Ennvironment, Food and Rural Affairs Committee Written evidence submitted by David Tucker
Proposed Amendments to Section 3 Dangerous Dogs Act 1991 set out in Cm 8601
I have limited my comments to the proposed amendment to section 3 DDA
Parliamentary drafting
In my view the current form of Parliamentary drafting does not produce laws that are easy to find and understand. Tacking on bits is messy and confusing, especially when combined with the practice of phased commencement orders. In a country subject to the rule of law, legislation should as far as possible be in a form that can readily be understood by members of the public affected by it, police officers tasked with investigating and enforcing it, and lay and professional members of the criminal justice system.
These views are echoed in the report “When Laws Become Too Complex” by Richard Heaton First Parliamentary Counsel and Permanent Secretary of the Cabinet Office.
Proposed amendments to section 3 Dangerous Dogs Act 1991 (DDA)
Section 3(1) and (2) DDA will now read:
3 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)
(b)
(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.
In my view there is a fundamental lack of forethought in simply applying section 3 to private places in the way it applies currently to public places.
DDA proceeds on the fundamental basis that a dog is either under control or it is not.
When a dog is in a public place, and likely to come into contact with strangers and other dogs and animals, there is a clear obligation on the owner or person in charge of the dog to exercise control.
When the dog is at home, that is not necessarily the case.
It is important to understand the concept of “control”. What I regard as the relevant definition in the Concise Oxford Dictionary is “the restriction of an activity, tendency or phenomenon.”
Examples of the use of the word “control” can be found in two Acts
1.
This Act followed the draft Bill prepared by the Law Commission (Law Com No 55). In the explanatory note to that clause in the Bill, the Commission said:
“Custody” means physical custody and “control” imports the notion of the power to direct what shall be done with the things in question. The words provide a simpler concept than “possession” which is a technical term of some difficulty.”
2.
In this section, “control” is paired with “direction” and “influence” and the sense of direction underlies the use of the word. The reference later in the section to “compelling” prostitution confirms this.
When I am out walking a dog, I control it by having it on a lead or by having trained it to respond sufficiently to words of command. At all times when the dog is out, it is under my active control—or should be, and section 3 criminal liability will attach to me if I fail to maintain that control. “Sit” and “go fetch” are examples of control of a dog.
The situation at home is very different. I am at home and there are no visitors. I have a dog, and it is resting in its box or kennel. I am not exercising any control over the dog. I have the potential to control it, for instance by calling it to me. Until I do so, it is not under my control. It is secure in the house, but that is not control.
Perhaps a clearer example is this: if I go out and leave the dog alone in the house, it cannot be said that the dog is under my control. The dog is therefore “out of control”.
A domestic pet will be allowed to roam the house or garden or to rest unattended. It is unrealistic to say that the dog is under any control in that situation.
Lawyers sometimes use language and see things differently from lay people. I have been asking dogs 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.
Scenario: I am out of the house and have left my dog alone. The cleaning lady arrives a day early, comes into the house and the dog bites her. The elements of the proposed widened section 3 offence are made out. Is it right that criminal liability should attach in that situation (which is not covered by the proposed “householder” exemption)?
My conclusion and submission is that often a dog in its owner’s home or garden will not be under “control” and will therefore be “out of control”, but there does not seem to have been much thought given by the draftsman to how the widened offence will impact on what a dog owner is to do to avoid criminal liability when the dog is in a private place.
Scenario: a postal worker, one of the 5,000 or so bitten while delivering post annually, enters my garden where my dog is sleeping in the sunshine. Startled, the dog bites the postal worker. That may be the situation which Parliament intends to prevent and label with criminal liability, but what should the dog owner have done?
The section 3 offence is one of strict liability. The only available defence in the proposed widened section 3 is for an owner to pass the buck to someone else.
A better approach is to create a defence of due diligence, and to couple that with enhanced use of the Defra Code of Practice for the Welfare of Dogs, so that, by analogy with the Highway Code, compliance with guidance in the Code would be evidence of due diligence, and failure to comply would be admissible evidence of lack of due diligence. That way, owners and others would have a clearer idea of what was expected of them.
The existing Code touches only in passing on the need for adequate training and control. This needs to be much enhanced.
In the postal worker case, the Code might require the dog owner to display signage warning that there may be a dog in the garden, and to have a bell at the garden gate so that any delivery worker or other stranger coming to the premises could be received in safety.
Scenario: the owner of a dog goes out for a drink with his wife. They have a baby and employ an adult baby-sitter. The owner puts the dog in an out-building to ensure the safety of the baby sitter and baby, and tells the baby sitter. The wife, unaware of this, goes to the out-building to get something immediately before they go out, and leaves the door insecure. The dog emerges and attacks the baby, causing injury to the baby and trauma to the baby sitter. On the face of it, there is a section 3 offence by the owner, but a due diligence defence might exonerate him.
One dog owner told me of an incident where he had left the dog secure in the garden, but the gardener had left the gate open and the dog got out. That is the sort of situation where a due diligence defence would be an appropriate piece of law.
Further thought is required on the application of the proposed amendment to guard dogs, working dogs, assistance dogs, and dogs used by police and similar authorities.
The due diligence approach would also bring some pressure to bear on all dog owners to undergo training of both themselves and their dogs, as that would be part of the standard set in the Code.
The “householder case”
Section 3(1A) as proposed reads:
(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)
(b)
(c)
(i)
(ii)
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.
In my view the “householder case” is badly thought out and will lead to inconsistencies and potential injustice.
It is badly named: to be exonerated, D does not need to be a householder. Not all householders would be protected.
Whether D was in drink at the time of an incident would have to form part of a thorough police investigation.
The exemption applies in the case of a building which is a dwelling or forces accommodation—isn’t forces accommodation a dwelling by definition anyway?
People who live in a mobile home or are in a caravan are not covered by the exemption, as I read it.
NB: I cannot find section 76(8B) to (8F) of the Criminal Justice and Immigration Act 2008, although I have searched through subsequent criminal procedure legislation. I take it those provisions are not yet in force.
The obvious intention is to protect the householder who has a dog and receives a visit from a burglar.
The concept of trespass is wider than that and extends to someone who enters with consent but has that consent removed.
The reference to a person entering or being part way into a building appears to derive from the concept that for burglary a person enters as a trespasser as soon as any part of him is inside the building, so an arm through a window is enough.
Does the reference to “enters or is in a building” suggest that a burglar who is on the way out is not covered by the exemption?
Scenario: D owns a dog. D and the dog are roused in the night by a burglar entering through a window of their home. A sense of panic prevails as the owner confronts the burglar and the burglar turns tail and struggles to get out of the window. The dog, without any instruction from the owner, goes for the burglar, and they both get through the window. Once outside the building, the dog bites the burglar. The exemption as drafted does not cover that situation.
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 the owner of a dog be at risk of prosecution after an incident with an intruder, although if the item had been in a dwelling he would not?
I suggest a much simpler and wider-ranging exemption, which would cover the farmer’s tractor as well as the burglar in the house, and indeed also such incidents as a bogus utilities worker who gains entry to a house by deception and is then discovered to be in the house for the purpose of theft. I include offences of violence, thinking of cases of domestic violence where an estranged partner might receive an unwelcome visit from her former partner.
The owner of a dog and any person in charge of the dog is not guilty of an offence under subsection (1) in respect of a person in relation to whom a dog is dangerously out of control if that person is or was immediately beforehand a trespasser on private land or in a building for the purpose of a crime of dishonesty or violence.
This avoids issues of “was the dog owner under the influence of drink” and the example of hot pursuit given above. It is simple. It avoids having to investigate what was in the mind of a dog owner who was faced with an unexpected and unnerving situation. Everyone will know where they stand, including would-be burglars and thieves and those intending violence in the form of aggravated burglary, the police will find it easy to deal with, and it ought to have public support.
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 dwellinghouse, compared with dog’s kennel and valuable property are in a garage which is integral to the dwellinghouse .
April 2013