Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Monday 2nd December 2013 Lords Chamber

Moved by

[Baroness Smith of Basildon]

56LF: Before Clause 98, insert the following new Clause—
“Risk assessment of seized dogs
(1) The Dangerous Dogs Act 1991 is amended as follows.
(2) In section 5 (seizure, entry of premises and evidence) after subsection (3) there is inserted—
“(3A) Following seizure of a dog for an offence under section 1, 2 or 3 of this Act, within 48 hours of seizure the animal must be assessed to determine whether—
(a) it is a prohibited type of dog, and/or(b) behaviourally risk assessed by a suitably qualified behaviourist to determine whether it can be released with or without conditions placed on its management by its owner or keeper, such conditions can include but are not limited to—(i) keeping the dog on a lead when in public;(ii) keeping the dog muzzled when in public.(3B) Reasons must be given for a decision not to release the dog.””

[Baroness Smith of Basildon (Lab)]

My Lords, we have grouped these amendments together for ease of debate. I thought that it would be helpful to have one debate rather than several on a similar issue. So I am speaking to the amendments in my name and those of my noble friends Lord Rosser and Lady Gale. My noble friend’s amendment on dog control notices also has our full support. In moving my amendment, I will speak also to Amendments 56MA to 56MC.

The first step is to acknowledge the seriousness of the problem. Since 2009, nine children and seven adults have died as a result of attacks by dogs. In the three years to February 2013, 18,000 people were admitted to hospitals in England and Wales after dog attacks, and 23,000 postal workers have been attacked by dogs in the past six years. As Christmas approaches and we post our letters, we ought to think of the poor postal deliverers. Since April 2011, there have been 6,000 dog attacks on those who deliver our post. So it is a serious problem and horrendous for those who have been involved, have been attacked or have witnessed attacks.

I appreciate that the Government are bringing legislation forward but I really think that there is a missed opportunity here. I referred to this last week when we discussed community protection orders. I am worried about the Government’s one-size-fits-all approach. Dog control notices were introduced to deal with a specific problem. I am not saying they are perfect. They needed updating and amending, but to replace gating orders, dog control orders and other forms of order with one community protection order does not give us confidence that the issue of dangerous dogs will be properly and effectively tackled.

Community protection notices are a reactive measure to deal with dog attacks. They can be slow to serve and they can be challenged in the courts, causing further delay. I support and welcome the Government’s proposals for increasing penalties, but prevention is better than penalty, and that is why our proposals include the dog control notice.

I read carefully what Ministers said in the other place. They seem wedded to their measures and confident that they will deal with the problem. I do not share that confidence. That brings me to Amendment 56MB, which requires the Secretary of State to review the,

“use of community protection notices in addressing dangerous dogs”.

The amendment specifies a review of the effectiveness of Government’s measures three years after they come into force and every three years after that. If the Government are confident that they will be successful—and I am sorry that I do not share the noble Lord’s confidence, although I wish I did—that review will be a way to assess their effectiveness or otherwise, whether action taken is adequate and whether further measures are needed.

This is a missed opportunity. As a first option, we support the amendment in the name of my noble friend Lady Gale introducing dog control notices. A dog control notice is specific to the problem. It is proportionate and targeted. It seeks to prevent attacks by dogs. “Prevent” is the key word. The dog control notice is a preventive measure to stop tragedies occurring, while the community protection notice reacts to a situation that has already occurred.

The measure enjoys widespread support. My noble friend Lady Gale will say more about this. In the Commons it received support from a number of government Back-Benchers, as well as a range of individuals and organisations, including those that deal with the welfare of dogs and those whose members are at risk from attack, as well as those that deal with the aftermath of attacks or try to prevent attacks. They include: the RSPCA; the Association of Chief Police Officers; the British Veterinary Association; Battersea Dogs & Cats Home; CWU, the postal workers’ union; Unison; the Kennel Club; the Police Federation; the National Dog Warden Association; and even the Environment, Food and Rural Affairs Committee in the other place. They all state that legislation should cover dog control notices, which would give power to the police and local councils to ensure that owners are responsible and do what can be done to stop dogs attacking people and other animals.

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[Lord Redesdale (LD)]

My Lords, the words of the noble Baroness, Lady Smith, were music to my ears because I have introduced two Private Members’ Bills about dog control notices—one under the Government of the party opposite and one under the coalition. Funnily enough, I got a completely different response from the party opposite on both occasions.

[Baroness Smith of Basildon]

I am sorry, I was not here then.

[Lord Redesdale]

Of course. It is interesting how things develop. That is probably the purpose of this House. Private Member’s Bills do get the ball rolling. When I started on my first Bill, it was written with all the dog organisations and the RSPCA. It had a great deal of support, but not from the Government. The second time I raised it, after all the publicity, a great deal more work had been undertaken by Defra, and I think that has led to the present situation.

I would have liked a separate piece of legislation which would have been clear and concise. I understand the Minister’s position—that this has gone through the Home Office. The problem is that most Governments would have taken the route that has been followed, because we are dealing with 11 pieces of legislation that would have to be amended. For ease of access, it would have been extremely useful if there had been one dog control notice, but those of us who have been fighting this fight for some years now realised that that probably was not going to be the case.

I support the background to these amendments. However, there are a couple of issues that I wish to raise. I do not believe that these amendments are going to be carried but they show some of the fundamental problems that we are facing. One of the major problems is the Dangerous Dogs Act 1991. That was a knee-jerk reaction which led to types of dogs being named. Amendment 56LF talks about trying to work out what prohibited dogs are; for instance, a pit bull is actually a mongrel, so is very difficult to define as a particular type of dog. Breeders of pit bulls call them long-legged Staffies; they attempt to get round it that way. An expert trying to look at this has had difficulty, and it has cost the Metropolitan Police and the police in Liverpool and in other places millions of pounds kennelling those animals. I know that this is a specific point but there are cost implications of trying to work out within 48 hours whether the dog is a prohibited animal. Behavioural assessment will also cause difficulties because a lot of this work will fall to the dog charities. At the moment they are facing a massive problem with bull breeds being abandoned.

The issue of protected animals is raised in these amendments and we might well come back to it in further pieces of legislation. It is a particularly difficult issue to deal with. I have a rather useless and cowardly dog, but next door’s cat is particularly on his wish list. I do everything I can to try to stop him chasing this cat, but if a cat were seen as a protected animal—which it is not at the moment, though I know some people are calling for it—that would be a problem we would have to look at.

I understand the tenor of these amendments, and that this is an issue that we may return to further down the line if the Bill does not achieve its objectives. The Government deserve commendation for the attitude taken by the Minister and by the noble Lord, Lord De Mauley, who met and worked closely with us. That the guidance runs to more than 100 pages is a problem, because who is going to read it? If people do not read and understand the guidance and realise where it fits with other pieces of legislation, there is going to be a problem of enforcement. I have to admit that I found it difficult just reading the Bill and cross-referencing it. I hope that the Minister will consider attaching a very short précis to the start of the guidance to make the issue simpler.

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I hope I have persuaded the noble Baroness to withdraw her amendment. It has been an interesting debate, for which I am grateful to noble Lords.

[Baroness Smith of Basildon]

My Lords, the Minister is absolutely right: it has been an interesting debate. I have learnt things I could never have imagined, such as where the noble Lord, Lord Lyell, keeps his Rolos. On a serious note, I am grateful to all noble Lords who have spoken for their contributions and their support for dog control notices. I think the Minister understands why this has been brought forward. I wish I could share his confidence. I will read his comments again and look at some of the points he made in more detail. He has not addressed the point of dog attacks on dogs or other pets. I am disappointed not to have his support for the 48 hours review. I agree with the noble Lord, Lord Redesdale, that the assessment could be started within 48 hours. The reason to do that was to reduce costs and bureaucracy and for the welfare of the dogs. I am most surprised not to have the Minister’s support for a review. Given that he is so wedded to the provisions in this Bill and not notices, I thought he would have welcomed a review. I think that we are headed in the same direction and I wish that I had his confidence about the measures in the Bill. I will look carefully at what he had to say and look at the issues again. For now, I beg leave to withdraw the amendment.

Amendment 56LF withdrawn.

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[Lord Redesdale]

My Lords, I support and thank my noble friend Lady Oppenheim-Barnes, who has been a stalwart in the campaign on this over many years. There are problems with the amendment but it raises an important issue that we will come back to. After many years of discussion, the issue remains that some people use dogs as a way of intimidating others. This can take place even if the dog is on the lead and in a muzzle, because the person is using the dog for effect, so the muzzle is not a barrier to intimidation. I understand that this is a very difficult area to legislate in, but I hope the Minister will take into account that intimidation can be caused even if the dog is on a lead and muzzled.

[Baroness Smith of Basildon]

My Lords, I agree that the noble Baroness, Lady Oppenheim-Barnes, is making a serious point about how the victim, or potential victim, feels when an owner is not in control of a dog. I am grateful for her comments and although she said something about the wording here, I was grateful for her support for dog control notices. None of us guarantees that we have absolutely the right wording. We may be able to have discussions, outside the Chamber, on wording that is accurate and would suit the Government well. The noble Lord does not want to see dog control notices but we may be able to make some improvements by discussing the matter further. I am grateful for the noble Baroness’s comments and support.

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[Lord Taylor of Holbeach]

My Lords, government Amendment 56M relates to the maximum penalty for dog attacks. Following an amendment tabled in Committee in the House of Commons by Richard Fuller, Defra consulted over the summer on possible increases to the maximum sentences for offences under Section 3 of the Dangerous Dogs Act 1991 of allowing a dog to be dangerously out of control—the very measure that we have been discussing in the previous amendment. Specifically, that is the aggravated offence where an out-of-control dog kills or injures a person or an assistance dog.

Some 3,180 people and organisations completed the online survey and a number of organisations sent written representations. In summary, some 91% of respondents considered that the maximum penalty should be increased. We have taken into account the results from the survey, the written representations and the need for the maximum penalty to be proportionate to the offence.

The amendment provides for an increase in the maximum penalty for an aggravated offence under Section 3 of the 1991 Act, to apply in England and Wales, as follows: 14 years’ imprisonment if a person dies as a result of a dog attack, five years’ imprisonment if a person is injured by a dog attack, and three years’ imprisonment for an attack on an assistance dog that results in injury or death of the dog.

These changes reflect the high public concern that two years is an insufficient penalty for these offences, and the fact that seven adults and 10 children have died in dog attacks since 2005, and some 10 assistance dogs are attacked by other dogs every month. As now, each of these offences could also be punishable by an unlimited fine instead of, or in addition to, imprisonment; and, of course, the courts have the option of passing a community sentence.

I should make it clear that these revised sentences will apply only to the aggravated form of the offence in Section 3 of the 1991 Act; that is, the offence where a person or an assistance dog is actually killed or injured in a dog attack. Where someone actually sets their dog on to a person, the Offences Against the Person Act 1861 is likely to come into play. As noble Lords will be aware, the Act comes with its own sentencing regime. Were someone to be killed by a dog set upon them, if this is found to be an act of murder or manslaughter, the maximum sentence that would apply is life imprisonment. As now, it will be for the Crown Prosecution Service to decide whether there is both sufficient evidence to charge a person with the Section 3 offence and whether it is in the public interest to mount a prosecution. Once a case comes to court and a person is found guilty, it will be for the judge to take into account any mitigating or aggravating factors when passing sentence. We can, and should, leave it to prosecutors and the courts to make decisions in light of the facts of each individual case.

Of course, increasing the maximum penalty for dog attacks is only one aspect of trying to target irresponsible dog ownership and to encourage more responsible approaches. The Government consulted on a range of measures to encourage responsible dog ownership in 2012, and published a summary of results and the way forward in February this year, including bringing forward the other measures in the Bill relating to dogs and the compulsory microchipping of dogs by 2016. However, I hope noble Lords will agree that increasing the maximum penalty in the way that I have described is an important additional step. I commend the amendment to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord for bringing this forward and for his explanation. I know he said at Second Reading that he would bring forward the amendment and he has been kind enough to write to noble Lords about it. I think this came from amendments proposed in the other place, where Richard Fuller raised the point and the Government agreed to do a consultation on it over the summer. Therefore, we are supportive and want to see better sentencing guidelines around dangerous dogs. The culpability of those responsible and the actions taken against them are central to the measures the Government have taken. It also comes back to the point I made to the noble Lord earlier. I do not want to hark on about dog control offences too much but it is about prevention. Tougher sentences help with preventing such attacks taking place, and encourage more responsible dog ownership. That certainly is a positive.

I would like to ask the noble Lord a few questions about this. I am slightly puzzled about the reasons—if he could help me on this—that the amendment says:

“14 years if a person dies as a result of being injured”.

That will be the maximum penalty and we all recognise that in most cases the maximum penalty would not be the penalty given. Is 14 years comparable with other legislation? Are there other kinds? Where has this come from? I am sure it is not something the Minister has just dreamt up. I assume that there is other legislation that is seen as similar or relevant, which the period of 14 years would have been taken from.

I think there was some discussion in the Commons. This measure is for when a person dies as a result of being injured, but what if a dog is used as a weapon? We know that there are cases when somebody is injured because a dog is deliberately set on a person. What if they die? Is that the same penalty? What if somebody deliberately sets a dog on another animal, or a pet? With the penalty for when somebody dies as a result of being injured—in the case of an assistance dog, whether or not it dies, the penalty is three years—is there any distinction between an attack occurring when the owner has tried not to have their dog attack an individual and an attack occurring when the owner sets the dog on an individual? I do not think that it would be covered by dog fighting laws if a human were attacked. If the Minister has any information on that, it would be helpful.

Furthermore, is the five years’ imprisonment for a person being injured something that is found in other legislation? I am speaking slowly, because I think that inspiration is about to arrive for the Minister on this issue. Where do the 14 years, five years and three years come from? Is there comparable legislation? The crucial point is whether the attack is deliberate, and whether a dog is forced to attack another dog or person. Many years ago, I helped to home a dog that had been the victim of quite serious attacks by other dogs. This poor dog was quite an aggressive creature with other dogs, but it had had half of its jaw bitten off and was in a terrible state. So I have seen at first hand and cared for dogs that have been very seriously attacked by other dogs. I am trying to get to the base of whether this is about something that happened, which should have been prevented, or something that is deliberate. It would be very helpful if the noble Lord could answer these questions.

[Lord Taylor of Holbeach]

The most important thing is to recognise that the prosecution of these cases is in the hands of the prosecuting authorities and adjudication of sentences is in the hands of the court. But there are particular aspects to the legislation. The noble Baroness asked me whether there was something comparable: 14 years’ imprisonment is the same penalty as for causing death by dangerous driving, so there is a parallel with that.

The noble Baroness made a further point. I thought that I referred to it—and, certainly, I half thought that I mentioned it in my previous contribution. It is getting late and my memory may not be right, but I certainly have it here in my notes and may have said it in my speech. When a person deliberately sets a dog to injure someone, using a dog as a weapon, other offences would apply, such as murder or manslaughter, which as the noble Baroness knows carry a maximum of a life sentence, if that is shown to be the case. I am sure that I alluded to that in my previous remarks.

Why did we decide to increase the maximum penalty for injury to a person to five years? The majority of people wanted to see 10 years, but we wanted to be proportionate and felt that this was about the right tariff for injury to a person. But I think that the noble Baroness welcomes the amendments, and I am grateful for her support.

[Baroness Smith of Basildon]

The noble Lord is right: I am welcoming the amendments and am grateful to him for his explanation, which is extremely helpful. I had not realised that a dog could be used as a tool currently in a murder or manslaughter charge; that information is news to me. So I am grateful to him for explaining that more fully. He is right—we do support these amendments.

[Lord Taylor of Holbeach]

What has been helpful about these debates on the dog legislation is that they have reinforced the fact that this is an area in which the legislative framework has been imperfect. I hope that I have convinced noble Lords on the flexibility of the anti-social behaviour measures when applied to dog ownership. There is specific draft guidance being given to professionals. I shall make sure that all noble Lords who have spoken in this part of our discussions this evening, including those who might have done, such as the noble Lords, Lord Trees and Lord Greaves, get a copy of that guidance, because it will help future discussions. I hope it will persuade noble Lords that, given the acknowledged difficulty of legislating in this area, what the Government are seeking to do is sympathetic to the sentiments of the Committee.