When is seizing a ‘dangerous dog’ lawful and justifiable? Emelia Bezant-Gahan reviews the recent case of R v Chief Constable of Thames Valley  3 WLUK 611.
It was recently held that the police could lawfully seize a dog under the Dangerous Dogs Act 1991 even if, on the occasion of seizure, the dog had done nothing to give grounds for reasonable apprehension that it would injure any person.
It was deemed lawful if there were grounds for reasonable apprehension based on the conduct of the dog on a previous occasion. A dog could also be deemed to be “dangerously out of control” even when held securely on a lead.
The claimant applied to the High Court for judicial review of the defendant’s refusal to return his dog ‘Piglet’ to his care after seizure. The claimant alleged that the seizure was unlawful.
The dog had injured two cyclists in Oxford in 2017, and on both occasions was on a lead. One of the cyclists injured required hospital treatment.
Following reports of this later incident one of the defendant’s officers seized the dog six days later under s.5(1)(c) of the Dangerous Dogs Act 1991 (hereon in ‘the Act’).
When seized the dog was behaving well, calm and on a lead. The claimant was charged with two offences under the act contrary to s.3(1) and s.3(4). While awaiting trial, the claimant requested the dog be returned to his custody. The defendant refused. The claimant subsequently pleaded guilty to the offences and was sentenced to 18 months in prison with the sentence for each offence to run concurrently. The claimant was also disqualified from owning a dog for an indefinite period. A contingent destruction order was made in respect of the dog, although it was not destroyed.
The defendant was represented by David Messling of 5 Essex Court.
The core parts of the Act referred to were:
- S.3(1) – States that if a dog is dangerously out of control in any place in England and Wales the owner and supervisor/guardian, if different person in charge of the dog at the time, is guilty of an offence. If the dog injures someone this is an aggravating feature;
- S.3(4) – States the penalties attaching to a conviction for an offence under s.3(1). A non-aggravated offence will attract a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both. If a person is injured or dies custodial sentences up to 14 years can apply;
- S.4(a) – States that the court can order the destruction of a dog where an offence has been committed under s.3;
- S.5(1)(c) – States that a constable or an officer of a local authority authorised by it to exercise the powers conferred by this subsection may seize any dog in a public place (whether or not a dog to which that section or such an order applies) which appears to them to be dangerously out of control;
- S.7 – Defines muzzling and stipulates that references to a dog being kept on a lead are to its being securely held on a lead by a person who is not less than 16 years old; and
- S.10(3) – States 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, whether or not it actually does so, but references to a dog injuring a person or there being grounds for reasonable apprehension that it will do so, do not include references to any case in which the dog is being used for a lawful purpose by a constable or a person in the service of the Crown.
The issues before the court in considering the claimant’s judicial review were therefore as follows:
- Could the police lawfully seize a dog under s.5(1)(c) of the Act if, at the time of seizure, the dog had done nothing to give grounds for reasonable apprehension that it would injure any person but there were grounds for a reasonable apprehension it would injure another person pursuant to s.10(3) of the act based on conduct on a previous occasion; and
- Could a dog be “dangerously out of control” for the purposes of s.5 (1)(c) if it was held securely on a lead?
As ever, the burden will remain on officers to consider the reasonableness of their actions before exercising the relevant and applicable power
The court found for the defendant and held as follows:
Power to seize
- There was no ambiguity in s.5 and s.10 of the act. The requirement derived from s.10(3) was that there had to be reasonable grounds at the time of seizure for apprehending that the dog would injure someone. If so, the dog was, as a matter of law, “dangerously out of control”. As demonstrated in McLaughlin (McLaughlin v Harvie  HCJAC 98, 2014 S.L.T. 961,  9 WLUK 346), such grounds could arise from a variety of factors, including the dog’s physical nature, the apprehension felt by members of the public or the dog’s recent behaviour, McLaughlin considered. It could be met by dogs who, despite being on a lead, exhibited sudden aggression.
- Actual physical injury was not required for a dog to be deemed to be dangerously out of control, but if there was actual physical injury by a dog that would, on the face of it, generate grounds for reasonable apprehension that the dog would injure another person.
- A dog could be dangerously out of control notwithstanding that it appeared calm at the point of seizure. The necessary criterion was what the officer reasonably apprehended might happen if the dog was not seized.
- If s.5(1) was limited to an emergency seizure power, where a dog needed to be demonstrating aggressive behaviour or be outside the owner’s immediate control, that would have a significant negative impact on the ability of the police to control dangerous dogs. In most cases, it was likely that a police officer would have been called by a member of the public out of concern about a dog’s behaviour, rather the officer happening to observe the dog themselves whilst on patrol. There would be many cases where, upon the police attending, the dog appeared calm and controlled. It would be contrary to the purpose of the Act for a police officer not to be able to seize a dog in such circumstances, especially in a situation where the dog had already caused injury. The requirement for the seizing officer’s grounds for apprehension to be reasonable provided a safeguard against arbitrary or baseless seizures.
Dog on a lead
- The claimant had argued that a dog on a lead could not be considered to be dangerously out of control. However, that was not the effect of s.3(5), s.4(a) or s.7. A dog owner/walker could easily lose control of a dog on a lead, particularly if the dog was powerful.
- Statutory powers requiring a lead to be used were a means of control of dogs, but it could not be inferred from those powers that Parliament had decided that a dog on a lead could never be dangerously out of control for the purposes of s.5(1)(c).
Was the threshold of reasonable apprehension crossed?
- In assessing whether the threshold of reasonable apprehension had been crossed, it was helpful to consider by way of analogy the test of reasonable suspicion for arrest under PACE (Police and Criminal Evidence Act 1984). Such a threshold did not require an officer to conclude that a dog would, on the balance of probabilities, injure someone, but merely to have a reasonable apprehension that it would do so.
- In this case, the officer had credible evidence that the dog had attacked a cyclist causing injury some six days earlier. He also referred to other incidents where people had been bitten and intimidated. The claimant had had the dog on a short lead, yet was unable to prevent the attack. That history gave grounds for a reasonable apprehension that the dog was likely to injure members of the public again. Accordingly, it was reasonable for the officer to conclude that the dog was dangerously out of control under s.5(1)(c) and his seizure of the dog was lawful.
Release pending trial
- The defendant’s decision not to release the dog pending the claimant’s trial was a legitimate exercise of discretion. The defendant was entitled to take into account the disputed facts, the serious nature of the offence, and the potential outcome. There was no public law error.
Popplewell J in the 1997 case of Rafiq v DPP (Rafiq v DPP (1997) JP 412) described the act as “a piece of Delphic legislation”.
The comparison of this legislation to ancient Greek and the poetical prophecy delivered by the oracle of Apollo in Delphi is most interesting. It is said that the manner in which prophecies were delivered by the oracle meant that even interpretations of the prophecies given by priests were hard to follow.
The findings and interpretations of The Honourable Mrs Justice Lang will no doubt be a useful point of reference for officers applying the legislation and practitioners dealing with claims arising out of the legislation in practice. Her rationale and decision indubitably assists in demystifying what were fairly ambiguous provisions in places.
Mrs Justice Lang’s judgment makes it abundantly clear that officers can rely on s.5(1)(c) to seize dogs in a public place in circumstances where the dog in question is not a banned breed, but officers reasonably apprehend that it will cause injury.
A further key finding for officers to keep in mind for practical application was the interpretation of “dangerously out of control”. It was deemed that a dog can be dangerously out of control even when on a lead.
Mrs Justice Lang quite rightly observed that a powerful dog could still overpower an owner holding onto a lead and hence be dangerously out of control. This clarification will likely be of significant importance and relevance for officers when deciding whether to exercise their powers under s.5(1)(c) of the Act.
It is worth noting, however, that an assessment of reasonableness will still apply on a case by case basis. This is not a blanket finding and will be fact specific. It was clear on the facts of this particular case that injuring two individuals, one of whom was so badly injured that he required hospital treatment, met the threshold of reasonableness.
As ever, the burden will remain on officers to consider the reasonableness of their actions before exercising the relevant and applicable power, but it will hopefully be of some assistance that specific sections of the Act have now been clarified by Mrs Justice Lang, especially in the context of practical application.
Emelia Bezant-Gahan is a solicitor in the Public Sector practice at Plexus Law.