Tuesday, 7 May 2013

Draft Dangerous Dogs (Amendment) Bill 2013

The Queen's Speech on May the 8th is reported to include the draft Dangerous Dogs (Amendment) Bill 2013.

On the 9th April the Government published its draft Dangerous Dogs (Amendment) Bill which aims to amend the Dangerous Dogs Act 1991 (DDA), if passed this new legislation will affect dogs of all breeds/types.
Here we take a detailed look through the Bill and give our analysis on the sections-to read through the proposals you can view the draft Bill in its entirety with government explanatory notes online (see below).
The main points of the Bill are:

1) Extension of section 3 of Dangerous Dogs Act:
Section three of the DDA, which applies to all breeds/types of dog, would be extended to apply to all places – to include private property e.g. within your home and garden. This extension would apply to England and Wales.
Section Three of the DDA currently creates a presumption that a dog is presumed to be dangerously out of control if there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so - with an aggravated offence being committed if the dog, whilst out of control, injures any person, regardless of the circumstances.

Offences where any injury has been caused are currently of strict liability; defences should be possible for dogs alleged to be ‘dangerously out of control’ e.g. when a dog is acting in self-defence - the planned changes do not address this at all.

The draft Bill would extend the law to make it a criminal offence for a dog to be “dangerously out of control” in any place. The definition of “dangerously out of control” remaining the same - when there are grounds for reasonable apprehension that the dog will injury any person whether or not a person is actually injured.
We do not support the extension of sec 3 to 'any' place.

The Bill also extends section three of the DDA with a new provision relating to assistance dogs, making it a criminal offence for a dog to be “dangerously out of control” when there are grounds for reasonable apprehension that the dog will injure any assistance dog, whether or not it actually does, if any injury is caused to an assistance dog whilst out of control an aggravated offence will have been committed.

An assistance dog is (defined by the Equality Act 2010 c173):
§  A dog which has been trained to guide a blind person

§  A dog which has been trained to assist a deaf person

§  A dog which has been trained by a prescribed charity to assist a disabled person who has a disability that consists of epilepsy or otherwise affects the person’s mobility, manual dexterity, physical co-ordination or ability to lift, carry or otherwise move everyday objects

§  A dog of a prescribed category which has been trained to assist a disabled person who has a disability of a prescribed kind (not listed above).
We do not believe that non-aggravated offences should be extended to assistance dogs - e.g. a dog barking at an assistance dog could result in criminal or civil proceedings under the Amendment.

1a) Householder cases:
An exemption has been created in relation to trespassers on private property inside a dwelling – if the householder defence is in operation then no offence under sec. 3 has been committed.
But its application is not clear from how this section is worded – it seems to be that the dog’s owner or carer must be themselves physically present, for example in your home, whilst a trespasser is actually entering the building – so if you have a burglar entering your house whilst you are in it and your dog injures them defending you, you might have a defence.

If you the dog’s owner is not at home whilst there is a break in on your home - there is no defence - you have to be present at the time of the incident!

Also your garden isn’t stated - so if your dog injures or causes apprehension to a trespasser i.e. an intruder on your private garden/private attached land/outbuildings you may have committed a criminal offence if you dog even barks at them.

In our opinion extending ‘dangerously out of control’ to private property will leave dogs and their responsible owners vulnerable to vexatious complaints, not properly protected from trespassers and intruders, with dog owners being subject to legal hearings and potentially criminalised when their dogs are just acting as dogs do - not causing any harm or disturbing anyone - our dogs should be allowed to act as dogs do in our own homes.

2) Powers of entry and seizure:
Section1 (5) of the draft Bill extends the powers of entry and seizure – giving the right to enter private property and seize any dog which appears to be “dangerously out of control” without a warrant.

We do not support the extension of powers for the police or a local authority dog warden to enter private property or to seize a dog from private property e.g. our homes and enclosed gardens without a warrant, if the dog appears to be, or if it appears to have been 'dangerously out of control’.

3) Determination of ‘danger to public safety’:
When a dog is found guilty under sec 3 or sec 1 (prohibited types) the court can order a contingent destruction order as an alternative to a destruction order if satisfied that the dog would not constitute a ‘danger to public safety’. Once satisfied in the case of a prohibited type the court can order the dog is added to the Index of Exempted Dogs as an alternative to destruction.

The definition of what the court must consider has been given in the draft Bill as;

·         the character of the owner or keeper - whether this person is ‘fit and proper’

·         the temperament of the dog and its past behaviour

·         any other relevant circumstances
The definition of ‘any other relevant circumstances’ or a ‘fit and proper’ is not given and this will in our opinion be wide open to interpretation.

The same will also apply to section 4b applications before the court – where no legal aid is possible, hence as is currently the situation most cannot afford legal representation nor breed identification or behavioural assessment for the court to dispute 'type' and/or defend their dog if necessary.

This section of the amendment will apply to England, Scotland and Wales.

The notes to the draft Bill describe the Sandhu Judgement as ‘adverse’ – The Sandhu judgement was not in our opinion ‘adverse’. The High Court has examined and interpreted the DDA as it currently stands and confirmed that keeper is separate to owner – saving the lives of innocent dogs as the ruling has enabled exempted dogs to live with a nominated keeper if they are unable to stay with their registered owner.

In our opinion the draft Bill seeks now to destroy pet dogs by dictating to the court what they MUST consider when deciding whether to issue destruction order or CDO. Whether keepership will remain an option is unclear, but in our opinion this draft Bill is adverse and likely to lead to more deaths of innocent dogs that are no danger to anyone.

4) Civil Proceedings:
The draft Amendment will also amend the DDA to enable civil legal proceedings to be bought in respect of dogs under any enactment; this section is not clearly written and has not been given much coverage, nor did previous consultations ask for views on this, yet it would in our opinion have far reaching consequences unless legal aid were to be extended and given where destruction of a dog is at stake.

Legal aid is presently not available, therefore owners will not be able to properly defend themselves. It is unfair and unjust if a defence cannot be put to the courts as the owner cannot afford legal representation and expert assessment e.g. a behavioural report, for the courts – for example to demonstrate the temperament of their dog-just one requirement needed in order to avoid a death penalty for the dog.

If the current legislation is to be amended to allow for civil proceedings to be enacted under all sections then legal aid should be extended to cover civil proceedings.

We do not support the Amendments. Tragically, after so many years of failed abysmal legislation, these poorly drafted Amendments take what already does not work and make it staggeringly worse, the breed specific element is left to carry on causing mayhem, desperation and the countless deaths of innocent pet dogs, whilst nothing here will prevent dog bites or promote responsible dog ownership.

Further Information:
The draft Dangerous Dogs (Amendment) Bill 2013 with explanatory notes.

The Dangerous Dogs Act explained