Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 2nd December 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, this has been an interesting debate, particularly for me. When I became a Minister in Defra, a little over two years ago, one of my first priorities was to consider the whole business of dogs. I was motivated by exactly the same sentiments as most noble Lords have been: that attacks on communications workers, children and adults by dogs are unacceptable. They are a cause of great distress, and I wanted to do something about it.

Roughly two years ago—in December, at any rate—we had the first round table of all the dog charities and various interested parties, including Mr Joyce of the Communication Workers Union. We found that we had an awful lot of common ground. I think that underlying this debate is an awful lot of common ground. I am pleased that noble Lords have welcomed the fact that the Government are dealing with this issue. My noble friend Lord De Mauley, now in Defra, is seeing through a number of things, including the issue of microchipping of dogs. Defra has produced its own manual on dogs. The anti-social behaviour guidance for professionals is one document, but another slightly more substantial document is available to deal with dogs. I took note of the reference of the noble Baroness—or was it my noble friend Lord Redesdale?—to its size and the fact that some simplification of it might be due.

I thank all noble Lords who have spoken: the noble Baroness, Lady Gale, who originally laid amendments on this issue at the beginning of the Bill’s proceedings; the noble Baroness, Lady Donaghy, to whom I will refer when I come to one or two issues; and the noble Baroness, Lady Smith. I also thank my noble friends Lady Hamwee and Lord Redesdale—he has long campaigned on this issue—and my noble friend Lord Lyell, who survived living with three rottweilers, something which I would not personally want to try to achieve.

I shall deal with the specific items to which noble Lords have spoken. First, because it is the most significant and I think everyone has mentioned it, Amendment 56MA provides for dog control notices. I put it on record that I fully understand the intention behind the amendment. The Government agree that there is a genuine need for an additional tool to address poor dog ownership and enable early action to prevent dog bites and attacks. We should not have the one-bite law; we should be able to anticipate the bite before it happens. I accept that.

However, I hope that I can go some way to showing that the provision is not necessary and that everything the noble Baroness, Lady Smith, wants from such a notice is already available to enforcement authorities in the provisions in Parts 1 to 4, as noble Lords have said. The very same new clause was debated and rejected on Report in the Commons. The measures in Parts 1 to 4 can address all types of irresponsible behaviour with a dog, regardless of its specific manifestation. For example, a community protection notice can be served in cases where there are too many dogs in one home, where an owner does not have proper control of his dog, where a dog strays and in many other scenarios too.

I reassure the Committee that all the requirements suggested under the new clause such as muzzling, neutering, microchipping, keeping a dog on a lead, attending training classes can all be required under a community protection notice. The new clause is simply unnecessary. The powers are already there in the Bill. I take some comfort from the fact that Amendments 56MB and 56MC go some way towards acknowledging that.

Moreover, the measures in this Bill go further and are far more flexible. They allow officers to make any reasonable requirements based on the specifics of the case with which they are dealing. For example, the CPN might require signage to be put up to warn visitors to a property of the presence of a dog, to fix a post-box guard or to mend fencing to prevent a dog escaping.

It is important to understand the grounds under which the proposed dog control notices can be issued. In the new clause, the authorised officer has to have,

“cause to believe that a dog is not under sufficient control and requires greater control in any place”.

That suggests the dog is “out of control” already and the notice does not appear therefore to be preventive. The test for the CPN is much more useful and applicable. The behaviour of the dog owner or the person in charge of the dog simply needs to have a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality. It can address issues concerning the owner as well as the dog and sometimes the two things go hand-in-hand. This could involve all manner of possibilities including allowing a dog to be out of control. It could include scenarios where the dog or dogs are not out of control but, for example, where there are too many dogs on a property, an owner persistently allows their dog to foul in a public space, or even where a dog is threatening a legitimate visitor to a property, such as a postal worker.

I note the comments of the noble Baroness, Lady Smith, about the requirement in the CPN for a written warning. I assure her that that is not a problem. It will not delay a notice being issued. In fact, it is a helpful addition to the measures. The provision for a written warning is in place for a number of reasons. It ensures that suitable evidence can be provided to meet the threshold test of persistent or continuing behaviour, which is one of the elements of a CPN. In terms of use, a written warning could be a simple tear-off form. Alternatively, a written warning could be included in any correspondence with the individual of an acceptable behaviour contract which makes it clear that any breach will result in the issuing of a CPN. There need not be much of a delay between the written warning and the issuing of the CPN itself. It is a very flexible measure that can be used to address owner, premises and dog.

For example, let us say that a dog is running out of control in a park and perhaps is frightening children. The officer sees this happening and requests the owner to bring their dog under control and put it on a lead. The owner fails to do this so the officer issues a written warning that they will issue a CPN unless the person complies. In many cases that will be sufficient for the person to take the necessary action but, should they refuse for whatever reason, the officer could wait for a short time—perhaps five minutes—before issuing the CPN. There has not been an unacceptable delay and the CPN should secure the necessary behaviour change. In many cases, a CPN will not be needed because the written or even verbal warning will have done the trick.

I hope the Committee will agree that it is better for a dog owner to address the problem themselves rather than to be compelled to do so under the terms of a notice. In our earlier debates many noble Lords pointed to the virtues of early, non-statutory interventions before the powers in the Bill are exercised. I note too that the noble Baroness had a concern that dog issues may be lost in the breadth of ASB measures and be downgraded by local authorities. I do not accept that concern. Local authority dog wardens have dogs as their priority. They, other local authority officers and the police will be able to use these powers in relation to dogs. I believe they will greatly enhance what they can do for dogs. We have been careful to explain in the draft practitioners’ manual how they can be applied to dogs, which I will cover later on. I will just say at this stage that the manual includes some excellent examples of how local authorities have been able to co-ordinate initiatives to tackle problems with dogs. These new powers will go a long way to helping those initiatives.

I recognise that some animal welfare organisations continue to support and argue for the introduction of specific dog control notices. However, the practitioners—the people who will be actually using these measures—are supportive of the measures in the Bill. The Bill will simplify the number of powers and make them more flexible. There will be simplification, but also flexibility. Crucially, it will allow them to do more with less. The Local Government Association is on record as supporting the new ASB measures for what they can do in relation to dogs. In its written evidence to the Public Bill Committee in the Commons, it said:

“We are aware that there is continued pressure for specific dog control notices to be included in the Bill. The LGA remains to be convinced that separate tools are necessary as no details have been provided of the specific gaps in the provisions for the injunctions, community protection notices or public space protection orders that a dog control notice is needed to fill”.

The noble Baroness has stated that ACPO supports DCNs. The national policing lead for dangerous dogs has supported the development of these flexible ASB powers and has acknowledged that the manual which has been produced explains clearly and helpfully how to deal with them.

Amendment 56MB would require the Secretary of State to review the operation of the notices and ASB measures in relation to dogs every three years. I understand the sentiments behind the amendment and can see that people will want to be certain, as the Government will want to be certain, that the measures that we are implementing are working. As I have already said, I welcome the implicit recognition that CPNs are the way forward but I do not believe that a statutory duty to undertake a review is necessary as this Government continue to apply the practice, introduced by the previous Administration, of conducting post-legislative reviews three to five years after Royal Assent. We will undertake a review of this Bill, as with others. I agree that the effectiveness of the powers in the Bill to deal with dog-related issues should be one focus of the review. We will ensure that this is the case.

The issue of guidance is the subject of Amendment 56MC. We published in October the draft practitioners’ manual on tackling irresponsible dog ownership. As a reflection of the importance we attach to dog control and welfare, it is the only piece of issue-specific guidance in relation to the anti-social behaviour provisions in the Bill. All others are covered by the general practitioners’ guidance, to which the noble Baroness referred, but this specific Defra-produced guide is a manual for dealing with dogs. I note that a number of noble Lords said that it is fairly bulky. Well, it is. It has two basic elements: the legal guidance and a specific guide to particular issues. However, I am told by dog charities that they are considering producing a handy guide for those of their staff who deal with these dogs as an everyday matter. I am interested in that and we are very interested in hearing what people have to say. This debate is helpful on that.

Noble Lords will see that the manual demonstrates how the new power, in combination with informal mechanisms such as acceptable behaviour contracts and warning letters, can provide the means for improving and increasing responsible dog ownership. The manual signposts when officers should seek advice and who can provide that advice. It has been drafted in co-operation with local authorities, the police and the Welsh Government and I thank them for their support. We are looking for comments so that we may ensure that we are equipping officers with what they need. The existence of the draft manual shows that we aim to produce such guidance as envisaged by Amendment 56MC. That said, as I indicated in response to similar amendments, we are ready to consider whether provisions for statutory guidance in relation to the powers in Parts 1 to 4 should appear in the Bill. That relates to earlier discussions we have had on the Bill.

Perhaps I may turn to the last of these amendments. Amendment 56LF seeks to provide for the regulated and early release of seized dogs under Sections 1, 2 and 3 of the Dangerous Dogs Act. We can all agree on the importance of animal welfare, but in cases where there has been a suspected offence, we must balance the need to provide for the welfare of the animal with the need to protect the public. By imposing a time limit on assessments of such dogs, not only do we increase resource pressures on respective police forces—many of which have only one or two trained dog legislation officers—but we compromise public safety if officers are under pressure to carry out rapid assessments. I am confident that all assessments are completed as soon as is practically possible, with enough time provided for the required thoroughness.

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[Lord Taylor of Holbeach]

My Lords, I thank my noble friend Lady Oppenheim-Barnes for moving this amendment and other noble Lords for their contributions.

The purpose of the amendment is to extend the definition of “dangerously out of control”, found in the Dangerous Dogs Act 1991 and used to determine whether an offence has been committed under Section 3 of that Act. It would read so that the owner or person in charge of the dog would be liable for prosecution where the dog was not under their control.

Let me be explicit. Where a dog has been dangerously out of control, regardless of whether injury has been inflicted, the owner or person in charge may be liable under Section 3 of the Dangerous Dogs Act 1991. “Dangerously out of control” is defined in Section 10 of that Act and is taken to mean,

“any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so”.

That would cover some of the incidents to which this amendment would apply.

Furthermore, the Government agree that there should be proactive intervention before a dog becomes dangerously out of control. Where an individual does not have the dog sufficiently under their control, action should be taken to avoid escalation to those more serious incidents. The new anti-social behaviour measures will allow for such action by using the community protection notice and, in some cases, the injunction to prevent nuisance and annoyance. Those early intervention measures can make requirements of the owner to ensure that the dog is brought under control, its welfare improved and public safety protected; we have discussed the impact of such measures on conventional anti-social behaviour, and just now in the case of dogs. Requirements might include attending training or behaviour classes, for example.

Should the out-of-control behaviour be of sufficient concern, it will also be possible to make a complaint to the magistrate’s court under Section 2 of the Dogs Act 1871. Based on the evidence before it and using the civil burden of the balance of probabilities, the court can impose an order that requires the dog to be muzzled, on a lead or, in the most serious cases, destroyed.

Authorities may use the Dangerous Dogs Act 1991 where a dog is dangerously out of control, and it is right that we maintain that threshold for this criminal offence. In other cases, where a dog is more generally out of control, authorities may require the owner to be subject to the new measures, such as the CPN introduced in the Bill, or may use the Dogs Act 1871. Given that there are a number of ways to address an incident such as the one described by my noble friend, and in the spirit of the Bill of reducing duplicate legislation, I ask my noble friend to withdraw her amendment. I agree that it may well be useful if I talk to my noble friend Lord De Mauley, who is not able to be here this evening, about the possibility of meeting to discuss these dog measures some time before the next stage. However, I hope that my noble friend will withdraw her amendment.

[Baroness Oppenheim-Barnes]

I am very grateful to my noble friend for his extremely helpful remarks, particularly in relation to what is already in the 1991 Act, which might be one of the easiest ways to address this. I beg leave to withdraw the amendment.

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Moved by

[Lord Taylor of Holbeach]

56M: Clause 98, page 71, line 5, at end insert—
“(iii) in paragraph (b), for “two years” there is substituted “the relevant maximum specified in subsection (4A)”;(e) after subsection (4) there is inserted—“(4A) For the purposes of subsection (4)(b), the relevant maximum is—
(a) 14 years if a person dies as a result of being injured;(b) 5 years in any other case where a person is injured;(c) 3 years in any case where an assistance dog is injured (whether or not it dies).””

[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.

Amendment 56M agreed.