Control of Dogs (Scotland) Act 2010: guidance - updated

Part B – Overview of the Control of Dogs (Scotland) Act 2010 provisions

Section 1

1. This section covers the serving of a Dog Control Notice (DCN). The provisions impact on local authorities who will be required to appoint at least one officer for the purposes of the 2010 Act. Local authority appointed 'authorised officers' will be expected to be skilled in the control of dogs, and also have the capacity to instruct and advise others in dog control matters.

2. Authorised officers will be permitted to serve a written DCN on dog owners (if the owner is not yet 16 years of age, a person who has parental responsibilities would be served) who do not keep their dogs under proper control. If it is not clear to the authorised officer, after making reasonable inquiries, who the dog's owner is, or the authorised officer does not consider it would be reasonable to serve the notice on the dog's owner in the circumstances, the authorised officer can serve the notice on any person who is 16 years of age or more and appears to have the day-to-day charge of the dog. The 2010 Act refers to this category of people as the "proper person".

3. It is no defence for the proper person to contest the serving of the DCN on the grounds that some other person was in charge of their dog at the time when their dog was out of control. The DCN provisions place a statutory duty on the proper person who is issued with a DCN to keep their dog (regardless of breed) under control at all times thereafter.

4. Under the 2010 Act, a dog is deemed to be "out of control" if:

• it is not being kept under control effectively and consistently (by whatever means) by the proper person (generally the proper person is the owner of the dog but it may be the person who has parental responsibilities in relation to an owner under 16 or any person who appears to have day-to-day charge of the dog), and
• its behaviour gives rise to alarm, or apprehensiveness on the part of any individual, and the individual's alarm or apprehensiveness is, in all circumstances, reasonable. The apprehensiveness may be as to (any or all) - (a) the individual's own safety, (b) the safety of some other person, or (c) the safety of an animal other than the dog in question.

5. The definition of "out of control" is crafted so that both elements of the test must be met in order for an authorised officer to be able to serve a DCN.

Section 2

6. This section covers the terms of the DCN which must set out the reasons for the DCN being served, the name and address of the proper person and the description of the dog (the DCN can only refer to one dog). The DCN must include the date on which it is served and a statement that the notice comes into effect on that date.

7. The intention is to try to emphasise the importance to the proper person of the need to control their dogs to prevent and reduce the risk of incident It is hoped that the serving of DCNs will encourage more responsible ownership that will hopefully see the proper person taking responsibility for the actions of their dogs and stop them from being out of control in order to prevent further issues arising.

8. Section 2 lays out the content of the DCN, which can include a range of measures. Local authority officers can also impose other specific control measures that must be taken on by the proper person. Section 2 includes compliance measures that will require the proper person served with a DCN to arrange for their dog to be implanted with a microchip (electronic transponder) by a person who, in the opinion of the local authority, is appropriately qualified (veterinary surgeon/nurse, animal charities,) as a means of identification. It is possible that some local authorities may wish to have their authorised officer microchip the dog themselves if the owner agrees. The proper person is required to comply with the terms of the notice to the satisfaction of the local authority which has the duty of monitoring its effectiveness and enforcing it, and on changing name or address, notify the authority of the change in question.

9. This action must be carried out within 14 days of the DCN being served. There is some flexibility built in to this provision as it permits the proper person to present information (as required by the local authority) to prove their dog has already been chipped. The DCN may include any or all of the following measures:

• Muzzling the dog whenever it is in a place to which the public have access to
• Keeping the dog on a lead in a place the public has access to
• If the dog is male, neutering it
• Keeping the dog away from a place, or category of places, specified in the notice
• Attendance and completion of a course of training in the control of dogs

10. The list of DCN measures is non exhaustive and it is therefore possible for a DCN to include other requirements as deemed necessary by the authorised officer in order to keep the dog under control.

Section 3

11. This section sets out the appeals procedure that permits the proper person to appeal to a sheriff against the serving of a DCN as a whole or a term of the notice:

• The appeal is made by summary application;
• A dog owner can ask the sheriff to consider the suspension of the DCN or any term of the DCN pending an appeal decision; and
• The sheriff will decide whether to uphold or discharge the notice or term appealed against, and may opt to vary the terms of a DCN.

Section 4

12. This section places a duty on local authorities to enforce and monitor the effectiveness of the DCN regime. The 2010 Act requires ongoing monitoring of DCNs to assess whether the steps specified are effective in bringing the dog under control. The 2010 Act requires local authorities to update and record information in relation to all DCNs issued.

Section 5

13. This section covers failure to comply with notices and offences. Where the proper person breaches the terms of a DCN, they have committed an offence. When a breach of a DCN occurs this would be discovered by or reported to the authorised officer as part of their enforcement and monitoring responsibilities. If it transpires that the proper person has committed an offence, they are liable on summary conviction to a fine not exceeding level 3 on the standard scale.

14. If the court finds that the terms of a DCN have been breached, it may also make an order to disqualify a person from owning, or keeping a dog for a period as the court think fit. In cases where the court has decided that the dog is dangerous, it may make an order for the dog's destruction.

Section 6

15. This section enables a local authority to discharge or amend a DCN. Such action may not be taken when an application has been made separately for discharge or variation under section 7 of the 2010 Act. Discharge of a DCN could be made, for example, where the authorised officer is satisfied that the terms of the DCN have been complied with and the dog is now under control. Local authorities are required to notify the dog owner if the DCN has been discharged.

Section 7

16. This section provides the right for the proper person to apply to the local authority to have the DCN discharged or varied. Requests for variation or discharge of a DCN must be made in writing. The 2010 Act sets out the grounds on which the application can be based, for example, the death of the dog, or the fact that a person no longer has day to day to charge of the dog.

17. There is an appeal process built into the provision that permits the proper person to appeal to a sheriff if their application is declined. This is by way of summary application.

Section 8

18. This section gives the Scottish Ministers the power to establish a national database of DCNs. The provisions in section 4 of the 2010 Act place a specific duty on local authorities to enforce and monitor the effectiveness of the DCN regime.

19. While this will require local authorities to keep records locally in respect of DCNs that have been issued in their areas, the 2010 Act makes it possible to create a national database to hold information from all local authorities relating to DCNs in Scotland.

20. The 2010 Act does not require such a database to be created, but provides an enabling power for the Scottish Ministers to make Regulations to establish a database. The order making power can only be exercised following consultation with local authorities and other appropriate stakeholders.

Section 9

21. This section enables a summary application to be made to the sheriff by a local authority for an order to destroy a dog. This is in circumstances where the dog is out of control and dangerous and serving a DCN (or a further DCN) would be inappropriate.

22. If the summary application is granted by a sheriff and an order for the dog's destruction is made, the court may also make an order to disqualify the dog's owner from owning, or keeping a dog for a period of time as the sheriff thinks fit.

23. Separately, the court may also make an order for a dog's destruction under section 5 where the terms of a DCN have been breached and the court considers that the dog is dangerous.

Section 10

24. This section amends section 3(1) of the Dangerous Dogs Act 1991 to remove the reference to "any public place" and replace it with "any place" so that it becomes a criminal offence to allow any dog to be dangerously out of control in any place.

25. The effect of the amendment to the 1991 Act is that the person who is in charge of the dog may be criminally liable should their dog be dangerously out of control in all places, public or private, even if this occurs within the person's own home or other private place where the dog is permitted to be. An aggravated offence is committed if the dog injures any person whilst being dangerously out of control.

Section 11

26. This section makes it an offence not to comply with an order disqualifying a person from owning or keeping a dog. Prosecution is by summary procedure with the accused liable on conviction to a fine not exceeding level 3 on the standard scale.

27. Should a person wish to apply for discharge of a disqualification order imposed, the order must be in force for at least one year. The application is made to the court which imposed the disqualification.

28. The applicant has a right of appeal where an application to discharge a disqualification order is refused.

Section 12

29. This section places a requirement on the Scottish Ministers to provide guidance to local authorities in relation to the exercise of their functions and the functions of the authorised officers under the 2010 Act.

Section 13

30. This section sets out definitions of terms which appear throughout the 2010 Act.

Section 14

31. This section introduces schedule 1, which contains minor amendments to other enactments and minor amendments consequential on the provisions in the 2010 Act.

Section 15

32. This section repeals the Acts listed in schedule 2, namely the Dogs Act 1871 and the Dangerous Dogs Act 1989. These Acts are superseded by provisions in the 2010 Act.

Section 16

33. This section makes clear that any proceedings under the 1871 Act or the 1991 Act which arose from incidents occurring prior to the commencement of provisions in the 2010 Act are not affected by the repeal and amendment of the provisions in those Acts.

Section 17

34. This section makes provision for the powers given to Scottish Ministers to make orders under the 2010 Act.

Section 18

35. This section provides for the 2010 Act, apart from this section, to come into force 9 months beginning with the date of Royal Assent. The 2010 Act came into force on 26 February 2011.

Schedule 1 – Minor and Consequential Amendments

36. Schedule 1 makes minor and consequential amendments to relevant enactments:

• Amends section 1 of the Dogs Act 1906
• Amends the Dangerous Dogs Act 1991

Schedule 2 – Repeals

37. Schedule 2 - The Dogs Act 1871 and the Dangerous Dogs Act 1989 which extends and supplements the 1871 Act, are repealed by section 15 and this schedule.