The rules about changes in keepership of prohibited dogs

If the Dangerous Dogs Act 1991 had been an effective piece of legislation the four classes of prohibitive dogs would have become extinct during the 25 years that the Act has been in force because dogs do not live that long and the Act prohibited breeding from such dogs. Unfortunately, breed was distilled into appearance and it is perfectly possible for a dog to be considered a pit bull type even if it has no pit bull heritage. Once typed the dog is subject to either prohibition or the restricted exemption regime that prevents changes in keepership without the loss of exempted status. As with everything else about this Act the rules about keepership are confused and incoherent and widely misunderstood.

The rules on keepership come from three sources:

The Dangerous Dogs Act 1991
The Dangerous Dogs Exemption Schemes (England and Wales) Order 2015, and:
Decided cases of the Senior Courts.
There is a distinction between an Act of Parliament and an Order. In the case of an Act Parliament has an opportunity to debate the provisions within the Act to ensure its fit for purpose, although our elected masters do not always get that right. An order is subordinate legislation created by civil servants and signed off by ministers. Although such orders are “laid before the House” there are so many of them they receive little scrutiny. Such orders

Section 1 of the Dangerous Dogs Act 1991 defines what a dangerous dog is and creates a number of offences related to them. In particular, the Act makes it an offence to keep such a dog, sell or exchange it or make a gift of it. A person in possession of such a dog can be prosecuted for that offence and if convicted the court must make an order that requires the dog to be destroyed. However, section 4 of the Act provides that provided the court is satisfied that the dog would not pose a risk to public safety the court may make a suspended destruction order and provided all the exemption conditions are complied with and DEFRA issues an exemption certificate within two months of that order the dog can be released into the care of the person named on that certificate.

Additionally, it has never been the case in English that every offence should result in prosecution. If the CPS are the prosecutor they must consider not only whether there is sufficient evidence to prosecute an individual but also whether it is in the public interest to do so. For that reason section 4B of the Act provides a civil scheme that enables an application for a destruction order in respect of a prohibited dog to be made to a magistrates court and again provides that the dog need not be destroyed if the court is satisfied that the dog would not pose a risk to public safety.

In either case when considering whether the dog would pose a risk to public safety the Act requires the court to consider:

the temperament of the dog and its past behaviour, and
whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog.
Additionally, the Court may take any other relevant circumstance into consideration.

To take an example, the police are called to an incident of reported domestic violence. They follow a trail of blood and find a badly injured dog which they seize on welfare grounds and give to an animal charity for appropriate treatment. Later on its decided that the dog is a pit bull type.

What is the charity to do? On the face of it they are committing an offence as they are in possession of the dog, but it would not be in the public interest to prosecute a charity which had been asked to care for a dog by the police. There is nothing to suggest that the dog’s temperament would cause the dog to pose a risk to public safety and the charity was sufficiently respected as responsible keepers to be given the dog to the police. Let us suppose that one of the charities volunteers was prepared to keep the dog under all the conditions. Is that permissible?

On the face of it the court must consider the person who is “for the time being in charge of the dog” they may also consider any other relevant circumstances which might include the fact the dog’s quality of life and the burden on the charity would be much less if the dog were kept by the charities volunteer without any impact on public safety. As the Act confers no restriction on who may be nominated under a contingent destruction order the court has the discretion to nominate the charities volunteer under such an order. How do we know this? Because we were involved in just such a case and we are pleased to be able to say the dog in question is alive and well and enjoying a great life.

What about changes in ownership after exemption?

Part 3 of the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 creates a scheme that enables the transfer of keepership without the dog losing exempted status where the nominated keeper has died or has become to ill to care for the dog.

There may of course be cases where a keeper cannot continue to keep the dog through no fault of their own which are not catered for by the scheme, for example suppose a serving soldier has a dog which has been categorised as a pit bull based on its appearance, but he is deployed on active service for six months. Whilst it might have been a good idea to have included a clause in the scheme which provided for “some other reasonable circumstances” the civil servants that drafted this legislation did not consider that an appropriate thing to do. What should become of the dog?

The answer is to be found in the regulations at Clauses 5(b) and 19 which provide that if the conditions of exemption are not complied with the dog ceases to be exempt. So if the soldier leaves the dog with his wife or family when he is to be deployed then the dog ceases to have exempted status because the dog is not being kept by its nominated keeper. The consequences of a dog losing its exempted status were spelled out by Mr Justice King in a High Court Case, R (Ali) v Chief Constable of Merseyside which was a case brought by this firm with the assistance of Pam Rose of 1MCB following the unlawful summary killing of 27 dogs by Merseyside police because the owners insurance was said to have lapsed. The court held that there was no summary power of execution, but a dog that had lost its exempted status was entitled to all the protection of the court which must consider whether or not to order the destruction of the dog in accordance with section 4 or 4B of the Act.

Would it be just to prosecute a soldier’s wife or family in such circumstances? We think that it would not any attempt to do so would promote public outrage. If sense prevailed the most appropriate course of action would be to leave the dog at home under the interim exemption scheme provided for by the current exemption scheme and for an agreed section 4B application to be presented to the court because the court would be able to consider the qualities “of the person for the time being in charge of the dog” and any other relevant circumstance.

Are we sure about this? Yes, we are. We have used this argument previously with success and are continuing to do so.

It is important to remember that this is very badly drafted legislation and that it does not always say what the police or DEFRA wanted it say or thought it should say.

James Parry

Parry and Welch Solicitors LLP