You and Your Dog: European Travel Rules from January 1, 2021

The rules that apply to dogs taken on holiday to Europe or dogs imported from Europe will change on January 1, 2021 as part of BREXIT. The rules that will apply to Northern Ireland differ from those which apply in England, Scotland and Wales.

If you are planning to take your dog to Europe over the Christmas and New Year Holidays you MUST check before you travel or you may find you cannot travel with your dog.

The UK will become a “third country” at 23:59 on the 31^st December 2020. There are three categories of “third country” and it will only become clear which category the UK falls into if and when the Government secures a deal with the European Union.

Whatever happens, your dog’s existing pet passport will NOT be valid for travel to the EU after December 31, 2020.

Unlisted Status

In the absence of a deal with the EU the UK will become an “unlisted country”. This is the worst option for those of you who wish to travel to Europe with your pet.

 If this happens:

• Making arrangements for European travel will require several months prior planning and will incur additional expense, and;
• You will have to obtain a new Animal Health Certificate issued by an official vet for every trip you and you dog make to Europe.

Before you travel YOU MUST:

• have your dog microchipped and vaccinated against rabies;
• have a blood sample taken at least 30 days after your dog’s last rabies vaccination (whether that’s a booster or initial vaccination). Your vet may recommend a booster rabies vaccination before this test. Your pet’s blood sample will be sent to a to an EU-approved blood testing laboratory.
• Wait 3 months from the date the successful blood sample was taken before you can travel.
• Obtain a copy of the test results and enter the day the blood sample was taken in an animal health certificate.
• Obtain an Animal Health Certificate (AHC) no more than 10 days before you travel from an official vet. The vet will require your pet’s vaccination history, your pet’s microchipping date, a successful rabies antibody blood test result

Your pet WILL NOT be able to travel with your pet if you have not completed these steps. If the blood test result is not successful, you’ll need a repeat vaccination and another blood test taken at least 30 days after the repeat vaccination.

An AHC will be valid for:

• 10 days after the date of issue for entry into the EU
• onward travel within the EU for 4 months after the date of issue
• re-entry to the UK for 4 months after the date of issue

Part 1 Listed Status

The least worst option is a deal in which the UK becomes a “Part 1 Listed Country” but this option will require you to apply for a new UK Pet Passport as the EU Pet Passport will cease to be valid. We do not yet know whether the UK Pet Passport will be blue, to match the human UK Passport. As the existing EU Pet Passport is blue the chances are the UK version will have to become a different colour.

You will also need to have your pet microchipped and vaccinated against rabies at least 21 days before travel, make sure your pet’s rabies vaccinations are kept up to date and make sure your dog has tapeworm treatment if needed.

Part 2 Listed Status

This is the middle ground, somewhere between pariah status and the sunlit uplands that we currently enjoy. If the UK secures a deal to obtain this status you will need to ensure that:

• You get your dog microchipped and vaccinated against rabies by an official vet at least 21 days before you travel and make sure you keep those vaccinations up to date;
• You obtain an Animal Health Certificate (AHC) from an official vet within 10 days before you travel for every trip you make;
• You must enter Europe through a designated “Travellers Point of Entry”.

Additional Restrictions

If you are travelling to Malta, the Republic of Ireland or Finland, additional restrictions apply.

Returning to the UK

Your pet must travel by an approved route and will be subjected to document checks.

Your pet MUST have at least one of the following documents:

• an EU pet passport (issued in the EU or in the UK before 1 January 2021)
• the AHC issued in the UK used to travel to the EU (which you can use up to 4 months after it was issued)
• a UK pet health certificate (for travel into the UK only)

If you are travelling from countries not free from tapeworm (echinococcus multilocularis) you must also take your dog to a vet no less than 24 hours and no more than 120 hours (5 days) before entering the UK, for an approved tapeworm treatment.

Further Guidance

The current guidance from the UK Government, which applies to travel from England, Scotland and Wales can found here. If you live in Northern Ireland different rules will apply and you can find guidance here.

Guidance on finding an official vet can be found here.

DEFRA also operates a helpline open between 08:30 and 17:00 each Monday to Friday (excluding Bank Holidays) on 0370 241 1710. They can also be reached by email at pettravel@apha.gov.uk

WARNING

Due to the uncertainty as to whether the UK will secure a deal with Europe at all, or if it does what it will contain, the current guidance is likely to change. This may be at very short notice, especially if a deal is only concluded at the last minute. CHECK BEFORE YOU TRAVEL.

Please have in mind that if you intend to travel in January and the UK does not secure a deal you will only be able to travel if your pet has produced a clear blood test three months before the date of travel. This means you will be unable to travel unless you begin your preparations in September 2020.

Dangerous Dogs: Following the Money – where do the police spend the money they spend on kennelling?

The cost of kennelling seized dangerous dogs falls on the police and by extension the council and income taxpayers in England and Wales. The total declared spend by police forces in England and Wales is £2,934,200, but there were some forces who have not chosen to declare the costs they have incurred in kennelling and if we assign the average spend to those forces  the total spend appears to be about £3.8 million across England and Wales.

Almost all forces state that they contract out their kennelling operations, although there is a great deal of secrecy about the identity of the contractors involved.

Before a public authority can enter into a contract, current procurement rules require them to openly tender for those services to ensure transparency and value for money, unless there is a national emergency or a national security issue that makes tendering impossible. Police, fire and ambulance services have a dedicated portal from which to tender.

Part of that database is open to the public and reveals that only Greater Manchester, Kent, Norfolk and Suffolk police forces have declared the award of kennelling contracts for dangerous dogs. It is unclear why other forces have not declared their outsourcing of kennelling as it seems unlikely that they could claim an exemption from open tendering.

Greater Manchester police have chosen not to reveal the identity of their kennelling contractor and neither have they provided details of their kennelling costs this year or to a previous freedom of information request in 2016. The tendering database does suggest the value of the kennelling contract they entered into in January 2020 was £91,000.

By contrast, Kent, Norfolk and Suffolk police all declare that their contract is based in “Norfolk or Suffolk”. Norfolk and Suffolk police have gone further and attached a redacted copy of the contract with their supplier for an earlier contract with the same description. The signature page of that contract identifies a sole named kennels as being the contractor.

That kennel’s website reveals their location and that they provide boarding services and house stray dogs for local authorities. The website provides information about what to do if you lose your dog and provides telephone numbers for Badbergh, Forrest Heath, Ipswich, Mid-Suffolk and St Edmundsbury Council’s dog wardens. If you choose to re-home a stray dog, the kennels charges the new owner a fee of £75.

Norfolk and Suffolk police told us in response to a Freedom of Information request in May that that “the kennelling costs for dogs seized under section 1 of the Dangerous Dogs Act are incorporated with all kennelling expenditure and is not held as a separate number”. This is surprising, as the tendering portal suggests that separate contracts were entered into for dangerous dogs and other forms of kennelling and good accounting practice would usually enable funds paid to one supplier to be easily identified. We also note that both forces were able to tell as that they spent a total of £16,933 in kennelling dangerous dogs when we made a similar request for information in 2016.

Norfolk and Suffolk were able to tell us that they seized and detained 40 dogs under the Dangerous Dogs Act 1991. Using the data from the 28 forces who provided details of the number of dogs seized and the amount spent on kennelling costs we know that average cost of kennelling a dog seized under the legislation is £2,093, so the likely payments by these two forces to this sole contractor would appear to be in the region of £83,720.

Kent Police declared that they spent £149,756 kennelling dangerous dogs over the last 12 months, an increase over the 2016 figure, which was £84,699. Both these figures exceed the estimate given for the kennelling contract, which was £81,000.

The position with dangerous dogs seized in Essex, which lies between Suffolk and Kent is not publicly disclosed. Essex police had a declared spend on kennelling, which included contracted out vets’ fees of £52,131.

The publicly available data suggests that holding multiple contracts for the kennelling of allegedly dangerous dogs can provide a substantial and regular income stream to a boarding kennels that obtains such a contract. In this case, the only case where we have been able to link spend to contractor, the annual fees received would appear to be in the order of £230,000 from the three forces involved, to which must be added the fees paid by the local councils for housing strays and the fees collected from the new owners of strays, all of which is in addition to the costs paid for private boarding of dogs.

It is of course important to mention that income does not equate to profit, as there are necessary costs in maintaining and staffing the kennels, as well as providing for food and veterinary treatment for the dogs detained there. None the less the substantial income from obtaining such a contract does provide the opportunity for creating a large and sustainable kennelling business.

Neither does the amount of the fees paid to such kennels enable any analysis of whether the kennels provide a good service and meet the needs of the dogs they detain. Public confidence in that could only be achieved through publicly disclosed inspection, as happens in prisons. Unfortunately, as the secrecy of the forces whose kennelling suppliers could not be identified demonstrates, public scrutiny of such establishments is unlikely to be possible soon.

James Parry

Parry and Welch Solicitors LLP

July 2020

[Parry and Welch Solicitors are grateful for the assistance of Jordan Oakes who conducted an analysis of the tendering portal for us which has enabled us to prepare this article].

[This article has been amended to remove the name of the kennels at the request of Suffolk Police].

EUTHANASIA OF DOGS WITHOUT CONSENT

James Parry[1]and Kendal Shepherd

The Issue

This article examines the criminal and civil liability of veterinary surgeons who euthanise dogs without appropriate consent or court order.

On March 27, 2014, sixty police officers from Merseyside Police rounded up and killed 22 exempted pit bull type dogs on the grounds they believed the owners had breached the terms of exemption and the dogs were uninsured. No checks were made, and video evidence taken by the police showed the dogs being dragged from their homes and the distress of their owners. The dogs were summarily destroyed. The High Court found later that year that the police had behaved unlawfully[1].

Two years later, the same police force was forced to pay damages in respect of another dog which had been unlawfully destroyed[2]. In that case a police dog legislation officer had “bullied, intimidated and coerced” the claimant in his police vehicle into signing her dog over for destruction. The dog was taken to a vet and destroyed.

Those cases are not unique. There are many examples of dogs being euthanised without a court order or proper consent of the owner. Examples include spiteful killings within difficult divorces and mistakes being made within police kennels and by the Courts.

Each case is emotionally charged and, if the person responsible for the destruction can be traced, civil and criminal proceedings can be commenced and public condemnation of the person responsible on social media is highly likely.

Court Imposed Euthanasia

A court can order the destruction of a dog in specified circumstances, namely:

1. Where a magistrates’ court finds that a dog was dangerous and out of control and orders the dog’s destruction under section 2 of the Dogs Act 1871. In such circumstances the court may appoint a person to carry out that destruction in accordance with section 1(1) of the Dangerous Dogs Act 1989. There is a right of appeal against such an order and the destruction of the dog is prohibited for 21 clear days from the date of order to enable an appeal to the Crown Court to be started and during any subsequent appeal proceedings.

• The Dangerous Dogs Act 1991 also permits courts to order the destruction of prohibited dogs or dogs which were dangerously out of control. In both cases the court may, instead of ordering the immediate destruction of the dog, make the dog subject to a “Contingent Destruction Order”, which suspends destruction provided the conditions within the order are complied with. The court has the power to a appoint a person to undertake the destruction of the dog. Where an immediate destruction order is made, there is a right of appeal within 21 days which in practical terms operates identically to that which applies to orders made under the Dogs Act 1871.

• Breach of a Contingent Destruction Order under the Dangerous Dogs Act 1991 does not allow the police to seek summary destruction.. In the case of a prohibited dog, the dog is rendered “unexempt”[3] and may be seized and the process of seeking destruction started again. In the case of a dog which was dangerously out of control, a further application for an order has to be made to the court[4]. In both cases, there must be a further court order

• A court may also order the destruction of animal where a person has been convicted of a relevant offence contrary to the Animal Welfare Act 2006 and the court is satisfied, on the basis of evidence from a veterinary surgeon, that it is the best interests of the animal for it to be destroyed[5]. This power is rarely used, as in most cases as the delay in bringing court proceedings makes the power redundant and powers of deprivation and disqualification are preferred. As with other forms of statutory destruction the court may appoint a person to carry out the court’s order and there is a moratorium on destruction pending and during appeal.

Other Grounds of Lawful Destruction Without Owner Consent 

Responsibility for stray dogs was transferred from the police to local authorities within the Environmental Protection Act. One of the ways in which a local authority can dispose of a stray dog is painless destruction[6], however the local authority cannot do that until they have served a notice on the owner, where those details were recorded on the dog’s collar and has waited seven clear days after the date of service of that notice for a response.[7]

The Environmental Protection Act 1990, pre-dates the compulsory microchipping regulations that came into force throughout the United Kingdom between February 2, 2015 and January 29, 2016, and therefore there is no statutory obligation on a local authority to scan for microchips. Good practice dictates that should be done and a notice served wherever an owner’s details are discoverable.

Statutory authority to euthanise a dog without the owner’s consent also exists within the Animal Welfare Act 2006 where a veterinary surgeon certifies that an animal is in distress and should be euthanised to prevent further suffering[8].

Practical Difficulties and Risk Avoidance

Paragraph 11.1 of the Royal College of Veterinary Surgeons’ Code of Professional Conduct makes it clear that a “client” of a veterinary practice may be the owner of the animal, but may also be “someone acting with the authority of the owner, or someone with statutory or other appropriate authority”. It goes on to emphasise that care must be taken when dealing with someone who is not the owner[9]. Part 8 of the Code’s supporting guidance, which deals specifically with “Euthanasia of animals”[10] also provides helpful advice.

In terms of statutory destruction, difficulties have arisen where the police or kennels have incorrectly identified a dog or authorised the destruction of a dog during the moratorium period that applies pending or during an appeal. Problems can also arise where, rather than using the court process, the police or other authorities cut corners and seek to have a dog “signed over” or unlawfully commission the destruction of a dog, both issues illustrated by the two Merseyside cases referred to above.

In seeking to exercise the care required by the RCVS Code of Conduct, the best protection for veterinary surgeons against improper destruction in court ordered cases can be obtained by:

1. Only undertaking destruction where the person required to carry out the court’s order has been nominated by the court;
2. Insisting on the production and retention of a copy of the court’s order dealing with destruction and the nomination of the person responsible for carrying out;
3. Not undertaking destruction until at least 21 clear days have passed from the date of the order and without checking with the court that no appeal proceedings have been commenced. The court’s telephone number and the case number will appear on the face of the order;
4. Checking the identity of the dog against the order and through microchip and kennel records;
5. Keeping a written record in each case. 

In cases where dogs are “signed over” on condition the owner will not be prosecuted, matters are more problematic, as often there is no cooling off period given by the police to owners who are likely to have made their decision without the benefit of legal or any other advice and who frequently change their mind and argue that consent was not freely given. The only failsafe method of avoiding potential liability in such cases is to refuse to carry out euthanasia without the benefit of a court order or to check with the owner that fully informed consent has been freely given.

Many rescue centres that foster out dogs do so on the basis that they remain the owner of the dog. In order to secure their rights, rescues register both the rescue centre’s and the keeper’s details on one of the microchip databases. Rescue centres complain that some veterinary surgeons confronted by a request for destruction from a person in possession of a dog have not scanned the dog or contacted rescue centres who recorded as owners on the data base. Similar difficulties arise where one family member seeks to secure the destruction of a dog as an act of spite or revenge against another family member.

In cases where a known client seeks destruction, an indication that a dog came from a rescue should trigger concern that the rescue may still own the dog. Scanning for a microchip and checking the database for dual registration is essential. Where a rescue’s interest remains extant, consent from the rescue should be sought in addition to that of the person presenting the dog. There have been issues where keepers of rescue dogs have presented those dogs to practices with whom they have had no prior contact for the purposes of seeking destruction and to avoid awkward questions. Theses cases present a much higher risk and the importance of scanning in such cases is paramount.

Dealing with instances where one party seeks the destruction of a dog during a domestic dispute is much more difficult to detect. Indicators may include the presentation of an entirely healthy dog for euthanasia. Checking the identity of the person presenting the animal is essential and should be checked against practice records and for a microchip, to ensure that the presenter is the registered owner of the dog. Questioning the presenter as to why they seek the euthanasia of the dog is also important and the need to keep a written record and copies of identity documents cannot be underestimated.  

Liability for Unlawful Killing

Both the civil and criminal law regards dogs as being property. This provides the owner of that property with the same rights they have over any other item of their property. Consequently, where a dog is improperly destroyed, the person who destroys the dogs attracts both civil and criminal liability.

Civil Liability

An owner of a dog which is unlawfully destroyed has a civil right to claim compensation from the person who destroyed the dog. The level of the compensation due is likely to be limited to the value of the dog which was destroyed and will be relatively low in the case of rescue dogs and mixed breeds. Greater liability would be attracted in the case of a valuable pedigree breed.

Whilst it might be possible to join whoever it was who authorised the destruction of the dog in question into such proceedings, the time and expense of doing so is likely to be substantial and the prospect of recovering those costs minimal.

Criminal Liability

Section 4 of the Animal Welfare Act 2006 creates the offence of causing unnecessary suffering to an animal, but that offence does not apply to the destruction of an animal in an “appropriate and humane manner”. The appropriateness of destruction applies to the method and not the lawfulness of it and therefore it is unlikely a prosecution under that provision would succeed.

There is no such defence to an allegation of criminal damage, which has been used in cases where dogs have been deliberately injured or killed. The offence of criminal damage is complete where the prosecution can prove that a person deliberately or recklessly destroyed or damaged property belonging to another.[11] As the act of euthanising a dog is a calculated and deliberate act, the only issue that remains to be proved is that the dog belonged to someone other than the veterinary surgeon involved.

Whilst the police and the Crown Prosecution Service may be reluctant to bring such cases, especially where there has been police involvement, a private individual has the right to bring a private prosecution with very limited exposure to the risk of costs being awarded against them. A professional defendant on the other hand, is unlikely to qualify for legal aid and having funded their own defence, will not recover all their costs even if they are acquitted.

Reputational Damage

In addition to the risk of civil or criminal proceedings, such cases attract enormous potential for reputational damage in the court of public opinion now sitting on a social media platform of your choosing. The volume of comments that are attracted in any case where an animal has been unlawfully harmed are usually extensive and the level of criticism, often expressed in extremely unpleasant terms, damning. In many cases it is not unusual for such criticism to extend to threats and actual incidents of physical violence directed at individuals and their property.

In such circumstances, the best stratagem is avoidance of the risk of unlawful destruction in the first place and to remember that the option to refuse to carry out euthanasia is always available.

April 2020

James Parry LLB, Solicitor Advocate

Kendal Shepherd BVSc., MRCVS

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[1] R (Ali and others) v Chief Constable of Merseyside Police [2014] EWHC 4772 (Admin).

[2] Liverpool Echo, September 16, 2016

[3] The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015, clauses 5 and 19.

[4] Chief Constable of Merseyside Police v Doyle [2019] EWHC 2180 (Admin).

[5] Animal Welfare Act 2006, s37(1).

[6] Environmental Protection Act 1990, s149(6)(c).

[7] Environmental Protection Act 1990, s149(4).

[8] Animal Welfare Act 2006, s18(3).

[9] https://www.rcvs.org.uk/setting-standards/advice-and-guidance/code-of-professional-conduct-for-veterinary-surgeons/#animals

[10] https://www.rcvs.org.uk/setting-standards/advice-and-guidance/code-of-professional-conduct-for-veterinary-surgeons/supporting-guidance/euthanasia-of-animals/

[11] Criminal Damage Act 1971, s1(1)

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[1] James Parry is a solicitor advocate and partner with Parry and Welch Solicitors LLP and a former Chair of the Law Society’s Criminal Law Committee.

Turning Anger into Action

We are often asked what can be done about the Dangerous Dogs Act 1991. Individual voices count and if you are concerned about the way in which the Act works it is open to you to write to your MP or the Secretary of State responsible for the Dangerous Dogs Act 1991.

You can find details of your MP and their contact details here.  The Secretary of State responsible for the Dangerous Dogs Act 1991 is George Eustice MP who can be contacted at George.eustice.mp@parliament,uk or by post at DEFRA, Nobel House, 17 Smith Square, London SW1P 3JR.

If you are not sure what to say here is a template to start you off, but be sure to state your own concerns clearly:

Dear

STRAY DOGS AND THE DANGEROUS DOGS ACT 1991

I am concerned about the needless destruction of healthy dogs that is the direct result of assuming dogs are dangerous simply because of the appearance.

The Dangerous Dogs Act has now been in force for 25 years and has been ineffective on every level – it has failed to eradicate prohibited breeds and the incidence of alleged dog bite incidents has increased during the period the Act has been in force. In order to enforce the Act more than £1.6m is spent on kennelling costs which is money that could on funding more than 50 extra police.

 

There is no evidence to support that dogs of any breed are particularly dangerous – according to mortality statistics issued by the Office of National Statistics for 2010, published this year, two people were killed as a result of a dog bite, which compares with 108 people who were killed by being assaulted by other humans years in the same year. The only less likely cause of death was being run over by a bicycle (although 26 people were killed by motor vehicles whilst riding bicycles).

I am particularly concerned about the case of ….insert details and say why…

This legislation needs urgent review to save the needless waste of animals lives and public funds.

Yours

 

 

 

 

THE NEW MICROCHIPPING RULES – AN OWNERS GUIDE

New rules come into force on the 6^th April 2016 which require that all dogs in England are micro-chipped. Here is our guide to the new rules.

Which dogs do the new rules apply to?

The new rules apply to all dogs in England which are more than eight weeks old. If a dog is imported into England the dog must be micro-chipped within 30 days of its arrival in England.

There are two exceptions:

1. If the dog is a certified working dog – this applies where a veterinary surgeon has certified that the dog is more than five days old and is likely to be used for the purposes of law enforcement, by HM Armed Forces, for the purposes of emergency rescue, lawful pest control or the lawful shooting of animals and the dog is a specified type of dog.
2. If a veterinary surgeon has certified on an approved form that the dog should not be micro-chipped for animal health reasons.

Who can microchip a dog?

Only veterinary surgeons, veterinary nurses and people who have undertaken approved training can implant a micro-chip in a dog. Some vets and charities have been offering a free service to ensure dog owners comply with the rules but a fee for the chip and registration will usually apply.

Who keeps the details?

There are four organisations which are authorised to maintain the UK database. They are:

• Anibase
• Petlog
• Petprotect
• PETtrac

What details are kept?

All the databases are required to hold the following details:

1. The name and address and telephone number of the keeper;
2. The name of the dog or any identification number;
3. The sex of the dog;
4. The breed of the dog or a description of it if it is a mongrel;
5. The colour of the dog;
6. The date of birth of the dog or the best estimate that the keeper can give;
7. The number of the microchip.

Where the dog is registered by a breeder the database will also record the name of the breeder and their licence number, if they have one.

 My dogs chipped, but my details are not up to date. What should I do?

 I know who holds the details – If you know the number of the chip and the organisation that holds your dogs details you should contact the database company and update your details. You may be able to this on line if you have your original certificate.

I don’t know the chip number – Details if the chip number will have been included with your original certificate. If you do not have that any veterinary surgeon and most animal charities will have a chip reader and will be able to read the chip and give you the number.

I know my dog’s chip number, but I don’t know who it is registered with. – If you know the chip number you can check who holds the details by entering the number at http://www.check-a-chip.co.uk

 What happens if there is a change in keeper?

The rules require the dog to be micro-chipped before it is transferred to a new keeper unless a veterinary surgeon has issued a certificate exempting the dog from micro-chipping. Once the dog is transferred the new keeper must update the database.

Who is going to enforce these regulations?

Primary responsibility for enforcing the new rules rests with the local authority who may authorise its officers to enforce these regulations. Police Officers and Police Community Support Officers can also enforce the rules.

How are these regulations going to be enforced?

It is an offence for a person to sell or transfer a dog without a microchip. That offence can only be tried in a magistrates’ court and is punishable by way of a fine.

Authorised local authority officers, Police Community Support Officers and Police Constables may take take control of a dog without consent to check if it is micro-chipped.

• If a dog is not micro-chipped the authorised officer may serve a notice on the keeper requiring them to have the dog micro-chipped within 21 days.
• It is an offence to fail to comply with such a notice which can only be tried in a magistrates’ court and is punishable by way of a fine.
• Additionally, if the keeper of the dog has not micro-chipped the dog in accordance with a notice the dog may be seized without consent, micro-chipped and the cost of micro-chipping may be recovered from the keeper of the dog.

There are other offences which relate to the database providers and those implanting micro-chips which we have not reviewed.

Further Questions:

If you need any further advice please call Parry Welch Lacey LLP on 0151 480 4061. First consultations are free and legal aid may be available.

The Law is an Ass When it Comes to Dangerous Dogs

The Dangerous Dogs Act 1991 illustrates the difficulties that are created when a government chooses to respond to media hysteria without proper thought and consultation. The Act has more in common with the law of unintended consequences than it does with properly drafted legislation that is capable of protecting the public, ensuring basic standards of animal welfare and the rights of law abiding members of the public who happen to find that the friendly Staffordshire Bull Terrier they own is in fact thought to be a prohibited Pit Bull type dog.

The Act was such bad law that it has been immune to successive Governments attempts to reform. The latest attempt at reform was the statutory instrument known as the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 which balanced a sensible regime of dog bail with an appalling rule about change of keepership.

Dog Bail

The Association of Chief Police Officers (ACPO) and Department of Food and Rural Affairs (DEFRA) have longstanding guidance that where the police came across a suspected prohibited dog and had carried out a risk assessment in respect of the dog and the circumstances in which it was being kept so that they were satisfied that the dog did not pose a risk to public safety the dog should be left with its owner subject to an undertaking that the owner would abide by all the conditions of the exemption scheme. That allowed the police to make an application to a magistrates’ court under section 4B of the Dangerous Dogs Act 1991 for a contingent destruction order to be made that would allow the dog to become an exempted dog on application to DEFRA.

That scheme was not widely adopted by police forces on the ground as some believed it was unlawful and others locked the dog up to enable them to hide behind the skirts of the court if the dog did bite someone, no matter how unlikely that was. Of course in doing that the police incurred considerable and unnecessary kennelling costs that would try to recover from the dog’s owner, but in many cases failed to do so.

Part 4 of the new Regulations give the guidance statutory effect, however the use of the interim exemption scheme is discretionary and police forces continue to ignore it. It seems unlikely that they will begin to use it until or unless their failure to do so is taken into account by courts so that they subsequently refuse to order the dog’s owner to pay those kennelling costs or Police Commissioners realise the extent to which the police are incurring unnecessary costs to the detriment of their much reduced budgets.

Change in Keepership

The exemption schemes operated by DEFRA have always worked on the basis that there is only one nominated keeper of an exempted dog. That bureaucratic nicety might assist civil servants but it many cases it does not reflect the reality of dog ownership. Take for example the family pet jointly cared for by a husband and wife. In reality they would both regard themselves as being joint owners of the dog, but  DEFRA would only regard the named person on the exemption scheme as being the dogs owner or keeper.

The difficulty that arises is what should happen to the dog if the couple split up in circumstances where the nominated keeper is unable to care for the dog. The Dangerous Dogs Act 1991 created an offence selling, exchanging or making a gift of a prohibited dog. It also made it unlawful to abandon such a dog. On the face of it if the dog was transferred by the nominated keeper to the other party to the marriage ownership had been transferred and the transferring party committed the offence of giving it away and the other party committed the offence of being in possession of a prohibited dog.

Under the old rules there was a solution. DEFRA were quite prepared to accept changes to the person registered as the keeper of an exempted dog on their database although for the sake of administrative politeness such changes were routinely referred to as changes in “keepership” rather than “ownership”.

The new regulations, which were brought into force without consultation, sought to do away with that discretion and part 3 of the Regulations provide a scheme that enables an application for change of keepership to be made to a magistrates’ court but only where the current keeper has died or is so seriously ill that they can no longer care for the dog.

Those restrictions work to the disadvantage of our divorcing couple who would not now be able to change the keepership of the dog to enable the party who could care for the dog to do so. They will be forced into a position that no matter what what they do, short having the dog put to sleep they will breach the conditions of exemption and be liable to be prosecuted for abandoning, giving away or possessing a prohibited dog.

There are also other examples where the restricted nature of this scheme will cause in justice. Take a serving soldier who has an exempted dog and finds himself posted to serve overseas for several months. In many cases soldiers will seeks the assistance of family members to look after their pets (the author found himself the hapless keeper of a Gecko for six months in just such circumstances). Under the new scheme were the departing soldier to ask his parents to keep his dog he would expose himself to prosecution that may cost him his career and burden his parents with a similar risk. It would seem to be very much contrary to the public good to expose our servicemen and women to the need to destroy a healthy and much loved to pet just as we require them to risk their lives on active service.

 

Similarly, where an animal charity finds a dog tied to their gates one morning and takes it in if it happens to be a prohibited they open themselves to prosecution as does the person who abandoned it.

Those injustices could all have been avoided had DEFRA been prepared to respect the integrity and judgement of our magistrates and district judges who will determine applications to transfer keepership by inserting a third ground for doing so, namely “or such other reason as appears to the court to justify a transfer in keepership”.

However, DEFRA’s incompetence in failing to include such a third ground is matched only by the fact that what they have imposed does not prevent keepership being transferred. Regulation 19 of the new scheme makes it clear that where the conditions of exemption are not complied with the dog ceases to be exempt. That provision mirrors the judgment of the High Court following Merseyside Police’s unlawful killing of 27 dogs where the police believed that there was a summary right of execution if the conditions of the exemption certificate had been breached. The High Court made it clear in R (Ali) v Chief Constable of Merseyside that once the conditions of exemption were breached the dog ceased to be exempt and the dog could only be destroyed by order of a magistrates’ court who had convicted the keeper of a relevant offence or on application under section 4B of the Act. In such circumstances the court has an unfettered discretion to make an immediate or contingent destruction and, if it takes the latter course of action it may nominate who ever it likes as the person to the certified keeper.

Whilst DEFRA’s incompetence has provided an important safeguard that prevents the unnecessary cruel destruction of placid and well behaved dogs it has created a situation where court time will be taken up, costs will be incurred by the police, Crown Prosecution Service and legal aid fund and a great deal of stress will be incurred by otherwise law abiding members of the public unless the police are prepared to approach the situation realistically, utilise the dog bail scheme so that section 4B orders are made by consent or the Crown Prosecution Service shows it self to be robust in declining to prosecute such cases on public interest grounds. Unfortunately the omens are not good as the author has encountered two cases where dogs have been seized and the full might of the state has been brought to bear. In the only concluded case the dog went home and the humans involved were discharged.

James Parry

March 2016

 

James Parry is a solicitor advocate and partner with Parry Welch Lacey LLP in Liverpool and is a member of the Law Society’s Criminal Law Committee. James has a keen interest in animal welfare law and dangerous dog legislation in particular and was the lawyer responsible for successfully challenging Merseyside Police’s summary destruction of 27 dogs and the police’s subsequent attempts to prosecute his clients for possession of prohibited dogs.

Nelson’s Tale

Nelson was an 11 year old bull mastiff type dog who lived happily with his owner until September 2014. His life was turned upside down by the senseless murder of his owner in a street stabbing. Nelson was taken in by his owner’s mother and the pair were a great source of comfort to one another as they both grieved. The first few months were a time of great stress for Nelson’s family. There was no suggestion that this killing was anything other than an attack on someone who was in the wrong place at the wrong time but the police did catch the offender and they provided support in the form of well trained liaison officers who sat with the family and whilst doing so played with and fed Nelson treats. A trial followed which ended in March 2015 when the offender received a life sentence with a minimum period of 21 years in prison before he can apply for parole for what the sentencing judge described as a “despicable and cowardly” attack on a wholly innocent man.

Even though the  trail was over life was difficult for Nelson’s new owner. She had to come to terms with what had happened. For those of us who have not had our lives turned upside down in such circumstances it is difficult to imagine how hard it can be to get back to normality and, from time to time, the enormity of had had happened overwhelmed her. Nelson was ever present. He seemed able to sense distress and would place himself by his owners when there was no one else to comfort her. That was until the 25th May 2015 when visitors to Nelson’s home found his owner distressed and out of concern for her left the front door open and Nelson wandered out.

There is no suggestion that Nelson did anything other than amble about. He is by any standards an old dog, no longer as fit and agile as he was and he had reached that stage in his life when is content to wander about and sniff quite a lot. Unfortunately he is a pit bull type dog and there was a dog warden about and he was seized. The warden informed the police that they suspected Nelson was a pit bull type dog and when the police agreed rather than being taken home he was sent to police kennels despite being quickly traced by his owner. The grief of losing a son was now compounded by losing his dog.

The Dangerous Dogs Act 1991 makes it an offence to own a pit bull type dog. Pit bull type dogs are not a recognised breed like labradors or poodles and so the police and the courts have to decide if any particular dog shares a “significant number of the characteristics” of a pit bull type according to a standard set down in America. The standard is such that many of the features of a pit bull type dog are shared by other types of bull breeds and there are many examples of one litter of Staffordshire bull terriers producing dogs that would meet the pit bull standard and others that would not.

If a dog is a pit bull type the presumption is it should be destroyed unless a court believes that if were insured, microchipped, castrated, kept muzzled, on a lead in public and subjected to certain other conditions it would not present a risk to public safety. If the dog does not pose a risk to public safety the destruction order is suspended to allow the owner to have the dog exempted by the Department of Food and Rural Affairs. Of course court proceedings take time and the law used to be that suspected dogs had to be kept in police custody but, since March 3 2015, following an informal scheme set up by DEFRA and guidance from the Association of Chief Police Officers, the government introduced an interim exemption scheme that would allow dogs like Nelson to be returned home if their owners agreed to abide by the conditions of exemption that would apply of the dog were to be found to be a pit bull type.

Unfortunately Nelson was not returned home because Merseyside Police seized him and they have a policy of not returning such dogs under the interim scheme. They also have a policy of insisting that a court determines the fate of the dog rather than speeding up the process by agreeing to the making of a conditional destruction order that would lead to exemption as other police forces do. Whilst the police claim neutrality when presenting such cases to court the opinion of many of us who have observed their methods would not agree with that assertion.

In Nelson’s case the police solicitors delayed issuing the magistrates’ court proceedings that might secure Nelson’s release until July 10, 2015. By that time it had become obvious to those who were assisting Nelson’s owner and who had seen photographs of Nelson that he did not appear to be a pit bull type at all but in order to prove that a defence expert had to be appointed to examine Nelson and that meant further delay. Unbeknown to Nelson’s owner the police officer who inspected him was also having doubts and he made repeated visits to see the dog to confirm his opinion. He discussed the case with the two other dog legislation officers who regularly assess dogs for “type” and came to the conclusion that his original assessment was wrong. To that police officer’s great credit he admitted his mistake, told the force solicitors that the proceedings should be discontinued and that Nelson should be returned home as soon as possible.

On August 20 Nelson was assessed by a defence expert, Melanie Rushmoor, who formed the opinion that Nelson was not a pit bull but had more in common with a Bull Mastiff type dog. She, like everyone else who had seen Nelson formed the view that he was a friendly and submissive dog that was not likely to pose a risk to anyone. Mrs Rushmoor’s report was sent to the police solicitors.

You might be forgiven for thinking that the fact that the lead police examiner had decided Nelson was not a pit type dog, his findings had been confirmed in an independent report and the fact that Nelson had never been the subject of complaint might have caused the police to re-evaluate their position and withdraw the case, particularly given its tragic background. However, Merseyside Police believe that these cases must be determined by a court and so they decided to carry on and did not decide to send Nelson home.

It was in these circumstances Nelson was visited in the police kennels in Merseyside by a Metropolitan Dog Legislation Officer and Inspector Gareth Phelps who leads Merseyside Police’s Dog Section. If you follow dog cases you may have heard of Inspector Phelps before as it was he who ordered the seizure and immediate killing of 27 pit bull type dogs in Merseyside on March 27, 2014, something which was later found to be unlawful by the High Court, however I digress. The Metropolitan Police Officer formed the view that Nelson was a pit bull type and his statement was served on the defence the evening before the hearing that would decide Nelson’s fate. The defence were not afforded the opportunity to challenge that report in court as the Metropolitan Police Officer was not available to be called and his statement was served as “hearsay evidence”.

All the available evidence was presented to the Court on August 27 in circumstances where a barrister appointed by the police was in the unusual position of having to put to an experienced Merseyside Police Officer that his change of mind was wrong. It was apparent to those who saw that officer give his evidence that admitting that he had made a mistake had caused him particular difficulties and that taking the decision to make that admission had required considerable courage. It was not until the following day that the court assembled again to hear that the District Judge rule that he was not satisfied that Nelson was a pit bull type which means that Nelson is going home.

The costs of this case are considerable in terms of the emotional distress caused to Nelson’s owner and the costs to the public purse and Nelson’s owner.

Merseyside Police seek to reclaim £10 per day for kennelling a dog when they can. They could not do so in this case and therefore council tax payers in Merseyside will have to pick up a bill for £890 which could have been avoided if the police had adopted the interim scheme that would have allowed Nelson to go home whilst the court proceedings were addressed. They will also have to pay the costs of the Metropolitan Police Officer’s examination of Nelson.  Given that a same day standard class return from London to Liverpool costs £150 that cost is unlikely to be insignificant. Then there are the costs of the police lawyers and the barrister sent to court. In other similar cases the costs sought by the police for their legal costs have been in the region of £2,000 and there is no reason why the bill in this case should be any less. Neither should we forget the court fee of £205 which rises by a further £500 where a case likes this is contested and the actual cost to the public of the court hearing. So in all a bill of at least £3,750.

There may also be an additional collateral cost to the police. Cases like this have a tendency to affect the perceptions of those who are caught up in them. They question whether the faith they had been taught to place in the police and the respect they give the police as law abiding citizens is justified. What is Nelson’s owner to make of the support she received from the police when her son was killed on the one hand and then an application by the police that could have led to her son’s dog being killed?

Of course in this case one of the police officers did what we might expect of public officials and institutions. He questioned whether his initial decision had been correct and when he decided it was not he openly and publicly admitted his error and took steps to correct it. It would appear that the reaction of the organisation he serves and which should serve us was far less open and transparent and given the previous errors of this force in relation to dog related policy that is something that should concern us all.

Then there is the cost to Nelson’s owner. Those who find themselves defending cases like this are not eligible for legal aid.  That is in our view unacceptable as we know of cases where dogs have been handed over to the police for destruction by those who dare not or cannot afford to take the risk of defending the case even though they know handing their dog over to the police means it will be killed. That leads to the destruction of innocent animals and enormous distress.

In Nelson’s case we have reduced and subsidised the costs of defending the case, but as business we cannot afford the luxury of providing free advice in every case as there are sadly so many cases of this nature. Mrs Rushmoor gave her time and expertise for free and a Merseyside charity, Carla Lane’s Animals in Need, offered their assistance to Nelson’s owner and provided advice, guidance and a home assessment for use in court.

Of course the police are not responsible for the legislation. Many people recognise that the Dangerous Dogs Act 1991 promotes little more than canine ethnic cleansing which, if it were extended to humans, would be regarded as a crime against humanity. We might wonder how it is that our politicians have recognised that we must not discriminate or abuse people on the grounds of their appearance, ethnic background, colour or religion and have enacted legislation to prevent such behaviour and yet on the other hand brand dogs inherently dangerous simply on the basis their appearance. We might also care to ask ourselves how effective this Act really is. The answer seems to be that the provisions related to type have protected no one.

James Parry

James Parry is a solicitor advocate and partner at Parry Welch Lacey LLP.

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