What does the ban mean for XL Bully dogs and their owners?
Trinity Criminal Pupil, Sophie Johnstone, explores the upcoming XL Bully Ban, and the implications of the soon-to-be-imposed restrictions on bully-type dogs and their owners.
Given the high number of reported dog attacks in recent times, Sophie also revisits the relevant sections of the Dangerous Dog Act 1991 and the pertinent case law relating to the defence in dog attack cases.
Overview
The Government has recently announced plans to impose a controversial ban on XL Bully dogs.
After a spate of highly publicised dog attacks, the Government have introduced the ban as part of their pledge to take “quick and decisive action” to protect the public from vicious dog attacks.
Whilst the ban has been met with much resistance and has certainly divided opinions, it is necessary for dog owners to be aware of the law, the implications, and its applicability.
From 31st December 2023, although it will not be illegal to own an XL bully dog, it will be against the law to:
- Sell an XL Bully;
- Abandon an XL Bully dog or let it stray;
- Give away an XL Bully dog;
- Breed from an XL Bully dog; and
- Have an XL Bully dog in public without a lead and muzzle.
However, from 1st February 2024, it will be a criminal offence to own a XL Bully dog in England and Wales unless the dog has a Certificate of Exemption.
What is an XL Bully dog?
For those who own a bully-type dog, the announcement of the ban is concerning, and undoubtedly, whether it will fall within the scope of a banned breed is one of the first questions to consider.
Guidance on the official definition of an XL bully dog has been published on the GOV.UK website, which contains a list of ‘defining characteristics’ of the breed.
Unfortunately, the law is concerned with the 'type of dog', rather than the breed specifically. Rather unhelpfully, this means that prohibited or banned breeds are identified by their appearance, rather than the name of the breed, or the dogs’ genetics.
The Government categorises the characteristics of the XL bully by the head, teeth, neck, forequarters, body, hindquarters, feet, tail and coat of the dog.
For example, with regards to the dog’s head, a key feature is that it will be “heavy, large and broad” and have “prominent cheek muscles with strong, well-defined jaws and lips semi-close”. It is noted the neck will be “heavy, muscular, slightly arched, tapering from the shoulders to the base of the skull” and “medium in length”. The hindquarters will be “strong, muscular and broad” and the animal’s thighs will be “well developed with thick musculature”. The list of defining characteristics goes on…
Perhaps unsurprisingly, much criticism has been made of the “definition”, in that the defining characteristics are too vague, with people often mistaking other dangerous dogs for the breed. Furthermore, there are well founded concerns that many other bully-type breeds may fall within the scope of the seemingly “catch-all” definition.
Bully-type dog breed owners should consult the website as soon as possible to determine whether their dog possesses the characteristics of the banned breed and assess whether any action needs to be taken in advance of the ban coming into force. Bully-type dog owners are encouraged to err on the side of caution when deciding whether to register for an exemption.
Police Powers
If the police suspect that a dog is a prohibited breed, they have the power to seize the animal, where it will then be taken to kennels and assessed by an expert. If the expert confirms that the dog has sufficient characteristics to be identified as a banned breed type, the owner of the animal can be charged under Section 1 of the Dangerous Dogs Act 1991.
Such offences will be heard in the Magistrates Court, where the defendant will need to prove to the Court that the dog is not a banned breed.
Any person found guilty of owning a banned type of dog could face up to a maximum of 6 months’ imprisonment. In addition, the seized dog may be subject to a Destruction Order (which means they will be euthanised) unless the Court can be persuaded that the animal is not a danger to the public, and a Contingent Destruction Order may be imposed.
Certificate of Exemption
Owners of the breed have until 31st January 2024 to apply for an exemption.
Applications will be subject to a £92.40 application fee and applicants must also have third party public liability insurance for banned breeds of dogs.
In addition to the Certificate of Exemption, owners must ensure the dog is:
- Microchipped;
- Kept on a lead and muzzled at all times when in public;
- Kept in a secure place so it cannot escape.
Owners who fail to comply with the above stated requirements could face a criminal record and an unlimited fine, and the dog could be seized.
The relevant form can be found here. Applications can also be made via the Government website, using the online portal.
What happens if a dog bites someone?
Section 3 of the Dangerous Dog Act 1991 makes it a criminal offence for a dog to be “dangerously out of control”, in “any place”, not just in a public place.
The owner, or the person who is in ‘charge’ of the dog at the time, would be guilty of the basic offence if the dog can be shown to have been dangerously out of control. Or, if the dog injures any person whilst out of control, the person who owns the dog, or who was in charge of the dog at the relevant time, is guilty of an aggravated offence.
This means, if a dog is dangerously out of control and does not necessarily cause injury to another person, the owner or whoever was in charge of the dog at the relevant time, could still be charged with an offence. However, if the dog does bite someone and causes injury, the owner or whoever was in charge of the dog could be guilty of an aggravated offence.
Where there is no injury caused, the maximum sentence of imprisonment is 6 months. However, where injury is caused, a maximum sentence of 5 years imprisonment could be imposed. In the most serious of cases, if the dog kills someone, there is a maximum sentence of 14 years imprisonment.
It is imperative that early legal advice is sought in relation to such offences.
‘My dog bit someone whilst my friend was looking after it for the weekend… Could I still be convicted of an offence?’
Section 3(2) of the Dangerous Dogs Act 1991 creates a statutory defence for the accused person to prove that at the material time, the dog was in the charge of a person whom the accused person believed to be a fit and proper person to be in charge of the dog. Whether this defence can be relied on will be a question of fact in each specific case.
What does it mean to be in “charge” of the dog?
The Court of Appeal has provided some clarity as to the approach the Courts may take when determining whether a person was “in charge” of the dog at the relevant time.
In R v Huddart [1999], Mr Huddart’s rottweiler bit another individual. At trial, Mr Huddart argued that it was his wife who had let the dogs out into the garden at the material time, and therefore, when the dog was said to be “out of control” and bit the injured party, he was not responsible or in charge of the dog at the relevant time. Mr Huddart appealed on the basis that the Court did not put this defence before the jury.
On appeal, in considering the meaning and interpretation of the relevant section of the Act, the Court commented:
“In our judgment section 3(2) was not intended, in a situation where a dog is kept at home, to call for a minute analysis of which member of the family is in charge of it at any one moment. The fact that the door through which the dog gets out is opened by a member of the family rather than by the owner of the dog is not evidence from which it can properly be inferred that the charge of the dog has been transferred to that other member of the family. The subsection operates, in our judgment, only if there is plain evidence that the dog has been placed in the charge of someone other than the owner. We do not seek to place much formality upon what is required to transfer charge, but it will be necessary for there to be evidence which establishes, or permits the inference to be drawn, that the owner has for the time being divested himself of responsibility in favour of an identifiable person. A dog left with a neighbour or friend while the owner is on holiday would be one example. A neighbour who, with the agreement of the owner, takes the dog away from the home and out for a walk could be another, depending on the circumstances.”
Therefore, in the circumstances, the Court of Appeal confirmed that the Judge was correct not to permit the statutory defence to go before the jury.
More recently, in the case of L v the Crown Prosecution Service [2010] the degree of separation between the dog and the owner was considered a material factor in assessing who was in charge of the dog at the material time.
In this matter, the issue was whether the appellant was in charge of the dog, despite having transferred physical control to the co-defendant by handing the dog lead over. Although the appellant had effectively handed over the lead of the dog to his co-defendant, it was held that the appellant maintained “effective control” of the dog, and therefore was said to be in charge of it at all times.
It was stated that the judge was entitled to conclude that a short and temporary transfer of actual physical control did not prevent the appellant from remaining in charge. Furthermore, it was also confirmed that another matter which will be considered is whether or not the appellant was in a “position where he was able to issue commands to the dog”.
Certainly, in applying the principles established in the above stated cases, if a dog bites someone whilst being looked after by the owner’s friend or a family member for a specific period of time when the owner is not present, there are strong grounds to argue the relevant defence applies.
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