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21 May 2012

New guidelines for dangerous dogs offences – barking up the right tree?

The law relating to dangerous dogs has garnered substantial media attention in recent years, stemming from a spate of high profile and harrowing attacks on individuals, many involving young children. With each new case, calls for reform of the Dangerous Dogs Act 1991 have become louder and more persistent. That statute, introduced rapidly and pandering to a public frenzy arising from pitbull attacks, has been widely criticised for banning specific dog breeds rather than creating robust offences which would adequately punish irresponsible dog ownership. The Government, however, has been slow to respond to calls for enhanced regulation and tougher sanctions. Last week saw the first legal fruits of numerous consultations with the publication of new sentencing guidelines. This is not the only development in the pipeline as the Government gears up to close the loophole which allows dog owners whose animals attack a person while lawfully on private property to escape prosecution.

Current law

Under section 3 of the 1991 Act, if a dog is dangerously out of control in a public place or in a private place in which it is not permitted to be, so that there are grounds for reasonable apprehension that it will injure any person (whether or not it actually does so) then the owner is guilty of a summary offence which can only be tried in the Magistrates Court. That offence becomes potentially triable in the Crown Court if the dog injures any person while out of control. Prosecutions for the latter offence are reserved for instances which result in serious injury and the courts retain discretion whether or not to make an order for destruction of the dog in the event of conviction.

An offence under section 3 of the 1991 Act carries the penalty that the owner or the person in charge of the dog may be punished by a fine and/or imprisonment (two years maximum for the aggravated offence); or by an order for the dog to be kept under proper control, or to be destroyed and/or to disqualify the offender from having custody of a dog for such period as determined by the court. In future these sentences will be enhanced by the new sentencing guidelines published last week.

Sentencing Guidelines

The new guidelines are said to reflect the robust intention of Parliament to tackle dangerous dog offences and are designed to enable the courts to use their full powers when dealing with a conviction under the Dangerous Dogs Act 1991. The rationale for the guidelines is to ensure a consistent and appropriate approach to sentencing under the act.

The key change is the marked increase in sentencing levels from current practice. The top of the sentencing range for owners allowing their dogs to be dangerously out of control (section 3(1) and 3(3) of the Act) has been set at 18 months’ custody in order to encourage the courts to use severer sentences in appropriate circumstances. The maximum penalty of the aggravated offence remains at two years’ custody. In addition, possession of a prohibited dog now attracts a maximum of six months’ custody. The guidelines, to be adopted in all courts from 20 August 2012, should result in more offenders receiving jail sentences and community orders, albeit that an owner may still be discharged if they can prove that they tried to stop or prevent the attack.

Other significant features of the guidelines include the following:

• the definition of vulnerable victims has been broadened so that it applies not only to children but to others such as the elderly, disabled and blind or visually impaired people

• injuries to other animals is as an aggravating factor in the offence of allowing a dog to be out of control and causing injury

• dog fighting has been taken into account in the offence of possession of a prohibited dog. The training of a dog to fight or possessing paraphernalia for dog fighting is now an aggravated factor increasing the seriousness of this offence.

On the horizon

Whilst genuine progress is being made in the field of sentencing, reform of the underlying offences remains painfully slow. To the frustration of commentators and the Communication Workers Union, Defra’s consultation last month (the second in two years) failed to unveil specific measures and time frames. Instead, it merely determined that the law on dangerous dogs was due an overhaul (an unsurprising sentiment already pre-determined well before the consultation) and suggested a focus on promoting responsible dog ownership with the aim of reducing the number of dog attacks.

In one important development, however, the Government has responded to the grievances of service professionals by proposing the extension of existing legislation to cover incidents on private property. In addition, the Government will also assess the implications of compulsory micro-chipping of all dogs. Despite these proposals, commentators query how long it will be before the public see any positive action. Scotland and Northern Ireland have already updated their legislation to cover dogs dangerously out of control on private property, whilst the rest of the UK appears to be dragging its feet.

Other alternatives

Animal welfare charities have urged greater focus on preventative measures rather than legislating to deal with the aftermath of a dog attack. Organisations such as the Dogs Trust have championed the creation of “dog control orders” which would force the owners of dogs identified as ‘problem animals’ to keep them on a lead or muzzled in public. These orders, available under section 2 of the Dogs Act 1871 can be factored into sentencing by the criminal courts by virtue of section 3(5) of the 1991 Act. However, these are essentially after-the-event measures; to obtain a preventative order, one must seek redress in the civil courts.

Going further, some commentators have controversially proposed that all dog owners should be obliged to have compulsory insurance which would be used to cover the rehabilitation costs of victims of attacks. This proposition does not feature in the Government’s plan for revision.

In short, the outlook for reform in this arena is slow-paced and indistinct. Despite clear intentions of change, the Government has indulged in two separate consultations, the conclusions of which are opaque and unspecific. The new sentencing guidelines for dangerous dogs offences is the first material development and an indication that ultimately there will be a clamp down on irresponsible owners, although the timetable for implementation is uncertain (perhaps even for the Government). With consistent pressure from workers unions and animal charities, greater protection for the public may not be too distant a prospect. Irresponsible dog owners should no longer expect an easy ride from the criminal justice system.

DEFRA Survey

If you would like to participate in DEFRA’s Dangerous Dogs Consultation, you can access the survey online at the following link: www.defra.gov.uk/consult/2012/04/23/dangerous-dogs-1204/# Consultation closes 15 June 2012.

Corker Binning is a law firm specialising in general criminal work of all kinds. Visit our Crime page for more information about how we can help you or call us on 0207 353 6000.

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