The Dangerous Dogs Act 1991

This section comprises an overview of this specific legislation, liberally sprinkled with a personal view of its injustices and inadequacies. Although there is other, much older legislation that deals with out-of-control dogs, namely the Dogs Act 1871, this civil law is far less commonly used and will not be discussed here. The vast majority of cases in which I have been involved are brought under the more recent Dangerous Dogs Act 1991, under which both civil and criminal charges may be brought.

The sections of the UK Dangerous Dogs Act (DDA) of most relevance are Sections 1, 3 and 4b. Sections 1 and 3 are both criminal offences whereas Section 4b is civil. Section 3 applies to dogs of any breed, deemed dangerous because of what they have done whereas Sections 1 and 4b apply to dogs deemed dangerous purely by appearance, so-called breed-specific legislation or BSL. An owner whose dog is of a breed automatically labelled dangerous, and in addition has done something deemed dangerous, will be charged under both Sections 1 and 3 of the Act. Section 4b is reserved for owners of dogs who have not behaved dangerously but are thought to be dangerous by appearance. All dogs thought to look dangerous are mandatorily seized by the police and taken into custody, apart from those dogs and their owners deemed eligible for the Interim Exemption Scheme (IES). Introduced in 2015, the IES allows friendly, non-aggressive dogs, if owned by law-abiding citizens, to remain at home under certain conditions prior to cases coming to court. Not all police forces use this scheme to date; notably, the Metropolitan Police do not.

There is discretion regarding the seizure of dogs which have behaved dangerously. If allowed to remain at home, an interim control order may be made to minimise risk. If the risk of ‘recurrence’ is thought to be too great, a dog will be seized to ‘protect the safety of the public’. Such seizure may, however, not occur for some time after the incident itself.

The main financial and practical significance to any dog owner falling foul of this law is that, if charged under 4b, the civil offence, legal aid is unavailable. Legal aid is only available for criminal offences, i.e., if charged under Sections 1 and/or 3. The practical result is that if charged under 4b, defendants have to foot the bill of any legal action themselves or find other means of financial support. However much they believe their dog not to be of a banned breed or type, they may simply be unable to afford the cost of mounting a defence.

Sections 1 and 4b of the Act apply to four dogs – the Pitbull terrier, Japanese Tosa, Dogo Argentino and Fila Braziliero, the proscribed breeds. All considered under the law to be fundamentally ‘fighting dogs’, it is illegal to own, breed from, sell or give away any such animal. The only dog which does not have a UK-recognised breed standard by which to be identified is the Pitbull terrier. However, this is the only ‘breed’ of any significance in this country, only a handful of the other breeds ever being found in the UK. In 1993 when it was realised that breed identification was problematic, to say the least, case law determined that the ‘type’ of dog should be considered instead of breed. As no breed standard for the Pitbull terrier exists in the UK, the American Dog Breeders Association (ADBA) standard, as created in 1974, was selected as the yardstick by which any dog suspected of being a Pitbull type was to be assessed.

Initially when the law was passed, and the owner was found guilty of this crime, it was mandatory for the dog to be destroyed. But in 1997, the law was amended to allow such dogs to be entered onto an Exempt Register providing certain conditions were met. Conditional Destruction Orders were introduced, the conditions of which included that the dog must be permanently identifiable (initially by tattoo, now by microchip), kept muzzled and on lead at all times in public, neutered and insured for third-party liability. Any contravention of these conditions could result in the dog’s destruction.

These conditions were all thought to contribute to public safety. Furthermore, the owner had to be considered a ‘fit and proper’ person and the dog itself had to be shown ‘not to constitute a danger’ to the general public. The fact that only human-friendly, non-aggressive dogs are allowed onto a register for dogs deemed automatically dangerous by breed type and conformation is a supreme irony.

If the owner is thought unsuitable or not fit and proper, the dog can only be given into the care of a person who is already familiar with the dog. They may then apply to become the registered keeper of the dog although ownership does not change. If no such person is found, however good and ‘non-dangerous’ the temperament of the dog, it must be destroyed.

In addition to these caveats and restrictions, Sections 1 and 4b of the DDA unusually carry a reverse burden of proof: in other words, the defendant is guilty until proved innocent, in contrast to almost all other legislation. The onus is therefore on the defendant to prove his dog is not of the type, rather than on the prosecution to prove it is. The standard of proof is, however, less than other cases. Instead of a case having to be proved beyond reasonable doubt, the lesser burden of proof, on balance of probabilities, is supposed to lessen the onus on the defendant. In practise, however, and perhaps cynically I have found the opposite to be true. ‘On balance of probabilities’ seems to be interpreted rather along the lines of ‘no smoke without fire’. If there is some doubt that the dog is of type, yet a charge of owning a Pitbull has been brought by the authorities (the ‘smoke’), then it is assumed that a ‘fire’ must exist and the dog in question ‘probably’ is indeed a Pitbull type.

Determining type rather than breed has resulted in almost any short-coated, well-muscled mongrel dog being at risk of being labelled a Pitbull by the over-zealous authorities, particularly if in the hands of a person who has already come to their attention for other reasons and is deemed ‘dodgy’. As previously stated, whether the dog has behaved in a dangerous manner is immaterial. Staffordshire Bull terriers and crosses thereof are the most likely to be caught up in the net, but even purebred American Bulldogs and crosses of Weimeraners, Neapolitan mastiffs, Dogges de Bordeaux, Rhodesian Ridgebacks (even with ridge!) and Boxers have all been identified by the police as Pitbulls. Type, like beauty, would appear to be in the somewhat prejudiced eye of the beholder.

This indiscriminate inaccuracy is compounded by the reverse burden of proof, which means that no evidence whatsoever has to be routinely provided by the prosecution to the court as to why a police Dog Legislation Officer considers a particular dog to fall into the category of ‘type known as the Pitbull terrier’. ‘If I say it is, then it is!’ is more or less the assertion by seizing officers, and courts are duly guided by a single sentence in an officer’s statement to this effect in order to pronounce guilt. In addition, owners may be put under a great deal of pressure to forgo any attempt to disagree with these ‘experts’. The ‘carrot’ of having their dog returned to them in a matter of weeks, rather than months, if not years, provides irresistible emotional persuasion to give in and admit ‘guilt’ in order to get their dog home as quickly as possible, even with completely unnecessary restrictions.

The upshot is that the vast majority of dogs are entered onto the Exempt Register without any second opinion or accurate determination of the degree to which a dog conforms to the ADBA breed standard. There is also no recognition of how many characteristics of certain ‘non-dangerous’ breeds may be shared.¹ This is despite the rather nebulous and circular case law caveat stating the following:

¹The result has been what can be described as a form of visual ‘Chinese Whispers’, in which the myth of what composes a Pitbull is ever enlarged and distorted.

Those owners who are sure that the police have got it wrong may seek a second opinion but, particularly if self-funding, it is very much an uphill struggle for them as affording a defence often proves impossible. Without the financial means to engage legal representation, they have no way to oppose the police view and are forced to plead guilty by default.

Yet the number of these mongrel dogs entered onto the Exempt Register by these, at best, questionable means is used as evidence of the law’s success. To date, the government has been persuaded by the powers-that-be that the law must remain unchanged as it has supposedly cleared the streets of so many ‘dangerous’ animals.

And what of the facts?

From 2007 to 2018, I personally assessed 198 dogs all alleged to be Pitbull types, bearing in mind that these cases only represented owners who had both the temerity and the necessary financial wherewithal to disagree with the opinion of the police. Of these 198 dogs, 26 of them (13%) had also done something the law defined as ‘dangerous’, namely, the nebulously termed condition of being ‘dangerously out of control’. (Ironically, as stated above, the owners of these 26 dogs which had actually done something dangerous and therefore had also been charged under Section 3 of the Act were eligible for legal aid.) Of these 26 dogs, in all cases, people were bitten: eight while ill-advisedly intervening during dog-on-dog incidents, five cases were as a result of owner conflict with the police while resisting arrest, three cases featured groups fighting with each other in the street and two ‘domestics’. The remaining few cases similarly reflected human rather than canine failing – an owner drunk in charge of his dog who ran off and nipped playing children, a dog left unattended outside a shop (the proverbial accident waiting to happen) and a ‘victim’ kicking an approaching off-lead dog in panic.

Of the total of 198 dogs, I assessed only four dogs as truly dangerous in that there was real risk of them biting again. Apart from the finding during the assessment that the dogs needed little discernible provocation to display aggression, given their past history, the bites inflicted were likely to be very serious, even in the most capable hands. I therefore recommended euthanasia for these four.

What of cases under Section 3 of the Act?

This applies to any dog that has done a ‘dangerous’ thing and, as such, the owner is charged with allowing the dog to become ‘dangerously out of control’. In other words, being ‘dangerously out of control’ is defined as a dog that has injured or put someone in fear of injury. (Charges arising simply because a potential victim was frightened by a dog are much less common as a case is harder to prove. An injury, on the other hand, speaks for itself.) To put the circular definition the other way round, if a dog injures, it is assumed to have been dangerously out of control at the time, however brief the moment in time happened to be. Even a dog on lead and sitting by his owner’s side just prior to biting may be deemed ‘dangerously out of control’, a fact of which few owners are aware. Standard physical control methods alone are not enough to ensure lack of danger, either in the eyes of the law or in reality.

Of course, ‘behaving dangerously’, as defined by what transpired in one moment in time, is not the same as ‘being dangerous’ per se any more than losing one’s temper on occasion is evidence of psychopathology. While they may well accept that their dog has bitten, many owners quite understandably baulk at the assumption that their dog is dangerous. I have found a complete cross-section of breeds involved over the last 20 years and, although the Staffordshire Bullterrier seems over-represented, this may be simply a reflection of its present popularity and the density of the breed and crosses thereof in certain areas of the country. Out of 144 cases, more than one-third of offences arose from dog-on-dog incidents. Although the true target of a dog’s aggressive intent had been another dog, aggression was redirected towards a person. Social frustration between dogs appears to be a major cause of inadvertent bites and other injuries to people, including the dog’s owner themselves. One does wonder whether measures imposed and taken in attempts to keep people safe, such as restricting the freedom of dogs, have backfired and inadvertently created more antisocial canine behaviour. Owners may also have become more cautious and overly protective of their dogs in view of the threat implicit in the legislation.

In other cases, as under Section 1, ‘bad’ human behaviour in terms of violence and alcohol consumption featured strongly as well as complete lack of awareness of the stressful and alarming effect unpredictable human behaviour, particularly that of children, can have on dogs. It has become abundantly clear that dog bite incidents are largely unforeseen events, by either owner or victim, and that punishing a misdemeanour after the event alone, with no education as to what led to the bite or its prevention, is doomed to failure.

Although the number of dog bites overall seemed to be rising rather than falling as intended, in the dubious wisdom of those in charge, a law that was spectacularly ineffective in public was in 2014 also applied to private places. Consequently, all the mistakes that were being made in public now could result in an offence being committed on private property as well. As could have been predicted, similar (at best misguided and at worst appalling) human behaviour was evident in dog bite cases occurring at home. Drunken rows, thrown food, girlfriend accusing boyfriend of ‘commanding’ a dog to attack her, children attempting to pick up or otherwise disturb sleeping dogs, even, on one occasion, putting a basket over a dog’s head to ‘protect’ it from a thunderstorm, all resulted in ‘dangerous dog’ allegations. As in public, dogs pushed beyond the limits of social endurance have been forced to bite by an onslaught of ignorance.

Consequently, prosecutions and convictions of dog owners rose and were heralded as evidence of an effective law. Yet as with Section 1 of the act, Section 3 is fatally flawed.

Firstly, the offence of allowing a dog to be ‘dangerously out of control’ is, like speeding, a strict liability offence and, apart from rare cases where the identity of the canine culprit is in doubt, a guilty plea is mandatory. At least if there is a risk of driving too fast, drivers are given clues as to how to avoid offending by way of speedometers in their cars and roadside warning signs. There is no such equivalent knowledge made clear to prevent a dog biting, and the owner is charged out of hand.

Finding someone who can be conveniently blamed for allowing their dog to bite does not equate to identifying cause, the reason why the bite occurred. Only by identifying cause and using this information in a pre-emptive and educational manner will there be much hope of a reduction in incidence of dog bites. I made a suggestion as to how the problem could be redressed by likening current speed awareness workshops with proposed courses giving vital information regarding dog behaviour (Shepherd 2013). They could be offered in the same way, the reward for attendance being the avoidance of further punishment. As with speeding, there are very common causes and contributory factors to dog bite incidents. Highlighting these should serve to alert dog owners to the conditions and events that led up to a so-called unpredicted dog bite incident and enable avoidance of reoffence.

Secondly, provocation is not permissible as a defence under UK law. If thoroughly investigated and analysed from the dog’s perspective, mitigation for the dog’s actions can be brought, stressing all the while how fundamental ignorance on the part of both ‘victim’ and dog owner is a major contributary factor. Such mitigation may be sufficient to reduce a sentence to the minimum, but a guilty plea is mandatory all the same.

The result of the strict liability nature of the law has been the fact that dog bite incidents have never, in the history of the DDA, been investigated properly by the authorities, as they should be if it were any other crime. In the normal way, evidence would have to be brought to court to prove the case. As it is, if the identity of the perpetrator is undisputed and ‘the dog did it’ is sufficient to secure a conviction, another proverbial open and shut case goes down in history. Add this to the fact that provocation is not allowed as a defence, there has never been any onus or responsibility imposed upon people to behave sensibly and respectfully around dogs. The fact that certain breeds have been designated as dangerous has created the unforeseen assumption among the public, dog owning or not, that other breeds are safe. The law in all its aspects has created a false sense of security.

The ramifications of all these legal imperfections are far reaching. Common criticism levelled at the breed-specific aspects of dangerous dog legislation concludes that it is unjust, illogical, inhumane and, above all, in no way fulfils the original purpose of the law, namely that of dog bite prevention. Breed Specific Legislation has been roundly condemned by high-profile organisations and the general public alike. In particular, the RSPCA’s thoroughly researched report on Breed Specific Legislation published in 2016, aptly named ‘A Dog’s Dinner’ (www.rspca.org), added well-argued weight to their ‘End BSL’ campaign.

In addition, the Environment, Food and Rural Affairs (EFRA) Committee conducted an enquiry in 2017 into the whole issue of ‘dangerous dogs’ and the efficacy of legislation. The enquiry was conducted under the auspices of Neil Parish MP, and its report was published in September 2018. The conclusions reached included that the current legislative approach was thoroughly ineffective and that urgent changes were indicated to avoid needless dog deaths. The report strongly recommended comprehensive public education regarding the nature and cause of canine aggression. Despite these conclusions, no change to the legislation has occurred at the time of writing and the government response to this report was generally disappointing. It did, however, provide some light at the end of the legal tunnel. Among recommendations made were that the ‘Government should commission an independent review of the effectiveness of the Dangerous Dogs Act 1991 and wider dog control legislation.’ Also there should be carried out a ‘comprehensive independent evidence review into the factors behind canine aggression, the determinants of risk, and whether the banned breeds pose an inherently greater threat’.

This is currently being undertaken by Angus Nurse, Associate Professor of Criminology and Sociology at Middlesex University.

Both the EFRA report and government response to it can be found here in PDF form:

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