Scottish Animal Welfare Commission: dogs that are seized as suspected prohibited breeds

Correspondence between the Commission and the Community Safety Minister

20 December 2024

Dear Minister

Interim liberation of suspected prohibited dogs 

Your colleague, the Minister for Agriculture and Connectivity, joined the most recent SAWC plenary meeting on 26 November.  Members raised with him some animal welfare issues around the seizure and prolonged kennelling of suspected prohibited dogs under the Dangerous Dogs Act 1991. Mr Fairlie asked us to write to him with further information on these issues and to copy this information to you as the Minister responsible for community safety.

Our suggestion is that there may be merit in reviewing the current arrangements for keeping dogs seized as suspected prohibited dogs.  In particular, we would like to suggest that you consider aligning Scottish and English law regarding possible interim liberation of dogs pending a court case. 

We are mindful that you will be familiar with the legislation and current issues but, for consistency,  I have set out the below the same material that we provided to Mr Fairlie.

Background and relevant legislation

The Dangerous Dogs Act 1991 s.1 prohibited the keeping of certain “types” of dogs including those known as the pit bull terrier, the Japanese tosa and other types subsequently designated by order “being a type appearing […] to be bred for fighting or to have the characteristics of a type bred for that purpose”.   The Dogo Argentino and the Fila Brasileiro were also designated as soon as the legislation was passed.

Possession of a prohibited type of dog became an offence and the courts were required to make a mandatory Destruction Order in relation to any dog they found to be of a prohibited type.  However, the Act also provided for a scheme of exemption, subject to compliance with conditions set out in the Dangerous Dogs Compensation and Exemption Schemes Order 1991, as long as these were satisfied by 30 November 1991.  Conditions included notification of dogs to the police, neutering, permanent identification, third party insurance and payment of a fee for registration on the Index of Exempted Dogs.

In 1997, the Dangerous Dogs (Amendment) Act 1997 introduced new provisions to allow a court, in relation to a dog it found to be a prohibited type (and not previously exempted) but considered not to be a danger to public safety, to make the dog subject to a Contingent Destruction Order enabling it to be exempted from the prohibition. Under a Contingent Destruction Order, the owner would have to achieve exemption within two months of the court making an order. The Exemption Scheme in the 1991 Order was extended to apply to dogs that had been made subject to a Contingent Destruction Order.

All of these provisions apply in Scotland. 

Seizure and kennelling of suspected prohibited dogs

Where there is no Certificate of Exemption, suspected prohibited dogs can be seized by Police Scotland and placed in licensed kennels until a court determines whether they should be destroyed or deemed safe.  When they enter kennels, responsibility for overseeing dogs’ welfare and care passes to the local authority, as the licensing authority. 

The period of kennelling can be lengthy. In cases that proceed to trial, the period may be 9 – 12 months, and longer if the court’s decision is appealed.  In 2020, concerns about the welfare of animals being kennelled for such long periods led to an amendment to the Animal Health and Welfare (Scotland) Act 2006, providing for much earlier disposal of animals seized on welfare grounds under that Act. 

While the grounds for seizure discussed here are obviously different, the effects of kennelling on the animal are the same, or more serious. Many of these dogs have not been separated from their families before or experienced life in kennels, which can be stressful. This stress may manifest as fear aggression which can be difficult for kennel staff to deal with.  This, in turn, can lead to a reduction in the exercise and social interaction that the dog receives, even though these are part of the dog’s welfare needs.  Dogs may be returned to their owners with behavioural challenges, due to being kennelled with little enrichment.  Such behavioural problems may compromise the chances of subsequently persuading a court that the dog does not constitute a threat to public safety.

SAWC understands that kennel spaces for Police Scotland use are both costly, at up to £40 - £50 per night per seized dog, and in short supply.  The Scottish Government’s 2021 paper Criminal law dealing with dangerous dogs: discussion paper analysis cites comments from stakeholders to the effect that cost and availability of kennels create a disincentive to seizing and holding potentially dangerous dogs. We are also mindful of the recent publicity focussing on the prohibitive cost to police forces in England of kennelling these dogs.

Separate provision for suspected prohibited dogs in England and Wales

In 2015, the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 repealed the 1991 Order south of the border, and made adjustments to the court-ordered exemption scheme created in 1997.

Recognising that many months can elapse between seizure of a suspected prohibited dog and the hearing of the owner’s case in court, the 2015 Order allows dogs to be returned to their keeper, as long as the police are satisfied that the dog does not constitute a danger to public safety. Return to the owner is acknowledged to be better for the dog’s welfare and to reduce police kennelling costs. The safety test is the same as that applied by the court when it determines whether a dog can be made subject to a Contingent Destruction Order. Return is conditional on the owner having the dog neutered, microchipped and having third-party liability insurance in place, in addition to keeping the dog muzzled and on a lead in public – essentially the same requirements that apply under a Contingent Destruction Order.  The court must also take into account whether the person intending to be in charge of the dog at any stage is a fit and proper person.

The 2015 Order has not been replicated in Scotland. SAWC believes that it would be advantageous to consider introducing such a provision.

New measures to control XL Bully dogs in Scotland

Following the prohibition of the XL Bully type dog under the Dangerous Dogs (Designated Types) (Scotland) Order 2024 and the closure of the Index of Exempted Dogs to XL Bully dogs on 31 July 2024, the 1991 and 1997 provisions regarding Contingent Destruction Orders now also apply to XL Bully dogs, but not the provisions for interim liberation of suspected prohibited dogs.

SAWC appreciates that the Scottish Government made considerable efforts to inform the owners of XL Bully dogs of the requirement to apply for a Certificate of Exemption. Nonetheless, there appear to be some members of the public who did not understand this requirement, owing to their particular personal circumstances.   Others appear to have believed that their dogs were not of the prohibited type and did not realise that they were expected to apply for a Certificate of Exemption for the avoidance of doubt.  The lack of any de-exemption process – meaning that there is no means of removing a dog from the Index if it proves not to be a prohibited type – may also have been a factor.

Stakeholders have suggested to SAWC that some owners of XL Bully type dogs are fearful of the court process due to the likelihood of seizure and lengthy separation from their pet. It may well be that some of those fears would be allayed if there was a provision for dogs deemed not to pose a risk to public safety to remain at home pending any court case.  That, in turn, might increase readiness among owners to disclose their dog’s existence, which would improve awareness of such dogs’ presence in the community.  There is a further welfare dimension in that owners who are afraid to let their dogs be seen are unlikely to ensure that they have necessary veterinary attention, including vaccination.

SAWC does not underestimate the risks that certain dogs can pose to the community, particularly when they have been poorly bred, not socialised or specifically trained for aggression.  We understand, however, that all competent applications before the due date of 31 July resulted in exemption (Written Answer to S6W-31077) and this leads us to believe that the outcome might be favourable for some of the other dogs whose owners misguidedly failed to apply for exemption before the cut-off date.  It appears to us to be in the public interest, and the interest of animal welfare, to encourage such owners to come forward by allaying some of their fears around seizure.  We would also suggest that allowing prohibited dogs, where they do not pose a public risk, to stay with their owners pending court proceedings could help avoid welfare issues which may arise from prolonged kennelling and  increase kennelling availability for seized dogs that are deemed to present a danger to the public.

I look forward to your consideration of this suggestion from SAWC and would be pleased to discuss further with Ministers.

Yours sincerely,
Professor Cathy Dwyer
Chair
Scottish Animal Welfare Commission