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Dangerous Dogs Offences

Updated: 2 November 2017

Introduction

In a case which involves a dog dangerously out of control, a choice lies between an application by way of a civil complaint under the Dogs Act 1871 for an Order for the control or destruction of a dog, and a criminal prosecution under the Dangerous Dogs Act 1991.

Where a prosecution is being pursued, consideration should be given to applying for a section 2 Order under the Dogs Act 1871 and staying it pending the outcome of the criminal proceedings. This will allow the court to make an Order to control or destroy the dog and protect the public in the event of an unsuccessful prosecution, or where the matter is discontinued and the dog still poses a risk.

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Civil complaint – Dogs Act 1871 (for non-prohibited type dogs only)

The police may make an application to the magistrates’ courts by way of a complaint under section 2 of the Dogs Act 1871 (‘section 2’) for the control or destruction of a dog considered to be dangerous. The Attorney General has formally assigned the conduct of these civil proceedings to the Director of Public Prosecutions.

Section 2 requires that the owner of the dog is brought before a magistrates’ court on a complaint.

Prosecutors should note that section 2 proceedings are against the owner of the dog as opposed to someone in charge of the dog at the time of the incident.

Section 2 provides that ‘any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court ... that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed’.

‘Dangerous’ should be given its ordinary everyday meaning. The dangerousness alleged can be towards people or animals, and applies whether the dog is in a private or public place.

The Dogs Act 1906 amended the Dogs Act 1871 in that it defines a dog as ‘dangerous’ where it injures cattle or poultry or chases sheep (section 1(4)). Section 7 of the 1906 Act defines ‘cattle’ as including horses, goats, mules, asses, sheep and swine. ‘Poultry’ is not defined by the Act. A definition of ‘poultry’ is provided by section 3 of the Dogs (Protection of Livestock) Act 1953.

Sections 3(5) to (6) of the 1991 Act clarify that:

  • An Order under section 2 of the Dogs Act 1871 may be made whether or not the dog is shown to have injured any person; and may specify the measures to be taken for keeping the dog under proper control, whether by muzzling, keeping on a lead, excluding it from specified places or otherwise.
  • If it appears to a court on a complaint under section 2 of the Dogs Act 1871 that the dog to which the complaint relates is a male and would be less dangerous if neutered the court may under that section make an Order requiring it to be neutered.

Breach of an Order made under section 2 of the Dogs Act 1871 is a criminal offence under section 1(3) of the Dangerous Dogs Act 1989. The section makes it clear that failing to comply with an Order under section 2 of the Dogs Act 1871 to keep a dog under proper control includes a reference to failing to comply with any specific Order made under that section. The offence is punishable with a level 3 fine and also allows the court to consider an ancillary Order disqualifying the defendant from having custody to a dog for a prescribed period.

A civil complaint under section 2 of the 1871 Act is to be proved on the balance of probabilities. The lower standard of proof of such an application must be balanced against the following factors:

  • an Order may only be made against a dog’s owner, not its temporary keeper;
  • section 9 of the Criminal Justice Act 1967 cannot be used to present evidence at trial, however as it is a civil application, hearsay evidence is admissible and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 apply;
  • breach of an Order made under the section is an offence in itself, in contrast with breach of a Contingent Destruction Order made under the 1991 Act (see below);
  • proceedings must be issued within six months and cannot be discontinued; and
  • costs are not available from central funds and the applicant risks costs being awarded against him in the event of failure. This means that the CPS may be ordered to pay the respondent’s costs where the police have brought a complaint which is subsequently not proved.

Useful case law

Prosecutors should note the ruling in Briscoe v Shattock [1998] EWHC Admin 929, in which the meaning of ‘dangerousness’ equates to the dog’s disposition rather than its actions. A dog can be ‘dangerous’ to other animals as well as to humans.

Sansom v Chief Constable of Kent 1981 Crim LR 617 provides that it was in the nature of dogs to chase, wound and kill other small animals. In this case, the killing of two rabbits was not considered to be ‘dangerous’. Prosecutors should be mindful of this case when considering cases involving dog attacks on animals smaller than itself.

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Criminal prosecution – Dangerous Dogs Act 1991

Under section 1(3) of the 1991 Act it is an offence to be in possession of any of the following four types of dog unless they have been exempted pursuant to a Contingent Destruction Order made by the Court and registered on the Index of Exempted Dogs (managed by DEFRA), and the conditions of exemption are complied with:

  • the Pit Bull Terrier
  • the Japanese Tosa
  • the Dogo Argentino
  • the Fila Braziliero

The word ‘type’ in relation to dogs has a broader meaning than ‘breed’. A court could properly conclude that a dog was ‘of the type known as the pit bull terrier’ within the meaning of section 1 of the Dangerous Dogs Act 1991, so as to make it an offence to allow it to be in a public place without being muzzled, so long as its characteristics substantially conformed to the standard set for the breed by the American Dog Breeder’s Association (ABDA), even though it did not meet that standard in every respect, (R v Crown Court at Knightsbridge ex parte Dunne; Brock v Director of Public Prosecutions [1993] 4 All ER 491).

Since the introduction of the 1991 Act, the law has been amended to allow lawful possession if a Court applying the statutory test determines that the prohibited dog does not constitute a danger to public safety. In order for the dog to be exempted, three ‘pre-release’ conditions (dog to be neutered; micro-chipped; and covered by third-party insurance) must be complied with and nine continuing requirements must be met. The requirements include keeping the dog at the same address, notifying the specified Agency of any proposed change of address, keeping the dog muzzled and on a lead when in a public place, and a number of other requirements set out in the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 (‘the 2015 Order’). The 2015 Order came into force on 3 March 2015, and replaces The Dangerous Dogs Compensation and Exemption Schemes Order 1991 in relation to England and Wales only. Some dogs (prior to March 2015) are also tattooed with the unique number allocated by the Index of Exempted Dogs.

In respect of each of the four types of dog (whether exempted from the prohibition on possession or not) section 1(2) makes it a summary offence to:

  • breed, or breed from, such a dog;
  • sell or exchange such a dog, or advertise or expose for such a purpose;
  • give away such a dog as a gift, or advertise or expose for such a purpose;
  • allow such a dog to be in a public place without being muzzled and placed on a lead;
  • abandon such a dog, or allow it to stray.

There is no statutory definition of ‘expose for sale’ or ‘expose as a gift’. The words take on their ordinary meaning and, in the context of the 1991 Act, mean to make a prohibited dog available for sale or as a gift.

Courts will sometimes have to decide whether a particular dog falls within one of the four types. The court’s decision will be assisted by an abbreviated statement from the Dog Legislation Officer. If the prosecution alleges that the dog which is the object of such proceedings is one of the four types, section 5(5) of the 1991 Act places the burden of proof on the defendant to show that the dog is not of such. (See Case Management: Dog Legislation Officer).

If the defence serve rebuttal evidence that the dog is not a prohibited type, then the prosecutor should instruct an expert witness who should be asked to examine the dog and prepare a report dealing with both appearance and behaviour. (See Expert witnesses).

Dogs dangerously out of control (all dogs)

Under section 3(1) of the 1991 Act (as amended by the Anti-Social Behaviour, Crime and Policing Act 2014, (the ‘2014 Act’)), if any dog is dangerously out of control in any place, including all private property, the owner, or person for the time being in charge of the dog, is guilty of a summary offence. That offence becomes an aggravated offence, and triable either way, if the dog injures any person or an assistance dog while out of control.

A dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person or assistance dog, whether or not it actually does so, (section 10(3) Dangerous Dogs Act 1991). This is not an exhaustive definition and the ordinary meaning of the words should still be applied. If a dog is factually deemed to be acting in a way that could be termed ‘dangerously out of control’, for example attacking livestock, a prosecution may still be brought.

Under section 3(1A) of the 1991 Act a person is not guilty of an offence where the dog is dangerously out of control with respect to a trespasser who is in, or entering, their home, whether the owner is present or not. This exemption does not apply to dog attacks on trespassers in gardens, driveways or outbuildings.

The offence under section 3(1) is an offence of strict liability. The prosecution is, however, required to prove that an act or omission of the defendant, with or without fault, to more than a minimal degree, caused or permitted the dog to be dangerously out of control. R v Robinson-Pierre [2014] 1 Cr App R 22 provides: Parliament did not intend to render the dog owner absolutely liable in all circumstances for the dog being dangerously out of control, or to create an offence without regard to the ability of the owner or someone to whom he had entrusted responsibility, to take and keep control of the animal; there must be some causal connection between having control of the dog and the prohibited state of affair that has arisen.

Useful case law

Prosecutors should note that Rafiq v DPP 161 JP 412 DC provides: If there is a bite without reasonable apprehension immediately before it, the use of the word ‘any occasion’ used in the interpretation of ‘dangerously out of control’ is sufficient to impose liability. There would be grounds for reasonable apprehension that the dog would go on to injure another person. It was also determined that the injury caused by a dog is in itself capable of being conduct that would give grounds for reasonable apprehension of injury.

More than one person may be ‘in charge’ of a dog at any given time: L v CPS 174 JP 209 DC.

Defence: section 3(1) Dangerous Dogs Act 1991

In proceedings for an offence under section 3(1) of the 1991 Act against a person who is the owner of a dog but was not at the material time in charge of it, it is a defence for the accused to prove that the dog was at the material time in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it. The defence should only succeed where there is evidence that the owner had for the time being divested himself or responsibility in favour of an identifiable person: R v Huddart [1999] 2 Archbold News 1, CA.

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Guard Dogs

It is a summary offence for a person to use, or permit the use of, a guard dog to protect any premises unless a handler capable of controlling the dog is also present and the dog is under his control, or unless the dog is secured so that it is not at liberty to go freely about the premises. A guard dog may not be used or permitted to be used unless a notice warning of the dog’s presence is clearly exhibited at each entrance to the premises, (sections 1 and 5 of the Guard Dogs Act 1975).

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Attacks on animals / livestock

An offence is committed by the owner or person in charge of a dog if it worries livestock on any agricultural land, (section 1 Dogs (Protection of Livestock) Act 1953).

An offence is not committed if at the time of worrying, the livestock were trespassing, and the dog belonged to the owner, or was in the charge of the occupier or a person authorised by the owner, of the land on which the livestock were trespassing, and the person in charge of the dog did not cause the dog to attack the livestock.

A dog owner shall not be convicted of an offence under section 1 of the Dogs (Protection of Livestock) Act if he / she proves that someone they reasonably believed to be fit and proper was in charge of the dog when it worried the livestock.

Section 2 of the Dogs (Protection of Livestock) Act 1953 provides that it is necessary to have the consent of the Chief Officer of police for the police area in which the land is situated, or the occupier of the land, or the owner of any of the livestock in question. The consent is a pre-requisite to any prosecution.

Section 3 of the Dogs (Protection of Livestock) Act 1953 defines ‘livestock’ as being cattle, sheep, goats, swine, horses or poultry. The definition does not include ‘exotic’ farm animals such as alpacas, buffalo, ostrich etc. which are increasingly being kept by farmers and others. If any of these are attacked by a dog, there is no offence under this Act. There may, however, be recourse under the Dogs Act 1871 or under the 1991 Act.

The Dogs (Protection of Livestock) Act 1953 applies only to ‘agricultural land’ (as defined at section 3). The Act does not apply to private gardens, parks etc.

There is no power in the 1953 Act for any penalty other than a financial one (section 1(6) refers). There is no power to make a control or destruction order. Prosecutors should note, however, that civil proceedings under the 1871 Act can be brought in tandem with the criminal proceedings to apply for a control order on conviction.

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Micro-chipping of Dogs (England) Regulations 2015 / 108

These Regulations provide for the compulsory micro-chipping of dogs and the recording of each dog’s identity and its keeper’s contact details on a database.

Regulation 3 imposes a duty on every keeper of a dog to have their dog micro-chipped and to record information on a database. This information must be kept up-to-date in order for a dog to be considered to be properly micro-chipped at all times.

Regulation 7 gives the Secretary of State power to request information from databases and, in certain circumstances, gives the Secretary of State the power to serve a notice on database operators requiring them to cease holding themselves out as meeting the requirements of the Regulations.

Regulation 8 requires a new keeper to update the information on the database on the transfer of keepership and prevents a dog from being transferred to a new keeper until it has been micro-chipped.

Regulation 9 sets training standards for people who implant microchips.

Regulation 10 provides for reporting of adverse reactions to, and migration of, microchips and reporting of microchip failures.

Regulation 12 gives authorised person powers to serve a notice on a keeper to microchip their dog, to microchip a dog and recover the cost of doing so from the keeper and to take possession of a dog for the purpose of micro-chipping it.

Regulation 13 provides:

  1. It is an offence, punishable on summary conviction by a fine not exceeding level 4 on the standard scale, to fail to comply with a notice served under Regulation 7.
  2. It is an offence, punishable on summary conviction by a fine not exceeding level 2 on the standard scale to-
    1. fail to comply with regulation 8(2);
    2. fail to comply with regulation 9(1);
    3. fail to comply with a notice served under regulation 9(2);
    4. fail to report an adverse reaction or the failure of a microchip in accordance with regulation 10(1);
    5. fail to comply with a notice served under regulation 12(a);
    6. obstruct an authorised person exercising a power under regulation 12(b) or 12(c).

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Charging practice

Code for Crown Prosecutors - considerations

A prosecution may not be required where there has been minimal risk to public safety.

A prosecution is likely to be in the public interest where a dog dangerously out of control injures a person or an assistance dog.

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Dogs causing death to family member

Section 3(1) of the 1991 Act creates a strict liability offence. The prosecution is nonetheless required to prove that an act or omission by the defendant, with or without fault, to more than a minimal degree, caused or permitted the dog to be dangerously out of control; Parliament did not intend to render the dog owner absolutely liable in all circumstances for the dog being dangerously out of control, or to create an offence without regard to the ability of the owner, or someone to whom he had entrusted responsibility, to take and keep control of the animal; there must be some causal connection between having control of the dog and the prohibited state of affairs that has arisen (see R v Robinson-Pierre [2014] 1 Cr App R 22, DA).

Cases involving death will inevitably be one of the most serious matters to be dealt with by prosecutors. The serious nature of these cases usually means that a prosecution will be in the public interest.

A prosecution will usually take place unless the prosecutor is sure there are public interest factors tending against prosecution which outweigh those tending in favour. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and make an overall assessment, and also consider the factors to be put to the court for consideration when sentence is passed.

Public interest factors to consider include:

  • The level of culpability of the offender: For instance, did the suspect leave a previously well behaved dog with a child for less than a minute? Did the suspect leave a dog known to have a volatile temperament with a child for an extended period for time in circumstances likely to aggravate the animal (no food / a closed environment with little room for exercise / in a hot temperature with no ventilation etc.)?
  • The level of on-going risk / danger to the public: For example, is there evidence to suggest that the suspect may present a continuing danger to public safety because they are in possession of dogs of a similar type in a confined environment? Have there been any pre-cursor incidents, such as unreported attacks within the household by the dog on family members or on other animals? Does the suspect have previous convictions for dog related offences? Did the suspect resist the dog being put down? Do they own other dogs?
  • Views of the family (where this is not the suspect), although care must be taken not to put too much weight on this factor
  • The role of the dog – if the animal was a trophy dog or status symbol there would be a greater Public Interest in prosecuting
  • What safety precautions were ordinarily in place in the home; i.e. stair gate preventing the dog from getting out of / into a certain room? Were any safety precautions in place at the time and if not, for what reason and for what length of time?
  • Provided that the owner of the dog should not benefit from provocation of violence induced by him / her, and the full circumstances of the incident are taken into account:
    • Was there a high level of provocation to the dog immediately before the attack?
    • Was the dog responding to a high level of danger to the owner or family member?

The following points should be considered as mitigation rather than PI factors suggesting against prosecution:

  • The fact that the suspect had the dog put down immediately after the incident – although this could demonstrate genuine remorse, and an acknowledgement of the risk that the dog posed to others, it could equally be a cynical action on the part of the suspect
  • The emotional impact / significant personal loss / life-long consequences suffered by the suspect due to losing a loved one and being responsible for that loss.

Prosecutors are reminded that each individual case must be considered on its own particular set of facts and its own merits.

As a general principle, lower levels of culpability and risk would be unlikely to lead to a prosecution, whereas higher level of blameworthiness and danger to the public would be more likely to lead to a prosecution.

The 2014 Act increased the maximum penalties for aggravated offences under section 3 of the 1991 Act to14 years’ imprisonment where the death of a person is involved.

The dog itself is likely to have been destroyed but there is always a risk that the suspect may offend again and the need for ancillary orders prohibiting the keeping of dogs in future is an important consideration. Prosecutors should remind the court to consider disqualifying the defendant from having custody of a dog for a period of time and should remind the court that a Destruction Order in relation to the dog must be considered.

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Time Limits

Proceedings for a civil complaint under section 2 of the Dogs Act 1871 must be issued within six months.

Proceedings for a section 1 offence or simple section 3 offence are summary only.

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Vulnerable Victim

An injury to an assistance dog may result in the victim being without their ‘lifeline’.

Where the police are notified of a crime involving an attack on an assistance dog, the police will identify the victim as ‘vulnerable’, in accordance with the Victims’ Code of Practice.

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Hate Crime

Dog attacks on assistance dogs may also be considered to be hate crime. In such cases, the police should be requested to provide a victim personal statement.

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Gangs

Gang members often breed dangerous dog to facilitate drug deals and debt collection, as well as enhance the gang’s image.

Prosecutors should ask the police whether they or a local authority have applied for a Gang Injunction to prohibit the individual from being in charge of a particular type of dog or from being in a particular place with a particular dog.

Where the police / local authority has applied for a Gang Injunction, prosecutors should be alert to possible disclosure implications. For example, evidence may be called at an injunction hearing which overlaps with evidence in the criminal proceedings.

Where the dog is used in the commission of any offence, it is subject to forfeiture by the courts under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000. Prosecutors should consider an application to forfeit the dog in suitable cases.

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Expert Witnesses

The police will normally provide an expedited streamlined forensic report on the dog type and will almost certainly be the prosecution expert witness. Where the police are not the prosecution’s expert witness, they will identify an expert witness from a suitable organisation.

Criminal Procedure Rules Part 19 concern expert evidence. Part 19 applies where a party wants to introduce expert opinion evidence.

Prosecutors should note that Criminal Procedure Rules 19.6 applies where one or more parties wants to introduce expert evidence, and identifies that the court may direct the experts to -

  1. discuss the expert issues in the proceedings; and
  2. prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.

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Case Management

Expediting cases

Prosecutors should remind the court of the costs incurred by kennelling the dog. The court should be requested to expedite the case in order to minimise the kennelling costs.

Dog Legislation Officer

Most police forces have a trained Dog Legislation Officer (DLO) or an officer trained in dog-related legislation with a good knowledge of the identification of the prohibited types of dogs.

Prosecutors should note that it is advisable that a DLO attends relevant court hearings and, in particular, attends the sentencing hearing. The DLO will be able to provide immediate information about the prohibited type of dog and, if provided with the defence report in advance of the hearing, is likely to be able to prepare a critique. The DLO will also be able to answer any questions the court may have about the dog, as well as make arrangements to release the dog from kennels should the relevant charge be discontinued.

Prosecutors should record the request for the DLO to attend court on the MG3. The DLO should be given sufficient advance notice of the court hearing date.

Challenges about the identification / type of dog

Issues about the identification / type of dog should be identified at the first hearing.

Where the defence challenge the identification / type of dog, the court may direct the experts to serve a statement on what they agree and what they do not agree (Criminal Procedure Rule 19.6 refers). See Expert Witnesses.

Prosecutors should not prejudge the outcome of a trial where there is conflicting expert evidence in relation to the identification of the type of dog. Only where there is a Code test failure should the case be stopped prior to trial.

Remittal of summary cases from the Crown Court to the magistrates’ court

Where a section 1 of the 1991 Act (summary) offence has been sent to the Crown Court for trial as a ‘related offence’, it should be added to the schedule under section 41 Criminal Justice Act 1988. Where there is no guilty plea to the section 1 (summary) offence but the section 3 of the 1991 Act (either way) offence is dealt with at the Crown Court, the section 1 offence should be remitted to the magistrates’ court.

The judge sentencing for the section 3 (either way) offence should be reminded that there is a section 1 offence to be remitted to the magistrates’ court, and that the judge does have the option to sit as a District Judge under section 66 Courts Act 2003. Where the judge does not exercise the power to sit as a District Judge and opts for a Contingent Destruction Order, the judge should be made aware that if the defendant is convicted by the magistrates at the subsequent trial of the section 1 charge, then a Destruction Order may be made superseding the Contingent Destruction Order.

Sentencing

The prosecutor must be able to assist the court to reach the correct sentence by providing details of the offence (including the Victim Personal Statement), relevant authorities, and drawing attention to the Sentencing Council Guidelines.

The Sentencing Council published a revised Definitive Guideline on Dangerous Dog Offences on 17 March 2016. This Guideline applies to all offenders who are sentenced on or after 1 July 2016 regardless of the date of offence.

The Guideline was revised following changes to the Dangerous Dogs legislation made by the 2014 Act, which extended the law to cover attacks that occur on private property and introduced a new offence to cover attacks on assistance dogs.

The 2014 Act also increased the maximum penalties for aggravated offences under section 3 to 14 years’ imprisonment where the death of a person is involved, 5 years’ imprisonment where a person is injured and 3 years’ imprisonment for an aggravated attack on an assistance dog. The maximum sentence for possession of a prohibited dog remains at six months’ imprisonment.

The Guideline covers the following offences:

  • dog dangerously out of control in any place where death is caused;
  • dog dangerously out of control in any place where a person is injured;
  • dog dangerously out of control in any place where an assistance dog is injured or killed;
  • dog dangerously out of control in any place;
  • possession of a prohibited dog, breeding, selling, exchanging or advertising a prohibited dog.

The Guideline sets out that in all cases the court must consider whether to make a compensation order and / or other ancillary orders, which include Destruction Orders, Contingent Destruction Orders and Orders (sections 4(1)(a), (1A) and 4A of the 1991 Act) and Orders disqualifying the defendant from having custody of a dog for a prescribed period, (section 4(1)(b) of the 1991 Act).

Prosecutors should remind the court of the ancillary orders available and those which are mandatory on conviction.

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Ancillary Orders

There is a statutory presumption for the destruction of a dog following a conviction for a section 1 or an aggravated section 3 offence unless the Court is satisfied the dog does not constitute a danger to public safety. In such a case the Court must make a Contingent Destruction Order (‘CDO’) in relation to a prohibited type dog (see section 4(1)(a),(1A) and section 4A of the 1991 Act. However, in relation to less serious offences where non-prohibited dogs are dangerously out of control, the court may make a destruction order or a CDO or make no order in respect of the dog. Prosecutors should be aware that the purpose of a CDO is to allow a person to keep their dog where it is deemed not to constitute a danger to public safety; the purpose is not to allow an ‘innocent’ prohibited dog to live.

In deciding whether to make a CDO instead of an immediate Destruction Order the court must be satisfied that the dog does not constitute a danger to public safety (section 4(1A) of the 1991 Act). To determine this, the court must consider the temperament of the dog, its past behaviour and whether the owner or person in charge at the time is fit to be in charge of a dog. The court may also consider any other relevant circumstances, (section 4(1B) of the 1991 Act).

There is no specific offence of breaching a CDO. The facts of a breach may be brought to the court’s attention in the event of further offences under the 1991 Act or such failures may be dealt with by way of contempt proceedings which do not provide any power with regard to the dog, (section 63 Magistrates’ Courts Act 1980).

CDOs – non-prohibited type dogs

Where a CDO is made in relation to a non-prohibited type of dog, the court may attach specific requirements to the order. It: ‘(a) may specify the measures to be taken for keeping the dog under proper control, whether by muzzling, keeping it on a lead, excluding it from specified places or otherwise; (b) if it appears to the court that the dog is a male and would be less dangerous if neutered, may require it to be neutered’, (section 4A(5) of the 1991 Act).

CDOs – prohibited type dogs

Where a CDO is made in respect of a prohibited type dog the Order will require that the dog is exempted within the requisite, two month, period. If the dog is not exempted within the specified period and no application to extend the period has been made, the dog should be destroyed. The Court should not add any other conditions to the nine post-release statutory requirements.

Although a breach of a CDO in relation to a prohibited type dog is not a specific offence, the 2015 Order sets out conditions that must be met in relation to the prohibited dog itself and the requirements that the person in charge of the dog must comply with for the dog to remain exempted from the prohibition on possession in section 1 of the 1991 Act. If the person in charge of the dog subsequently breaches the exemption requirements, the dog reverts to being an un-exempted section 1 prohibited dog, possession of which is an offence. That matter can then be dealt with by way of a section 1 prosecution or a civil application pursuant to section 48 of the 1991 Act.

The 2015 Order also restricts when the person in charge of a prohibited dog that has been exempted can be substituted for another person. Under the 2015 Order the substitution of a person in charge of an exempted dog is only permitted if the owner or person dies or is seriously ill. A failure to comply with the procedure set out in the 2015 Order may result in an offence being committed as the prohibited dog will not be exempt.

In relation to a prohibited type dog when considering the ‘danger to public safety’ test the court is limited to only considering the owner of the dog or other person factually in charge of the dog at the time the Court is considering the issue because it is an offence to gift to anyone else or expose as a gift a prohibited dog.

The defence may try to suggest to the Court that a prohibited type dog can be re-homed with someone other than the owner of the dog or a person factually in charge of it where that person would not otherwise be assessed as a ‘fit and proper’ person to be charge of the dog. The authority of R (Sandhu) v Isleworth Crown Court 176 JP 537 DC is often cited to support such an argument. Sandhu ruled on the 1991 Act before the amendments made by the 2014 Act and therefore is no longer relevant to the statutory test that must be applied by the Court when considering whether a prohibited type dog may be made subject to a CDO instead of immediate destruction. It must also be borne in mind that a prohibited dog cannot be gifted to another person and a Court ordering someone else to take charge of the dog for the remainder of the dog’s life is exposing that prohibited dog as a de facto gift.

DEFRA Legal Advisers have developed two documents for prosecutors. 'Section 1 dogs and other dogs – a note on the law' provides helpful information to remind prosecutors to ensure that when a criminal court is sentencing in relation to a prohibited dog the court does not:

  • make a Contingent Destruction Order seemingly transferring the dog to another person who is not the owner or factually in charge of the prohibited dog (it is illegal to give a prohibited dog away); or
  • add any requirements to the Contingent Destruction Order – by virtue of a statutory scheme three pre-release conditions and nine post-release requirements automatically apply.

The first point, above, is reflected in the Sentencing Council’s Definitive Guideline on Dangerous Dog Offences (see the Note to Step Six at page 32).

Transfer of ‘keepership’ of prohibited type dogs’ (September 2016) sets out DEFRA’s interpretation of the legislation about this matter, and identifies considerations for the court.

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Costs

Prosecutors should apply for compensation for the police for the kennelling costs (section 4(4)(b) and section 4A(6) of the 1991 Act). It will be necessary to provide a breakdown in the form of a costs schedule with itemised costs. It is not sufficient to provide a total cost.

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