‘Dangerous’ Dogs: Different Dog, Same Lamppost?
Following a number of attacks by dogs, on children in particular, the Dangerous Dogs Act 1991 was introduced in the United Kingdom. This act adopted a two-pronged approach to the problem of dangerous dogs.
Firstly, it introduced a new offense of either “owning or being in charge of” a dog which was dangerously out of control within either a public place, or a non-public place in which it was not permitted to be. Secondly, it introduced type-specific legislation. Such legislation presumes certain types of dogs to be dangerous (regardless of either the characteristics and/or previous conduct of the individual dogs in question) and therefore such dogs are automatically captured by the relevant legislation. Specifically, pit bull terriers, Japanese tosas and “any type designed … by an order of the Secretary of State, being a type appearing to him to be bred for fighting or to have the characteristics of a type bred for that purpose”. As a result of the focus on “types” rather than “breeds”, cross-breeds exhibiting physical characteristics of a prohibited type were captured, in addition to pure breeds, and the onus was placed upon the guardian or person in charge to prove that their dog did not fall within this list.
Following the 1991 Act, it became an offense to breed or breed from, advertise, sell, exchange or give such a dog away, allow such a dog to be in a public place without a muzzle or lead, or abandon such a dog or allow it to stray. Those found guilty of such offenses could be liable to a fine and/or six months’ imprisonment. The 1991 Act also provided the courts with powers to order the destruction of any such dog (this was in fact a mandatory requirement in certain circumstances), and to disqualify the offender from having future custody of a dog for a discretionary period. The court could require the guardian to register the animal on the Index of Exempted Dogs, if it was decided that the dog was a banned type but that they did not present any danger to the public. The guardian was then allowed to keep the dog, provided that they comply with a comprehensive list of requirements, including taking out liability insurance against their dog injuring other people.
Perhaps not surprisingly, the 1991 Act has been the subject of consistently heavy criticism. The Dangerous Dogs (Amendment) Act 1997 removed the mandatory destruction order provisions, provided the courts with some discretion regarding their sentencing powers, and enabled the Index of Exempted Dogs, which was originally intended to be time-limited, to be re-opened. The next main piece of legislation in this field was the Anti-Social Behaviour Crime and Policing Act 2014.
This paper explores two aspects of the 2014 Act: (a) the extension of regulations relating to the control of dogs from public to private spheres, and (b) the retention of type-specific definitions of which dogs are to be considered “dangerous.”
The 2014 Act extended the 1991 Act to cover dogs on private as well as public land, except in situations known as “householder cases” – where a dog is either within (or partly within) a building (or part of a building), which is either a “dwelling” or forces accommodation, and attacks a trespasser or someone who the owner of that building believes to be a trespasser. Although there were sound reasons for this extension, the authors submit that operational difficulties persist and achieving the key aims of the legislation is not guaranteed. The definition of dwelling is key to the question of whether a dog guardian will be responsible for damage caused by their dog to another, yet a definition is not provided within the 2014 Act. This leaves the law in an uncertain position in some cases; in fact, the level of responsibility which guardians have for their dogs in areas which fall upon the boundaries to their homes could be seen as blurred. This is one reason submitted by the authors for why this law did not result in a significant increase in “responsible owners.” Another reason is that the legislative change was not advertised in a clear way to guardians and they would need to be sufficiently aware of the change in law to feel forced to be more responsible.
With regards to the next consideration – type-specific legislation – there was no movement away from this approach within the 2014 Act. Nevertheless, this approach received heavy criticism (not least because, as many animal advocates know, breed is considered a poor indicator of aggression).
Type-specific legislation is considered overinclusive as it subjects all members of the target breed to regulation regardless of prior behavior. The authors propose that dog guardians will only be “responsibilized” by type-specific legislation if they know that the dog in question is of that type. However, because determining the type of a given dog is notoriously difficult, guardians are often unaware that their dog is a banned type. On the other hand, type-specific legislation can be considered underinclusive given that only certain types of dogs are banned or regulated by virtue of their breed. The authors question how guardians can knowingly avoid certain types of dogs and become more “responsible” dog keepers, if it is difficult to determine what type of breed a dog is.
Further, the authors submit that focusing on type tends towards absolving guardians of the responsibility for their own behaviour towards their dogs. Indeed, evidence suggests that dogs are more likely to be violent or dangerous as a consequence of how they have been raised or treated, as opposed to an innate propensity towards violence. Moreover, type-specific legislation arguably fails to serve its purpose of “responsibilizing” guardians in that it risks encouraging dangerous dogs’ issues underground. Labeling certain types as “dangerous” has served to make such breeds more attractive to particular groups.
The authors contend that the current law does not enhance public safety per se. An increase in public safety would be illustrated by a reduction in the harm caused by dogs on private property, as opposed to providing a harmed individual with some form of redress under the criminal law after the harm has already occurred. The authors argue that much more radical change is needed, both legislative and cultural, to “responsibilize” dog guardians.
Despite the difficulty with type-specific legislation, it was retained for several reasons:
- There are risks potentially posed by the banned types of dogs. The physical strength and sometimes unpredictable nature of specific types of dogs have been cited as reasons for type-specific legislative approaches.
- Such laws remain part of the government’s approach to protecting the public from dogs perceived by the public as “dangerous.”
- There is no feasible substitute, and it is difficult to change the view of the public and media.
A possible solution to the aforementioned problems could be to create a consolidated piece of legislation that addresses these various issues. However, the authors argue that further legislation alone is unlikely to reduce the problem of dangerous dogs to the desired extent. Responsible guardians will respond to such legislation accordingly but could nevertheless become inadvertently entangled within it. On the contrary, less responsible guardians are either likely to be dealt with only after an incident has occurred or could be encouraged to take steps to circumvent the laws that are in place by, for example, obtaining dogs through the black market.
Indeed, irresponsible human actions will continue to produce dangerous dogs, provided legislation leaves human conduct unchecked. Proper attention to the problem of dog bites requires the study of regulatory alternatives that will root out the causes of the problem, rather than the symptoms. This paper advocates for further research into the potential diversity of dog guardians’ motivations and characteristics. The outcomes from such research could support a more nuanced legislative framework in the U.K. which better reflects the fact that dog guardians are unlikely to be either a homogenous, or a binary, group: there is a spectrum, from willfully criminal dog guardians (e.g. involved in dog-fighting), through to more conscientious guardians who take responsibility for their dogs, whether within a public or private domain.