LTB299/15 The CWU Guide to Changes in Dog Control Law

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LTB299/15 The CWU Guide to Changes in Dog Control Law



No. 299/15

Ref P18/15

Date: 29 April 2015

To: All Branches

Dear Colleagues

The CWU Guide to Changes in Dog Control Law:

The highly successful 'CWU "Bite-Back" Campaign won significant major changes to Dangerous Dogs Laws across the UK during a 7 year campaign. Here is a guide to the changes and an update on the latest developments.

Having previously won changes in Scotland in 2010 and Northern Ireland in 2011, the UK Government finally passed law changes for England and Wales when the Anti-social Behaviour, Crime and Policing Act 2014 received Royal Assent (passed as a new law) on the 13th of March 2014.

Contained within this extensive new piece of law are sections which will apply to all dogs of all breeds and types.

This guidance sets out how the Dangerous Dogs Act 1991 (DDA) is amended. Part 7 of the Anti-social Behaviour, Crime and Policing Act 2014 contained the Dangerous Dogs; sections 106-107 which amends the DDA and came into force on the 13th of May 2014.

Community Protection Notices' were subsequently introduced in October 2014.

This information is intended as a guide - if you find yourself affected by the legislation you should seek legal advice.

The key areas of change are:

1. The extension of section 3 of the DDA to apply to ALL places
2. The extension of section 3 of the DDA to apply to assistance dogs
3. Extended rights of seizure
4. Increased sentencing
5. Courts' new assessment in deciding whether a dog is a danger to public safety
6. Civil Proceedings
7. Community Protection Notices (CPN)
1. Section 3 of the 1991 Act has been extended in England and Wales:

The current offence of having a dog 'dangerously out of control' in a public place, or a place where the dog is not permitted to be, has been extended to apply to ALL places - including private property. (Section 3(3) of the 1991 Act is repealed as it is no longer required.)

"Dangerously out of control' is defined as a dog is presumed to be on any occasion when there are grounds for reasonable apprehension that the dog will injure any person, whether or not it actually does so."

There is a possible defence, for limited situations, under the 'householder' clause. A householder case is where - the dog is dangerously out of control while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both), and at that time - the person in relation to whom the dog is dangerously out of control is in, or is entering, the building or part as a trespasser, or the owner of the dog (if at the time present) believed the person to be in, or entering, the building or part as a trespasser.

This exemption relates to a building that is a place where a person lives - whether a building is a 'dwelling' is a question of fact that will be determined by the court hearing the case.

The householder case applies only to dwellings, or Forces accommodation, and not to private land around a dwelling or to a non-domestic property.

Defra previously stated that the householder case definition is not intended to apply to ancillary or associated buildings, such as sheds or outbuildings, or to outdoor areas such as gardens and paths.

2. Assistance Dogs:

Section 3 of the 1991 Act has also been extended to apply to assistance dogs

A new offence is created under section 3 - for a dog to be dangerously out of control when there are grounds for reasonable apprehension that it will injure any assistance dog, whether or not it actually does so.

If a dog injures an assistance dog, an aggravated offence will be committed under section 3.

The definition of an assistance dog is given in section 173(1) of the Equality Act 2010, that is, a dog which has been trained to provide assistance to a deaf or blind person or certain other specified categories of person with a disability.

3. Rights of Seizure:

The rights of enforcement officers (for example, a local authority dog warden or police officer) have been extended - to seize dogs from BOTH public and private places (for example-in your home/garden) if it appears to such an officer that any dog is dangerously out of control (England and Wales).

4. Increased Sentencing:

There is an increase in the maximum prison sentences available if found guilty for an aggravated offence (injury caused) under section 3 (which is currently up to 2 years imprisonment) to;

Up to 14 years if a person dies as a result of being injured
Up to 5 years in other cases where a person is injured
Up to 3 years where an assistance dog is injured or killed
5. Whether a dog is a danger to public safety (England, Wales & Scotland):

The DDA is amended in relation to the test which the court must consider when deciding to issue a destruction order or a contingent destruction order - a court must consider the character of the owner or keeper of the dog as well as the temperament of the dog and its past behaviour along with any other relevant circumstances when deciding whether the dog poses a danger to public safety. If the court decides that the dog would pose a danger to public safety, this constitutes a reason for making an order for destruction of the dog as opposed to a contingent destruction order.

If found guilty of owning a prohibited type of dog (BSL-Sec 1) the court will continue to have two options - to order exemption (that the dog is added to the Index of Exempted Dogs within two months or to issue a destruction order; but the court must now make an assessment of 'suitability' as part of the process of deciding whether the person should be allowed to keep their dog (exemption).

Section 1 (Breed Specific Legislation (BSL) - Banned Breeds) and Section 3 (applies to all dogs) convictions:

Where a person has been convicted of an offence under section 1 (BSL) or section 3 (applies to all dogs) the court MUST consider;

- the temperament of the dog and its past behaviour, and

- 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

The court may consider;

- any other relevant circumstances to reach a decision (whether to issue a destruction order or a contingent destruction order).

Section 4b applications - the same test of danger to public safety will apply when the court considers the need for a destruction order under section 4B of the 1991 Act (destruction orders otherwise than on a conviction).

When deciding whether to order a 'type' dog destroyed or exempted, the court MUST consider;

- the temperament of the dog and its past behaviour, and

- 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

The court may consider;

- any other relevant circumstances.

6. Civil Proceedings:

Section 4B is also amended to enable civil proceedings to be brought in respect of dogs seized under ANY enactment.

7. Community Protection Notices (CPN)

These are intended to stop a person or business continuing with conduct which unacceptably affects the community round-about. They can be issued by authorised Council Officers; Police Officers; Police Community Support Officers (PCSOs) so designated by a Chief Officer of Police; and other persons if designated by the relevant local authority in circumstances where there are reasonable grounds to believe the subject's conduct:-

is having a detrimental effect on the quality of life of those in the locality, and
is unreasonable, and
the effect is of a persistent or continuing nature.
Before a Community Protection Notice can be issued, the subject must be given a written warning stating that a Community Protection Notice will be issued unless their conduct ceases to have the detrimental effect. Failure to heed a warning after sufficient time, that effect continuing, may then lead to the issue of a Community Protection Notice requiring them

to stop doing specified things and/or
to do specified things and/or
to take reasonable steps to achieve a specified result where those requirements are reasonable and have the aim of either
preventing the effect of the conduct, or
reducing that, or
reducing or preventing the likelihood of it continuing or recurring.
Written Warning:-

An authorised person must issue a written warning to the individual or body before issuing a CPN.

If the Warning is ignored then a CPN can be issued. In the case of a dog owner the CPN will specify the actions required to be taken by the owner to comply. This could be to muzzle the dog, keep it on a lead at all times when out, a ban from going to certain areas, an order to keep the dog inside in a secure place, an order to fence in the premises where its kept or make repairs, get the dog micro-chipped, the owner and dog to attend obedience training etc.

Where the recipient fails to comply with a Community Protection Notice, the local authority may have work carried out to ensure that the failure is remedied. The costs of works undertaken in default by the council can be challenged on the ground that they are excessive. A failure to comply with a Community Protection Notice without reasonable excuse is a summary offence carrying a maximum penalty on conviction of a fine of up to £2,500 (individuals) or £20,000 (businesses).

Alternatively, an Authorised Person may issue a Fixed Penalty Notice (max £100) conferring immunity from prosecution if paid within 14 days.

Items used in the commission of an offence on any premises may be seized under a Warrant and may, following conviction, be ordered to be handed-over for destruction or disposal in another way. A right of appeal against a Community Protection Notice or its terms lies to a Magistrates Court within 21 days of issue.

8. Microchipping:

England:

From the 6th of April 2016, all dogs in England must be micro-chipped and registered to an approved database by the time they are 8 weeks old. The Micro-chipping of Dogs (England) Regulations 2014 will be enforced by local authorities, police constables, community support officers and any other person which the Secretary of State may authorise to act as an enforcer of the regulations. For every dog in England that is currently not micro-chipped, you will have until 6th of April 2016 to get them micro-chipped and registered on an approved database. If a keeper of a dog which is not micro-chipped gets served with a notice requiring them to have the dog chipped, they will have 21 days to do this. If the keeper does not micro-chip their dogs within 21 days of the served notice, then they will be liable to pay a fine of £500. If any keeper subsequently moves, changes contact telephone number, etc. then the dog is no longer considered micro-chipped under the regulations and enforcement can be taken and a notice served. If the keeper does NOT get their details up to date within 21 days of the served notice, then they will be liable to pay a fine of £500.

Wales:

All dogs in Wales must now be micro-chipped, as from March 2015.

Scotland:

On 4 March the Scottish Government announced the introduction of compulsory micro-chipping for all dogs in Scotland from April 2016. In Scotland the Control of Dogs (Scotland) Act 2010 is the primary legislation and is similar to other parts of the UK.

Northern Ireland:

Domestic pet dogs must be licensed in Northern Ireland and an annual dog licence costs £12.50. All dogs in Northern Ireland must currently also be micro-chipped at eight weeks old. Dogs must wear a collar with the owner's name and address inscribed on it, or on a plate or badge attached to the collar. Failure to ensure that a dog wears the appropriate collar identification is an offence which could result in a maximum fine of £1,000. In Northern Ireland the Dogs (Amendment) Act (Northern Ireland) 2011 is the primary law and is similar in most key respects to the rest of the UK.

9. Sentencing Council for England & Wales - Public Consultation:

The Sentencing Council published new proposals for sentencing people convicted of dangerous dog offences on 17 March 2015. The Sentencing Council has published proposals for how courts should sentence people convicted of dangerous dog offences. The proposals follow 2014 changes to the Dangerous Dogs Act 1991 in England and Wales, which came into force in May last year. These made very substantial increases to the maximum sentences for these offences, extended the law to cover offences on private property and introduced a new offence to cover attacks on assistance dogs as described above. New sentencing guidelines are therefore being produced to reflect the changes to legislation and to provide updated guidance for judges and magistrates to use in sentencing these cases, which can include those of the utmost seriousness involving a fatality.

The Sentencing Council is seeking the views of the public and stakeholder organisations such as the CWU as well as anyone else with an interest in the sentencing of dangerous dog offences. It is particularly interested in views about how to assess the seriousness of offences, which factors should influence a sentence, the structure of the guidelines and the sentence ranges and levels.

The consultation closes on 9 June 2015. It is open to everyone, including individuals, organisations, Unions, criminal justice professionals and members of the public. People can respond by visiting http://www.sentencingcouncil.org.uk/" onclick="window.open(this.href);return false; responding either to the full consultation, or by filling out a simple online questionnaire. Email responses can be sent to consultation@sentencingcouncil.gsi.gov.uk or by post to: Office of the Sentencing Council, Royal Courts of Justice, Strand, London WC2A 2LL.

The CWU Health, Safety & Environment Department will be making a detailed response in due course.

Yours Sincerely

Dave Joyce
National Health, Safety & Environment Officer