Dogs and the Law

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Recently it seems that not a week has gone by without some negative press reporting about dogs. I am one of the many dog owners in the country – a labrador in case you are interested – and believe that responsible dog ownership is key. All dog owners should have some basic undertstanding of the law relating to dogs. After all, you’re not allowed to drive a vehicle without knowing the “rules of the road” so why should owning a dog be any different? With that in mind, here’s a quick summary of the relevant legislation.

Dogs Act 1871

Although well over 100 years old,  this Act is possibly the most effective piece of legislation relating to dog control. Proceedings under the Act are brought at the Magistrates’ Court in its civil capacity and can be brought by the police, local authorities, or individual members of the public. The key requirements for bringing a complaint are for the dog to be dangerous and not kept under proper control. Importantly it doesn’t matter whether the dog is in a private or public place.

If the Magistrates are satisfied that the complaint is justified they can make any order they feel appropriate to require the owner to ensure that the dog is kept under proper control and, in extreme cases, can order the dog’s destruction.

Dogs (Protection of Livestock) Act 1953

This Act makes it an offence for a dog to worry (chase or attack) livestock (cattle, sheep, goats, pigs, horses and poultry) on agricultural land. It is also an offence for a dog to be at large (i.e. not on a lead or under close control) in a field or an enclosure in which there are sheep. The owner and the person in charge of the dog, if different, can be guilty of the offence.

If your dog does worry livestock, the farmer has the right to stop your dog (even by shooting your dog in certain circumstances).

The Road Traffic Act 1988

Under s27 it is an offence to have a dog on a designated road without it being held on a lead; local authorities may have similar bye-laws covering public areas. Dogs should also not be carried in a vehicle in such a way as to distract the driver. If a dog is injured in a car accident, the driver must stop and give their details to the person in charge of the dog. If there is no person in charge of the dog, the incident must be reported to the police within 24 hours.

Dangerous Dogs Act 1989

In addition to any civil order made under the 1871 Act, the 1989 Act allows a Magistrate to disqualify an owner from having custody of a dog for any period the Court thinks fit. The 1989 Act also provides enforcement provisions for breaches of any control order imposed on an individual under the 1871 Act.

Dangerous Dogs Act 1991

S1 prohibits the ownership of certain types of dogs, except for certain exemptions. The breeds currently banned are Pit Bull Terriers, Japanese Tosas, Dogo Argentinos and Fila Brazilieros. Prosecutions can be brought before a Court based on just the physical characteristics of the dog (i.e. what it looks like). Not only is it an offence to own such a dog, it is also an offence to breed, sell, exchange, advertise, or give any such dog.

S3 creates a criminal offence of allowing any dog (regardless of breed or size to be dangerously out of control in a public place or a place to where it is not allowed. A dog can be regarded as being dangerously out of control on any occasion where it causes fear or apprehension to a person that it may injure them. Furthermore, if that dog does injure a person then the offence is aggravated. Legal action may be taken against the owner and / or the person in charge of the dog at the time.

S5 allows for a dog in a public place to be seized by a police constable or authorised officer of a local authority if it is of a banned type or is of any type or breed that
appears to be dangerously out of control at the time. A warrant would be required for the seizure of dogs on private premises.

The Control of Dogs Order 1992

This mandates that any dog in a public place must wear a collar with the name and address of the owner engraved or written on it, or engraved on a tag. Your telephone number is optional (but advisable).

The Clean Neighbourhoods and Environment Act 2005

Under this Act, you could be fined up to £1,000 for breaching dog control orders. Local authorities can make orders for standard offences including: failing to remove dog faeces, not keeping a dog on a lead, not putting and keeping a dog on a lead when directed to do so, permitting a dog to enter land from which dogs are excluded and taking more than a specified number of dogs on to land.

The Clean Neighbourhoods and Environment Act also updates the law on stray dogs by transferring the responsibility for strays from the police to the local authorities. It is highly recommended that your dog is microchipped so that if your dog should stray it can be easily traced.

Animal Welfare Act 2006

The Animal Welfare Act increases and introduces new penalties to tackle acts of cruelty, neglect, mutilation, tail docking, animal fighting and the giving of pets as prizes. In addition to this it introduces a duty of care for all pet owners to provide for their animals a suitable environment, a suitable diet, the ability to exhibit normal behaviour patterns, protection from pain, suffering, injury and disease and consideration of the animal’s needs to be housed with, or apart from, other animals.

Sentencing Guidelines Consultation – Dangerous Dogs

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The Sentencing Council, the independent body responsible for developing sentencing
guidelines for the courts to use when passing sentence, is consulting on guidelines to be applied in cases involving dangerous dogs. The consultation runs until 8 March 2012.

The Courts currently have no guidelines for these types of offences and there have been concerns raised by magistrates and legal advisers that the absence of guidelines is a problem given the increasing number of cases involving dangerous dogs appearing before them.

Through this consultation process, the Council is seeking views on:

  • the principal factors that make a dangerous dog offence more or less serious;
  • the additional factors that should influence the sentence;
  • the extent of guidance which should be provided on the use of compensation and other orders such as disqualification from dog ownership;
  • the sentences that should be given for dangerous dog offences; and,
  • anything else that people think should be considered.

It is proposed that there should be three groups of dangerous dog offences covered by the guideline.

  1. offences involving a dog being dangerously out of control and causing injury;
  2. offences involving a dog being dangerously out of control; and
  3. offences involving possession of a prohibited dog.

In each case the Court would determine the “offence category” by reference to factors relating to the harm that has been caused and the culpability of the offender in committing the offence.Having identified the appropriate category and thus the starting point for sentencing, the court will then identify whether there are additional factors which might make the offence more or less serious within the category. Finally, the court will consider any factors which indicate a reduction, such as assistance to the prosecution, and any required reduction for a timely guilty plea.

The consultation document also deals with the issue of ancillary orders which might follow a conviction for such offences, including the destruction of the dog and disqualification from future dog ownership.

As regards the destruction of the dog, the most important issue for the court to consider in each of the offences is the risk posed by the dog to the public. For offences involving injury and the offence of possession of a prohibited dog, the guidance makes it clear that the court shall make a destruction order in all cases unless satisfied that the dog would not constitute a risk to the public. The proposed guidance suggests the relevant  circumstances which should be taken into account when making such a decision. It is important that the court considers all of its options including contingent destruction orders, which allow the owner to keep the dog provided certain conditions are met. These can include keeping the dog muzzled and on a leash at all times in public or the neutering of male dogs where it is thought appropriate. Failure to meet these conditions can lead to the destruction of the dog. For the non-aggravated offence involving no injury, the guidance is slightly different and the court is reminded that it may order the destruction of the dog but is not required to order destruction if it is satisfied that the dog would not constitute a danger to public safety.

In addition, the guidance reminds the court that it may order costs to be paid by the
offender to cover the expenses relating to the destruction of a dog and the costs of kennelling pending its destruction.

The full consultation document can be found here.

Workplace Fatalities – Criminal Proceedings

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One of the most difficult issues which arises for both families and employers affected by a work-related fatality is the length of time which the criminal legal process can take. Timescales of three years plus are not uncommon and the ramifications for all involved can be enormous. However, change may be on the horizon with revisions to the protocol governing the way in which authorities in England & Wales co-ordinate investigation and prosecution following a work-related death (“Work Related Deaths: A Protocol for Liaison“).

At present, only the police can investigate serious criminal offences (other than health & safety offences) such as manslaughter and only the Crown Prosecution Service (CPS) can decide whether such a case will proceed. The police also have an interest in establishing the circumstances surrounding a work-related death in order to assist the coroner’s inquest. The new version of the protocol does not make any changes in this respect.

Health & safety offences are usually prosecuted by the relevant enforcing authority in accordance with current enforcement policy. The CPS may also prosecute health and safety offences, but usually does so only when prosecuting other serious criminal offences, such as manslaughter, arising out of the same circumstances.

The main change in the protocol comes in respect of when prosecuting bodies other than the CPS can bring charges. Until now, the Health and Safety Executive (HSE) and local authorities had to await the end of the coroner’s inquest before making their decision whether to prosecute for health & safety offences. Under the new protocol, once they have completed the investigation they will consider whether it is appropriate to charge any health & safety offences at that stage or await the result of the coroner’s inquest before making that decision. In making that decision they will consult with the police, CPS, coroner, the deceased’s family and any other person who may have a legitimate interest.

This change should make an immediate difference to the length of time it can take for fataility prosecutions to reach the Courts and that can only be good news for everyone involved.

Of course the HSE and local authorities have often used the inquest as a method of testing available evidence before bringing charges, particularly as corporate bodies do not have the same rights as individuals about avoiding answering questions which may incriminate them. However, it is to be hoped that the HSE and local authorities will embrace the change. Only time will tell.

 

Judicial Review – Costs Update

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The general rule in legal proceedings is that the losing party pays the winning parties’ legal costs.

However, a different rule has been applied in judicial review proceedings in cases where a public body concedes the claim shortly after legal proceedings are issued. Where this happens, the Courts had required the parties to bear their own costs unless it was “plain and obvious” that the claimant would have won the case.  In other words, even though the claimant had won the case, the public authoity was not ordered to pay the claimant’s costs.

This rule has now been reversed by the Court of Appeal in R (on the application of Bahta and others) v Secretary of State for the Home Department and others [2011] EWCA Civ 895 (26 July 2011).

In giving judgment, Pill LJ said:

59. What is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant. Inherent in that approach, is the need for a defendant to follow the Practice Direction (Pre-Action Conduct) or any relevant Pre-Action Protocol, an aspect of the conduct of the parties specifically identified in CPR r.44.3(5). The procedure is not inflexible; an extension of time may be sought, if supported by reasons.

65. When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol.I regard that approach as consistent with the recommendation in paragraph 4.13 of the Jackson Report.

The Bahta decision therefore re-establishes the rule that the unsuccessful party pays the successful party’s costs unless there is a good reason not to grant such an award.

It is very important, therefore, for claimants to ensure that they comply with the Pre-Action Protocol and send a properly formulated letter before claim to the public authority in question. Likewise, public authorities need to ensure that they take seriously any letter received threatening judicial review and properly consider whether they have legal grounds for defending the claim; simply waiting to see whether a claimant is prepared to follow up on a threat to issue legal proceedings is no longer a viable option.

Councillors, Pre-determination & Planning

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According to reports in last week’s Planning magazine, almost two-thirds of councillors believe that changes contained in the Localism Bill will allow them to state in advance how they will vote at committee meetings.

The current rules on pre-determination mean that a decision taken by a public body – including local planning authorities – is unlawful if there is evidence that a decision-maker approached the issue with a closed mind, although it is important to note that this does not prevent Councillors from expressing opinions about matters in advance.

A clause in the Localism Bill will alter this rule; it says that a decision-maker should not be seen to have had a closed mind when making a decision simply because he or she “had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter”.

Now imagine this rule operating in the criminal law arena. On my understanding, it would be perfectly acceptable for a juror to say in advance of hearing all the evidence that, given the anger in the community about the crime, the defendant is going to be found guilty. Such an approach would be unconscionable to the vast majority of people.

Whilst I am not suggesting that planning decisions necessarily carry the same importance as jury decisions, they do impact on our lives and should, in my opinion, be made only once the decision-maker has all the information is to hand.

Interestingly, the same research indicates that nearly 7 out of 10 Councillors believe that the new rules will put greater pressure on them to oppose development.