Publication - Advice and guidance

Control of Dogs (Scotland) Act 2010: guidance - updated

Published: 23 Dec 2020
From:
Minister for Community Safety
Directorate:
Justice Directorate
Part of:
Farming and rural, Law and order
ISBN:
9781800045194

Guidance is provided in accordance with the duty upon the Scottish Ministers under section 12(1) of the Control of Dogs (Scotland) Act 2010 to issue guidance to local authorities in relation to the exercise of their functions and the functions of authorised officers under the 2010 Act.

Control of Dogs (Scotland) Act 2010: guidance - updated
Part D – Dog Control Notice (DCN) Regime Q&A

Part D – Dog Control Notice (DCN) Regime Q&A

Q1. Do authorised officers need to work in pairs in respect of DCNs?

A1. There are 3 key stages within the DCN process and 2 of these 3 key stages require corroborated evidence (i.e. two or more sources of evidence).

The 1st key stage of the DCN process is where consideration is given by an authorised officer as to whether a dog has been out of control with a view to a DCN being issued. In order for the authorised officer to issue a DCN, they must be satisfied that a dog has, on at least one occasion, been out of control (as described in the answer to question 17 of this guidance). There is no requirement that any more than one authorised officer needs to be satisfied a dog has been out of control and the authorised officer does not require corroborated evidence before deciding whether a dog has been out of control. It would be sufficient for an authorised officer to decide a dog has been out of control if, for example, an individual authorised officer or a member of the public witnessed a dog being out of control in a public park.

The 2nd key stage of the DCN is that the DCN is served on the proper person. In order for the DCN to be valid and in force, the legislation does not actually require that the service of the DCN needs to be corroborated as the serving of a DCN is a civil matter.

However, the complication is that should the terms of the DCN be breached by the proper person in the future, it is possible that the proper person may be prosecuted in the criminal courts (under section 5(1) of the 2010 Act) for a breach of the DCN. In order for the Crown Office and Procurator Fiscal Service to prosecute for the breach of a DCN, prosecutors will require corroborated evidence for both the 2nd key stage of the DCN process (that the DCN was issued to the proper person (as the proper person may say they had no knowledge of the DCN being issued)) and the 3rd key stage of the DCN process (that the terms of the DCN have been breached). Prosecutors do not require corroborated evidence in respect of the 1st key stage in the DCN process (where an authorised officer considers a dog has been out of control and the proper person should be issued with a DCN).

Therefore, corroborated evidence is required for both the service of the DCN on the proper person and for the breach of the DCN by the proper person.

It will be up to authorised officers to consider the most appropriate way of ensuring corroborated evidence is available for both the service of a DCN on the proper person and for the breach of the DCN by the proper person. As a general guide, here are some different ways that the requirement that corroborated evidence is available to confirm the service of the DCN on the proper person could be achieved:

  • The person being served with the DCN could be asked to attend a local authority office to be served with the DCN. As long as such service is effected by two people (this could be two authorised officers, or a mix of one authorised officer and one other person (acting as a witness).
  • The DCN could be served on the proper person at their home address. Two local authority officers (or a mix of one authorised officer and one other person (acting as a witness) could undertake a visit to the person's home to personally serve the DCN.
  • Local Authorities may wish to use two Sheriff Officers to serve the DCN on the proper person at their home address.

A template of a 'Form of execution of service of a dog control notice' is provided at Part I of this guidance for possible use by local authorities.

In terms of a breach of the terms of a DCN, corroborated evidence proving the breach is also needed. Authorised officers may wish to consider working in pairs where a DCN has been issued, and then a report is received that the dog owner is still failing to keep their dog under control. In that situation, it is possible that a breach of a DCN will be/has been committed and so, in line with the comments above, it is possible a prosecution may be taken forward following a report being submitted to the procurator fiscal. As such, corroborated evidence would be needed and therefore having two authorised officers (or one authorised officer and another person) present would be helpful in ensuring corroborated evidence of the breach of the DCN is available.

One of the key policy aims of the 2010 Act is to act as a motivation for dog owners to keep their dogs under control. The very existence of the legislation should help focus the minds of dog owners where, for example, an authorised officer could use their discretion and discuss with a dog owner the need to keep their dog under control without actually issuing a DCN. It would be good practice for authorised officers to record details of any discussion. To clarify what is expected of the dog owner to keep their dog under control, authorised officers may wish to write to the dog owner to summarise what was discussed and highlight any agreed actions.

The same applies where a DCN is already in force and where a dog owner may, perhaps, have failed to keep their dog under control – again the authorised officer has discretion in terms of what action (if any) they would take at that point and such discretion includes whether to take any formal action under the 2010 Act or give an informal warning to the person. In cases where an authorised officer receives a report that a DCN has been breached, the officer must carefully assess the evidence to determine whether they have sufficient information and evidence to conclude that the terms of the DCN has been breached.

More generally, the safety of authorised officers is paramount. We recommend officers, particularly those working on their own, should be encouraged to seek assistance from the police if difficult situations (especially for serious incidents that occur under the Dangerous Dogs Act 1991) were to develop. In the event that assistance is not readily available, or if the authorised officer is concerned that their personal safety could be jeopardised, they should be advised to withdraw immediately.

Q2. How should authorised officers deal with the issue of contested ownership, in cases where it may be difficult to pinpoint the owner of the dog or person who has day-to-day charge of the dog?

A2. It is possible that authorised officers may encounter some cases of contested ownership. If it is not apparent to an officer who has ownership of the dog, section 1(5)(b) of the 2010 Act enables the authorised officer to undertake reasonable enquiries in order to determine the person who appears to have day-to-day charge of the dog. For example, authorised offices may wish to ask the person who appears to have day-to-day charge of the dog if they would agree to provide any veterinary registration/history documentation to assist with their enquiries.

Authorised officers should be mindful of the Control of Dogs Order 1992 that requires that the collar of a dog contains the name and address of the owner. While the Order only applies in public places, it may be helpful to invoke the existence of this Order if there is an ownership dispute.

In addition, following the introduction of the Microchipping of Dogs (Scotland) Regulations 2016, authorised officers may make use of microchip readers to identify the ownership of a dog. Similarly, if a dog is not microchipped, authorised officers should be aware of the procedures to be followed where offences in terms of regulation 13 of the 2016 Regulations are discovered.

Q3. If a dog owner is in charge of more than one dog that is not being kept under control, is it possible for that person to be served with more than one DCN?

A3. It is possible for a proper person to be served with more than one DCN. An authorised officer may serve a DCN if it comes to the attention of the authorised officer that a dog has been out of control. A DCN can be served where the authorised officer has witnessed a dog which is out of control, or has received information that a dog is out of control. It will be a matter for the authorised officer to consider whether it is appropriate to serve such a DCN. The text below is extracted from the explanatory notes to the 2010 Act.

Explanatory Notes - The Control of Dogs (Scotland) Act 2010 Section 1 Subsection (8) provides that there must be one notice per dog. Therefore, if a proper person has charge of two dogs and both of those dogs are not being kept under control two separate dog control notices would be served.

Q4. Can action be taken against a person who obstructs an authorised officer in the course of their duties?

A4. Section 1(5)(b) of the 2010 Act permits authorised officers to undertake reasonable enquiries to attempt to ascertain the identity of the dog's owner, or person who appears to have day-to-day charge of the dog. The 2010 Act does not contain provision to make it an offence to fail to provide details to an authorised officer. It would be disproportionate to make it an offence for failing to provide officers with information on the basis that the provisions in section 1 of the 2010 Act do not establish any penalty or offence for a person to be served with a DCN. Having said this, should any person obstruct an authorised officer in a manner which involves conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community, then a breach of the peace may have been committed.

In addition, Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 creates an offence of engaging in 'threatening or abusive behaviour'. Subsection (1) provides that it is an offence for a person to behave in a threatening or abusive manner where that behaviour would be likely to cause a reasonable person to suffer fear or alarm and he or she either intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

Q5. Would a dog owner or person who has day-to-day charge of the dog who has been served with a DCN, still be liable if someone else was in charge of their dog at the time of an incident?

A5. Yes. The person who has been served with a DCN continues to be liable for the actions of their dog at all times. It is likely there will be occasions where the dog owner, or person who has day-to-day charge of the dog entrusts another person to be in charge of their dog, such as commercial dog walkers, family member, or a friend who wishes to exercise the dog.

Section 2(1)(d) of the 2010 Act provides that the proper person or an entrusted person must be in charge of the dog in a public place. The entrusted person must be advised of the terms of the DCN and it is imperative, to avoid the risk of a breach of the DCN, that they comply with the measures set out in the DCN. For example, if a dog is required to be kept away from a particular place specified in the DCN and the entrusted person fails to follow the steps set out in the notice, it would be the dog owner or person who has day-to-day charge of the dog that would be held accountable for failing to comply with a DCN.

Q6. Is a DCN issued in one local authority area valid and enforceable across the whole of Scotland?

A6. A DCN is issued under section 1(1) of the 2010 Act. Under section 5 of the 2010 Act, it is an offence to fail to comply with a DCN. Section 1 and section 5 (as indeed the whole of the 2010 Act) extend to the whole of Scotland and therefore any notice issued under that section will also be valid and enforceable in the whole of Scotland no matter where the DCN was served and the offence took place.

Q7. Does the DCN regime apply to all places?

A7. Yes. The DCN regime in the 2010 Act extends to all places and authorised officers may accordingly deal with out of control dogs in all places. The DCN regime permits authorised officers to issue DCNs to irresponsible owners of any dog that have been found to be out of control in any place (including the person's own home). Of course, it is less likely that the authorised officer will learn of a dog being out of control within, say, a home as opposed to, say, a public park where either members of the public or the authorised officer will have easy access to. It should be noted the 2010 Act does not provide a power of entry for an authorised officer into a person's home.

Q8. Is there a standard format for the DCN?

A8. Yes. Using powers in, in section 2(11) of the 2010 Act, Scottish Ministers have prescribed the form for a DCN. A link to the DCN form is provided at Part F of the guidance for use by all local authorities.

Q9. The 2010 Act requires that an electronic responder (microchip) is implanted in the dog as a means of identification. Is there a recommended type of microchip scanner that should be used?

A9. There is a range of Pet Identification microchip scanners available on the market, but in this instance it would be inappropriate for the guidance to promote certain suppliers of such products. The dog owner will be required to ensure the electronic transponder is implanted by a person who is appropriately qualified and satisfy the authorised officer that they comply with the requirements of section 2(1)(b) of the 2010 Act. It may be that local authorities may decide to provide a list of recommended suppliers to those issued with a DCN as a means of assisting dog owners in meeting their requirements.

Q10. Can authorised officers take photographic evidence to assist with identification to ensure the correct dog has been microchipped?

A10. Authorised officers may wish to take photographs of the dog to assist with identification. This may be beneficial in cases where a person owns several dogs of the same type/breed to ensure the correct dog is identified and is microchipped accordingly. There is no requirement under the 2010 Act to take photos.

It is the person served with a DCN that must comply with the terms of the DCN to the satisfaction of the local authority. If the person served with a DCN was to intentionally avoid making the necessary arrangements to correctly chip the dog in question, a breach of the DCN would have occurred as they would have failed to comply with the terms of the DCN.

Q11. The 2010 Act provides that each local authority must be satisfied that the authorised person is skilled in the control of dogs and is able to instruct and advise others in matter relating to this. Are there any courses that cover dog control?

A11. The 2010 Act does not prescribe specific qualifications for the post of authorised officer. It will be for local authorities to ensure that their staff are adequately trained to carry out their duties in line with the general requirements of the 2010 Act. The level and nature of training provided to staff is, of course, a matter for individual local authorities.

There are Dog Control National Occupational Standards and some of these are contained within the SVQ in Animal Care at SCQF Level 6.

As a guide, we suggest that local authorities may wish to explore as part of developing their training strategies for officers who will take on responsibilities under the 2010 Act, the availability and affordability of this training:

Scottish Qualification Authority

These are the current SVQs in Animal Care at SCQF Level 5 and Level 6 (Scottish Credit and Qualifications Framework)

https://accreditation.sqa.org.uk/accreditation/Qualifications/Accreditation_Qualification_Show?id=851885

https://accreditation.sqa.org.uk/accreditation/Qualifications/Accreditation_Qualification_Show?id=851935

There are Scottish Vocational Qualification units contained within the SVQ that may be of interest to local authorities and authorised officers.

SVQ Unit Handle and restrain animals

SVQ Unit Provide and manage accommodation for animal

SVQ Unit Provide first aid to animals

SVQ Unit Investigate animal related incidents

SVQ Unit Evaluate information pertinent to animal related incidents

SVQ Unit Plan and monitor the establishment and management of animal populations

SVQ Unit Load and unload animals for transportation

SVQ Unit Protect yourself and others from the risk of violence at work

SVQ Unit Make presentations

SVQ Unit Present information to court and formal hearings

Alternatively, local authorities may wish to also explore the SQA website to consider customised training awards for their staff. www.sqa.org.uk/sqa/29182.html

For general information on training options please contact the SQA Customer Contact Centre by:

Telephone 0345 279 1000

E-mail customer@sqa.org.uk

Tweet to @sqasupport

Office hours: 8.30am to 5pm Monday to Friday (we are closed on Bank holidays)

Q12. Are authorised officers expected to make use of provisions contained in the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) when monitoring and enforcing the DCN?

A12. Ultimately, the use of RIPSA is a matter for local authorities. RIPSA legislation puts in place a regulatory framework within which the necessity for and proportionality of certain surveillance activities can be considered and authorised if both tests are met. Covert techniques should only be considered when there is no other way of obtaining the information required. Local authorities are required to demonstrate how they have met the necessity and proportionality tests, and these recorded authorisations are subject to inspection by the Office of Surveillance Commissioners.

Q13. What is expected of local authorities in respect of monitoring and enforcement?

A.13. The 2010 Act places a duty on local authorities to monitor the effectiveness of and enforce all notices issued by local authority appointed officers. The explanatory notes for the 2010 Act confirm that this will require ongoing monitoring of DCNs to assess whether the steps specified are effective in bringing the dog under control.

The 2010 Act does not specify the exact frequency and level of monitoring that is required, we would suggest the local authorities make such enquiries as they think necessary for the purposes of monitoring the DCN and require the person served with the DCN to provide such information or documentation (i.e. produce certificate of attendance at training course in the control of dogs) as necessary. For different cases, this may mean different approaches depending on the circumstances of a DCN that has been issued. For example, where a number of additional conditions has been added to a DCN (under section 2(6)), this may lead to more active monitoring and enforcement of a DCN than for a DCN where no additional conditions had been added. However, the discretion lies with authorised officers to decide on the best approach for each of their cases.

Local authorities may also wish to call upon, or obtain expert or other advice from any person who is, in their opinion, particularly qualified to help make an informed decision when gauging the effectiveness of the notice served.

Q14. If a person wishes to appeal against the serving of a DCN is the appeal time bound?

A14. Yes. The appeal is time bound and is by way of summary application. This means a person has 21 days from the date of the issuing of the DCN to appeal against the whole notice as a whole or a term of the notice. This is because the normal rules of summary applications apply – Rule 2 .6(2) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 SI 1999/929 : http://www.legislation.gov.uk/uksi/1999/929/made

Q15. Is there any guidance available that would support local authorities and authorised officers when considering how to proceed in the event of a breach of a DCN?

A15. Reference should be made to the Crown Office & Procurator Fiscal Service guidance for Specialist Reporting Agencies (SRA). The aim of the guidance is to provide advice for specialist reporting agencies which will enable them to contribute effectively to achieving an outcome in reported cases which best serve the public interest. The purpose of the SRA guidance is to:

  • To assist specialist reporting agencies in knowing exactly what the Procurator Fiscal requires when a case is reported and to provide some indication of how trials are conducted in Scotland; and
  • To identify and to address common problems in reporting and in prosecuting such cases which more often than not involve employees or members of specialist reporting agencies.

http://www.copfs.gov.uk/Resource/Doc/13547/0000442.PDF

The SRA guidance is comprehensive and wide ranging and should be of assistance to local authorities and authorised officers when considering how best to proceed in the event of a DCN being breached under the terms of section 5 of the 2010 Act.

The SRA guidance offers advice on a range of areas including witness statements, the role of the Procurator Fiscal, court procedure, and general legal requirements including preserving evidence and the nature of evidence that should be presented by the authority for there to be a reasonable chance of a prosecution being pursued.

ISCJIS

The link below provides information for local Authorities and specialist reporting agencies on The Integration of Scottish Criminal Justice Information Systems (ISCJIS) programme.

http://www.scotland.gov.uk/Topics/Justice/legal/criminalprocedure/iscjis

For general enquiries on the ISCJIS programme please email:

ISCJIS@scotland.gsi.gov.uk

Q16. If a serious breach of a DCN happens what action should be taken by the authorised officer?

A16. Local authorities would be expected to adhere to the section 5 provisions of the 2010 Act in the event of a breach of a DCN occurring. Dependant on the severity of the breach it may be appropriate to also rely on the provisions contained in the Dangerous Dogs Act 1991.

For example, if a person allowed their dog to be dangerously out of control and the dog seriously attacked someone it would be appropriate for the authorised officer to report the matter to the police who are responsible for dealing with dangerous dogs (including strays) that are formally classed as dangerous under the terms of the 1991 Act (this Act makes no changes to police responsibilities for stray and dangerous dogs). Section 5 of the 1991 Act allows for a constable or an officer authorised by a local authority to seize any dog within the boundaries of the 1991 Act.

With regard to kennelling costs for dogs that are seized, unless localised agreements are in place between the local authority and the police, the cost of keeping the dog will rest with the organisation that seized the dog.

If the person is subsequently convicted of an offence, the court may order the destruction of the dog in question. Under section 4 (4)(b) of the 1991 Act, the court can order the offender to pay such sum as the court may determine to be reasonable expenses of destroying the dog and of keeping it pending its destruction. Any sum ordered to be paid under subsection (4)(b) above shall be treated for the purposes of enforcement as if it were a fine imposed on conviction.

Q.17. Are commercial dog walkers covered by the 2010 Act?

A17. There is no specific provision covering commercial dog walkers, but they, along with everyone else, could be covered by the general provisions. For example, a number of people rely on commercial dog walking services to exercise their dogs. A situation could arise where a person who has been served with a DCN which requires their dog to be kept on a lead opts to use a commercial dog walking service. Under the 2010 Act, it is possible for the proper person to entrust someone else to be in charge of their dog in a public place. This would mean the commercial dog walker would become the "entrusted person" - an "entrusted person" under the 2010 Act is a person who is at least 16 years of age, has been entrusted by the proper person to be in charge of the dog and is made familiar with the requirements of the DCN and is willing and able to abide by those requirements.

Whilst the behaviour of certain dogs in large packs will of course vary, to reduce the risk of incident, authorised officers may wish to rely upon section 4(b) of the 2010 Act to stipulate an additional step on the DCN so that the dog cannot be walked in large groups of more than, say for example, 6 dogs at the same time.

If the dog walker failed to keep the dog on the lead, or walked the dog in a group of more than 6 dogs at the same time, then a breach of the DCN would have occurred under section 5 of the 2010 Act. It would be the owner, not the entrusted person, who would be liable.

All dog walkers should be mindful of the 2010 Act and we would expect those who deliver such services to act in the spirit of the legislation by ensuring they take necessary steps to ensure the safety of members of the public is not compromised by keeping dogs under proper control at all times.

All dog walkers should be mindful of section 3(1) of the Dangerous Dogs Act 1991 that makes it an offence to allow who a dog to be dangerously out of control in any place.

Q18. Given the risk of differing interpretation among authorised officers when trying to determine whether a dog is "out of control", can the guidance provide any examples of what would constitute a dog being "out of control"?

A18. Firstly, a dog is out of control if -

  • it is not being kept under control effectively and consistently (by whatever means) by the proper person,
  • Its behaviour gives rise to alarm, or apprehensiveness, on the part of an individual, and the individual's alarm or apprehensiveness is, in all circumstances, reasonable.

Secondly, the guidance for the 2010 Act cannot go beyond this statutory definition of 'out of control', but we can provide some examples as to what this definition may mean in practice. Decisions as to what constitutes 'out of control' will depend on the very specific circumstances of each case. The scenarios given below are intended to provide a guide, but should not be seen as overwriting the law in any way.

Scenario 1

Search dogs are often used to locate people who are missing, lost in the wilderness, escaped from nursing homes, covered in snow avalanches, buried under collapsed buildings, etc.. Dependent on the circumstances, it is possible that it may appear that a dog used for tracking purposes, who works off-lead, may not appear at times to under the constant control of their handler.

As long as the dog handler is able to exercise control by commanding the search dog to follow instruction and the search dog responds to such instruction, the two part test laid out in the 2010 Act will ensure dogs working legitimately as working dogs under the control of their handler will not be affected, as the first part of the test will not be met due to the dog being kept under control effectively and consistently by the dog handler as they carry out their working duties.

Scenario 2

Guard dogs and watch dogs help to protect private or public property, either in living or used for patrols, as in the military and with security firms. Under section 1(1) of the Guard Dogs Act 1975 a person shall not use or permit the use of a guard dog at any premises unless the "handler" who is capable of controlling the dog is present at the premises (premises means land and buildings, but not dwelling houses) and the dog is under the control of the handler at all times.

The two part test laid out in the 2010 Act will ensure dogs working legitimately as working dogs under the control of their handler will not be affected as the first part of the test will not be met as the dog will be being kept under control effectively and consistently by the dog handler as they carry out their working duties.

However, if the dog handler was to allow the dog to be off-lead and was unable to restrain the dog, or if the dog failed to obey their handler's repeated commands not to pursue an intruder on the premises, the authorised officer may deem that the dog was out of control under section 1(3)(a) of the 2010 Act. The second element of the two-part test would still need to be met before a DCN could be issued. It may be possible that the intruder was alarmed or apprehensive when being pursued by the guard dog. In such circumstances, authorised officers would be required to look carefully and more broadly at the context in which the alarm or apprehensiveness arose (under s1(3)(b) and (3c) of the 2010 Act) to determine if it was reasonable.

Scenario 3

Dogs such as working type terriers, spaniels, labradors, retrievers, hounds, hunt-point-retrievers, and lurchers are often used to track locate and, when appropriate, legitimately dispatch / drive / retrieve legal quarry and pest species (e.g. rats, rabbits, game-birds etc). When engaged in such work these dogs will often work off-lead and, at times, may not appear to be under the constant control of their handler.

As long as the dog handler is able to exercise control by commanding the dog, when re-called, to follow instruction and the dog responds to such instruction, the two part test laid out in the 2010 Act will ensure dogs working legitimately as working dogs under the control of their handler will not be affected, as the first part of the test will not be met due to the dog being kept under control effectively and consistently by the dog handler as they carry out their working duties.

Scenario 4

Sheep dogs are used to track, locate, gather, drive, catch and restrain sheep and cattle. Sometimes this work can involve dogs ranging widely over large areas of land. When engaged in such work these dogs will often work off-lead and, at times, may not appear to be under the constant control of their handler. As long as the dog handler is able to exercise control by commanding the sheep dog, when re-called, to follow instruction and the sheep dog responds to such instruction, the two part test laid out in the 2010 Act will ensure dogs working legitimately as working dogs under the control of their handler will not be affected, as the first part of the test will not be met due to the dog being kept under control effectively and consistently by the dog handler as they carry out their working duties.

Scenario 5

It is very common for dog owners to exercise their dogs in public parks. If a dog is being exercised in a public park off-lead, excitedly runs over to a person and then playfully jumps up onto that person, it is feasible that the person, if they are afraid of dogs, could have experienced some form of alarm or apprehension. If the owner of the dog was to intervene immediately and command the dog to return to his/her side, and the dog obediently complies, the authorised officer would be required to carefully consider whether the individual's alarm or apprehension was reasonable.

Assuming the authorised officer has no reason to believe the dog presented any danger to the person/public and is satisfied there is no supporting evidence of any previous incidents involving the dog in question, it would most likely be seen as unreasonable to expect the authorised officer to serve a DCN under those circumstances.

Scenario 6

If a puppy is being exercised on-lead in a public park and constantly fails to respond to its owners commands to heel/repeatedly pulls away from its owner and frequently lurches towards anyone who passes by, it may appear to be 'out of control'. It may be that the puppy's behaviour and general disobedience could be put down to pent up energy and excitement.

It should also be borne in mind that there is no obligation on authorised officers to issue a DCN on every occasion. While enforcement will be important, it may be more appropriate for the authorised officer to highlight the measures of the 2010 Act that are aimed to prevent and deter dog owners from allowing their dogs from being 'out of control' and rather than issuing a DCN, seek reassurance from the dog owner that appropriate steps are being taken to correct the puppy's behaviour without a DCN actually being issued.

Scenario 7

A number of public and private sector workers may require access to private property in the course of their duties. Access could be required to deliver mail, seek access to the home to read gas meters, carry out health visitor appointments, or to provide a home help service.

If a worker accesses a property to deliver mail and is met by a dog who is not under the watchful eye of its owner and to all intents and purposes has been left to its own devices, demonstrates overly protective and territorial aggressive behaviour towards the worker by constantly growling and snarling without provocation, the authorised officer may after careful deliberation decide that the two-part test under section 1 of the 2010 Act had been met and decide it would be appropriate to serve a DCN.

While it could be argued that it is common for a dog's instinct to take over, and to demonstrate defensive behaviour when faced with someone unfamiliar entering the property, dog owners must take responsibility to ensure those workers who deliver a vital service for their communities are not subjected to having to deal with threatening or aggressive dogs when undertaking their duties on private property.

Dependant on the severity of the incident, it may be appropriate to consider the provisions of the Dangerous Dogs Act 1991 if the dog is dangerously out of control.

Scenario 8

Many dogs stray regularly, whether due to a failure to ensure that they are adequately secured at the place which they are kept on a daily basis, or deliberately let out to roam by their owners. Therefore, they are not being kept under control effectively or consistently. Where the dog then acts in a manner to cause alarm or apprehensiveness it may then be 'out of control' as defined by the 2010 Act and an authorised officer may have reason to serve a DCN.

As well as giving consideration to whether the incident was deemed to be serious enough to serve a DCN, the officer may wish to consider whether this was a 'one off' incident where the dog escaped i.e. the dog is normally kept securely and an uncharacteristic event led to the dogs escape, or whether this is a regular occurrence. An officer may also wish to take in to account any effort made by the owner to find and secure the dog and bring it under control.

Scenario 9

Nowadays, dogs are very popular as family pets and are may live in busy households where there are young children. Inevitably, the children's friends will visit and it is normal for a stream of people/children to be coming and going on a regular basis. Children playing can become a source of great excitement for dogs, particularly puppies, and this can often lead to chasing or nipping behaviour as they try to join in with the games.

Owners need to be extra vigilant in these circumstances as situations can quickly become out of control. If a report of a child being severely nipped or bitten in such a situation is made to an authorised officer, as well as considering the seriousness of the incident there are many factors to take into account. Sometimes young dogs are unable to handle the excitement of children playing and officers may want to consider if the dogs immaturity led to inappropriate behaviour rather than being deemed 'aggressive' by nature. For example, if the dog was a very young puppy, was the dog trying to play without having learned 'bite inhibition'.

Authorised officers may wish to consider any measures put in place to keep the dog under control. Authorised officers may also wish to consider whether any mitigating factors should be considered before reaching a decision on whether to serve a DCN. For example, did the child's interaction with the dog contribute or trigger the dogs behaviour that led to the incident. For example, the dog was crated/behind a baby gate but the child kept pestering it through the bars which resulted in a nip, either through excitement or apprehension.

Scenario 10

Many dogs are allowed free access to the garden of the property in which they live. The garden may look onto public pathways or parks where the dog can see people and other dogs. Should the dog behave in an aggressive manner towards people walking past the garden it is feasible that they could experience alarm or apprehension and complain about the dogs behaviour. This is particularly the case when the boundary fence is low enough that the dog can jump up to bark at passers-by.

Authorised officers may want to investigate whether the dog in question was barking excitably at general activity outside the garden or if the dog displayed aggression specifically towards the complainant in order to help establish whether their apprehension was reasonable. It may be that the complainant did not see the dog in the garden and got a fright when it barked. In this case it would be seen as unreasonable for the Officer to issue a DCN. Officers may also want to take into account any control measures were put in place by the owner. For example, whether the dog was completely secure in the garden or whether it was feasible for the dog to escape over/through fencing and whether it was supervised at the time.

Scenario 11

Dogs have a natural chase instinct and it is highly likely that situations will develop where a dog chases after other domestic pets, resulting in a complaint being made against the dog. For example, if a dog chases a cat, it is reasonable to assume that this would cause the owner of the cat to be fearful for its safety. Authorised Officers would need to establish the extent of the chase - did the dog start to chase the cat, but responded to the owner's calls and returned to them without harming the cat, or did the dog continue to pursue the cat until it was out of reach. If the dog was on lead and managed to break free in order to give chase, but the owner then regained control before any harm came to the cat, it would seem unreasonable to issue a DCN and advice in the control of the dog may be more appropriate. If the dog was being walked off lead at the time and ignored the owner's calls to return, a DCN may be appropriate in order to prevent similar problems in the future.


Contact

Email: controlofdogsactguidance@gov.scot