4 Clause 2: Whether a dog is a danger
to public safety
27. Clause 2 amends the DDA in relation to the
test that the court must consider when assessing whether a dog
is 'dangerous' and therefore liable to be destroyed. The Government
states that the amendment is intended to clarify its position
following a recent High Court judgment on how the courts should
interpret the test, including a requirement for the court to consider
the character of the owner or keeper in order to determine whether
they are a 'fit and proper' person.[36]
The court must also consider the temperament of the dog and its
past behaviour, and the clause allows that the court 'may' consider
any other relevant circumstances when deciding whether the dog
poses a danger to public safety. If the court decides that the
dog would pose a danger to public safety, this constitutes a reason
for making an order for destruction as opposed to a contingent
destruction order.[37]
28. Witnesses did not agree that the clause clarified
matters and were unsure as to either its impact or the impact
of the High Court judgment on the decisions which would be made
on the destruction of dogs. The Battersea Dogs and Cats Home and
the Blue Cross requested clarification on how a determination
should be made as to whether someone was a 'fit and proper' person
to own or keep a dog.[38]
Additionally, dog welfare charities considered that clarity was
needed on how a dog's temperament would be determined and that
only those trained in dog behaviour should be deemed to be proficient
to conduct an assessment.[39]
29. We welcome the introduction of wider criteria
for determining the level of danger an individual dog represents.
The likelihood of a particular dog acting aggressively is the
product not only of its temperament but also of the conditions
in which it has been raised. Contrary
to the intention behind clause 2, the Government has failed to
clarify how provisions on the destruction of dogs should be interpreted.
The clause is unclear in several respects and we recommend that
the Government issue clear guidance on the test to determine whether
someone is 'fit and proper' to own or keep a dog, as well as to
how the temperament of the dog is to be assessed. Those advising
the courts must be required to have appropriate training in dog
behaviour.
30. Witnesses also noted that although a court
was required to consider the temperament of the dog and its past
behaviour as well as whether the owner is a fit and proper person
to be in charge of the dog, the court only "may" consider
other relevant circumstances.[40]
The RPSCA considered that this could lead to an unbalanced judgement
as to whether a dog should be destroyed and that all the relevant
circumstances must be taken into account.[41]
The conditions in which the animal will in future be kept is a
vital factor in determining how aggressive a dog is likely to
be and it is important that the courts are able to take any relevant
circumstance into account. Clause
2 confers a power on the court to consider all relevant circumstances
when determining the level of threat a dog presents. It is not
necessary to prescribe that courts must do so; rather, such a
requirement could make the application of this clause unwieldy
and require definition of all relevant circumstances, potentially
limiting the court's discretion.
31. We recommended in our previous report that
the Government consider how discretion could be applied with regard
to individual dogs of a banned breed that might pose no threat
to the public or their owners. Clause 2 would allow the courts
to exercise discretion where the owner was deemed responsible,
however Battersea Dogs and Cats Home noted that the clause did
not "provide a long-term solution" for those dogs that
do not present a risk to public safety that could be re-homed.[42]
Currently, stray or gifted dogs of a banned type are euthanised
but Battersea questioned whether the clause opened an avenue for
re-examination of legal barriers to the transfer of a dog of a
banned type to a new owner or keeper.[43]
The RSPCA suggested that a new clause be added to allow the owner
of a dog which was subject to conditions imposed by a court but
whose circumstances change to reapply to the court for the conditions
to be varied.[44]
We recommend that the
Government clarify whether clause 2 would enable the transfer
of a dog of a banned type to be transferred to a new owner or
keeper.
36 The Queen on the Application of Sandhu v Isleworth
Crown Court and Defra [2012] EWHC 1658 (Admin) Back
37
HM Government, Draft Dangerous Dogs (Amendment) Bill, Cm
8601, April 2013, explanatory notes, paras 12 and 13. A contingent
destruction order may be made by a court such that the dog shall
be destroyed unless the owner keeps it under proper control. The
court can attach conditions to such an order and may specify the
measures to be taken to keep a dog under proper control, these
could include: muzzling, keeping the dog on a lead, excluding
the dog from specific areas and neutering a male dog, if it appears
to the court that the dog may be less dangerous if neutered Back
38
Ev 24 and Ev 31 Back
39
Ev 19 Back
40
Ev 31 Back
41
Q 79, Steve Goody Back
42
Ev 24 Back
43
Q 79 Back
44
Ev 21 Back
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