James Parryand Kendal Shepherd
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.
Two years later, the same police force was forced to pay damages in respect of another dog which had been unlawfully destroyed. 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:
- 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” 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. 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. 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, 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.
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.
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. Part 8 of the Code’s supporting guidance, which deals specifically with “Euthanasia of animals” 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:
- Only undertaking destruction where the person required to carry out the court’s order has been nominated by the court;
- 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;
- 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;
- Checking the identity of the dog against the order and through microchip and kennel records;
- 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.
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.
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. 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.
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.
James Parry LLB, Solicitor Advocate
Kendal Shepherd BVSc., MRCVS
 R (Ali and others) v Chief Constable of Merseyside Police  EWHC 4772 (Admin).
 Liverpool Echo, September 16, 2016
 The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015, clauses 5 and 19.
 Chief Constable of Merseyside Police v Doyle  EWHC 2180 (Admin).
 Animal Welfare Act 2006, s37(1).
 Environmental Protection Act 1990, s149(6)(c).
 Environmental Protection Act 1990, s149(4).
 Animal Welfare Act 2006, s18(3).
 Criminal Damage Act 1971, s1(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.