Important new changes affecting dogs - DDA Sec 1:

Coming into force on the 3rd of March 2015 are alterations affecting those subject to section 1 of the Dangerous Dogs Act (DDA) 1991, as amended.

These changes are contained within the Dangerous Dogs Exemption Schemes (England and Wales) Order 2015, this is a Statutory Instrument*, No. 138, which was made on the 4th February this year, there has not been any open or public consultation and indeed what consultation there has been, if any, remains to be seen.

Here follows our own thoughts and interpretation on the Order from what we have so far read. Statutory Instrument 2015 No. 138** and its explanatory notes can be found online here:

The Order was laid before the Commons on the 10th February and before the Lords on the 11th - there was no open discussion or debate that we have been able to ascertain, so those affected and those with an actual current hands-on knowledge and experience as to how the Act and its consequences are thrown daily at pet dogs and their owners have effectively had no say, which is just another blow to innocent dogs and their families persecuted under the pretence of 'public safety' and the disgraceful and utter shambles that is BSL.

It seems that the government and those advising them who are in support of section 1 (BSL) thought that it just wasn't tough enough and the Act, designed to promote death, needed tightening up to help wipe from the face of the earth a larger number of dogs, a bit quicker, dogs who have never put a paw wrong but have been measured up for the killing whilst totally tearing to pieces a further good number of people in the process, after all, their rights don't matter and can be trampled all over, it's what BSL does best.

This Order revokes and replaces the Dangerous Dogs Compensation and Exemption Schemes Order 1991 (SI Nos. 1742, 1744, 2297, 2636 and SI 2013 No. 1302 and is in relation to England and Wales.

It creates two schemes of exemption for the purposes of section 1(5) of the Dangerous Dogs Act. The Order does not apply to Scotland.

There are three main parts;

1) the court-ordered exemption scheme (Part two) – which sets out the exemption scheme conditions and requirements for prohibited types

2) the substitution of the person in charge of an exempted dog (Part three) – detailing the conditions for the substitution of a person in charge of an exempted dog and the procedure for application (keepership change)

3) the so-called ‘doggie bail’ - an interim exemption scheme (Part four) – detailing how and when a seized type dog, can be released to the person pending the court’s final decision (bail for section 1 dogs).

We would recommend that all those affected by breed specific legislation, read through the new Order; we are currently making further enquiries, to clarify and further understand the changes and will publish any new information as it becomes available to us.

1) The Exemption Scheme Conditions & Requirements:

When a court has found that the dog is a prohibited type (DDA Section 1) and is not a danger to public safety under section 4(1A) or via a 4B application under the DDA and has made the dog subject to a contingent destruction order (a CDO) the time-frame for a dog to complete exemption remains two months from the date of the court order - for an adult dog and in the case of a dog under the age of six months on the date the court makes a CDO, within one month of the dog attaining six months.

The requirements which must be complied with in order to complete exemption within the time-frame are that-

(a) the dog is neutered
(b) the dog is microchipped
(c) third-party insurance in respect of the dog is obtained
(d) a certificate of exemption is issued (by the Index of Exempted Dogs)

Tattoos: There is no longer a legal requirement for the dog to be tattooed as part of the exemption process.

Micro-chipping: Regarding the micro-chipping, unless already chipped (and the Index is satisfied) the microchip must be implanted by a person who is a veterinary surgeon (or student), a veterinary nurse (or student) under the direction of a surgeon or by a person who is satisfactorily assessed on a training course approved by the Secretary of State for the purposes of microchip implanting.

One of the new conditions attached to exemption is that you must provide access to the dog for the purpose of reading a microchip on request by a person specified in section 5(1) of the Act (constable of authorised officer of the local authority).

In addition, you must now also produce confirmation that your 3rd party insurance is in force within five days of being requested to do so (see below).

From the 3rd of March, there is also a new condition to keep the exempted dog at the same address as the person to whom the exemption certificate is issued save for any 30 days in a 12-month period and to notify the Agency (the Index) of any proposed change of address (not to include any changes of address in the 30 days mentioned above).

Currently the position is that the Index must be notified of any change of address at which the dog is kept at for a period longer than 30 days at a time.

How this new condition-requiring that the dog must be kept at the same address as the owner save for any 30 days over the course of a year, will work in practice and its full implications are not yet clear, it is yet another confusing element in a complicated and dire piece of law which will no doubt cause further heartache to those affected by it.

Fees: The Index application fee of £77.00 plus VAT (£92.40) per dog remains the same and will also need to be paid again in the event of a keepership change (currently not the case). The police may recover from the person in interim charge (see below) any expenses incurred in the event that the police arrange for the conditions of neutering and microchipping to be complied with.

The full list of conditions attached to exemption are defined in the Order and these are as follows;

(a) to keep the dog at the same address as the person to whom the certificate is issued save for any 30 days in a 12-month period;
(b) to notify the Agency of any proposed change of address (not to include any changes of address in the 30 days mentioned in paragraph (a));
(c) to notify the Agency of the death or export of the dog;
(d) to satisfy the Agency that a policy of third-party insurance compliant with article 8 is in force;
(e) to keep the dog muzzled and on a lead when in a public place;
(f) to keep the dog in sufficiently secure conditions to prevent its escape;
(g) to provide access to the dog for the purpose of reading a microchip on request by a person specified in section 5(1) of the Act;
(h) to produce to a person specified in section 5(1) of the Act confirmation that third-party insurance compliant with article 8 is in force within five days of being requested to do so by that person;
(i) to produce to a person specified in section 5(1) of the Act the certificate issued under article 9 within five days of being requested to do so by that person.

The certificate may also contain additional requirements, including the imposition of time limits, as the Agency (the Index) may reasonably require for the purpose of ensuring that the requirements of this article are met.

These conditions must be complied with if the dog is to remain exempt and all exempted dog owners/keepers should be aware and make sure they fully understand them – if in doubt or you have any questions, please contact DDA Watch for advice.

2) Ownership & Keepership-the appointed person:

For exempted dogs – from the 3rd of March the transfer of keepership will ONLY be possible via an application to the magistrates’ court within time limits specified.

A person may apply to a magistrates’ court to be substituted as the person in charge of the dog (a change of keepership) ONLY if the person determined by the court under section 4 (1B) or 4B (2A) of the DDA or under Part 3 of the Order as being a fit and proper person is unable to continue to be in charge of the dog by reason of—

(a) the death of that person; or

(b) serious illness rendering that person unable to be in charge of the dog (illness must be confirmed by a doctors letter)

There is a set procedure for the court application, the police must be informed and details given to them, only the court can determine the outcome (decide whether to allow a change of keepership) and may only grant the application for substitution of the applicant as the person in charge of an exempted dog if satisfied that the dog does not constitute a danger to public safety, the court must consider-

- the temperament of the dog including its past behaviour; and

- whether the applicant is a fit and proper person to be in charge of the dog and

- the court also may consider any other relevant circumstances.

As keepership changes will be reduced to these two situations (death or serious illness as above) this will in our opinion result in the needless destruction of exempted dogs who are no longer able to stay with their registered owner/keeper, which could be due to a wide range of situations, including owner injury, permission to keep an exempted dog refused or withdrawn by a housing provider, work and family commitments and changes in, homelessness, divorce/separation, or for any number of reasons people are unable to care for their dog; dogs which have already been found not to represent a danger to public safety by the courts will lose their lives as a result of this draconian change which has been forced on dog owners as well as on the courts - who have been denied a fair process to hear ALL the evidence before them and use their own discretion as to whether to allow a change of keepership.

It seems the courts can be relied on to assess whether a dog is a danger to public safety but is not able to decide on whether to allow a keepership change apart from under the two strict exceptions given by a government Order, this is not only unjust but totally unnecessary.

Currently, the registered owner of an exempted dog can nominate someone else to be the agreed registered keeper of the dog, if they themselves can no longer care and take charge of their dog, for any reason.

The dog, which has been found not to present a danger to public safety, by the court, can have a separate registered owner and keeper, the registered owner remains the same for the lifetime of the dog. The application paperwork is provided by the Index and completed, there is no court action to complete the process, the new keeper must abide by all the rules and regulations attached to the exemption scheme which includes taking out their own 3rd party liability insurance cover. This is possible and clarified as the position due to a High Court ruling [Sandhu v Isleworth Crown Court judicial review 2012 (EWHC) 1658] which addressed the issue-this has now been overturned by the Order.

What if the person in charge of the dog doesn’t want the dog anymore and wants to give it back to the owner-would the owner become the new person in charge-with the courts determining whether the owner is a fit and proper person? Also would the keeper only be able to give the dog back to the registered owner (now the new person in charge) in the event of their death or serious illness? There are several scenarios and how the Order would be implemented we do not yet fully understand.

In our previous correspondence with Defra's legal department, they confirmed that a non-legal person (a company or rescue charity for example) can own an exempted prohibited dog (be registered as the owner) and if the court ordered it, then Defra would register the exempted prohibited dog. Although a natural person is needed to be named as registered keeper.

Under the Order from the 3rd of March the appointed person cannot change except as detailed in the Order, which is a huge step backwards and will be a death sentence for innocent dogs.

3) Bail for section 1 dogs:

From the 3rd of March, the police MAY release a prohibited type of dog to its owner pending the final decision of the courts.

The chief officer of police (for the area where the dog has been seized from) may release the dog to the person intending to apply for exemption of the dog, but nothing in the Order requires the police to release the dog.

There is a ‘danger to public safety test’ and the chief officer of police may only release the dog if satisfied that the dog does not constitute a danger to public safety. In determining whether the dog constitutes a danger to public safety the chief officer of police must consider;

-  the temperament of the dog including its past behaviour; and

- whether the person in interim charge is a fit and proper person to be in interim charge of the dog; and

- may consider any other relevant circumstances.

If the chief officer of police is satisfied that the dog is not a danger to public safety, the dog is exempt on an interim basis provided that certain conditions are met, the interim exemption scheme conditions and requirements are laid out in detail in the Order and include that the dog is neutered, micro-chipped and has appropriate 3rd party insurance in force, also the requirements of exemption must be followed, for example, leash and muzzle in public places and there are additional conditions including any other requirement for the purpose of preventing the dog being a danger to public safety considered appropriate by the chief officer of police for the area in which the dog was seized.

The person in interim charge must confirm in writing that they understand the conditions and the consequences of any failure to comply with them.

Currently, there is the ‘leave at home policy’ which can be used by police forces, enabling a prohibited type dog to be left at home, once assessed as not a danger to public safety, until the day of the court hearing, but it is hardly ever used, in our experience.

DDA Watch LTD
February 2015

* Statutory Instruments are a form of secondary legislation which allow the provisions of an Act of Parliament (in this instance the DDA 1991) to be altered without going through the process of passing a new Act. The Dangerous Dogs Act 1991 contains the framework for the introduction of SI’s the first of which was introduced in 1991 (now revoked).

** Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 (S.I., 2015, No. 138), dated 4 February 2015 (by Act), with an Explanatory Memorandum (by Command) (Secretary Elizabeth Truss).

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