Dangerous Dog Offences

• Introduction
• Evidential consideration - dogs bred for fighting
• Evidential consideration - dogs dangerously out of control (all dogs)
• Public interest considerations
• Selection of charges
• Sentencing

Introduction

This prosecution guidance aims to assist prosecutors with the relevant legislation, evidential and public interest considerations and choice of charges applicable to prohibited dogs and dogs dangerously out of control. The primary legislation under consideration is the Dangerous Dogs Act 1991 although other provisions are addressed under the selection of charges.

Evidential considerations – dogs bred for fighting

Section 1 Dangerous Dogs Act 1991 (the 1991 Act) creates two offences. One concerns the possession or custody of specified dogs bred for fighting: section 1(3). The second concerns breeding, selling and other acts concerning dogs bred for fighting: section 1(2).

Specified dogs

The dogs concerned are:

• the pit bull terrier: section 1(1)(a)
• the Japanese tosa: section 1(1)(b)
• the Dogo Argentino: section 1(1)(c) and the Dangerous Dogs (Designated Types) Order 1991 (SI 1991/1743)
• the Fila Brasileiro: section 1(1)(c) and the Dangerous Dogs (Designated Types) Order 1991 (SI 1991/1743)
• the XL Bully dog: section 1(1)(c) and the Dangerous Dogs (Designated Types) (England and Wales) Order 2023/1164 (“the 2023 Order”).

The effect of the 2023 order relating to XL Bully dogs is:

• As of 31 December 2023 it became illegal in respect of an XL Bully dog to (1) breed, or breed from it (2) sell or exchange it or advertise or expose it for such a purpose (3) give it as a gift or advertise or expose it for such a purpose (4) allow it to be in a public place without it being muzzled or on a lead or (5) abandon it or allow it to stray, by virtue of section 1(2) of the 1991 Act.
• As of 1 February 2024 it became illegal to possess or have custody of an XL Bully dog under section 1(3) of the 1991 Act, unless there is a valid certificate of exemption in place combined with compliance with the conditions specified in the certificate: see The Dangerous Dogs (Compensation and Exemption Schemes) (England and Wales) Order 2023 (“the Compensation and Exemption Order”).

Paragraph 7 of the Compensation and Exemption Order sets out what a certificate of exemption must include, including the need for the dog to be muzzled when in a public place, in addition to which paragraphs 8, 9 and 10 set out requirements for insurance, neutering and microchipping. The authorities on what constitutes a public place are likely to apply when considering whether or not a dog needs to be muzzled. See for instance the effect of Bates v DPP [1993] 2 WLUK 354: a dog which is in a car should be muzzled when the car itself is in a public place. The dog however can be exercised in private grounds, paddocks or other places not accessed by the public in general.

In relation to other dogs the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 applies.

The prohibitions in the statute relate to dogs of a “type” which is wider than “breed”. In R v Crown Court at Knightsbridge ex parte Dunne; Brock v DPP [1993] 4 All ER 491, DC, the court made clear that section 1 applies to dogs who have a substantial number of the physical characteristics of the prohibited breed. This is a question of fact for the court to decide. As regards pit bull terriers, the court is entitled to use the standards set out by the American Dog Breeders’ Association. By extension, the court might have reference to similar authoritative standards when dealing with other breeds. In relation to XL Bully dogs, prosecutors may have regard to the published guide for identification: Official definition of XL Bully dog.

Evidence of type of dog

Section 5(5) of the 1991 Act states that if it is alleged by the prosecution that a dog is prohibited, it shall be presumed that the dog is in fact prohibited, unless the contrary can be shown by the defendant. The prosecution will almost always rely on expert evidence from a Dog Legislation Officer (DLO), who has specialist training and experience, when alleging that the dog is prohibited. The rules of expert evidence apply here and as such the prosecution will apply the CPS guidance on Expert Evidence and Criminal Procedure Rule 19 in assessing this expert evidence. This includes seeking further clarification and/or evidence from the DLO if necessary to ensure the content of the evidence is understood by the reviewing lawyer and instructed advocate. Initially the DLO will supply a short report which the prosecution will put forward and invite the defence to admit as fact in the same way as the SFR1 process, until such time as the trial issue is identified.

If they seek to challenge this evidence, the defence will need to instruct an expert. The statute and the criminal procedure rules contain provisions to avoid ambush and require advance service of any evidence. The rules which apply to experts apply equally to experts instructed by the defence.

Defence expert evidence should be considered by the DLO/prosecution expert. The prosecution must apply the evidential stage of the Code for Crown Prosecutors and in doing so take into account that the burden of proof lies with the defendant. CPR 19.6 also provides for the court to direct the experts to discuss the issues and provide a joint report setting out the areas of agreement and disagreement.

A pre-trial conference with the expert may be helpful to ensure all parties, including the advocate, understand the way the case is to be presented at court, and to inform the approach taken to examination-in-chief and cross-examination.

The DLO should be informed of all court dates so they can attend if necessary, and assist the court and prosecution as appropriate, for instance to answer questions at court about the dog, about kennelling arrangements, costs and release.

Possession or custody

The offence under section 1(3) requires proof of possession or custody. A person may remain in possession or custody of a dog even if they have handed the lead to someone else, if they are still able to control the dog by way of voice commands, for instance. Proof of ownership is not required.

As to the mental element of possession, it is likely that possession must be knowing (in that the suspect knows they possess a thing) but it does not need to be proved that they knew (or suspected or believed) that the dog was prohibited.

Defences

It is a defence to a section 1(3) possession or custody charge that the possession or custody is for the purposes of seizure or destruction, or that the dog is exempt by virtue of the provisions set out above or as a result of a Contingent Destruction Order obtained under section 4A or 4B of the 1991 Act. The dog must be registered on the Index of Exempted Dogs (managed by DEFRA) and the conditions of exemption complied with.

Evidential considerations – dogs dangerously out of control (all dogs)

Under section 3 Dangerous Dogs Act 1991, if any dog is dangerously out of control in any place, including all private property, the owner, or person for the time being in charge of the dog, is guilty of a summary offence. It is for the prosecution to prove that an act or omission by the defendant, with or without fault, to more than a minimal degree, caused or permitted the dog to be dangerously out of control. It is not necessary to prove recklessness or intent. It is no defence that the owner had no reason to appreciate that their dog might behave in this way: Bezzina [1994] 1 WLR 1057. There must be some causal connection between having control of the dog and the circumstances of the incident. The offence becomes an aggravated offence, and triable either way, if the dog injures any person or an assistance dog while out of control.

Section 10(3) of the 1991 Act provides that a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person or assistance dog, whether or not it actually does so (unless the dog was being used for a lawful purpose by a constable or person in service of the Crown). See R v PY [2019] EWCA Crim 17 for guidance on lawful purpose.

Aggressive behaviour towards a person will almost always be grounds for reasonable apprehension that it will cause injury to demonstrate that it is dangerously out of control. See Gedminintaite and Collier [2008] EWCA Crim 814 and Rafiq v DPP (1997) 161 JP 412, DC for further examples of the application of the test for ‘reasonable apprehension’.

However, this is an interpretation of when a dog will be “dangerously out of control” not an exhaustive definition. Therefore a dog may be dangerously out of control even if there are no grounds for reasonable apprehension that it will injure. Conversely, it does not follow that if the dog causes injury, the dog was dangerously out of control. Whether a dog is dangerously out of control will be case dependent. Having considered section 10(3) in relation to persons and assistance dogs, the ordinary meaning of dangerously of control should be applied. In addition to consider any relevant factors specific each individual case, prosecutors may want to consider the following:

• “dangerously”, in terms of the danger present. This might usually require a focus on whether any injury was caused, or risked.
• “dangerously” in terms of the dog. What was its disposition and behaviour and the circumstances of the incident? For instance, there may be a distinction between a dog which is provoked and one which attacks unexpectedly or for no apparent reason.
• “out of control” in terms of the suspect. Was the dog at the material time out of their control?

Injury or behaviour towards other animals

Support for the view that injuries to cattle or poultry or chasing livestock may demonstrate a dog is dangerous is found in section 1 Dogs Act 1906 which creates a civil liability for the owner in such circumstances on the basis that the dog is a dangerous dog. Section 7 Dogs Act 1906 defines ‘cattle’ as including horses, goats, mules, asses, sheep and swine. A definition of ‘poultry’ is provided by section 3 Dogs (Protection of Livestock) Act 1953.

Support for the view that this offence includes attacks on other dogs may be found in the court’s acknowledgment in the course of Russell v Crown Prosecution Service [2015] EWHC 2065 (Admin) at paragraph 45.

Attacks also occur on exotic livestock, which include Alpacas, Buffalo and Ostrich. Prosecution under section 3 should be considered where a dog has been dangerously out of control and attacked such animals.

Attacks or behaviour towards all of these types of animal may amount to a dog being dangerously out of control but the statutory test and its ordinary meaning must always be applied. As the court in Russell observed, a dog may be dangerously out of control when attacking an animal not least because of the risk to its owner should they seek to intervene in the attack on their animal. As above, it does not follow that where there has been injury to an animal, the offence is made out, but that is one relevant element to assessing whether a dog was dangerously out of control.

Defences

It is a defence for the owner to prove that they had left the dog in the control of someone whom they believed to be an identified fit and proper person.

As above, a defence applies where the dog is being used for a lawful purpose.

Section 3(1A) of the Dangerous Dogs Act 1991 provides a defence where the dog is dangerously out of control with respect to a trespasser who is in, or entering, their home, whether the owner is present or not, known as the ‘householder exemption’. This defence does not apply to postal workers or anyone else who post items through the letterbox. In Royal Mail Group v Watson [2021] EWHC 2098 (Admin) the court found that “The letter box is an open invitation to visitors to post mail through it and can involve the insertion of fingers for a short time. The postal worker was, therefore, not a trespasser in these circumstances.” Nor does the exemption under section 3(1A) apply to dog attacks on trespassers in gardens, driveways or outbuildings.

Public interest considerations

If there is sufficient evidence to prosecute an offence under the 1991 Act, prosecutors should go on to consider the public interest considerations set out in the Code for Crown Prosecutors. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.

The introduction of The Animals (Penalty Notices) (England) Regulations 2023 from 1 January 2024 mean that a fixed penalty notice may be issued by some police forces for section 3 Dangerous Dogs Act offences. A Penalty Notice will not result in a criminal record, but any type of caution will. For alternative out of court disposals, prosecutors should apply the relevant prosecution guidance.

Prosecutions should be alert to certain considerations in dangerous dogs cases when applying the Code including the following:

• a prosecution is more likely to be in the public interest where injury is caused whether to a person or animal
• it will almost always be in the public interest to prosecute where serious injury to or death of a person follows.

This includes where a family pet has killed a member of that family, notwithstanding that this may form part of the mitigation. In the case of death, the maximum sentence is now 14 years’ imprisonment.

Selection of charges

Section 2 of the Dogs Act 1871 allows for a civil complaint to be pursued in respect of a dog deemed to be dangerous. Whilst the Attorney General has formally assigned the conduct of these civil proceedings to the Director of Public Prosecutions, pursuant to section 3(2)(g) Prosecution of Offences Act 1985, the police retain the right to conduct these proceedings themselves. The police often make such applications before the magistrates courts.

The Prosecutor must make a decision on the case put to them. If a civil complaint is to be pursued, and if the CPS is asked to take conduct of it (as above, they often will not be and need not be), the Prosecutor should seek to understand why a criminal prosecution is not contemplated. If there is sufficient evidence to prosecute a section 1 or 3 offence contrary to the 1991 Act, that will usually be the charge which reflects the seriousness of the offence, provides adequate powers of sentence and allows the case to be presented clearly and simply, rather than pursuing a complaint. A complaint can proceed concurrently if the police have reason to pursue it as well. There is no need for the CPS to take conduct of any parallel complaint. The disposal or potential disposal under the 1871 Act may be a relevant consideration as part of the public interest stage of the Code test.

The offence of dogs worrying livestock is also available: section 1 Dogs (Protection of Livestock) Act 1953. Section 6 of the Code for Crown Prosecutors should be applied to all choices of charges but given this offence attracts a financial penalty only it is unlikely to suffice if otherwise there is sufficient evidence to prosecute a section 3 offence. A prosecution for this offence requires the consent of the Chief Officer of Police for that geographical area.

It is a summary offence for a person to use, or permit the use of, a guard dog to protect any premises unless a handler capable of controlling the dog is also present and the dog is under their control, or unless the dog is secured so that it is not at liberty to go freely about the premises. A guard dog may not be used or permitted to be used unless a notice warning of the dog’s presence is clearly exhibited at each entrance to the premises: sections 1 and 5 of the Guard Dogs Act 1975.

This offence should be considered where dogs have been left unattended either guarding business premises or sites where illegal activity may be taking place.

Sentencing

In addition to assisting the court with the relevant Sentencing Guideline, prosecutors should remind the court in all cases to consider whether to make a compensation order and / or other ancillary orders, which include Destruction Orders, Contingent Destruction Orders (sections 4(1)(a), (1A) and 4A of the 1991 Act) and Orders disqualifying the defendant from having custody of a dog for a prescribed period, (section 4(1)(b) of the 1991 Act). To reiterate what is stated above, a DLO can provide valuable assistance to the prosecutor and the court when considering appropriate orders at sentence.

Prosecutors should remind the court of the statutory presumption for the destruction of a dog following a conviction for a section 1 or an aggravated section 3 offence unless the Court is satisfied the dog does not constitute a danger to public safety.

Prosecutors should remind the court of the relevant principles when applying section 4 of the 1991 Act. These were distilled in Flack [2008] EWCA Crim 204 as follows:

"(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

"(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.

"(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4(a)(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed (“a suspended order of destruction”).

"(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4(a)(5) of the 1991 Act.

"(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

"(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made."

The court in Kelleher [2012] EWCA Crim 2978 made clear that point (5) and the relevant burden of proof needs to be considered differently on conviction for the aggravated, and non-aggravated, offences within section 3 of the 1991 Act:

“It is clear that section 4A(4) applies both to aggravated and non-aggravated offences. The power to make a destruction order applies in both cases. The distinction, which is made clear by section 4(1A) , read with section 4A(4) , is that in the case of an aggravated offence there must be a destruction order unless the dog would not constitute a danger to public safety, and in the case of a discretionary order the court has to decide whether it is appropriate, in all the circumstances, having regard to the facts, to make a destruction order. That is to say that in the case of an aggravated offence the burden is on the defendant to show that the dog is not a danger to public safety, otherwise a destruction order is mandatory. It is, as it were, the other way around in the case of a non-aggravated offence: the court will not make a destruction order unless, on the material, the court takes the view that a destruction order is necessary.”

Contingent Destruction Orders should not be made to allow prohibited dogs to be rehomed unless the person suggested to be a fit and proper person has had previous contact with the dog. The test should not be applied to a prospective or speculative future owner.

Where the dog is used in the commission of any offence, it is subject to forfeiture by the courts under section 152 - 155 Sentencing Act 2020. Prosecutors should consider an application to forfeit the dog but only where the police have agreed that this is an appropriate application and have made arrangements for the forfeiture.

Prosecutors should apply for costs and where appropriate they may do so in order to reflect those incurred by the police (rather than the more limited powers of compensation under section 4(4)(b) and section 4A(6) of the 1991 Act). The CPS guidance on Costs must be applied. It will be necessary to provide a breakdown in the form of a costs schedule with itemised costs. It is not sufficient to provide a total cost. The court should be reminded that costs are being incurred and asked to expedite the case accordingly to keep this to a minimum.