Criminal law - dealing with dangerous dogs: consultation

Overview

The main criminal law legislation that operates in Scotland in relation to dogs is the Dangerous Dogs Act 1991 ("the 1991 Act"). This was legislation passed by the UK Government at Westminster and, with the exception of section 8 which also extends to Northern Ireland, the Act extends to England and Wales, and Scotland.

Section 3 of the 1991 Act ("section 3 offence") deals with threatening behaviour or attacks by any type of dog. It provides that, if a dog is dangerously out of control in any place (whether or not a public place), the owner (or if different, the person for the time being in charge of the dog) is guilty of an offence. This offence is aggravated if the dog injures a person whilst out of control. Section 10(3) provides a definition of "dangerously out of control" and states that a dog can be regarded as being dangerously out of control if there are grounds for reasonable apprehension that it will injure a person, whether or not it actually does.

It is important to note that Scotland has taken a different approach to the statutory interpretation of the section 3 offence as compared with England and Wales. This different approach is reflected in the discussion contained within this paper.

The question whether there are grounds for reasonable apprehension that a dog will injure any person is ultimately a matter for the courts to decide based on the facts and circumstances of each individual case.

However, the way the offence has been interpreted by the Scottish courts means that it requires that the owner, or person in charge of the dog, had a reasonable apprehension that the dog will injure any person, whether or not it actually does so. Therefore prior actings of the dog and the fact that the owner knew about them require to be established in order for an offence to be committed.

In criminal law policy terms, this approach reflects that it may be seen as unfair to hold a person criminally liable for the actions of their dog if that person had no prior warning and/or no reason to suspect that their dog would act in a dangerously out of control manner. The existence of this requirement as part of the offence can prove to be a difficult evidential hurdle, as the police and prosecutors require to carry out inquiries into the previous behaviour of the dog and the knowledge held by the dog owner/person in charge of the dog. If this reasonable apprehension cannot be established, then proceedings cannot be taken regardless of any injury suffered as a result of a dog attack.

This review will explore why the criminal law is framed and operates in this way in Scotland. We are seeking initial views on whether this is an appropriate approach or whether there could be a different way in approaching how the criminal law can hold to account dog owners and others who allows dogs to act in a dangerous manner.

The focus of the review is on the section 3 offence in the 1991 Act. However, wider views can be offered on some other issues relating to dangerous dogs as part of this review.

Why we are consulting

All of the comments received will be considered as potential changes in the areas discussed are assessed.

Consultation contents

This discussion paper relates to the operation of the 1991 Act. In particular, it is focused on the criminal offence of a dog being dangerously out of control. It also allows respondents to offer views on wider dog control law as they see fit.