The Criminal Law Dealing with Dangerous Dogs
No. 181/2021
6 May 2021
Our Ref: P18/21
To: All Branches
Dear Colleagues,
“The Criminal Law Dealing with Dangerous Dogs” – Scottish Government – Dog Control Laws Consultation – Response of the Communication Workers Union & UK Dog Law Implications:
This report is being issued further to LTBs 055/21, 014/21, 536/20, 568/19, 553/19 and 444/19.
Branches and Regions will be aware of the Health, Safety & Environment Department’s concerted lobbying of the Scottish Government, calling for a review of Dog Control Laws in Scotland and its enforcement.
Update reports have also been given to the RMG/CWU/Unite CMA National Joint Dog Awareness Working Group.
The re-launched ‘Bite-Back’ campaign in Scotland resulted in winning the support of all political parties from which, a Motion tabled by Scottish Nationalist Government backbenchers was supported by all parties (SNP, Labour, Conservative, Lib Dem and Greens) and was carried unanimously in the Scottish Parliament.
This in turn led to a formal inquiry by the Scottish Parliament’s Public Audit and Post Legislative Scrutiny (PAPLS) Committee which produced a report consisting of 31 recommendations with key findings which supported the CWU campaign objectives.
The Scottish Government’s Public Audit and Post-legislative Scrutiny Committee concluded that:
The Control of Dogs (Scotland) Act 2010 has had limited effect in preventing or reducing the number of dog attacks in Scotland.
The current dog control law is not fit for purpose.
The Scottish Government undertakes a comprehensive review of all dog control legislation without delay, with a view to introducing modernised, fit for purpose, consolidated dog control legislation.
In the interim, the Scottish Government should improve the implementation of the 2010 Act.
31 Recommendations were made in the Inquiry Report.
The Minister for Public Safety Ash Denham gave an assurance to the Parliament and the PAPLS Committee to meet me on behalf of the CWU. Following the PAPLS Report and Parliamentary debate, two meeting with the Minister took place in the Scottish Parliament in Edinburgh with the Scottish Government Minister Ash Denham (Minister for Community Safety) and Jim Wilson Scottish Government Justice Directorate/Head of Communities and Public Services to discuss dog control and the dialogue with Government officials has continued.
Both Ash Denham and Jim Wilson reiterated and emphasised that the Scottish Government is committed to responsible dog ownership to help keep communities safe. Jim Wilson has subsequently stayed in contact with CWU/HQ and monthly update calls have taken place.
Assurances have been received that the deficiencies in Scotland’s dog control laws, as set out in the PAPLS report and the detailed submissions of the CWU were fully recognised and would be addressed.
At the launch of this public consultation the Minister for Community Safety said “We are determined to keep Scotland’s communities safe from these irresponsible owners and their dangerously out of control dogs. This new review is focused on steps that might be taken to improve how the criminal law deals with individuals whose dogs pose a danger to the public.”
Following an earlier consultation in 2020, the Scottish Government published updated statutory guidance in respect of the operation of the Control of Dogs (Scotland) Act 2010 and the use of Dog Control Notices which is helpful. (See LTB 014/21).
The second consultation promised by the Minister and by far the more important one was published on the 5 February and this deals with the central, key issues that we have highlighted as needing amendments to the criminal law dealing with dangerous dogs.
Section 3 of the 1991 Act 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.
The Consultation centres on three key areas of the law asking three main questions;
Firstly, the Consultation explains that Scotland has taken a different approach to the statutory interpretation of the section 3 offence (dangerously out of control) as compared with England, Wales & N.I. and section 10.3 (reasonable apprehension) and points out that Scottish courts’ interpretation of the law (and indeed the Crown Office and Procurator Fiscal Service – COPFS) means that prior actions of the dog (bites, attacks, aggression) and the fact that the owner knew about them was required (in Scotland) to be established in order for an offence to be prosecuted, committed and convicted. (This has led to the unwritten “One Free Bite” Rule).
As such the Consultation Paper acknowledges fully the points we have been arguing strongly and notes that the existence of this requirement as part of the offence can prove to be a difficult evidential hurdle, as the Police and prosecutors are required 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. This results in many prosecutions not being proceeded with and convictions not being secured – regardless of any injury (or death for that matter) suffered as a result of a dog attack. Criminal law in Scotland requires ‘corroboration’ of the essential elements of a criminal offence.
Interestingly, the Consultation Paper lists example cases tried in the courts of Scotland in comparison with similar cases tried in the courts in England and Wales which were interpreted quite differently.
The Consultation was set up to seek views on possible revised approaches to dog control criminal law with three main questions central to the Consultation:
Question 1 – Should the law place an absolute (strict) responsibility on dog owners as to the behaviour of their dogs?
This is a position that the CWU has strongly argued in favour of as opposed to staying as it is now in Scotland where the law and prosecutors requiring evidence that there was some knowledge on the part of the dog owner or person in charge of a dog that the dog would act in a dangerously out of control manner and evidence of past incidents, attacks, aggression etc., (Re: the ‘One Free Bite Rule’).
Question 2 – Should there be more effective powers for ‘seizure of dangerous dogs’ by Police and Dog Wardens?
Presently the Police have to secure either a time consuming Court Order or Warrant to seize and make safe a dangerously aggressive animal that may have been involved in serious attacks and Local Authority Dog Wardens or Officials have no seizure powers at all. The CWU has consistently supported strengthening dog seizure powers.
Question 3 – Asks if the current complex and numerous pieces of separate Dog Control Laws should be consolidated and again the CWU has supported this from day one of the ‘Bite-Back’ Campaign.
See attached copy of: Scottish Government Dog Control Laws Consultation – “The Criminal Law Dealing with Dangerous Dogs” – Response of the Communication Workers Union.
The 10 page CWU response goes into detail covering the Union’s current views on the Criminal Law dealing with dangerous dogs, its shortcomings and areas needing change, both the law and its enforcement. The Introduction sets out the Union’s role and our membership being by far the largest group of victims in the UK and as such the nation’s biggest stakeholder. There then follows sections on:
Introduction
Dog Attacks on Postal Workers
The Dog Control Laws Consultations
Public Audit and Post-Legislative Scrutiny (PAPLS) Committee Inquiry
PAPLS Committee Report Key Findings
Key Changes Required to Dog Control Laws (21 points from CWU)
Postal Worker Example Cases
Overview on why the Dog Control Laws and enforcement have been a complete failure and labelled a ‘National Crisis’ by the PAPLS Committee (37 points from CWU)
Consultation Questions and CWU response
Graphic Images of Postal Workers injured in Dog Attacks
UK Dog Control Law Implications
The Dangerous Dogs Act 1991 and its amending legislation was of course dealt with by the UK Government in Westminster. Therefore, the action being considered positively in Scotland has implications for Central Government and the Union wants change across the UK. In Westminster there have been two EFRA Parliamentary Select Committee Enquiries (with oral and written evidence from the CWU) and the DEFRA Ministry in 2018 commissioned research by Middlesex University to look into the Dog Control Law. That research is only just reaching a conclusion and final publication will be in mid-2021. It was back in June 2018 when I gave evidence to the last EFRA Select Committee Inquiry into Dangerous Dogs Law and little has changed for the better. In fact, in many respects the situation has got worse! A detailed letter has therefore been sent to the DEFRA Secretary of State and Minister of State plus the Chair and members of the DEFRA Select Committee, setting out the below points;
We in CWU and Royal Mail continue to experience difficulties with (a) Failure of Crown Court Judges and Magistrates to understand the law and continual misinterpretation of the law particularly in relation to dog bites through the letter box where they wrongly try to apply ‘Regina v Robinson–Pierre [2013]’ or ‘The Householders Defence’.
Postal Workers are frequently attacked by dogs through letterboxes (over 1000 attacks in the last 5 years) often with devastating consequences. Many have lost one or more fingers whilst undertaking this important public service.
The absurd situation is that whilst the majority of ‘finger through the letterbox bite cases’ coming before the Courts result in defendants pleading guilty and being convicted for this, in other locations we have had judges wrongly throw the cases out of court before even hearing the case.
Royal Mail Group solicitors have taken one of these cases to the Appeal Court and won with the High Court judge instructing the Crown Court to reinstate the case and proceed to trial.
A second Appeal against a Magistrate’s decision to throw out a case is also going to appeal.
The irony of all this is that when the legislation went through Parliament, the Minister made it crystal clear that dog bites through the letter box are an aggravated S3 DDA Offence.
To be clear – the trespasser defence does not apply to hands through letter boxes, but because of the courts getting this wrong, we have asked in Scotland and it’s needed in Westminster, that the law states that ‘postal workers be excluded from the Householder Defence in this regard.’
Any definition should capture the situation where persons are bitten when legitimately posting through letterboxes. Postmen and women are frequently attacked by dogs through letterboxes often with devastating consequences. Many have lost one or more fingers.
It is unclear to members of the public whether the act of a postal worker’s fingers crossing the threshold of a building to post an item through a letterbox is a trespass. In a number of cases brought by Royal Mail in courts in England and Wales, defence lawyers have sought to rely on the ‘Householder Defence’ to avoid liability. We therefore need the Government to protect postal workers by ‘specifically’ excluding such cases from the ‘Householder Defence’ when they are acting in their postal services act, postal worker capacity. Such steps will make it clear to householders that they must take steps to prevent dogs biting through letterboxes, e.g., by fitting a letterbox cage or keeping the dog away from the front door.
In the case of Regina v Robinson-Pierre (2014) 1 Cr.App.R. 22. The court considered whether the unforeseen act of a third-party vitiated the offence. The case involved the deliberate unforeseen action of a third party (the Police executing a warrant) who were the sole cause of the dog’s escape following which it attacked and badly injured them. The unforeseen action was the officers breaking down the door to execute a search warrant.
The unique circumstances of that case added further considerations to the already difficult statutory formulation. The court held that “S3(1) requires there to be an act or omission of the defendant (with or without fault) that to some (more than minimal) degree caused or permitted the prohibited state of affairs to come about”.
Therefore, the question for the court is therefore not whether the consequences ought to have been foreseen by the defendant, but rather, it is whether the defendant caused the prohibited state of affairs to exist.
This complex interpretation has led to unjust consequences. In R v Mooney (heard on the 15th and 16th November 2017 in the Crown Case sitting in Liverpool), a postman’s finger was bitten off by a dog through a letterbox by Mooney’s dog. The defendant admitted that the dog would often attack the letterbox and snatch the mail from the letterbox as it was posted through. The owner had failed to take any steps to prevent this from happening. However – seeking to apply Robinson-Pierre, the Judge considered that ‘because the dog did not bark at the time of the attack’ (some dogs do bark in fact and many do not before attacking), the owner was not alerted to the fact the dog was out of control’. As a result of this perverse judgement, the court wrongly dismissed the charges before the trial jury could consider the case. The Judge got it totally wrong and this is an unacceptable conclusion.
S10(3) is in need of amendment as the courts struggle with the interpretation of the “reasonable apprehension” clause. In Section 10 (3) – the problem is that this section, for a prosecution to be successful, the person responsible for the dog must have had “reasonable apprehension” that the dog might attack. This is a higher bar to clear than section 1 of the DDA (where a dog has to be of one of the banned breeds) and has become much more so as courts have progressively raised the level of proof required for “reasonable apprehension”. Scottish courts have interpreted “reasonable apprehension” to mean that the dog must have previously attacked someone. This is known as the unwritten ‘One Free Bite’ rule. Further, if the dog is passed to a new owner, then the dog is allowed another ‘One Free Bite’ due to this interpretation of “reasonable apprehension”. This is absolutely absurd.
Imagine a situation of a dangerous driver causing the death of a pedestrian but the offender being let off because firstly he hadn’t done it previously (‘One-Free-Bite’) and secondly, he had no reasonable apprehension that he would run a pedestrian down despite driving without care and attention at high speed!
Owning or being in charge of a dog is a choice that comes with significant responsibility and owners must take this responsibility seriously and take necessary steps to protect others.
Lack of enforcement by the Police and CPS (COPFS in Scotland) is also a major, major ongoing concern. Serious aggravated S3 offences with dogs attacking our members and causing major, severe injuries are ignored by a number of Police forces who flatly refuse to prosecute and simply inappropriately dispose of the cases with warnings or informal resolutions. As a result, Royal Mail Group is having to take out around 15 private prosecutions a year through the courts (cases the Police and CPS should be taking). Virtually all of them result in conviction. Most plead guilty!
The courts are also not handing down appropriately tough penalties and are inconsistent with sentencing in the majority of cases which adds insult to injury.
As we in CWU and Royal Mail Group say – the law should be clear and strict liability/absolute responsibility on dog owners as to the behaviour of their dogs with the focus on the dog owners/person in charge constantly risk assessing danger. There are already checks and balances in place for the CPDS, PF and courts to manage what are seen as unintended consequences e.g., ’not in the public interest to prosecute’ the owner of a dog if a burglar breaks into a garden shed being attacked by their dog or if a dog owner is subject to an unprovoked attack in the street and the dog responds to protect the owner. There is no need to complicate the law. It should be clear for everyone to understand.
The law should start with a presumption that any dog may bite and place a positive duty on owners or persons in charge of dogs to take reasonable steps to ensure the dog does not cause injury to anyone (whether or not it actually does so). It should be clear that the Act places an evidential burden on the dog owner to consider what could reasonably happen and that it does not matter that the dog has never shown a propensity to bite before.
The burden of proving “reasonable steps” should be placed upon the owner/person in charge at the time. The reasonable steps should be judged objectively according to the circumstances including, but not limited to, the type of dog, size and strength of the dog, the breed of dog, the age and suitability of the defendant and where the incident occurred. For example, it may be reasonable for an experienced owner to allow a Jack Russell to run around an empty field off a lead without a muzzle at 7am; however, it may not be reasonable for an experienced owner to allow the same dog to run around off a lead without a muzzle in a park on a sunny bank holiday where a number of children are playing. It should be clear that it does not matter that the dog has never shown a propensity to bite before. Both the owner and person in charge (if different) may be prosecuted for the same incident.
In a case from 1993, the Court of Appeal for England and Wales made it clear that the DDA imposed absolute liability upon the owner or the person for the time being in charge of a dog regardless of whether the dog had shown a tendency to be aggressive in the past. The court said:
“It is no defence that the owner had no realisation that his dog might behave in such a way and that it was for the owner to ensure that it did not do so”.
It went on:
“It is urged [by the defence] that an owner may have no realisation that his dog is liable to behave in a way which will cause injury to anyone until, for example, a child pokes the dog with a stick and the dog reacts. That, indeed, may be the case. But it seems to us that Parliament was entitled to do what in this piece of legislation we find that it has done, namely to put the onus on the owner to ensure, if that is likely to happen, that he takes steps which are effective to ensure that it does not, either by keeping the dog on a lead or keeping the child away from the dog or whatever may be appropriate in the circumstances”.
Key points:
Out of control dogs remain a significant risk to postmen and women and the communities Royal Mail and Parcelforce (RM Group) serve.
In our experience, the Police and CPS are failing badly in their duty to enforce the law.
The courts are struggling to understand and apply the law correctly.
Hence our support for the reform of DDA Section 10 (3), placing an absolute responsibility on dog owners as to the behaviour of their dogs.
We also support a strengthening of Police and local authority powers to seize dogs.
We support consolidation of existing legislation.
Out of control dogs pose a daily risk to the safety of postmen and women. Dog attacks are a significant hazard faced by postmen and women on a daily basis. Approximately seven postmen and women are attacked by dogs every working day of the year across the UK. Some attacks lead to a permanent disabling injury or months of surgery and rehabilitation. While we are lucky not to have had an employee killed by a dog, a number of attacks have been extremely serious with life-changing consequences.
The growth in online deliveries has greatly increased the number of deliveries that can only be made if someone is present to open the door and receive the package. This increases the risk of this type of dog attack. This can be minimised by responsible owners taking some simple, practical steps such as keeping their dog in another room when answering the door. Don’t let children open the door with a dog running loose in the house. Fit a letterbox cage to collect mail and protect postal workers’ fingers.
In respect of the location of dog attacks on postmen and women; typical attacks include bites on fingers through letter boxes, attacks by dogs loose on property (e.g., front gardens and driveways) and attacks when recipients open front doors to meet a postal worker seeking a signature or seeking to deliver a package too large for the letter box. It is notable that the growth in deliveries of items ordered on the internet has greatly increased the number of deliveries which can only be made if someone is present to open the door and receive the package. 82% of the attacks occur at the front door or on the garden path to the door.
With regard to the types of injury; the injuries sustained by postal workers vary in degree from relatively minor injuries, such as scratches, to very serious attacks causing major wounds, disfigurement, mutilation and employees left with life changing injuries. The injuries suffered include loss of fingers; severe injuries to legs, arms and the face; and the need for skin grafts and plastic surgery. Months of rehabilitation often follow.
In two of our more serious incidents, both similar, the postman was mauled by two large dogs (Pit Bull Terriers in one case and Rottweilers in the other) which had escaped from an insecure property and launched their attacks. Both postmen suffered serious leg, arm and chest injuries and lost a significant amount of blood. They were both in intensive care for a period. Both nearly lost an arm. They were left with permanent scarring and on-going physical impairment and mental health problems.
In a third case a small postwoman could have been killed when attacked by two Dobermans, suffering serious injuries. The attack was only stopped by the intervention of the owner who managed to drag the dogs off just in time.
We support the suggestion to consolidate existing legislation in to one simplified Act that is fit for purpose. This would make it easier to prosecute.
We are keen to continue working with the Governments of the UK to promote responsible dog ownership and ensure dog control law is fit for purpose. The CWU ‘Bite-Back’ Campaign continues.
Any enquiries should be addressed to Dave Joyce CWU/HQ Health Safety & Environment Department.
Yours sincerely
Dave Joyce
National Health, Safety & Environment Officer