Dangerous Dogs Act – Short Life Working Group minutes: May 2022

Attendees and apologies

• Jim Wilson, Scottish Government (SG), Justice (Chair)
• Adam Sinclair, SG, Justice
• Mike Flynn, Scottish Society for Prevention of Cruelty to Animals (SSPCA)
• Dave Joyce, Communication Workers Union (CWU)
• Dawn Exley, Scottish Community Safety Network (SCSN)
• Michael Munn, Royal Mail
• Scott Blair, Advocate, Edinburgh
• [Redacted], Crown Office and Procurator Fiscal Service (COPFS) 

Items and actions

Welcome and introductions

The Chair welcomed working group members to the third meeting of the group.

Policy options discussion paper

A draft policy options discussion paper had previously been circulated by the SG to group members, and other stakeholders, to help assess what each of the identified key work areas mean in practice, with a view to identifying opportunities for legislative change and reform.

All written comments received from group members and other stakeholders have been collated by the SG into a ‘master copy’ of the policy options discussion document. The SG will circulate this to group members.

Action:

• SG to circulate document

The Chair welcomed the submission of a range of views and important points made by all members, and to further inform policy thinking and approach, members were invited to provide written comments on the master copy of the policy options discussion paper to the SG. Each member of the group was asked to provide comments by no later than 14 June 2022.

Action:

• all to provide comments

The Chair asked working group members to speak about the comments they had provided to the SG on the policy options discussion paper.

Scott is keen to see reform of the Dangerous Dogs Act 1991 (“the 1991 Act”), and highlighted the figures provided by the CWU ahead of the meeting that gave a breakdown of the breeds of dog involved in dog attack deaths. He suggested that these figures brought into question the effectiveness of the breed specific legislation (BSL) in the 1991 Act.

Scott is of the opinion that many people now view dogs as a commodity, and have forgotten that all dogs have the propensity to be dangerous. Scott would be in favour of the introduction of strict liability, subject to a due diligence still defence. It would be for the accused to show that they had taken all due diligence to prevent an offence taking place. That defence could be established on a balance of probabilities. For example, had the owner researched the breed or type of dog, had the dog been trained, was the dog left alone with children, was the owner physically capable of keeping the dog under proper control. This would also encourage dog owners to equip themselves with the knowledge that should come with responsible dog ownership.

Scott also highlighted the Animal Health and Welfare (Scotland) Act 2006, which places duties of care on owners and others having responsibility for dogs, in relation to their welfare. A dogs code exists under that Act. Scott suggested that a dogs criminal law code of practice may also be a useful tool. Such a code could assist in establishing liability or a defence, similar to the Highway Code.

After thanking Scott for his helpful contribution, the Chair added that any reforms of the 1991 Act could be supported by a strong marketing campaign, but stressed that no budget was agreed for such activity at this time. All group members were in agreement that legislation alone would not solve all of the issues at play and a package of measures would better support our collective aims to tackle irresponsible dog ownership and dangerous dogs in our communities.

The SSPCA representative on the group broadly agreed with the comments made by Scott. He suggested that while strict liability may cause some issues, this was not a reason not to look at it.

The SSPCA representative does not support the current reasonable apprehension law. He also suggested that if a dog owner was to receive a dog control notice (DCN) from a local authority dog warden, i.e. a civil notice under the Control of Dogs (Scotland) Act 2010 ("the 2010 Act"), then that person should also be required to get appropriate liability insurance for their dog.

The Chair informed the group that changes to the 2010 Act were also being considered by the SG with a view to strengthening local authority enforcement. This was in addition to the work being undertaken by this working group to look at the 1991 Act.

The SSPCA wanted to see a clear line of enforceability when it came to dealing with dog incidents. At present there was often confusion as to whether such incidents should be investigated by the police or the local authority. In response the Chair highlighted the control of dogs joint protocol agreement (non-statutory status) between Police Scotland and local authorities. This sets out how the police will deal with offences under the 1991 Act, and how local authority dog wardens will deal with civil measures under the 2010 Act.  The Joint protocol was updated last year.

The CWU consider that there are a number of deficiencies in the 1991 Act which need urgent attention. The CWU believe the reasonable apprehension clause to be a major flaw in the legislation, and would like to see this removed. The CWU is also keen to see courts make full use of their powers, for example the CWU view is that Courts have the power to issue Ancillary Orders as part of sentencing, and they should be directed through Sentencing Guidelines to use them. The CWU want to see ‘absolute strict responsibility’ placed on dog owners as to the behaviour of their dogs. The CWU also consider that the law at present is too complicated, which leads to difficulties in prosecution and enforcement.

In response to comments from group members about enforcement and costs, the Chair recognised that the current financial climate was difficult for the police and local authorities, recognising operational matters and resourcing decisions are for independent local authorities and police to take. The Chair advised that any future legislation would be required to include a financial memorandum that set out the financial impact and costs of the new legislation on these bodies. The Chair emphasised that it was important to have confidence that policy reforms are affordable and can be delivered.

The Royal Mail representative was also of the opinion that the law needed to change. He suggested that there needs to be an obligation on owners to take positive steps to ensure that their dog does not injure someone. However if a dog does injure someone his view is that this should be a straight offence, i.e. strict liability. Safeguards can be included however, such as prosecutorial discretion not to prosecute where it is not in the public interest to do so. The Royal Mail representative also raised concerns about difficulties with enforcement. In particular in relation to the interpretation of ‘dangerously out of control’. Royal Mail are concerned that some police do not fully understand the law, and their interpretation of the law is often flawed. For that reason the law needs revised to be clearer.

The SCSN are of the opinion that people do not understand their responsibilities well enough. The law needs to be redefined to ensure that it’s clear what ‘dangerously out of control’ actually means. Echoing the earlier comments from the SSPCA, the SCSN representative also wants to see a clear line of enforceability when it comes to dealing with dog incidents. The SCSN also consider that at present there can be confusion as to whether such incidents should be investigated by the police or local authority.

The Chair emphasised that it was important to understand the mechanics of how legislative change would work in practice. The aim of any new legislation would be to influence and change behaviour. However the SG recognised that new legislation is not the sole answer. A holistic approach would be required.

The COPFS representative agreed with earlier comments from group members that the law needed to change. In particular he wanted to see the definition of reasonable apprehension clarified, as this causes confusion for the courts at present. He would be supportive of strict liability being introduced, as this would increase the ability of COPFS to prosecute cases. However COPFS would also want to see safeguards included so as not to criminalise owners when there is an out of the blue attack. COPFS would therefor want there to be alternatives to court prosecution. These could include diversion to behaviourists and dog trainers and to refer the case to the local authority dog warden.

Literature (LIT) review

The SG had previously shared the LIT review report of dangerous dogs/dog control criminal law measures applied in other countries/jurisdictions with working group members.

The Chair advised that the SG Licensing Team had commissioned JAS to undertake further work to see what difference the different policy approaches had actually made, i.e. what was the impact of the policy. This was to help to ensure the SG brings forward proposals for legislative reform in Scotland that can be evidence based. JAS have now provided the SG Licensing Team with the results from a data retrieval exercise. This will be shared with group members.

Action:

• SG to share with group members

Any other business

The issues of dog licensing and insurance were raised by group members .

On dog licensing, Scott suggested that one way to do this would be to introduce a default dog licensing system (paperless), meaning that people would know that if they owned a dog then they were automatically obliged to have the dog licensed. Scott felt that this could also help to enforce strict liability.

On the issue of dog insurance, various members of the group raised the issue of cost, and the need to be mindful of unintended consequences. For example, would bigger dogs cost more to insure than smaller dogs. People on low incomes may not have the funds to pay.

In response, the CWU highlighted that Dogs Trust membership costs £25 per year, £12.50 for Over 60’s, and members get third party public liability insurance for their dog – up to £1,000,000 per claim if their dog causes damage or injury to another person, their property or pets.

The CWU representative advised the group that the CWU had been approached by various members of the press to comment on issues in relation to dog attacks on postal workers. So the group can expect to see press articles on this issue in the near future.

The Chair advised the group that the SG is due to take part in a meeting with the Department for Environment Food and Rural Affairs (DEFRA) on 25 May to discuss a UK wide approach to communications on safe interactions with dogs.

Date of next meeting

The next meeting is due to take place on 28 June 2022.