Posted on 18th December 2015
The Dangerous Dogs Act 1991 (‘The Act’) in its current form has implications for all dog owners. Though the majority of offences brought before the Courts still relate to the possession, sale or exchange of ‘fighting’ dog breeds banned under Section 1 of the Act, Section 3 of the Act creates offences that relate to any dog that is out of control – not just the prohibited breeds in Section 1 of the Act. It is important to be aware of the law if you are a dog owner, as the Act could apply to your dog regardless of its size or breed.
Section 1 of the Act in its current form prohibits four ‘types’ of dogs – these are the Japanese Tosa, Dogo Argentino, Filo Braziliero and the Pitbull Terrier. It is an offence to breed, sell, exchange, advertise, gift or abandon any of these types of dogs. The Act also makes possession – not ownership – an offence. Cases under Section 1 will therefore turn on whether a dog is in fact of a certain ‘type’. The Courts have interpreted the word ‘type’ as having a broader meaning than the word ‘breed’. A dog could be, for example, of a ‘type known as pitbull terrier’ if it shared the substantial characteristics with a pitbull terrier. This would be a matter for an expert to decide – the characteristics must conform to the standard set for the breed by the American Dog Breeder’s Association (ABDA). Much will depend on a good expert report in these kinds of cases. The burden of proof is on the dog owner who must obtain this report and notify the prosecution that it is doing so.
Section 3 of the Act creates two offences. It makes it an offence for any person in charge of a dog to allow it be ‘dangerously out of control’ in a public place or in a private place where it is not permitted to be – a summary offence with a maximum sentence of 26 weeks. It also creates a separate aggravated ‘either way’ offence if the dog causes a person injury whilst ‘out of control’ –punishable with a maximum sentence of two years. The law may apply even where the dog doesn’t bite but causes people to fear injury! In addition to destruction of the dog and a custodial sentence, dog owners may face fines and disqualification from owning an animal for a certain of period of time as the Court deems fit. Amendments made to the Act in 2014 mean that the Act now covers private property as well – for dog owners this means making sure you take steps to make sure unexpected visitors and delivery drivers are safe on your property.
The Act prior to 1997 provided for mandatory destruction of any dog deemed to be of a ‘dangerous type’, or of any dog whose owner was found to have committed an aggravated offences under Section 3. As such it was routinely criticised by judges, dog owners and animal welfare groups as draconian and poorly thought out – allowing effectively for any dog deemed by an overzealous police officer as belonging to a certain ‘type’ to be dragged off the streets and put down. The law led to needless prejudice and trauma for dog owners, many of whom would consider losing a dog like losing a family member. One extreme case was that of Mark Amston, who committed suicide after putting down his pit bull terrier puppy weeks after the Act was first introduced in 1991.
After 1997, the law was changed to allow judges some discretion to remove the mandatory ‘death sentence’ and exempt the dog from destruction if they deemed that it posed ‘no threat to public safety’. If judges agree to the dog being exempted, they will impose a ‘Contingent Destruction Order’ which means the dog will not be destroyed so long as the owner abides by certain conditions – for example, microchipping the dog, ensuring that it is muzzled or prohibiting it from being walked by anyone under sixteen. The Court of Appeal has found – in a case called Flack – that judges should consider a suspended sentence of destruction and not to order destruction if satisfied that the imposition of conditions would mean the dog was not a danger to public safety.
However, this does not mean defence lawyers should be complacent – there remains a presumption in favour of destruction which needs to be rebutted by robust evidence in favour of a Contingent Destruction Order. In the case of Section 3 offences, the defence has more options – they can push for the judges to use their discretion to make no order at all or impose a less onerous ‘Control Order’. Ultimately it is for the defence to be pro-active in securing evidence and allaying the Court’s fears about dangerous dogs. One thing is for certain – a dog owner will be forever grateful to the legal team that saves his or her dog from destruction.
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