Ennvironment, Food and Rural Affairs Committee Further written evidence submitted by Defra

Defra response to questions from Committee Specialist:

Q1. The use of common law definition of trespasser would include children. What is the Defra expectation of the application of the householder exemption clause to a child who wanders into a home without permission and is attacked by a dog whilst the dog owner is home?

1. If the child does not have permission (either express, or implied) to enter the property they are likely to fall under the common law definition of “trespasser” and the exemption will potentially apply.

Q2. Has Defra considered applying the householder case if the dog owner is not in or partly in the dwelling when their dog attacks a trespasser? If yes, what are the reasons for not taking this approach in the draft clause?

2. Defra has mirrored the approach in Clause 30 of the Crime and Courts Bill on the drafting of the householder exemption for legislative consistency. The “householder case” exemption is intended to enhance the current legal provision on self defence, not stand in place of it. Depending on the circumstances, there may be a defence under the common law defence of defence of property and/or Section 3 of the Criminal Law Act 1967 (use of reasonable force in preventing crime) to any prosecution. The Police/CPS also have a degree of discretion in relation to prosecution decisions, which may come into play in the envisaged scenario.

April 2013