Dog Magazine dot net - free online dog magazineby K9 Magazine, the lifestyle magazine for dog lovers

What we have here is failure to communicate, writes Alison Green

I have tried, really tried, for the last two days to make sense of the proposal for a Control of Dogs (Scotland) Bill by MPS Alex Neil. I have forced everyone I know to listen to me asking question after question after question. I have emailed people (sorry to those who have had the influx of emails!) scenarios and asked them to show me what I must be missing because I just do not get it.

I will try and communicate my issues about the proposal to you, the reader and probable dog owner. I am a mother too and want to see something in place that protects my children from irresponsible dog owners, I truly do. But I cannot see it in this proposal. Maybe you can explain what I must surely be missing. Lets take it slowly, step by step, probably more for my sake than yours. I’ve got a headache now so bare with me while I try and get this straight. If you need to make a coffee, do it now. I have a feeling this may need all your powers of concentration too. Ready? Lets take a look…..

First the easy bit for me…

The Dangerous Dogs Act (DDA) 1991 was introduced at a time where several high-profile dog attacks on humans had caused alarm amongst the public. This legislation was hurriedly produced and poorly drafted, and has failed to make the public any safer from dangerous dogs. The DDA outlaws specific breeds of dog, but takes no account of the behaviour of dog owners.

Excellent start. Well done. Totally agree. The very reason BSL does not work.

Furthermore, dog attacks are not criminal offences when they occur on private property.

(POINT ONE: Your need to come back to this later) True again, however the 1871 dogs Act means civil proceedings can be brought. While the owner gains no criminal record if found guilty, a dangerous dog can be ordered to be restricted or even destroyed. Being a civil case, you do not have to prove “beyond reasonable doubt” simply “on the balance of probabilities”. This actually makes it more likely to get a guilty verdict than using the DDA, which doesn’t cover private property where the dog has a right to be. Doesn’t that actually make that a better law than the DDA, which was meant to improve the 1871 act?

The police also report that, for various reasons, the DDA is difficult to enforce, and a huge drain on resources.

Difficult to enforce. Why is that? We don’t ban pit bulls, we ban any dog, regardless of parentage that has enough characteristics of a pit bull type. Fact is, police have the right to seize any dog they think is type. They don’t have to know its type, just think it. Heck the burden of proof is even reversed! They have to prove nothing; YOU have to prove your dog isn’t a type dog. They have everything on their side…how is that difficult to enforce? They just take the dog, go to court and see what happens.

Section 3 of dangerously out of control in a public place. Again, how is that hard to enforce. All someone has to do is make a complaint and the case can be taken if the dog was infact, dangerously out of control in a public place. If it is difficult to enforce this, why will it be easier to enforce exactly the same thing in a private place?

So there’s little me thinking hard on this. What on earth does he mean… I think I have the answer. Its actually rather simple when you think about it… this country has almost 7 million dogs. That’s a lot of dogs isn’t it? So what we are asking is for our overstretched police force to also spend time watching and checking 7 million dogs. Difficult to enforce… That would make sense wouldn’t it? As for the drain on resources, that’s bound to happen with a law that makes it an offence to have any dog that may resemble a certain type regardless of whether its actually dangerous! If only we had thought of a better DDA first time round eh? Lets hope this time round we think it through properly….

Excellent…lets move on….

With such shortcomings in mind, there is clearly a need for more practical, up-to-date legislation. I propose to introduce a Bill, which aims to give the public greater protection by addressing the shortcomings of the existing legislation, and placing more responsibility on the owner for the dog’s treatment and behaviour.

Sounds good to me…responsibility on the owner. Brilliant idea.

My Bill would include the following key changes:

The law will operate on a preventative basis.

Before a dog becomes dangerous. Fantastic idea. That will help desperately to stopping dog attacks!

Control Orders will be issued to owners of dogs that are dangerously out of control, to ensure they do not endanger public safety.

And this is where its starts to get a little cloudy in my mind. Preventative basis with control orders issued to owners of dogs that are dangerous out of control. If the dog is dangerously out of control, where’s the preventative bit? If a dog is out of control, isn’t it already endangering public safety? Answer on a postcard please…. NEXT!

This would include compulsory microchipping for such dogs, in order to keep track of them, and it would be an offence not to notify authorities if details such as address or owner are changed.

Ok…this one is full of problems. Depending on how much room this takes up I may or may not list all those I have thought of…I’m trying not to bore you I promise..

How hard will it be to enforce this when it’s already been stated they can’t enforce current laws. Make it an offence by all means. Lets chip all dogs, I don’t mind personally. But how on earth do you intend enforcing it. Actually, ill just stick with that one point…told you I’m trying not to bore you J

On we plod…

Make attacks an offence wherever they occur.

Ok but re-read POINT ONE. So this proposal will make it a criminal offence if your dog attacks someone. Fact: criminal, civil it’s still able to have the same outcome on the dog. A few other interesting points, If anyone deliberately sets their dog on another person, whether on private property or not, there’s already a criminal charge available under the Offences against a Persons act. If someone didn’t do it deliberately and your dog attacks someone at your home…surely you would know whom the dog attacked? Surely you would be horrified? Surely a criminal conviction couldn’t make you feel any worse or take it any more seriously? Surely you would have not let it happen if you could have? So I fail to see how a criminal conviction will help.

Also making it an offence for a dog to attack wherever they occur…again, someone show me how that is pre empting anything?

The proposal further on then states briefly the current legislation before explaining why he claims they have failed.

It fails to offer the same level of protection in private places in which the dog is permitted to be. If the attack occurs in the dog’s own home – as is very often the case - the owner cannot be prosecuted. For example, in 2005, a two-year-old girl required hours of surgery after being attacked by her neighbour’s Japanese Akita in Carmarthenshire, West Wales. As this happened in the neighbour’s home where the dog lived, there was no scope for prosecution under the DDA, and the dog still lives next door to the girl.

Go back to POINT ONE.

Attacks on other animals are not a criminal offence. The Scottish SPCA recently reported a case in which a swan was attacked by a Rottweiler. The swan had to be put down and her six cygnets were left abandoned. In another incident, a terrier crawled into a badger’s sett and killed the cub. The owners were clearly partly responsible in that they did not keep their dogs under control. However, they faced no criminal charges.

It Is already a criminal offence to kill injure or maim a swan. It is already a criminal offence to kill, injure or take a badger. It is illegal to cause a dog to enter or for you or dog to interfere with a badger sett. Why where charges not brought?

The proposal goes on to say that whoever is in charge of the dog at the time of the offence is to be taken as the owner. No problem with that, but again “at the time of the offence” is not preventing anything!

Onwards and upwards reader! We are on page 7 of 10! The end is in sight!

The next bit is somewhat long…go with it…I have reasons!

Keeping all dogs under control – introducing Control Orders

It has been demonstrated in the previous chapter that the dogs banned under section 1 of the DDA contribute only a small amount of the dog bites seen by A&E departments. What is needed is a method of acting against dogs of any breed that endanger public safety.

“against any breed that endanger public safety” Any breed or any dog? I assume he meant any dog, will give him credit for that.. If the dog is endangering public safety are we preventing anything? Currently you have to go to court to get a control order wouldn’t it be a bit late by then?

I therefore propose to make it an offence for anyone in charge of a dog to allow it to be dangerously out of control. This will apply to whoever is in charge of the dog at the time of the offence, whether they are the owner of the dog or not.

Fair enough. As a dog owner I don’t allow anyone I don’t trust to walk my dogs. In a public place this already exists. What is dangerously out of control in a private place exactly?

It will also be an offence if, under these same circumstances, the dog attacks another animal. At the moment allowing a dog to attack another animal is not covered under criminal law. However, I feel that it is important that people take steps to ensure that a dog under their control does not harm other animals. In addition this will provide protection for working dogs such as guide dogs, police dogs and other assistance dogs.

It would be a defence however if the dog attacked the other animal in self-defence, or if it was defending its owner who was being attacked by the other animal. I would also propose to include a defence for police dogs carrying out their duties.

If a dog which is out of control attacks and/or injures a person, then it will be an aggravated offence. Again it would be a defence if the dog was being attacked by the person and it was acting in self-defence, or if it was defending its owner who was being attacked by another person. I would again propose a defence for police dogs carrying out their duties.

We are still taking about when a dog attacks. Has anyone spotted the preventative measures as yet?

I also propose that the offences will apply anywhere.

Anywhere, including private property. Cat comes into my garden over my high fence and my dog attacks it. I’m in deep trouble. This is do not like. I cannot stop a cat coming into my garden. What about a rat? A bird? A mouse? Now things are not looking that good are they?

The exception to this would be if the dog were kept in a secure area to which there was no way that the member of the public would ordinarily be able to access, but that the person who was attacked had attempted to enter it. For example, if the dog were kept in a secure garden consisting of a high fence which had no gate, and someone climbed over the fence to gain entry and was attacked, then that would be a defence, as the owner had taken all reasonable steps to prevent the public from accessing the area. It would not be a defence, however, if someone visiting the owner was attacked, such as a postman or a tradesman.

High fence wont stop the cat! My window cleaner once used their ladder to climb very my 6 ft fence to gain access to clean my windows while I was out. He had already been told never to clean them If I wasn’t in (it upset the dogs and makes them bark) He ignored me. This is not looking good at all now…

If a person is convicted of any of these offences then the Court will be able to use their discretion and apply any or all of the following control measures:

• That the dog be subject to conditions such as being muzzled and kept on a lead at all times

Can already be done.

• That the owner attend a mandatory dog-training course

A court can order any means of control which could cover this too.

• That the owner be disqualified from owning a dog for a period as determined by the court

Already in place.

• That the dog be re-homed

This is new and fine with me although disqualifying an owner will have exactly the same effect!

• That the owner pay up to £5000 in compensation for personal injury, loss or damage arising from actually caused harm in a minor incident

Already liable for damages under the Animal act.

• In the most serious cases, a fine of up to £5000 and/or up to 6 months imprisonment, or an unlimited fine and/or up to 2 years imprisonment .

In the most serious cases on public property and private property where the dog had no right to be, this already stands. On private property if you set a dog on someone you can be charged under the Offences against a persons act which I believe carries similar sentences. If it wasn’t deliberate I cannot see how this will help. That person already carries a life sentence knowing what has happened. This certainly doesn’t prevent anything.

• Anyone convicted of an aggravated attack should be disqualified from owning animals.

Depending on the reason for the attack I agree however as mentioned previously, if the person didn’t do it on purpose wouldn’t it be better to explain how it happened so they know in future? This doesn’t prevent anything either.

• That the dog be destroyed (in extreme cases).

Already stands on private and public property.

Adding a range of control measures is more flexible, and takes into account that every dog represents a varying degree of danger to the public. Importantly, it is only when a dog is actually shown to have an aggressive nature that it becomes subject to any legal restraints.

No preventative measures here. How do you define aggressive nature?

For such Control Orders to work, it would also be necessary to keep track of the dogs. For this reason, I propose that all dogs for which a Control Order has been issued should be microchipped. This would mean that the owner of the dog would irrefutably be the person responsible for ensuring that the requirements of the Control Order would be carried out. This would be irrespective of whether or not they were in charge of the dog at the time of the offence.