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

Part H – Links with other legislation

Dogs Act 1906/Environmental Protection Act 1990 – Stray dogs

The 2010 Act does not alter the present legislative position with regard to stray or abandoned dogs. Where a dog is unaccompanied in a public place the dog would continue to be treated as a stray under section 3 of the Dogs Act 1906 or sections 149 or 150 of the Environmental Protection Act 1990.

Civic Government (Scotland) Act 1982

Section 49(1) of the Civic Government (Scotland) Act 1982 makes it an offence for any person to allow any creature, including a dog, to cause injury or danger to any other person who is in a public place or to give that person reasonable cause for alarm or annoyance. Any person convicted for such an offence is liable to a fine not exceeding £500. Section 49(2) of the 1982 Act permits any person to apply for a court order in relation to annoyance caused by an animal in the vicinity of where the person resides.

If the court grants the order, such steps as deemed necessary by the court that the person keeping the animal should take to bring the annoyance to an end will be included in the order. This provision is used on occasion in cases where a dog barks excessively to the annoyance of neighbours. Breach of such an order by the person in charge of the animal is a criminal offence and the person can be fined up to £1000.

Dangerous Dogs Act 1991 and Dangerous Dogs (Amendment) Act 1997

The Dangerous Dogs Act 1991 made it an offence for anyone in charge of any type of dog to allow it to be "dangerously out of control" in a public place, or in a private place. A person found guilty of an offence may face imprisonment of up to 2 years and/or an unlimited fine. The courts may also disqualify the offender from having custody of a dog for any period as it thinks fit.

Section 10 of the Control of Dogs (Scotland) Act 2010 amends the Dangerous Dogs Act 1991 by extending the offence contained in section 3 of the 1991 Act so that it becomes a criminal offence to allow any dog to be dangerously out of control in any place. However, with the exception of this amendment police and local authority powers and responsibilities conferred under the terms of the 1991 Act, remain the same.

In order for a dog to be regarded as "dangerously out of control", section 10(3) of the 1991 Act requires that the prosecution must provide corroborated evidence that there were "grounds for reasonable apprehension that it will injure any person (or assistance dog), whether or not it actually does so."

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. Evidence may be obtained from establishing the dogs previous behaviour (from other witnesses, neighbours, Local Authority Dog Warden, or the dog owner - under caution and police interview), and/or the full circumstances of the incident including the dog's aggression (if any) and the attempts, or lack of, of the person in charge of controlling the dog and whether there was any delay in doing so.

The case of Tierney Vs Valentine SCCR 1994 697 shows the importance of establishing 'grounds for reasonable apprehension'. In that case a dog which had never previously bitten anyone ran into a children's playground and inflicted four bites on two children in one brief incident before there was time for the owner to form a reasonable apprehension that the dog might injure someone and before he could bring the dog under control. No offence under section 3 was committed.

By contrast, circumstances may arise in which a dog has not previously injured someone, yet is acting in such a way as to give rise to a reasonable apprehension. In the case of Elizabeth Thomson v Procurator Fiscal, Peterhead [2009] HCJAC 101 the owner of a Staffordshire terrier dog was convicted of injuring the complainer when the dog became involved in a fight with the complainer's Scottie dog. For a period of about 8 minutes, the Staffordshire terrier refused to respond to any command or enticement by the owner or by the complainer whilst biting the Scottie. The complainer attempted to put her hand between the two dogs and was bitten by the terrier. After an appeal by the owner of the terrier, where she argued that she had no reasonable apprehension that her dog would injure any person as it had never bitten another person before, it was held that a period of 8 minutes, was sufficient to establish a reasonable apprehension that the dog would injure someone.

Section 5(1) of the 1991 Act gives power to any constable or authorised local authority officer to seize any dog they believe to be prohibited and/or a dog which appears to them to be dangerously out of control when it is in a public place. If the dog is not in a public place, a police officer can apply to the court for a warrant to enter premises for the purpose of seizing the dog.

The 1991 Act also introduced strict controls on types of dogs which are specifically bred for fighting. Those dogs being the Pit Bull Terrier, the Japanese Tosa, the Dogo Argentino and the Fila Braziliero. Case law clarifies that the 1991 Act's use of the term "type" and not "breed" of dog in section 1 means that the Act lays down a general test by reference to recognised characteristics rather than a particular test by reference to breeding or pedigree; a broad and practical approach should be taken when considering whether a dog falls under section 1.

Following the passing of the Dangerous Dogs (Amendment) Act 1997, it continued to be the case that it is a criminal offence to own one of these types of dogs, but following a conviction, the court had new discretion in sentencing so that a dog of this type is not always required to be destroyed where an owner was found to have kept a dog in breach of the legislation. Though this does remain as an option for the court.

As well as sentencing the owner of the dog to up to 6 months imprisonment and/or a fine not exceeding £5000, the court can, as an alternative to ordering the destruction of the dog, place the dog on the Index of Exempted Dogs. Only courts can direct that a dog can be placed on the Index of Exempted Dogs ("the Index").

If placed on the Index, a dog is required to be kept in compliance with the strict requirements of the legislation, meaning the owner had:

• To obtain a certificate to enable them to retain such a dog;
• To have the dog neutered or spayed;
• To ensure the dog is permanently identified with a tattoo and microchip(electronic transponder);
• To maintain insurance against their dog injuring third parties;
• To keep the dog muzzled, on a lead in public places; and
• To ensure the dog is not left in charge of a person under the age of 16.

The Control of Dogs Order 1992/901

The Control of Dogs Order 1992 states that the owner of a dog or the person in charge of a dog that is not wearing a collar which provides the details of the owner in a public place shall be guilty of an offence.

Antisocial Behaviour etc. (Scotland) Act 2004

The Antisocial Behaviour etc. (Scotland) Act 2004 contains provisions relating to noise nuisance which can be relied upon in cases of excessive noise created by dogs and makes provision for a fixed penalty notice to be issued.

Animal Health and Welfare (Scotland) Act 2006

Section 34 of the Animal Health and Welfare (Scotland) Act 2006 allows a court to make a "Disposal Order" in relation to animals seized under section 32 (Taking possession of animals to protect them from suffering). A Disposal Order can be for the sale of the animal and the money raised can be used to offset any expenses incurred by the local authority or police.

The Anti-social Behaviour, Crime and Policing Act 2014

Part 7 of the Act deals with dangerous dogs and makes certain amendments to the 1991 Act, such as extending the aggravation contained in section 3(1) so as to apply where a dangerously out of control dog injures an assistance dog.

The Anti-social Behaviour, Crime and Policing Act 2014 also amended the 1991 Act in light of a 2012 High Court judgement (the Sandhu judgement) which ruled that the 1991 Act did not allow the court to consider the character of the owner when assessing whether the dog posed a risk to public safety. The Act therefore amended the 1991 Act in relation to the test which the court must consider when assessing whether a dog is a risk to public safety by requiring the court to consider the character of the owner, as well as the temperament of the dog and its past behaviour, along with any other relevant circumstances when deciding whether the dog poses a risk to public safety.

The Microchipping of Dogs (Scotland) Regulations 2016

The Microchipping of Dogs (Scotland) Regulations 2016 came into force on 6 April 2016, making it compulsory for all dogs over 8 weeks old in Scotland to be microchipped. The requirements under these Regulations include dogs being implanted with a microchip and having their details registered on a compliant database.

The Regulations set a technical standard for the type of microchip that must be used for the purposes of microchipping a dog under these Regulations. They also set out rules about who may implant a microchip of any kind in a dog in Scotland.

Where associated details are registered on a database and kept up-to-date, microchipping has an invaluable role in re-uniting lost or stolen dogs with their keepers. The Regulations help improve the effectiveness of this process, cutting time and costs associated with kennelling strays.

Dogs (Protection of Livestock) (Amendment) (Scotland) Bill

This Member's Bill was introduced by Emma Harper MSP on 14 May 2020. It amends the existing law on what is called "livestock worrying", which is where a dog chases, attacks or kills farmed animals.

The Bill increases the maximum penalty to a fine of £5,000 or imprisonment for six months; allows the courts to ban a convicted person from owning a dog or allowing their dog to go on agricultural land; gives the police greater powers to investigate and enforce livestock worrying offence (this includes by going onto land to identify a dog, seize it and collect evidence from it); allows other organisations to be given similar powers; and extends the "livestock worrying" offence to cover additional types of farmed animal.

At the time of writing this Bill was at Stage 1 in the Scottish Parliament. Further information can be found on the Scottish Parliament website at: https://beta.parliament.scot/bills/dogs-protection-of-livestock-amendment-scotland-bill

Local Authority bye-laws

Local authorities can consider bye-law making powers to address a specific problem. For example, if there is an area where dogs are often a nuisance, the matter can be raised for consideration by the council who have powers to make appropriate bye-laws (i.e. to keep dogs on leads in particular areas or to ban dogs from such places such as children's playgrounds).

Local Authority approved dog walker scheme

East Lothian Council introduced a professional dog walker scheme. To be granted approved user status, the dog walking company has to agree to a number of conditions including:

• No more than six dogs to be exercised at any one time
• The professional dog walking company to have relevant pet business insurance
• Dogs to be transported in a vehicle fit for purpose with dogs adequately secured.
• To have a first aid kit designed for dogs
• Dogs to tagged with the professional dog walking company's own company tag whilst under their care and authority.

https://www.eastlothian.gov.uk/info/210630/approved_dog_walkers/12005/dog_walking_services