Balancing out the new, tougher penalties for owners of dangerous dogs

Trouble caused by irresponsible dog owners has risen sharply in recent years and a number of tragic cases have led to serious, sometimes fatal, injuries to children. To address this, and to ensure greater consistency, the Sentencing Council has issued a new guideline, effective from 20 August 2012, under which those convicted of dangerous dog offences will face significantly tougher sentences. There was also much publicity in April when the Minister for Agriculture and Food, Jim Paice, announced a package of new measures, to include compulsory micro-chipping and extending liability under the Dangerous Dogs Act 1991 in England to all private property (where at present it only covers public places or private places where the dog is present without permission).

The RSPCA, among others, feel that the new measures do not go far enough, but the stricter approach is good news if it has the desired effect of leading to more responsible ownership. It does little, however, for the farmer facing the age-old problem of an out of control dog on his land, for whom shooting it may seem a reasonable and necessary step to protect his livestock. ?The law in this area is far from easy and ?the consequences of getting it wrong ?can be disastrous.

Out of control dogs

The Dangerous Dogs Act 1991 creates offences that cover certain specified fighting dog types (for example, pit bull terriers), but also any dog dangerously out of control in either a public place or a place in which it has no permission to be. A dog is regarded as “dangerously out of control” only where there are reasonable grounds to fear that it will injure a person. An offence is committed by the owner, and/or the person in charge, which is punishable by imprisonment of up to six months, or up to two years if actual injury results. The court can also make a destruction order, and in cases of injury is obliged to do so, unless satisfied there is no danger to public safety.

Under the new guidelines, which must be followed unless it would be unjust to do so, the court must first identify the starting point and range for the sentence to be imposed, by considering key factors relating to the level of harm and culpability. For example, in injury cases, greater harm factors are: serious injury (including psychological harm), sustained or repeated attacks, and a child or otherwise vulnerable victim. Higher culpability factors include: a failure to respond to previous warnings or concerns, goading or allowing goading of the dog and the use of the dog as a weapon or to intimidate

Greater harm and higher culpability will place an offence in category 1, for which the starting point is a prison sentence of six months, within a range which extends from a medium level community order up to eighteen months custody. Once the category has been identified, a more extensive, non-exhaustive, list of aggravating and mitigating factors comes into play, which results in upward or downward adjustment from the starting point. The full guideline can be downloaded from the Sentencing Council website. (sentencingcouncil.judiciary.gov.uk/docs/Dangerous_Dog_Offences_Definitive_Guideline_?(web)_final.pdf)

Unless reasonable grounds to fear ?injury to a person are present, no “dangerously out of control” offence under the Dangerous Dogs Act 1971 is committed, and it may therefore be that this offence is encountered only infrequently by farmers. Where an offence is made out, however, it should be noted that injury to animals is an aggravating factor under the new guidelines, justifying a more severe penalty. Where a dog has shown itself to be dangerous only to other animals, magistrates retain a power under ?section 2 of the Dogs Act 1871, to order ?that it is kept under proper control by its owner or destroyed.

The offence farmers regularly have to deal with is covered by section 1 of the Dogs (Protection of Livestock) Act 1953: where a dog worries livestock on any agricultural land the owner or person in charge of it commits an offence. “Worrying” covers attacking, chasing in a way that may reasonably be expected to cause injury, suffering, abortion or loss of or diminution of produce, or simply being “at large”, that is not on a lead or otherwise under close control, in a field or enclosure containing livestock. “Livestock” is defined as cattle, sheep, goats, swine, horses (including asses and mules) or poultry (including geese or ducks). The penalty is far more limited than under the Dangerous Dogs Act 1991, namely a fine of up to £1,000.

Whenever an offence has been committed, criminal courts are duty bound to consider awarding compensation for any personal injury, loss or damage. The power is intended only for clear and simple cases and is limited in magistrates courts to £5,000 for each offence.

Section 3 of the Animals Act 1971 makes a dog’s keeper liable in damages where livestock is killed or injured, so if the loss cannot easily be assessed, or exceeds the amount awarded in compensation, it may be necessary to bring proceedings in the High Court or a county court.

Dogs, property and ?unnecessary suffering?So what is the position of the farmer ?who shoots a dog? It is possible that he could be prosecuted for criminal damage, for which the sentence can be up to three months imprisonment and/or a £5,000 fine. The question will be whether he had a lawful excuse, which, by virtue of section 5(2)(b) of the Criminal Damage Act 1971, he will have where he acted to protect property which he believed to be in immediate need of protection, and that his actions were reasonable having regard to all the circumstances. In order to succeed ?in his defence, the farmer will have to satisfy the court that immediate action was needed and that shooting the dog was a reasonable response.

If the farmer finds himself sued for damages, for trespass to goods, there is ?a defence available under section 9(1) of the Animals Act 1971. This is more onerous than the lawful excuse defence to a criminal damage charge, and requires the defendant to show that he believed on reasonable grounds that either: the dog was worrying or about to worry the livestock (which for these purposes, means cattle, horses, asses, mules, hinnies, sheep, pigs, goats, poultry, deer not in the wild state, and captive pheasants, partridges and grouse) and there were no other reasonable means of ending or preventing the worrying; or, that the ?dog had been worrying livestock, had not left the vicinity and was not under the control of any person, and there were no practicable means of ascertaining to whom it belonged. There is also a strict requirement to inform the police within 48 hours of the killing or injury, and any failure to do so will prevent subsequent reliance on the defence in civil proceedings.

It is not, however, only property issues at stake. Section 4 of the Animal Welfare Act 2006 makes it an offence to cause unnecessary suffering to protected animals, which include dogs. Section 4(3) lists various relevant considerations, which include: whether the suffering could reasonably have been avoided or reduced; whether the conduct was for a legitimate purpose, such as benefitting the animal, or protecting a person, property or other animal; whether the suffering was proportionate to the purpose; and whether the conduct was in all the circumstances that of a reasonably competent and ?humane person.

The RSPCA generally investigate ?and prosecute animal welfare offences, ?and they will be slow to agree that shooting was a suitable option. Anything other than a single clean shot and immediate despatch could result in prosecution. Offences are punishable by imprisonment of up to six months and/or fines of up to £20,000. ?The court must also consider making an order disqualifying the offender from keeping animals.

The shepherd’s tale

Shooting a dog also gives rise to possible difficulties in relation to firearms which farmers would do well to bear in mind. If a rifle or other section 1 firearm has been used, then, unless one of the conditions on which the certificate was granted covers such use, which is extremely unlikely, there is a real risk of prosecution for failing to comply with the certificate conditions.

Should the farmer pursue the dog to shoot it, then he could be charged with trespassing with a firearm, as happened to sheep farmer Alan Jackson who appeared at Macclesfield Magistrates Court in June 2012. Mr Jackson, known apparently as ‘Bang Bang Jack’, had entered his neighbour’s garden and shot the dog that he claimed to have earlier seen attacking one of his ewes. Fortunately for Mr Jackson, the magistrates were prepared to accept that the circumstances amounted to a reasonable excuse, but the decision could easily have gone the other way.

Firearms offences, except for minor technicalities, almost always attract prison sentences, and have been dealt with increasingly severely by the courts in ?recent years. In front of a different bench, ‘Bang Bang Jack’ might well have become ‘Banged up Jack’.

In any event, regardless of whether a prosecution is brought, shooting a dog will inevitably trigger a review by the police of the farmer’s suitability to continue to hold firearms. They may decide to revoke his certificate(s), and although such decisions can be appealed to a Crown Court Judge ?the outcome is often far from certain. Specialist legal representation is needed. Firearms licensing appeals are expensive and the costs are generally not recoverable even if successful.

The increased measures and tougher sentencing are certainly to be welcomed, and time will tell whether they lead to fewer dangerous dog offences and a more responsible attitude among dog owners. Whatever can be done about owners, ?dogs will continue to chase sheep and ?other livestock if they get the chance, ?and for the farmer seeking to prevent damage to his livelihood, shooting a dog should be approached with the utmost caution and very much as a last resort. If not, he could be replacing one worrying problem with others.