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.
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 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.