Dog Law Information - Dog Owner's Guide June 2010

                                        
New Dog Control Law for Scotland:

The Control of Dogs (Scotland) Act 2010 has now been approved by the Scottish Parliament (being passed by parliament on 22nd April 2010) and received Royal Assent on 26th May 2010 - the provisions of the Act come into force at the end of nine months from this date.

The new law will affect dog owners and their dogs in two major ways:

1) Firstly section three of the Dangerous Dogs Act 1991 (DDA) which applies to ALL dog regardless to breed or type will be different in Scotland. This new law extends the criminal liability of a person where a dog is dangerously out of control under section 3 of the 1991 Act to all places.

2) Secondly the introduction of the ‘Dog Control Notice’ (DCN) which can be imposed on the dog’s owner, or the person in charge of a dog if that person has failed to keep the dog under control. Failure to comply with a DCN could lead to a fine and/or destruction of the dog if ordered by the court.

This law will be applied in Scotland (not England and Wales).

The new measures ‘to modernise the law on dangerous dogs’ were originally introduced by Alex Neil MSP (Member of the Scottish Parliament) who produced a consultation document in January 2008 and asked for public written responses regarding his proposals to be sent in by 14th April 2008.

The Control of Dogs Scotland Bill was later taken up by Christine Grahame MSP. The original Bill did contain a reference to a dog's ‘size and power' when considering whether it is out of control for the purposes of issuing a dog control notice; an amendment was later tabled by Patricia Ferguson MSP to remove this reference in the proposed law.

The amendment was debated in the Scottish Parliament on the 22nd April 2010 and was passed by 57 to 42 votes (Christine Grahame MSP voted against the amendment) and the Bill went forward to become an Act – a law.

Deed Not Breed Victory Reported:

The successful removal of the wording 'size and power' contained in the original Bill up to its third and final hearing before the Scottish Parliament led to the spread of the news heading 'deed not breed victory in Scotland'. Several of you have contacted us and asked if breed specific legislation has now been repealed in Scotland. The answer is NO:

Section 1 which bans four types of dog remains unchanged in Scotland. The ‘deed not breed victory’ which was reported was in reference to the ‘size and power’ of a dog, in connection with DCNs, being removed from the Bill before it became a law.

Extension of Dangerous Dogs Act 1991:

The Dangerous Dogs Act was introduced in 1991 and amended in 1997. Section 3 of this law applies to ALL breeds/types of dog regardless of size.

We need to take a brief look at section 3 of the DDA to see how it is altered by the new Scottish legislation – applicable to Scotland, although this is now seen as a blueprint for future legislation changes in England & Wales.

Dangerous Dogs Act 1991, as amended in 1997:

• Under the DDA section 3(1) refers to an offence being committed if a dog is allowed to be dangerously out of control in a public place, if whilst out of control an injury is caused to any person, an aggravated offence is created (liable to more serious penalties).

• Section 3(3) states that if a dog is allowed to enter a private place where it is not permitted to be and it injures any person or there are grounds for reasonable apprehension that it will do, an offence is committed. Injury to any person is an aggravated offence.

• Section 10(3) defines a dog as ‘dangerously out of control’ when – ‘on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so’. (Police dogs are excluded.)

• Section 5(1) refers to the seizure, entry of premises and evidence. Under this section of the DDA a constable or officer of a local authority e.g. a dog warden may seize any dog in a public place which appears to him/her to be dangerously out of control.

Amendments to Section 3 of the DDA (once the law commences):

Section 3 (3) is repealed (no longer exists in Scotland) by the Scottish legislation.

Section 3 (1) is amended; the words “a public place” are replaced by “any place” (whether or not a public place). You will find this amendment in section 10 of the Control of Dogs (Scotland) Act 2010.

This means that all places including a private place where the dog is permitted to be e.g., inside the owner’s home, in the dog’s own garden, will now be covered by section 3 of the DDA which creates a criminal offence.

The following is inserted into section 5(1) of the DDA: “A constable may seize any dog not in a public place (whether or not a dog to which that section or such an order applies) which appears to him to be dangerously out of control”.

This extends powers of seizure for the police to ALL places and means that a constable may now seize any dog not in a public place, in addition to any dog in a public place, which appears to him to be ‘dangerously out of control’ (see definition above).

DDA Section 3 Penalties:

In cases where no injury has been caused to a person, the case will be heard before the magistrate’s court. If found guilty there is a maximum sentence of 6 months imprisonment and/or a fine of up to £5,000.

In cases where any Injury has been caused to a person – an aggravated offence, the case can either be heard before the magistrates’ court or the crown court. If found guilty there is a maximum penalty of 2 years imprisonment and/or a fine of up to £20,000.

If injury has been caused to a person there is a presumption in favour of destruction of the dog unless the owner can prove to the court that the dog is not a danger to public safety. The alternative to a destruction order is a Contingent Destruction Order – conditions can be attached to such an order e.g., providing the owner obeys the order and what it stipulates the dog is allowed to live.

Legislation Repealed:

The Dogs Act 1871 which allows a complaint to be made at a magistrates court that a dog is dangerous and the Dangerous Dogs Act 1989 which gave additional powers to the courts on complaint about a dangerous dog have both been repealed in Scotland by the new legislation.

Any proceedings which have arisen from an incident prior to the commencement of the new legislation are not affected by the repeal.

What is a Dog Control Notice?

A DCN will be served in Scotland by an authorised officer (officer appointed by the local authority-i.e. a dog warden) if a dog has, on at least one occasion, been out of control. The written notice will require that the person brings and keeps the dog under control. A dog is out of control if -

• it is not being kept under control effectively and consistently (by whatever means) by the proper person. (Proper person is defined as either the dog’s owner or head of household if owner under 16yrs of age or someone who appears to have the day-to-day charge of the dog if the owner is not apparent.)

• its behaviour gives rise to -

(i) alarm, or
(ii) apprehensiveness

On the part of any individual, and

c) the individual’s alarm or apprehensive is, in all the circumstances, reasonable.

The new law adds further meaning to the ‘apprehensiveness’ and states that this may be as to-

• the individual’s own safety
• the safety of some other person, or
• the safety of an animal other than the dog in question

One DCN is served per dog i.e., rather than a notice covering the owner or two dogs.

The DCN will also require that the owner notify any change of name or address and within 14 days after the effective date either has the dog microchipped or satisfies the local authority that the dog is already microchipped.

The dog’s owner or an entrusted person (must be over 16yrs, be aware of the DCN & be willing and able to comply) must be in charge of the dog whenever it is in a place where the public have access.

The DCN may also specify other steps if the authorised officer believes they are needed to bring and keep the dog under control or would be conductive to do this, the notice would give a date by which these steps are to be taken.

These steps may include;

• muzzling the dog in a public place or places where the public have access
• keeping the dog on a leash in these places
• neutering a male dog
• keeping the dog away from a specific place (or places) which would be specified in the notice
• owner and dog attending and completing training in the control of dogs (a training course could be specified in the notice)

The DCN will include this information along with the owner’s and dog’s details, the date on which it is served along with the reason why; which will include a description of the circumstances on which the opinion has been reached.

Section 3 of the new Act provides for an appeal against a dog control notice or term of a notice. A summary application appeal can be made to the sheriff within 21 days from the date of issue. The decision of the sheriff is final.

It is a criminal offence to fail to comply with a DCN and this offence is liable on summary conviction to a level 3 fine which is currently up to £1,000.  If a dog’s owner is convicted of an offence for failure to comply with the DCN the court may make an order disqualifying the owner from owning or keeping a dog for a period of time and/or may make an order for the dog’s destruction if the court considers that the dog is dangerous.

The dog’s owner can apply to the local authority which has issued the DCN to discharge or change the DCN, there are several reasons for this set out under the law, for example, if the dog has died or is no longer out of control.

Section 9 refers to dangerous or unresponsive dogs. If an authorised officer believes that serving a DCN would be inappropriate, the local authority may apply to the court for an order for the dog’s destruction. The court can order destruction or remit the case to the local authority for a dog control notice to be served.

A copy of the Control of Dogs (Scotland) Act 2010 can be found here:

Control of Dogs (Scotland) Act 2010
 

The information contained here does not constitute legal advice in and of itself. You must contact a Solicitor for advice before acting upon anything that you read on this web site.

For help with finding a solicitor who has experience with canine legislation - please contact us.

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