Control of Dogs (Scotland) Bill – what I propose, and why I am proposing it
I am writing in response Alison Green’s article “what we have here is failure to communicate” , in which she comments on the proposed Control of Dogs (Scotland) Bill which I launched last week at the Scottish Parliament. I of course welcome all feedback on my proposals – positive and negative – as it all helps to produce sensible, workable legislation. However, much of what Ms Green argues seems to be based on misconceptions about what exactly I propose. I am therefore taking this opportunity to clarify certain issues. I should add that Ms Green was and is welcome to contact me directly if she has any questions, as are all other readers.
I would like firstly to clarify what I mean when I say “dangerously out of control”, as Ms Green seems to have taken this to mean something different, and argues there is nothing preventative about my proposals. ‘Dangerously out of control’ does not mean the dog has attacked someone. I am referring to dogs which act aggressively, and appear to the complainant that it may attack someone. There are many dogs which clearly have an aggressive nature, yet currently their owners are left largely to do as they please. I want people to be able to complain about such dogs, and I want the authorities to be provided with a sensible range of responses for such incidents. A dog would not have to attack someone to be issued with a control order – but if it regularly behaves aggressively, then the authorities could order it to wear a muzzle, be kept on a leash etc. to minimize the risk of it actually attacking someone. This is where the preventative measures come in – I am not aiming to prevent dogs showing aggression, I am aiming to prevent such dogs being able to attack people. One of the questions I ask in my consultation is for people to describe how they think we should define “dangerously out of control” – readers are welcome to submit their own definitions.
A further point Ms Green makes about this – and I believe she contradicts herself – is that if your dog attacks someone in your home “surely a criminal conviction couldn’t make you feel any worse or take it any more seriously? Surely you would not have let it happen if you could have?” This may be the case, but criminal convictions do not stop the attacks from occurring in the first place. After high-profile tragic attacks occur, we often hear neighbours and friends saying they were not too surprised by the attack as the dog was known to be aggressive. We need to bring in measures that force owners of aggressive dogs to minimize the risk of their dogs being able to attack anyone.
A loophole currently exists in the 1991 Dangerous Dogs Act in which attacks that occur on private property are not criminal offences. Ms Green rightly points out that civil proceedings can be brought under the 1871 Dogs Act -however, this is rarely used. With civil laws, members of the public have to fund the civil action themselves. This effectively makes the Dogs Act inaccessible to much of the population. If it were criminal law they could simply complain to their local police station.
Additionally, the police have no power of seizure under this Act, meaning that owners of dogs deemed ‘dangerously out of control’ under the 1871 Act, can remain with their owners. I gave an example in my consultation of why this is a problem. The Japanese Akita which attacked the 2-year-old girl living next door was able to remain living next door to the girl. As the attack happened in the dog’s own home, and the owner did not want the dog put down, the police have no power to remove the dog. I completely disagree with this.
Ms Green also questions why the DDA is difficult to enforce. I consulted with the Association of Chief Police officers in Scotland (ACPOS), who helpfully conducted their own investigation into enforcement of the DDA. Police receive many reports of suspected pit-bull terriers acting dangerously, but are reluctant to become involved because of the confusion surrounding this ‘breed’. Much time is wasted deciding whether or not a dog is actually a pit-bull, before they have the power to seize it and pursue the owner.
The DDA is a drain on resources because dogs the police actually seize often spend months languishing in kennels, whilst the courts decide whether or not it is of a banned type. Even vets cannot agree. It is unsurprising, given these problems, that the number of prosecutions under Section 1 of the DDA has steadily dwindled to zero in Scotland. My proposals allow police to act on dogs of any breed which is acting dangerously, instead of wasting so much resources pursuing only certain types of dog, whilst leaving owners of other breeds largely to do as they please.
Regarding my proposal to micro-chip dogs with Control Orders – this is not so the police can patrol the streets randomly scanning dogs to see if they have a control order. The microchip will record the details of the owner – so that the owner cannot escape responsibility for ensuring the requirements of the control order are met. Should the dog attack someone, its owner can easily be identified. On occasion, people awaiting court appearances have been able to escape prosecution by transferring ownership of the dog to someone else – this is another loophole that needs to be closed down.
Ms Green rightly points out that much of what I propose is technically already in existence. Certainly, the £5,000 fines and/or six months’ imprisonment are the existing punishments under the DDA. These would be used for aggravated offences (i.e. where a dog actually attacks someone), and I see no reason to change them. In addition, courts can currently order ‘any means necessary’ to control a dog. However, this power is irrelevant if it is not being used. It is not being used because, like much of existing legislation, it is unclear and difficult to enforce. I do not think it is good enough to say ‘any means necessary’ – there needs to be a clear, flexible and practical range of control orders that courts can rely on, simplifying the process for everyone. Again, I have asked people to suggest control orders as part of the consultation process.
My proposal aims “to modernize the law on dangerous dogs” – not to start from scratch. I hope that this clarifies some of the points raised in Ms Green’s article. I have consulted extensively with various stakeholders while drawing up these proposals, but I do not pretend to have all of the answers – the consultation period allows the public to provide their thoughts. I would encourage Ms Green – and all readers – to submit a response to the questions asked in the consultation, to allow them to be formally considered before the next stage of the Bill. The paper can be downloaded from www.alexneilmsp.net and responses must be submitted by 14th April. Thank you.
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Alex Neil is an SNP MSP, representing Central Scotland.
He last week launched the consultation for his proposed Control of Dogs (Scotland) Bill.
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Thanks for your response. Before we go through the finer points of your response I wonder if we could go back a step so you can clarify some points raised in my previous article.
Firstly, the big question in many peoples minds is does your proposal remove the Breed Specific aspects of the Dangerous Dogs Act 1991 or not?
Your proposal does a good job of pointing out why BSL doesnt work; that it is difficult to enforce, that is is costly when it is enforced and, most importantly, it does not protect the public. However the Kennel Club, who claim to have assisted you in drafting your proposed bill say that your proposal will not remove these aspects.
Can you confirm whether or not you you intend to see BSL removed via your proposal?
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Firstly let me say that it is commendable that Alex Neil has been willing to engage in the debate presented through contributions on this website, others do not appear to have that conviction in their beliefs. Some of them are those who have guided his hand in the proposals he has made and I will start by warning him against them; be very aware Mr Neil that these organisations gave, at minimum, tacit approval to the Dangerous Dogs Act in 1990/91 but soon withdrew their support from it. Since then government have continued to consult them, often with similar results; only three years ago they made no criticism in consultation over the Clean Neighbourhoods and Environment Bill proposals for Dog Control Orders (which amongst other things repealed the Dogs Fouling of Land Act in England). You will now find that the Kennel Club has brought into existence UKDog a KC subsidiary which criticises local authorities for their attempts to introduce Dog Control Orders; the Kennel Club should have ensured greater checks and balances were written in to the legislation if they were concerned about the Law as it was written rather than to attempt to make themselves appear indispensable to dog owners in challenging it afterwards.
You have already been tabled a clear question with regard to your proposals by Alison Green; do you propose to repeal the Breed Specific measures of the Dangerous Dogs Act? I somehow doubt it, because the Dangerous Dogs Act Study Group (a sub committee of the Dog Legislation Advisory Group) on which at least some of your advisors sit, has not followed through on their own arguments to do so. DDA section one needs to be repealed so as to avoid the expense and confusion you have identified even in your response in this website debate. But it has also been dangerously misleading legislation in that It has suggested to the general public that danger can be determined form a dog’s looks and this is completely contrary to the facts and a very misleading concept on which the public now form judgements which are often devoid of real knowledge.
I am in fact very concerned about two principal points you have raised in your comment on this website. The first is your vacillation over what constitutes “dangerously out of control” and the second is your belief in the use of only Criminal law in respect of the law as you are proposing it to be.
You appear to suggest that the 1871 Dogs Act is only available for individual members of the public to prosecute when you say:
“With civil laws, members of the public have to fund the civil action themselves.”
This is untrue as the police and local authorities can and do pursue civil actions under the 1871 Act on behalf of the public and, as has been pointed out by Alison, in doing so are able to present evidence with which to build the case “on the balance of probabilities” rather than “beyond reasonable doubt”. Your attempts to make everything “criminal law” in this respect is very unhelpful and it is one area where I believe that you have been badly advised by people who have not greatly considered the nature of the legal system some of whom do not have great experience of working in it some of whom should have ensured you were considerably better informed.
You are obviously stuck, as are many people, when it comes to how to actually define the danger which leads to the tragic incidents and many dog bites of which we are aware. I would suggest however that you are dangerously close to making it impossiblet to get anywhere in the criminal law you want to use by the breadth of definition you have currently given when you say::
“I am referring to dogs which act aggressively, and appear to the complainant that it may attack someone.”
The equivalent phrase, already in the Dangerous Dogs Act is that “there are grounds for reasonable apprehension that it will…” “injure any person”
Anyone, like myself, who has any experience of cases in court will understand that it would be impossible to prove to the standard required by the criminal law that something which simply appears to someone to be dangerous actually commits a criminal offence from which a conviction will result – a complainants belief can never constitute evidence “beyond all reasonable doubt”. A complainants “belief” is unlikely even to be “grounds” in a legal sense.
I would strongly suggest that good legislation, which you clearly want your Bill to present, must appreciate these things. A complainants opinion may not actually be valid – many people fear dogs, or types of dogs and most Local Authority Dog Control Services will tell you about the kind of complaints this generates. Even where a complainant has some knowledge or where some expert knowledge is applied to a complainant’s information (i.e. the kind of cases where the authorities may like to act) such opinions, no matter how expert, do not constitute grounds/evidence “beyond reasonable doubt” required to convict in a crimminal case. It is therefore highly appropriate to have a lower level of civil proceedings at which to introduce this kind of information.
To introduce this information to a civil court is merely a flexible use of the 1871 Act, but I would like to go a stage further and if you read documents on the National Dog Warden Association website (www.ndwa.co.uk) you will find proposals which do so. Preparing a case for even civil proceedings could leave a dog in a situation in which it could cause danger or disruption to the public. The NDWA proposals therefore suggest that the Police or Local Authority could immediately impose a Control Notice (under an amended 1871 Act if necessary) demanding certain behaviour from the owner immediately (or within a set period of days) to abate any nuisance perceived by an officer as a result of a complaint. The dog’s owner would have the right to challenge any such notice at the civil court.
The concept of “Notices” is quite common to local government and is even available now under the Animal Welfare Act where a notice can be served to improve an animal’s living conditions. It is quick and efficient as a preamble to any court case. It offers the owner the opportunity to correct behaviour (without the use of the court) or challenge the ‘opinion’ passed about their behaviour in an environment which is able to make a judgement on the balance of possibilities.
Even the next stage up in the NDWA proposals continues the use of the civil route. It could be applied for directly or subsequent to a Control Notice being ignored and it would be a Court Control Order completely in line with those available under the 1871 Act. Of course in this instance the Court itself would make the imposition, or support the imposition already made by the Police or Local Authority.
The final stage is to use the criminal law and with its use the conditions change to a requirement that the prosecution prove its case beyond all reasonable doubt. Make no mistake of the level of evidence you require for this. The opinion of a complainant; the opinion of an expert officer will NOT suffice; it is therefore important that the law proposed recognise what will take place in that court. Aggravated offences are obviously the easiest and I would not disagree that in some, but by no means all, cases this should include attacks on animals other than humans. I think that this should therefore have a definition along the lines of: any unprovoked and serious sustained attack in which the dog’s owner does not attempt to intervene (where it is clear that they have tried, even unsuccessfully, to intervene is a criminal prosecution appropriate?) or any attack which leads to a bite injury in the case of a human. Again (with some greater definition given to it here) these offences are already available as DDA section 3 prosecutions.
The use of the criminal law has been extended to far too many problems of dog control already. It demeans the criminal law itself and complicates cases beyond reason. No magistrate’s bench wants to convict a person and provide them with a criminal record if there is ANY reasonable doubt that can be raised with regard to their conduct. A criminal record is a serious matter and it is often clear that these cases are misdemeanours rather than anything of criminal intent.
If to ‘modernise’ the law the only concept our political representatives bring to bear is to ‘criminalise’, then I do not believe that they are doing our communities any favours. Protection will be best provided by a modernisation which is prepared not to start from scratch but to recognise the existing failings (and be prepared to repeal them) to build on what already exists whether civil or criminal and, most importantly, to provide clear definitions of what happens as boundaries are passed.
I have to say at this point that the NDWA proposals go one step further in this by providing some thoughts on insurance. Currently, a victim of a dog attack will rarely be properly compensated, nor will the state for providing medical intervention, yet consideration of this (imposed by strict liability) rather than the thought of some absent criminal intent would focus the mind of ALL dog owners on their responsibilities and provide a means through which non-judicial controls could be applied. Insurance would be appropriate to the dog and owner, taking into account the risks (even some of Mr Neil’s advisors have subsidiary canine insurance companies we would now ask THEM to make a judgement about breeds and types). Insurance would also, of necessity, apply permanent identification without a governmental bureaucracy in order to identify the insured animals for claims. It could incorporate accredited skills and training and reward them with lower premiums and it would provide authorities with somewhere to start in all reported complaints by asking the person complained about for their insurance documents.
Mr Neil did not consult with the National Dog Warden Association on his proposals and the Association was deliberately excluded from the DDASG. The proposals we have made and the thoughts we have brought to bear are in some ways radical revision of the existing legislation, in other ways they build on it.
I hope Mr Neil that you will continue to engage with people and that in doing so you will find some of the answers to dog control questions which the NDWA has certainly raised for many years. I sincerely believe that you could improve on your advisors and suggest that you look at the NDWA proposals if only so that you will know that there are available alternative strategies to those contained in your Bill, you will probably choose to ignore them, you will probably stick with the line given by your advisors; but I hope that you will understand just from this response that in directing you towards criminal prosecutions for dogs that “appear to complainants to be dangerous” you will be tinkering dangerously with legislation and are unlikely to provide additional protection to the public.
I do not propose to make a personal reply to the points you make in your paper Mr Neil, the paper already posted on the NDWA website answers it in full as do the points raised in this response. I will however send a copy of the NDWA document to the website address you have provided.
Reply
Thank you for your comments. Please note that I am receiving a large number of responses to my consultation, and I simply do not have the resources to respond to all of them personally. They are all collated by the Parliament, however, and are publicly available (online) at the end of the consultation, before the next stage of the bill is considered.
I would like to point out, in the interests of clarity, that I did not propose to touch Section 1 of the DDA. This was obviously considered, as is evident in the paper, but it was decided that this could jeopardise the entire bill. With a member’s bill, you are required to gain the support of 18 MSPs before it can be taken to the next stage. If we had proposed to repeal section 1, the overwhelming coverage in the media would have been “Alex Neil wants to legalise pit bulls”, which would have provoked an adverse public reaction. In that climate, it would have been impossible to gain sufficient support to take my bill forward.
I therefore decided that the priority was to bring in some measure of control for all other dogs – it is better to produce a bill that does part of what is needed, than do something more ambitious and risk the whole thing falling at the first hurdle. Having said that, if the issue of Section 1 is consistently raised in the consultation responses, there is a greater chance of this being included in Stage 2.
Reply
Mr Neil you really should liase with the National Dog Warden Association, the association covers, England, Scotland, Wales, Northern Ireland and Gibraltar. Cuthbert Jackson is so very correct when he writes that the NDWA is ignored by government and some of your own advisors and has been for almost as long as the NDWA has been in existence.
At the end of the day Mr Neil, your advisors are not in the front line when it comes to actually dealing with stray dogs, dangerous dogs and basically all matters canine that cause conflict in the community. In regard to the organisations that are advising you Mr Neil, they really are safely far behind the lines with all the generals and rarely venture forth from their plush London offices. It is amazing and actually very encouraging that you have entered into the debate with ‘ordinary people’ but you really do need to bring on board people who actually physically deal with the problems your bill is attempting to address rather than listening to the canine version of ‘Whitehall Warriors’ or ‘armchair warriors’!
You should contact the NDWA they have plenty of members who live and work in Scotland, these people will be able to tell you what really happens in he world of dog control. Their website is at http://www.ndwa.co.k
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With All due respect Mr Neil, wouldnt it be the case that instead of “Alex Neil wants to legalise pit bulls” the truth would be “Alex Neil wants to stop spending millions of pounds on a law that doesnt work and redirect that money into saving lives”?
That seems to be to be the crux of the matter. As a mother I resent the fact that millons of pounds of tax payers money is being wasted, particually when you yourself have stated it does not work, because of the fear of bad press!
I have emailed you my questions, prior to your response and have recieved replies to all but my last email. I have also emailed many other groups. I am bound by disclaimers but the replies certainly are eye opening! I can only urge others to do the same and make enquiries. I do hope that, should this proposal go through, we (the public) do not regret it, whether dog owner or parent. Unfortunatly I beleive we will.
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[...] Scotland: Postal workers lend their support to ‘Dog Asbos’ (non-BSL proposed) Posted on December 22, 2008 by stopbslcom Although MSP Alex Neil supports a “deed not breed” perspective and is apparently inclined to remove the wasteful and ineffective breed ban put in place by the UK Dangerous Dogs Act, his proposed law currently does not remove BSL from the DDA. According to Mr. Neil, he is concerned that media coverage would reflect negatively on any attempt to “legalise pit bulls,” thereby dooming the bill. (Per Mr. Neil’s comment at http://www.dogmagazine.net/archives/316/control-of-dogs-scotland-bill-what-i-propose-and-why-i-am-pr...) [...]