On the 30th anniversary of the enactment of the Dangerous Dogs Act 1991, dangerous dogs and animal welfare expert Pamela Rose reflects on whether the statute is fit for purpose.
History of the legislation
Before November 1991, there had been no criminal law for dogs being out of control (although of course there were criminal offences if there were allegations, involving, for example the use of a dog as a weapon). The only recourse was by way of complaint under the Dogs Act 1871 (which is still in force). This legislation applies where a dog is dangerous and out of control either in public or private premises.
In 1989, the powers of the court were extended to enable a court to not only make a control order, but also to destroy and disqualify. There was no provision to make any compensation order and only the owner could be subject of the complaint, as only the owner could comply with a control order. There are other laws to cover the worrying of, or injury to, livestock.
Importantly, the law did not specify any particular dog or type that was a fighting or dangerous dog.
On 12th August 1991 parliament rushed through the Dangerous Dogs Act 1991 (“DDA”) following two incidents of aggression displayed by dogs . The dogs were euthanised without being examined by any defence expert. On 30th November 1991 the law came into force and with this criminal and civil provisions governing possession of a prohibited dog (which is illegal without a certificate of exemption) and dogs that are dangerously out of control and or cause injury whilst being so. The RSPCA report, ‘Breed Specific Legislation – A Dog’s Dinner’ is essential reading.
Until 1997 the Courts had no discretion: they had to impose mandatory death penalties if a dog so much as scratched in play under the aggravated section 3(1) of the Act or was a prohibited breed or type of dog, even where the dog was not aggressive by virtue of section 1 of the Act. Whilst section 4 covers disposals such as disqualification and destruction, section 4A was included for a contingent destruction order to be made, giving the court wide powers under section 4A(5) for making conditions. There is no provision for breach, but in practice any breach is referred back to the court.
Section 1 of the DDA is headed ‘dogs bred for fighting’. This in itself is an outdated description as most of the dogs falling into the category of a pit bull type dog are domestic pets. The list includes the Japanese Tosa, Dogo Argentino, Fila Brasileiro; section 2 enables the list to be extended.
Section 1 (2) reads as follows:
No person shall—
(a) breed, or breed from, a dog to which this section applies;
(b) sell or exchange such a dog or offer, advertise or expose such a dog for sale or exchange;
(c) make or offer to make a gift of such a dog or advertise or expose such a dog as a gift;
(d) allow such a dog of which he is the owner or of which he is for the time being in charge to be in a public place without being muzzled and kept on a lead; or
(e) abandon such a dog of which he is the owner or, being the owner or for the time being in charge of such a dog, allow it to stray.
Many will understand the anguish when representing the owners or keepers in those days. They were indeed death penalty cases if a dog was not ‘exempted’ by 30th November 1991. Due to pressure by many groups, supported by the judiciary and police, in 1997 parliament amended the legislation to afford the courts discretion not to make a destruction order if the dog was not a danger to public safety:
4(1A) Nothing in subsection (1)(a) above shall require the court to order the destruction of a dog if the court is satisfied—
(a) that the dog would not constitute a danger to public safety; and
(b) where the dog was born before 30th November 1991 and is subject to the prohibition in section 1(3) above, that there is a good reason why the dog has not been exempted from that prohibition.
There were parallel civil provisions in section 4B. For a while however following a court ruling and a Criminal Cases Review Commission intervention a prohibited dog could be rehomed to a new keeper who agreed to comply with the mandatory conditions for an exempted dog (lead and muzzle in public, and third party insurance, for example). Notably, however, the dog could not be rehomed to a new owner – only a keeper – as the law prohibits transfer of ownership of a prohibited dog.
If a court considered that a dog did not present a danger to the public then the court can order the dog to be exempted within a period of two months (extendable on application), which would place the dog on a Register of Exempted Dogs The owner then has to comply with mandatory conditions set out in Article 10 of (as amended) The Dangerous Dogs Compensation and Exemption Schemes Order 1991, which are provisions for the safety of the public. Section 1(5) of the DDA provides for such an exemption scheme.
Unusually, by virtue of section 5(5) of the DDA, the burden of proving both that a dog is not a prohibited dog and a dog that causes injury is not a danger to the public rests on the defence: most of our statutes place the burden on the prosecution.
2014 changes in the law particularly for prohibited dogs
In 2014 the law was amended again by the incorporation of sections 4(1B) and 4B(2A) which allow the court to decide that an otherwise non-dangerous dog could become dangerous if the owner is not a fit and proper person.
4(1B) For the purposes of subsection (1A)(a), when deciding whether a dog would constitute a danger to public safety, the court—
(a) must consider—
(i) the temperament of the dog and its past behaviour, and
(ii) whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and
(b) may consider any other relevant circumstance
Similarly the civil provisions in section 4B were amended to include the same criterion as the criminal provisions.
There is no statutory definition of ‘ fit and proper’ and hence the provision is open to considerable legal argument.
For the time being in charge: section 4B (2A)(a)(ii)
The original legislation, as amended in 1997, did not cater for who was to be in charge of the dog, provided that the dog was not in itself a danger to the public. Parliament narrowed the scope of such persons, with the effect that the rehoming of any prohibited dog to a non-owner or keeper at the time, when not exempted, is now governed by statutory amendments and rulings of the High Court. Instead of parliament amending the Act to consider whether the person who would have the dog is fit and proper, the words ‘for the time being in charge’ were inserted. The High Court concluded in the case of Joshua Webb at paragraph 50:
“that from the language and context of 4b(2A)(a)(ii) parliament intended to limit the category of person who the court is required to consider to those specified as the owner or the person for the time being in charge.”
In paragraph 77 the High Court concluded that the first instance court is not permitted to find that someone who is not either the owner or a person for the time being in charge is a fit and proper person to be in charge of the dog. In paragraph 88 the Court concluded that
“the concept of being in charge should not be understood in a particularly narrow nor expansive sense. The concept of being in charge relates to whether the person in question has responsibility for the dog. It is therefore at least possible for a person who walks a dog on a regular basis and who has responsibility for the dog during that time to be in charge for the time being”.
There are likely to be exceptions to that general proposition for example where the person is an agent of another. In those circumstances, they may not be in charge, but the language of the statute is broad enough to encompass anyone who, for whatever reason and in whatever way, is in charge of the dog for the time being. This would include a volunteer or erstwhile partner or kennel owner where the dog has been housed since seizure. The concept focuses on the past and present, rather than on the future.
The particularly draconian nature of these amendments has created obstacles for good natured – but prohibited type – pets who for a variety of reasons cannot remain with their owner or keeper. Only someone who has had prior contact and responsibility for the dog can apply to be the new keeper once the dog is exempted. Strays, abandoned dogs or lovely dogs where the owner or keeper cannot have them are at risk of destruction. The restrictions now in force leave rescue and rehoming charities distraught as they face the prospect of destruction orders being made: whilst the mandatory destruction orders were removed in 1997, the present regime restricts rehoming to anyone who is not for the time being in charge and results in destruction orders where there is no such person.
Any dog: changes to the law in 2014
Section 3(1) DDA applies to any dog of any description where it is dangerously out of control (a test which requires only reasonable apprehension of injury, per the definitions in section 10), or which has caused injury. In 2014, parliament removed the need for a place to be public where the allegation was of being dangerously out of control and/or causing injury whilst so. It also extended the law to injuries caused to assistance dogs, in addition to those caused to people.
There is now in addition a householder defence, which covers a situation where a trespasser has entered the home. However, this does not include a secure garden attached to a home, which is a particularly serious omission with dog theft out of gardens being rampant.
The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015
On 3rd March 2015 the provisions for exemption were dramatically amended by secondary legislation, namely The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015. There was no public consultation and it came in with little warning shortly before the 2015 General Election.
The only positive pro dog change was to permit an ‘interim order’ for those dogs waiting to be exempted. It is entirely at the police’s discretion and its use varies between forces.
Part 2, Article 4 sets out the conditions for exemption and Article 10 sets out the exemption scheme requirements which have to be on the certificate. By Article 10(1) the dog has to be kept at the same address as the person to whom the certificate is issued, save for any 30 days in a 12 month period: previously the requirement was just to notify the ‘Agency’ of any change of address where the dog might be kept in excess of 30 days. Those in the army, students, those away visiting sick parents, those whose homes are destroyed by fire or flood requiring a prolonged stay in temporary accommodation where dogs are not permitted or the premises are not suitable are all affected by this. This amendment therefore has far reaching consequences for many holding the exemption certificate.
The other conditions are similar to before, in that you have to have keep the dog sufficiently secure to avoid escape.
Once a dog itself is found not to be a danger to the public, and the owner or person in charge is found by a court to be a fit and proper person, the owner or keeper must comply with having the dog on a muzzle and lead in public at all times, which includes a vehicle. The dog cannot be apart from the exempted person for more than 30 days a year; the dog must have third party insurance, be microchipped, and must be kept secure. Any breach requires a court hearing. However, the police cannot seize and destroy without a court hearing as they did in 2014 when 22 dogs were unlawfully destroyed.. Hence whilst there are onerous mandatory conditions on the owner and restrictive freedom for the dogs, they can live so long as there is compliance.
Once a court has decided the dog is not a danger to the public and the person to whom the certificate is to be issued is fit and proper to be in charge of the dog subject to exemption, the Agency must issue a certificate of exemption (Article 9).
Part 3: substitution of Person in Charge of Dog Exempted under Part 2, Article 12
This new Order allows rehoming of an already exempted prohibited dog where the owner or person in charge has died or has become seriously ill, rendering that person unable to be in charge of the dog. These have to be supported by evidence. Unlike section 4B(2A) there is no restriction on who can apply to be the substituted person when there is death or serious illness. However, Article 12 applies only to dogs that have already been exempted.
We hold ourselves out to be a dog loving country yet this discriminatory law remains.
A recent parliamentary inquiry published its findings on 17th October 2018 and both heard an abundance of evidence from organisations, charities and rehoming centres and considered written submissions by individuals. In particular submissions were made that a dog is no more dangerous because of its appearance than any other dog. The RSPCA argued that there was no evidence to suggest prohibited breeds were a significant factor behind the rise of incidents. The Metropolitan Police figures indicated that legal breeds accounted for 80% of section 3 incidents. Defra however stood its ground and made no changes to the law, even though the statistics showed that only a small percentage of dogs considered to be dangerous in their behaviour were found to be prohibited dogs, suggesting that the law had not achieved its purpose in preventing dogs being out of control or causing injury. It was put to Lord Gardiner that the current approach was not protecting the public, however he insisted that breed specific legislation (BSL) was essential to public safety.
We can now seek to change this through our MPs . There are petitions which can be signed and template letters to send. The government should admit they are wrong and have to bear the burden of recognising how many nice family pets or strays have been destroyed over the 30 years and how many owners have been left devastated when a beloved family pet is taken away. More important than blame, though, we will all applaud a reverse in this cruel law: we remember Nelson Mandela and his legacy of forgiving.
Dogs are frequently seized if of a prohibited breed, or where there is an allegation that the dog has been dangerously out of control and/or has caused injury. They are thereafter kept in secret kennels. Whilst some dogs might well cope in this environment, there is no statutory provision for their welfare as set out in the RSPCA publication ‘Welfare of seized dogs in Kennels RSPCA political animal’, and some dogs suffer from separation anxiety or distress at being caged. Whilst some kennels might be excellent, there are serious concerns about others: due to the secrecy of their locations, they are not inspected by the owners or their representatives, nor by experts for the defence. The seizure itself can also be traumatic if not conducted by those experienced in dogs and dog behaviour.
Schedule 4, Part 2 of the Animal Welfare (Licensing of Activities involving Animals (England)) Regulations 2018 sets out provisions for providing boarding in kennels, but due to the secrecy it is not possible to monitor, in particular, compliance with Article 8 of that schedule, nor is access to the records specified in Article 9 easy to obtain.
One also notes Home Office Circular 29/98, paragraph 8:
“8. Owners of dogs which are held in custody may request the return of their dogs pending trial. It is a matter for Chief Officers of Police and local authorities to decide, in the light of the circumstances of the individual case, whether to return a dog to its owner. Factors which Chief Officers and local authorities may wish to take into account in reaching a decision include the undesirability of keeping dogs in custody for prolonged periods and whether the dog might pose a threat to public safety.”
Identification of prohibited dogs – section 1 of the DDA
“to see if its characteristics substantially conformed to the ADBA standard, or to use the words of the Knightsbridge Crown Court, if the dog approximately amounted to, was near to, or had substantial number of the characteristics of the pit bull terrier as set out in the ADBA standard ‘type of dog known as a pit bull terrier’”
The ADBA standard is based on appearance and is based on dogs agreed to be pit bulls, but now this test is used to see if a particular dog is to be classed as of that type. Frequently an expert might say that a particular characteristic is a fault when it is not, in fact, a fault at all: the dog in question just does not conform in that respect because the dog is yet to be assessed as prohibited. The test is not to see if they might also approximate to a non-prohibited dog. The dog in question may be a sibling to dogs that are not prohibited or born to parents that are recognized Kennel Club breeds, but nonetheless be condemned as a prohibited breed solely based upon appearance.
Experts therefore should be meticulous in assessing a dog according to the ADBA conformation points and comprehend the skeletal features of the dog. The conformation rests on the bone structure because that is what is needed for a fighting dog even if not used for fighting, as muscle can of course change. Defra created many police officers purportedly qualified to identify dogs. Some of them may be involved in the investigation and therefore may not appear to be independent, even if they are. I applaud those who have advanced their expertise on identification and behaviour with further qualifications combined with experience, and who are truly independent. The courts should not go by a subjective approach but on a detailed analysis.
Whilst this law exists, no dog should be wrongly categorised. So said Lord Justice General, Lord Hope in Scotland in Parker v Procurator Fiscal:
“One must of course be careful not to extend the application of the section to dogs other than those which are described in it. A dog must be of the type known as the pit bull terrier if the section is to apply to it.”
A prohibited dog in section 1 and the civil equivalent in section 4B, includes three specific breeds, but most of the dogs seized are types of dogs known as a pit bull terrier – in other words, cross breed dogs. They are types, not a breed.
Surely deciding whether a dog is dangerous cannot be based upon the appearance. Yet, deciding that a dog does fit into the section 1 slot can result in the dog being destroyed even where the dog has never shown aggression, where the dog is a family member, or where the dog might be an assistance dog or a companion dog.
When this law first descended upon us, there were experts trained to assess the skeleton of a dog – vets, breeders, championship judges or those who had particular experience with a type of dog known as a pit bull – familiar with bone structure and mobility, and qualified behaviourists. A trial concerning whether a dog was a type might well last a few days. Pre 1997, they were death penalty cases: for some years after November 1991, no exemption was available.
In the early 1990s we had officers saying that a bull terrier was a prohibited dog and that the head did not matter (fortunately the court agreed with the defence experts that it did) and staffies that were condemned for being two inches taller than the breed standard. I remember hearing that a poodle could be a prohibited dog if it had short hair! All of this shows the law is unjust and the identification of a dog can be highly subjective if experts do not strictly apply the conformation guidelines.
What is seriously needed is to repeal those sections that discriminate against dogs based upon their appearance. We need to end the months in secret kennels for all dogs that are not deemed dangerous. We need transparency of kennel records and veterinary records. We need to end the destruction of nice dogs.
In the interim, the government needs to repeal the 2014 ‘person for the time being in charge’ provision and the 2015 Order that imposes these restrictions. We need to remove the discretion vested in the police and make it mandatory in all cases to return a dog home whilst its breed is being decided. We need the RSPCA Welfare of Seized dogs to be statutory. All kennels where dogs are taken need behaviour experts and training and facilities in all of them (some might have this in place already but given that they cannot access these kennels, the defence cannot know). Some dogs cannot cope with kennels so there has to be alternative homing to prevent caging, with therapy. Where this is not in place, credit must be given for the impact on kenneling where a nice dog after months of being caged reacts differently from how it might otherwise have done. These dogs should be moved to a kennel where there are areas without cages and therapy with persons qualified to rehabilitate before or after a court hearing, with necessary deferment of decisions in respect of the dog.
The simplest way is to require that a dog need not be seized where the dog is not a danger to the public. An interim scheme for all dogs should be in force and the wording should be mandatory, unless there are exceptions, whilst this prohibitory discriminatory law remains in force. If it is said that the dog is too dangerous then experts from both parties should assess. Pending any repeal of section 1 and section 4B in their entirety, the 2015 Dangerous Dogs Exemption Schemes (England and Wales) Order that restricts rehoming to an exempted dog other than in cases of death or illness should be repealed. Nice dogs should be permitted to be rehomed to a responsible loving home, not destroyed. In addition, councils should stop banning dogs from their accommodation, particularly where a court deems the dog not to be dangerous.
The 1991 law was rushed in because of two incidents with dogs, but the dogs themselves were destroyed and so the identification of these dogs was not made public, nor indeed was the basis on which they were so called ‘dangerous’. No dog should be euthanised without a proper examination of its behaviour.
Further, any dog of any description potentially falls into the section 3 charge of being dangerously out of control and/or causing injury to the person or an assistance dog. There are statutory defences in section 3 1A) if the person is trespassing in your house – but not in your secure garden – and under section 3(2) where you believe you left the dog in the charge of someone responsible, but at common law are able to show that it is not your fault. The ‘householder’ defence should include all private property – not just the house, but also the garden, particularly now when we see that dog thefts are rampant.
Injury is not defined: it can be a scratch, a bruise, a nip or a more serious bite injury. You can be given a criminal record if you are prosecuted for the dog scratching you in play. Tthe government suggested that less serious injuries could fall into the civil 1871 Dogs Act: paragraph 3 of 29/98 – Circulars 9/1994 and 22/1995 explained that the purpose of section 3 of the 1991 Act is to extend the powers of the courts in relation to dog attacks. Practitioners are reminded that these provisions are not intended to replace earlier statues concerning the control of dogs. Practitioners will therefore wish to consider whether in each case the application of an earlier statute, such as the Dogs Act 1871, would be more appropriate than the 1991 Act. However, it is a discretion only, and of course if it is civil law, there is no legal aid. Experts and lawyers therefore have to be privately funded and then there is the risk of kenneling costs. More and more cases are being brought under the civil proceedings, making it so hard for those who cannot afford the associated fees, all the more so during the Covid 19 pandemic where kenneling has been prolonged whilst waiting for court hearings to take place
The courts themselves have described the law in this area as draconian, and it remains so. Today we are almost back to pre-1997, with nice dogs being destroyed for want of a home when there are loving homes out there for them, which the law won’t permit.
It is time for change. Please do write to your MP.
Suggested proposals to eradicate both the discriminatory nature of the DDA and to improve conditions of kenneled dogs
It is strongly urged that sections 1 and 4B(1)(a) be repealed. Statistics have shown that the Act does not work in protecting the public. Article 12 of the 2015 Order, restricting the rehoming of prohibited dogs save for where the owner or person has died or is too ill to care for the dog, should be repealed. The restriction which permits an owner or person in charge to be separated from the dog for a maximum of only 30 days should likewise be repealed.
Appearance does not relate to behaviour and prohibited dogs represent only a minority of cases where it is alleged that dogs are dangerously out of control. Breed specific legislation has been shown not to be based upon statistics, and is discriminatory. The presumption should be that a dog does not become dangerous solely on account of its appearance or because the owner or person in charge is unfit. Additionally, the presumption should be that a dog that is not a danger to the public can be rehomed if the court finds that the owner or keeper is unfit: a dog of good temperament should not be destroyed because the law forbids rehoming to a responsible owner.
Whilst this law is in place however:
- The presumption should be to not seize the dog. It should be mandatory that a dog not be seized unless it is agreed that there is cause for an exception. This change should extend to both purportedly section 1 dogs and alleged section 3 dogs.
- Where it is alleged that the dog has behaved aggressively, unless serious injury was caused, those then being in charge of the dog should be offered the option of ensuring that the dog is muzzled and on a lead in public pending charge or court proceedings, instead of having the dog seized (in effect conditional bail).
- A dog that is prohibited and not dangerous should not be deemed dangerous on account of the owner of person in charge being found unfit.The dog can be rehomed. Unfitness should relate only to proven cruelty or neglect, but with a fair opportunity to explain. The ‘must’ consider should become discretionary and be more in line with the principles in paragraph 11 of R v Flack  2 Cr. App. R. (S) 70. The court should consider separately firstly whether a dog presents a danger to the public and then whether an owner is unfit. If the dog is not a danger to public safety, then the presumption should be the dog can be rehomed where it is then found the owner or person in charge is unfit. A knee jerk reaction by deeming a dog to be dangerous because the owner is unfit (which will currently result in destruction of a nice dog where there is no person who has had responsibility for the dog) can be met instead by the court having the jurisdiction to assess the person who is to be the intended keeper, whether or not they have had the ‘Webb prior responsibility’ for the dog. This way the dog need not die and the court can assess the intended new keeper.
- If a dog is seized, it should only be seized by those experienced in animal behaviour, who have patience and who do not use methods which traumatises the dog. The court must take into account that any adverse behaviour may have been a direct cause of such trauma.
- We need strict application of the identification rules by those qualified on the skeleton of a dog to avoid a subjective approach. It is not enough to say, “In my view the dog is square and looks like a prohibited dog’: rather, this has to be supported by strict adherence to the present conformation points and quantification in order that the court may judge more easily whether the dog possesses a substantial number of characteristics.
- Scratches or accidental injuries should not to be enough to charge section 3 ‘causing injury’ offences. Such minor injuries should not trigger the burden on the defence of showing the dog is not a danger. Minor injuries should not be criminalised: there is use to be made of the 1871 legislation instead.
- The RSPCA guidance, ‘Welfare of Seized Dogs in Kennels’, should be part of the statutory regime.
- Courts must allow for changes in behaviour due to kenneling and allow a change of kennel if the present secret one does not offer behaviour therapy. Where it is submitted that any behaviour may be related to seizure and kenneling or any previous abuse, the case should be adjourned for an assessment over a period of time in a suitable place, with the defence and prosecution both consulted as to where this should be.
- Kenneling should be transparent. Information about the conditions in the kennel (including photographs and confirmation of the provision of welfare staff and behaviour experts) should be available to the defence, Visits to the kennels for inspection should be made available to expert witnesses as an expert tasked with assessing behaviour needs to be able to consider how the dog has been kept and the dog’ss behaviour in kennels.
- The defence in criminal cases should not be asked to pay for police (third party) kenneling costs where it is not necessary to kennel, and this in turn should be the majority of cases where dogs are seized. In civil cases the court should only award costs similarly only where it was necessary to kennel. Any costs should be limited to reasonable periods of time and not where there has been a delay either by the prosecution or police directly or indirectly.
- The owner or person in charge, or their representatives, should be able to select a kennel that is known to be concerned for the welfare of dogs, that provides access to trainers and behaviour experts, and that is secure. A defence expert should have ready access to the dog and to see how the dog is housed and looked after at the kennel. Where the kennel is a police designated kennel then an undertaking can be agreed by an expert to disclose the whereabouts. At no stage should access be refused to a defence expert where the expert considers it necessary to assess the dog once or more than once. The owner of the dog should be permitted to be present during an assessment in an agreed place, but the expert should be consulted and involved in transportation of the dog where there may be concern as to how the dog is conveyed.
- The police should not euthanise any dog where there has been an incident where the owner was not present or where there is no obvious owner (this of course includes strays) without the opportunity for the dog to be assessed or examined. Such a request for examination can be made by a charity , rehoming centre or welfare group.
- If someone signs over their dog to the police they should be given at least 14 days to reconsider this. Often someone might be intimidated, distressed or persuaded. This would safeguard the transfer of property rights until the owner is given time to take legal advice or reflect, and would ensure that they were not under pressure, direct or indirect, to sign.
- A private garden should be included in the householder defence in section 3.
- The length of any Contingent Order under section 4A for any dog which is not subject to an exemption scheme should not automatically be for life, but should be subject to review and/or the discretion of the court on hearing submissions. This would be particularly relevant for a young dog.
- To abate the destruction of a non dangerous prohibited dog for want of a home, the statute should enable an agreed approved person to familiarize themselves with the dog in order to apply. The change in the law was an extreme reaction to the pre-2014 situation and the decision in Sandhu where there was no control as to who was to be in possession of a prohibited dog: a system permitted an approved applicant would negate this concern and at the same time not have a nice dog destroyed.
- The government is urged to provide and consider the availability of training and education for those seeking to adapt measures required for keeping dogs under control. Each city should have areas specifically for dogs which have to be on a lead to exercise with time slots.
- Where possible, any behaviour assessment of the dog requires knowing the history of the dog in question, including diet and sleeping arrangements. Similarly if dogs are seized, a kennel should have such information. These are not just dogs; they are most of the time members of the family, medical detection dogs, police dogs, search and seizure dogs, companion dogs, sheep dogs and dogs on whom those with conditions such as epilepsy or sight and hearing disabilities rely. Article 8 should be taken into account as part of the right to family life.
- An assessment of a dog for behaviour should permit the owner or person in charge to be present, if this is felt to be appropriate by the expert assessor.
- Section 1 of the DDA and the Exemption Schemes 2015 Order, requiring that a dog should be on a lead and muzzle, should be amended to confer on the court a discretion where there is expert evidence to the effect that a prohibited dog does not need the restrictions of lead or muzzle and is no more risk to the public than any non-prohibited dog.In those circumstances, the Court should have the discretion to give reasons as to why there is no need for the dog to be subject to any or all of the mandatory conditions that restrict the lifestyle of the dog, thus allowing the particular dog t0 live by the same laws as any other dog.
- In Article 10(a) of the Exemption Order, the 30 day rule relating to the period during which an owner or keeper can be apart from the dog should be repealed. Failing that, there needs to be added that this can be extended on application to a court.
- In Article 12, restrictions on the rehoming of a dog only on death or illness should have inserted “or any other reason” as a criterion in Article 12(b) and (c).
- The burden of proving that a dog is not prohibited should revert back to the prosecution. The burden of proof that a dog is not a danger to public where injury is caused should likewise revert back to the prosecution.
- Where the police pursue civil proceedings, legal aid should be available to enable equality of arms. The owner or person in charge has to pay legal representatives and experts and it is contrary to natural justice that in cases where there are insufficient funds, the police can afford a lawyer and an expert. Whilst there is the advantage to pursuing civil rather than criminal proceedings particularly in minor cases, namely the avoidance of a conviction, the funding presents difficulties and unfairness in many cases
- Where a dog is seized, maximum time limits should be applied to charging and/or court proceedings being heard. Charging should be within 28 days and court proceedings within 3 months with full disclosure by the prosecution within the first 28 days of any assessment which they seek to rely on where it is contended that the dog is prohibited. This is in order to protect the welfare of the animal concerned and minimise any suffering caused by long term kenneling. In addition this would reduce kennel costs to the owner of the animal or police force concerned.
 RSPCA, ‘The welfare of seized dogs in kennels’