endorsed.[5]
7. We welcome the amendment
of section 3 of the Dangerous Dogs Act 1991 to close a current
loophole in the law and enable prosecution of a person whose dog
attacks someone in a private place where the dog is permitted
to be, such as a family home.
Dog attacks on trespassers
8. The draft Bill provides an exemption from
prosecution in certain circumstances for a dog owner or keeper
whose dog attacks a trespasser within a dwelling. For many witnesses
to this and our previous inquiry, support for an extension of
offences to private property depended on an adequate protection
of this sort; for example, a householder against a burglar.[6]
During evidence to the previous inquiry, Lord de Mauley, Parliamentary
Under Secretary of State at Defra, said that the proposed extension
would not extend to "protect trespassers who have entered
the private property with unlawful intentions".[7]
His 9 April letter to our Chair inviting us to scrutinise the
draft Bill stated that a householder would not be prosecuted "should
their dog attack a trespasser that has entered or is in the process
of entering the home".[8]
9. Clause 1(2)(b) sets out the 'householder case'
which would exempt the owner (or keeper) of a dog from prosecution
under section 3(1) of the Dangerous Dogs Act. However, the exemption
is not drafted as widely as the Minister's comments implied, since
it is applicable only if the owner or keeper is themselves in,
or partly in, the dwelling when the dog attacks the trespasser.
Further, it applies only to dwellings, or Forces accommodation,
and not to private land around a dwelling or to a non-domestic
property.
10. Many witnesses disagreed with limiting the
householder case to circumstances in which someone was home at
the time of the attack. The Association of Chief Police Officers
(ACPO) told us that the public would rather that the householder
was given a defence in law since a dog left alone had a role in
protecting the property.[9]
Officers argued that "the occupier being there is not that
critical" since the trespasser would be committing a serious
offence to which the dog should be allowed to react.[10]
The Kennel Club noted that the approach ignored the fact that
a dog might act instinctively rather than await direction from
someone.[11] Dog welfare
charities expressed concerns that the clause could lead to owners
constraining dogs within the house, thus restricting their exercise
and freedom.[12]
11. Defra told us that clause 1 is not intended
to replace current legal provisions, rather to mirror the enhanced
legal protection in the Crime and Courts Act 2013 for householders
defending themselves against intruders.[13]
Furthermore, depending on the circumstances of any prosecution,
the common law defence of property and/or section 3 of the Criminal
Law Act 1967 (use of reasonable force in preventing crime) may
apply. Such defences, however, offer a lower degree of assurance
than the certainty of a provision that stipulates that no offence
is committed in the first place and exempts the dog owner or keeper
from prosecution.
12. The Minister wrote to our Chair on 30 April
stating that Defra had been able to take account of the representations
made on the question of sufficient protection being afforded to
a householder who is not at home when their dog, left in the house,
bites an intruder. Householders
need the assurance that they will not be penalised for a dog's
actions if a trespasser chooses to break into their house while
no-one is home. The measure in the draft Bill did not adequately
meet the Minister's assurances that the new provision would not
protect a trespasser on private property. We are therefore pleased
that the Anti-Social Behaviour, Crime and Policing Bill includes
an amended measure such that no offence is committed by someone
whose dog attacks a trespasser in a dwelling where the dog is
permitted to be.
13. The draft Bill's householder case does not
apply to private land outside the dwelling, such as a garden.
We received evidence on the high number of dog attacks that take
place in gardens, paths and drives on a range of people carrying
out their duties, including postal, utility, healthcare and local
authority workers. The Communication Workers Union told us that
70% of the 23,000 dog attacks on postal workers in the four years
to 2012 occurred on private property; it is likely that few of
these attacks occurred within a dwelling.[14]
The householder case exemption from prosecution is applicable
only within the dwelling itself (i.e within the curtilage of the
building).[15] Defra
has confirmed that the definition would not apply to ancillary
or associated buildings, such as sheds or outbuildings, or to
outdoor areas such as gardens and paths.[16]
14. Witnesses have expressed concerns that this
would allow prosecution should a dog attack a trespasser in a
garden. Many dog owners were concerned that they would be liable
to prosecution even if they had taken steps to minimise the chance
of their dog causing harm (for example, by warning that there
was a dog on the property, and/or securing fences and gates around
the garden) and even if the actions of the trespasser had aggravated
the dog. The RSPCA expressed concern about the potential impact
on dog welfare since owners might withhold access to a garden
or contain their dog for prolonged periods. Some might even relinquish,
abandon or euthanise dogs that displayed aggression. ACPO, however,
considered it reasonable that an individual who had wandered innocently
into a back garden should expect remedy against an owner whose
dog attacked them, even if it would be unreasonable for somebody
to expect such remedy if they entered a dwelling as a trespasser.[17]
15. We are sympathetic to those concerned about
being prosecuted should their dog be deemed out of control in
their garden or other secured outdoor part of their property but
legitimate visitors accessing a property are entitled to do so
safely. Someone whose dog attacks an innocent visitor, such as
a postal worker, health visitor or a child recovering a ball from
a neighbour's garden, should be subject to the law.
We do not believe that a dog attack that occurs on land around
a dwelling, such as a garden, should be covered by the householder
case that provides exemption from prosecution for the dog's owner.
However, there is a need to distinguish responsible dog owners,
who take reasonable precautions to prevent their dog from causing
harm, from those who are negligent as to the impact of their dog's
behaviour. The Government should provide a clear indication during
the Anti-Social Behaviour, Crime and Policing Bill's passage through
the House of the need for the courts to take fully into account
mitigating factors, such as provision of warnings not to enter
a garden and the behaviour of the trespasser towards the dog.
TRESPASS IN STRUCTURES ASSOCIATED
WITH DWELLINGS
16. There are concerns about the definition of
a dwelling. ACPO told us that they understood the intent of the
clause was to apply the exemption only to those offences which
took place within the curtilage of the building. Witnesses told
us of concerns about being prosecuted if their dog attacked a
trespasser entering their shed or outbuilding,[18]
since the dog would not be able to distinguish between parts of
a property it was permitted to defend; and a home owner might
expect to be entitled to defend all parts of a home, not just
the part within the curtilage of main dwelling building. While
a trespasser on an outdoor part of the property might have innocent
reasons for trespass, we do not consider the act of entering a
structure ancillary to the home to differ from the act of entering
the dwelling itself. The
definition of dwelling in relation to the proposed changes to
the Dangerous Dogs Act 1991 should be amended so that the householder
case applies to enclosed buildings associated with a dwelling
such as garages, sheds and outbuildings. Further, the definition
of curtilage of the dwelling or ancillary buildings should be
defined in guidance or during passage of the Bill.
TRESPASS IN NON-DOMESTIC BUILDINGS
17. We received evidence on the need to extend
the exemption from prosecution to attacks which take place in
other types of building, such as farm buildings or commercial
premises.[19] However,
ACPO did not support such an extension, noting that "there
has to be a line drawn" on application of the exemption.
Furthermore, authorities would apply a public interest test which
would provide a "backstop protection" before any prosecution
was brought for an owner whose dog attacked someone in a non-residential
building, for example in a farm building.[20]
It should be noted that rules apply where guard dogs are used
to protect, among other places, commercial premises which we did
not consider in the course of this inquiry.[21]
18. The householder case enables someone to keep
a dog within a home, for example as a companion animal, without
the requirement to contain or keep the dog under constant control
to prevent injury of an intruder. However, it is reasonable to
expect that dogs kept within other types of premises, such as
commercial buildings, are kept under direct control of an owner
or keeper at all times.
It would not be appropriate to exempt from prosecution the owners
of dogs kept in non-domestic buildings since the householder exemption
is designed to enable someone to defend their family and home,
not to protect those who use dogs to guard commercial and other
types of premises.
DEFINITION OF TRESPASSER
19. The common law definition of a trespasser
is broad since it applies to anyone of any age who voluntarily
enters a place. It does not require proof of any intention to
trespass, or even knowledge of trespass. A visitor with innocent
intentions, including a child, who had entered a home uninvited
could be classed as a trespasser, thus exempting from prosecution
under the DDA the owner or keeper of a dog that attacked them.
ACPO told us that, even though there was potential for a child
to be bitten in such circumstances, the householder exemption
should apply: householders should not be left to rely on the public
interest test as to whether a prosecution should occur.[22]
We recommend
that the Government clarifies whether it intends to exempt from
prosecution in all circumstances the owner of a dog that attacks
a trespasser who has entered a dwelling with innocent intentions.
5 EFRA Committee, Dog Control and Welfare, Summary Back
6
EFRA Committee, Dog Control and Welfare, Q 69 Back
7
HC Deb, 23 April 2012, col 31WS Back
8
Letter from Lord de Mauley to Anne McIntosh MP, 9 April, reproduced
with the draft Bill, Cm 8601 Back
9
Q 4, Ev 29 Back
10
Q 2 Back
11
Ev w39 Back
12
Q 71 Back
13
The Crime and Courts Act 2013 includes measures to amend the Criminal
Justice and Immigration Act 2008 (section 76, use of reasonable
force for purposes of self-defence). Section 30 was introduced
as a Government amendment to the Bill at Report Stage in the House
of Lords and amends the law of self-defence, allowing a greater
amount of force to be considered acceptable under the law when
used by a person defending themselves in a place of residence Back
14
EFRA Committee, Dog Control and Welfare, Ev 115 Back
15
Qq 7,8 Back
16
Ev w35 Back
17
Q 14 Back
18
For example, Ev w12 and Ev w41 Back
19
Ev w38 Back
20
Q 11 Back
21
Guard Dogs Act 1975 Back
22
Ev 33 Back
| 
