Jennifer Kabała is a Solicitor, working in our Private Crime who specialises in dog law, wild animal legislation and firearms law. Here Jennifer discusses the recently announced XL Bully Ban, the Dangerous Dogs Act, and whether the latter is fit for purpose in her view. To contact Jennifer about this article, the information contained or for legal advice visit our contact page here. Alternatively, you can phone 0333 240 7373, or email us at email@example.com. For further information regarding Reeds Solicitors’ Dog Law services, visit our Dog Law Services page here.
On 15 September, Prime Minister Rishi Sunak announced the Governments plans to ban the American XL Bulldog by the end of 2023. This will make it the 5th type of dog to be added to the list of prohibited ‘breeds’ in the UK.
The American XL Bulldog – or “XL Bully” – is said to have been linked to 10 deaths in the past two years in the UK. Many of you would have seen all the recent media attention that attacks, said to be related to dogs of this breed, have received.
So, is this the logical next step? Is the XL Bully too dangerous to be kept as a pet, or is this yet another Government scheme to give the public the illusion that they are being protected?
The Dangerous Dogs Act 1991 – What is it?
The Dangerous Dogs Act 1991 (“DDA”) came into force on the 12 August 1991.
The Dangerous Dogs Act came into effect extremely quickly in response to a spate of dog attacks; there had been 11 in a period of 1 year. Seven of these involved children. These attacks sparked outrage amongst the public.
You might be forgiven for thinking that the majority of these attacks were perpetrated by the mythical Pit Bull. You’d be wrong! Only 4 of these attacks were said to relate to Pit Bull ‘type’ dogs. The remaining attacks appear to have related to breeds which were never banned.
Due to the hasty imposition of the Dangerous Dogs Act, it was not made subject to the usual scrutiny that most legislation is subjected to. Amongst legal practitioners, it has long been a shining example of how legislation should not be enacted.
A number of new offences were created by the DDA, but for the purposes of this article, the one we shall be focussing on is the infamous ‘Section 1’ offence. This section made it an offence to own (or possess), sell, breed, give away or abandon any ‘prohibited type’ dog.
The act ‘bans’ 4 types of dog, thought to have been bred for the purposes of fighting. These types are:
- The Pit Bull;
- The Japanese Tosa;
- The Dogo Argentino; and
- The Fila Brasilerio.
The section 1 offence carries a maximum sentence of 6 months imprisonment.
Of the 4 types the most common is the Pit Bull although, in reality, a pedigree Pit Bull is extremely rare in the UK. The remaining 3 breeds are virtually unheard of in the UK. This may explain why, of the 4 types, only the Pit Bull has ever been defined.
Why ‘Types’ and not ‘Breeds’?
Many use the term ‘Breed Specific Legislation’ (“BSL”) when referring to the Dangerous Dogs Act (DDA), but this is somewhat misleading.
The Dangerous Dogs Act does not ban any breed of dog – it bans ‘types’ of dog.
Believe it or not, the fact your dog has absolutely no Pit Bull in it does not mean it is safe. Why? Because it is irrelevant for the purposes of section 1 what the breed of your dog is; any pedigree it holds, what breed their parents were, their DNA or even their behaviour.
I tend to refer to the practice of ‘typing’ (i.e. identifying a prohibited type dog) as ‘death by tape measure’ – although, in truth, this is an over-simplification of what the process involves. It is true, however, that many of the characteristics of a Pit Bull type dog can be determined by use of a tape measure. Others are simply a matter of appearance.
The Department for the Environment, Food and Rural Affairs – better known as “DEFRA” – has issued guidance to police and other law enforcers as to what to look for when ‘typing’ a Pit Bull type dog. As the Pit Bull was never a breed of dog recognised in the UK, these specifications were based on the standard set for US show-dog in the 1970s.
The specifications include:
- The dog should appear square when viewed from the side;
- Its height to the top of its shoulders should be the same as the distance from the front of its shoulder to the rear point of its hip;
- Its coat should be short and bristled;
- The head should appear ‘wedge shaped’ from the side, but rounded when viewed from the front;
- The head should be around 2/3 of the width of its shoulders and 25 percent wider at the cheeks than the base of the skull (due to the cheek muscles).
To date, DEFRA has never provided any similar guidance as to any of the remaining 3 types of dog on this list.
In order for a dog to be deemed a Pit Bull ‘type’, they must meet a ‘substantial number of the characteristics’ – the case law suggests, the dog must have 60% of these.
Up until 1997 when the Dangerous Dogs ACT was amended, if a dog exhibited a substantial number of these characteristics, it had to be instantly neutered, numbered and insured or destroyed. This resulted in untold numbers of dogs being culled. Fortunately, the 1997 amendment changed the law and allowed prohibited dogs to be exempt if a court could be satisfied that the dog was safe and that the owner was a ‘fit and proper’ person.
For the purposes of this offence, it is completely irrelevant whether the dog has ever exhibited any aggression or whether anyone has ever complained about its behaviour.
Exemption for Prohibited Dogs
Whilst prohibited type dogs are frequently referred to as ‘banned breeds’, this is not strictly true.
Since the amendments to the Dangerous Dogs Act (DDA) in 1997, prohibited type dogs can be exempt, meaning the owner can possess them legally, provided they adhere to strict conditions.
Dogs can either be exempt without the need for the owner to be criminally prosecuted (in accordance with section 4B of the DDA), or following criminal proceedings under section 1.
In order to have a prohibited dog exempt, a court must be satisfied that they are not a danger to the public and that the owner is a ‘fit and proper’ person.
To satisfy the court of the former, it is usually necessary to have the dog assessed by an expert.
When considering whether an owner is a ‘fit and proper’ person, the court will consider previous convictions and the nature and suitability of the premises where the dog is to be kept. Where a dog has been released pending a court decision – or where the owner has been allowed to keep them whilst the process was ongoing – the court shall also consider whether any of the conditions imposed upon the owner have been breached and also whether the owner has breached any previous court orders.
The court may consider any additional factors which they feel have an impact as to the owner’s fitness to own or be responsible for the dog.
In practice, many dogs can be saved from being put to sleep by use of the exemption scheme.
If the court agree that the dog should be exempt, the owner will have to abide by the following conditions:
The dog must be:
- Registered with DEFRA (Index of Exempt Dogs);
- Kept on a lead and muzzle at all times in public – including in a vehicle; and
- Kept in a secure place so it cannot escape.
The owner must also:
- Insure the dog;
- Be aged over 16;
- Show their Certificate of Exemption to the Police or Council Dog Wardens, either at the time or within 5 days; and
- Let the Index of Exempt Dogs know if they change address or the dog dies.
Although the exemption scheme does offer an alternative to putting dogs to sleep, it does have its issues.
Only the owner or person in charge is exempt, allowing them to legally possess the dog. There are very stringent restrictions, however, as to the circumstances in which the ‘keepership’ of the dog can be changed; namely, if the owner dies or becomes seriously ill.
This leads to many owners having to put their perfectly safe and well-behaved dogs to sleep in circumstances in which they can no longer care for the dog, as it remains illegal for them to sell or rehome the dog to a person who is not exempt.
Has the Dangerous Dogs Act achieved its aims?
So, here we are! 32 years after the Dangerous Dogs Act (DDA) first came into force; this utopia where dog attacks are a thing of the past and we can all live in harmony with our canine companions! Yes, I’m being sarcastic!
The short answer is, categorically, NO!
An initial assessment of the effectiveness of the DDA, 5 years after its implementation, found that there had been no significant reduction in dog bites and, in fact, the numbers had increased. Between 1999 and 2019, the number of hospital admissions from dog bites increased by 154%.
Section 3 of the Dangerous Dogs Act, as it was originally drafted, made it a criminal offence to be the owner or the person in charge of a dog – of any breed – dangerously out of control in a public place. In 2014, this was amended to include private spaces, including the owners own home and garden. It also increased the sentences imposed for dog attacks quite significantly.
The maximum sentence which could be imposed on an owner of a dog who had injured a person was increased from 2 years to 5 years and, in cases in which the dog had killed a person, the sentence was increased from 2 years to 14 years.
Despite these amendments, the number of dog attacks continued to rise following the amendments. From data provided by the Office of National Statistics, there were a total of 3 deaths as a result of people being ‘bitten or struck by [a] dog’ in 2013, compared to 4 deaths in 2014 and 5 deaths in 2015. We cannot know from these statistics which breeds of dogs caused or were associated with these deaths, as there is no requirement for this information to be provided on the death certificate.
Why hasn’t the Dangerous Dogs Act worked?
In my view, the reason why the Dangerous Dogs Act has been the spectacular failure it is, is because it focuses on the wrong things:
1. There is a lack of reliable scientific data to support that BSL is effective
The justification for BSL has always been that it should reduce the number of dog attacks as prohibited types of dogs are those which are most likely to be involved in attacks, as they are the most inherently aggressive; however, there is a surprising lack of reliable scientific data to support this.
Whilst some studies conducted have suggested that prohibited type dogs are the most likely to be involved in attacks, other studies have suggested otherwise. Studies have been conducted in Ireland, Spain, Italy and the Netherlands which suggests that BSL did nothing to reduce the number of dog bites.
There have also been a variety of studies conducted in various countries which have suggested that other breeds of dog are more likely to be responsible for bites. Over the years, the finger has been pointed at the German Shepherd, Dachshunds, Chihuahuas, Jack Russells, Cocker Spaniels, Catalan Sheepdogs, Belgian Shepherds and Beagles – none of which are considered dangerous or are prohibited.
In an online article, published by the University of Liverpool on 15 August 2023, it was stated:
‘When we examine breeds involved in fatalities, it is clear that most are large and powerful. That’s not to say smaller breeds cannot kill – they have been known to. As American XL Bullies are a new sub-breed of the American bulldog, there has been no scientific study of their bite risk and bite rates were rising long before they existed.
‘They and the other American bulldogs and related pit bulls do feature highly in fatalities lists. Yet so do rottweilers, German shepherds and Malamutes.’
Why is it so difficult to find reliable scientific data which conclusively answers this question? Part of the issue is that there is simply not enough data to be able to accurately establish which breeds of dog are most frequently involved in attacks and why.
In order to establish meaningful data, we would need to know how many dogs are owned in the UK overall, how many dogs of each breed are owned, who owns them, where in the country they are located, and if there are any environmental factors which may have an impact – e.g. in areas which already have a higher rate of crime.
Whilst there are statistics as to the number of deaths related to dog attacks in the UK, this data does not include which breed of dog was involved as this is not included on the death certificate.
The suggestion that prohibited type breeds of dog are particularly prone to aggression and, therefore, are more frequently involved in dog attacks is incapable of being empirically proven for this reason.
The reality is that any dog is capable of inflicting serious injury, or even killing a person, in the right circumstances. To illustrate this point, In November 2012 a week-old baby was killed after he was bitten by a Jack Russell.
Indeed, I would argue that any damage a Pit Bull or XL Bully can do, a German Shepherd, Rottweiler or even a St. Bernard would be equally capable of inflicting.
2. The dog is not the problem
I was recently at a wedding in Italy – a few days after the XL Bully ban had hit the front pages – and got chatting to an American about it. Bearing in mind, there is no such thing as BSL in the USA and this lady was shocked and confused as to why the UK Government thought this would work. To this extent, we agreed!
The reason I raise this conversation, however, was that she made a comment which I found to be both extremely interesting and extremely concerning. It made me question whether other people share her view.
Her comment was ‘surely all you need to do to have a well-behaved dog is treat it nicely’.
As a dog owner myself, I can say from experience that if dogs are not given appropriate guidance and leadership, this can result in bad or even dangerous behaviour. An owner may well have the best intentions and treat their dog like royalty, but if the dog is not trained properly, this can cause all sorts of issues.
Ultimately, the majority of dog attacks are usually as the result of human error and could be prevented; although there will always be the exceptions. Some would seek to blame the owner of the dog, but I believe the problem goes even deeper than that!
I. Inexperienced owners
Are owners the problem? Not always! Are they sometimes part of the problem? Definitely!
Most of us are aware of the explosion of puppies which were purchased in the UK during the COVID-19 pandemic. Virtually overnight, people who previously were not able to have a dog because they had to work, had free-time on their hands.
Statistics suggest that, since the COVID-19 pandemic, the number of dog attacks has increased. In 2022, almost 9000 people were admitted to hospital with dog bites, a rise of more than 1000 from 2021. 5 years ago, it was estimated that there were 9 million dogs owned in the UK. There are now an estimated 12 million! This is no coincidence.
Of course, this is not to say that everyone who bought a, so called, ‘COVID Puppy’ is a bad owner. Many will be extremely responsible owners who have done everything right, but logic tells us that some of these owners will have neglected training their dogs and this will have had some impact on the bite rates.
What many people do not realise is that the rapid rise in dog ownership will have a knock-on effect for our furry friends.
II. Dog Trainers
Of course, there are a multitude of extremely good dog trainers in the UK and I am not suggesting that they are in any way responsible for the increase in dog bites.
There are also many reputable Independent Representative Groups in the UK which dog trainers can register with and which set the standard for their members, and offer educational programmes to build upon their skills and knowledge.
Nonetheless, there is no national regulatory body for dog trainers and behaviourists in the UK and anyone can identify themselves as a dog trainer or behaviourist, irrespective of their level of experience or whether they have any relevant qualifications.
Due to the increased numbers of dogs in the UK after COVID, the demand for dog training services has skyrocketed! Whilst legitimate dog trainers will have benefitted from this, so to will other, unscrupulous ‘trainers’ looking to get a slice of the pie.
Some of these individuals will have used cruel and inhumane methods of controlling the behaviour of the animals they work with. The most obvious example of such a technique is a ‘shock collar’. This is a collar which gives the dog an electric shock via a remote control.
The Government is in the process of laying legislation which will ban the use of shock collars, and potentially, other similar devices; however, this is not likely to come into effect until 1 February 2024.
To put that into context, the Government announced the ban on shock collars back in August 2018, meaning it will have taken 5 and a half years by the time the ban actually comes into effect – whereas it is likely to take 3 to 4 months for the XL Bully ban to be put through!
A study conducted by the University of Lincoln in 2019 showed that the use of shock collars in training, even when used by a ‘professional’, was not any more effective than using positive reinforcement methods and that it had a detrimental impact on the well-being of the dog.
The use of cruel training methods – not limited to use of shock collars – by untrained individuals calling themselves dog trainers is, in my view, highly likely to have contributed to the increase in bite rates.
III. Dog Breeders
There is legislation which governs the breeding of dogs in the UK.
Presently, any person who breeds 3 or more litters of puppies in any 12-month period or runs a business which breeds and advertises dogs for sale requires a licence. The Local Authority for the relevant area is responsible for granting licences and will perform inspections on the premises before they do.
A person who applies for a licence must prove that their dogs are:
- Kept in suitable accommodation;
- Provided with adequate food, drink and bedding;
- Exercised regularly;
- Transported in safe and comfortable conditions;
- Protected in case of an emergency (e.g. a fire); and
- Protected from pain, injury, suffering and disease.
They will also need to:
- Keep records of all their dogs and puppies and these must be kept ready for inspection;
- Display their licence number in any advertisement; and
- Display their licence clearly on the premises.
It is a criminal offence, punishable by 6 months imprisonment or an unlimited fine, to breed dogs without a licence. It is also an offence if a person breaches the terms of their licence. The maximum penalty for this offence is an unlimited fine.
Sadly, this did not stop the influx of ‘puppy farm’ puppies being bred or imported into the UK to fulfil the demand for puppies during COVID. In truth, however, the unregulated breeding of dogs was an issue in the UK long before the pandemic.
The breeding of puppies, particularly popular and desirable breeds, is a multi-million-pound industry and many unscrupulous breeders are not above breeding dogs to enhance particular characteristics which will mean they sell for more.
Whilst responsible breeders will breed dogs with a strong emphasis on health and temperament, others will not, resulting in dogs being bred with a genetic pre-disposition towards health issues and they will not consider the temperament of the parents. Furthermore, puppy farm puppies are frequently kept in unsanitary or inhumane conditions and will experience limited socialisation with people and other dogs.
Such animals are far more likely to exhibit behavioural issues and this, in turn, means they are more likely to be involved in attacks.
IV. The general understanding of dog behaviour/training in society
We are a self-proclaimed nation of dog lovers, living shoulder to shoulder with millions of dogs, and yet, there is no formal educational programme relating to dog behaviour and how to act around dogs.
As a child, I recall my grandmother drumming it into me that I should never approach a dog I did not know and should not touch them, unless the owner confirmed they were safe.
In its online article, dated 15 August 2023, the University of Liverpool stated:
‘The majority of dog bites are from a dog known to the victim. Often this is the family pet and bites happen during stroking, restraining or just play. The dog is often responding to discomfort, whether pain or fear.’
From my own experience, I have found that the majority of cases in which a child has been bitten by a dog tend to involve the child being left alone it. It is my view that no child, particularly a young one, should be left alone with any dog of any breed. Young children explore the world with their hands and even a non-aggressive dog can react poorly when poked and prodded.
You have, no doubt, seen ‘cute’ Instagram videos of babies being draped over dogs. These videos set my teeth on edge! Whilst it may appear cute, to me, these are accidents waiting to happen.
Of course, attacks by unknown dogs do happen and I do not seek to dispute this fact. Have you ever been taught what to do if a dog does attack you? No? You’re not alone!
In these types of cases, whilst the owner may be responsible to some degree, the behaviour of others can also play a part. You do not need to hurt or harm a dog to get bitten!
Problems with the Dangerous Dogs Act (DDA)
My main concern surrounding the Dangerous Dogs Act is that, whilst it can punish irresponsible owners, it is all too common for it to punish responsible ones and completely innocent dogs.
You do not need to be an expert to see how other breeds and types of dog could, quite easily, get mixed up in the legislation.
To illustrate the point, I have previously been aware of a client who owned a Staffordshire Bull Terrier and an English Bull Mastiff. She bred them and they had 3 puppies. All 5 dogs were later seized by the police on suspicion of being prohibited type.
What did they find? The Staffordshire Bull Terrier was found not to be type, but the Bull Mastiff was. If that were not ridiculous enough, once able, the police also ‘typed’ the puppies and found that 2 were of type and the remaining puppy was not.
In practice, this means that 2 of the puppies and their mother were deemed to be ‘dangerous’ based on nothing more than their physical characteristics. This is not an isolated case. It is not uncommon for discussions about whether a dog is of a prohibited type – and therefore ‘dangerous’ – to come down to a single measurement or a matter of a few millimetres.
I am sure I am not alone when I say, the suggestion that a dog is dangerous simply because it fits a specific set of measurements or characteristics is completely illogical. Equally, can we really say that a dog is not dangerous, simply because it only meets 59% of the characteristics? Of course not!
When some people think of a prohibited breed dog, they may also paint a rather unflattering picture of the owner in their heads. In my experience, however, such owners are rare. The majority are very responsible and law-abiding citizens.
All too often, the owners of prohibited breed dogs do not know their dogs are prohibited and their dogs have done nothing wrong. Nonetheless, in many cases, they receive a criminal conviction because their dog looks ‘dangerous’.
So what would be more effective than Breed Specific Legislation?
I do not claim to have all the answers and I in no way suggest that I am an authority on dog training or behaviour; however, many organisations have made suggestions as to how the Dangerous Dogs Act could be improved – and I am hard-pressed to disagree with them!
i. Dispense with BSL altogether.
We have established that there is a surprising lack of evidence to support that BSL works in reducing dog attacks. Certainly, the increase in dog attacks since its imposition is hardly a glowing endorsement.
Simply put, BSL doesn’t work – but don’t take my word for it!
The RSPCA, Battersea Dogs & Cats Home, Dogs Trust, Blue Cross, the British Veterinary Association, Hope Rescue, the Scottish SPCA and the Kennel Club are amongst the organisations who share this view.
ii. Switch our focus to ensuring owners are responsible and educating the public.
I tend to liken owning a dog to driving a car, although I fully accept that a car does not have a mind of its own.
A car is generally regarded as a transport vehicle with a practical and legitimate purpose, but put an inexperienced, reckless or unscrupulous driver behind the wheel, and it can quickly become a 2-tonne chunk of metal, capable of killing.
As a society, we recognise this fact and do not allow people to drive until they have passed a test, proving they are capable of driving legally and responsibly. Why then do we not take this same view with dogs?
Furthermore, after a person passes their test, this does not allow them to get behind the controls of an 18-tonne lorry. Why? Because we recognise that, whilst many of the principles are the same, in practice a lorry is intrinsically more dangerous because of its size and weight. They require a more advanced level of knowledge and training.
I am more than aware that licencing will not be a popular idea with some, however, a YouGov Poll from 24 January 2023 suggested that 76% of people surveyed supported the reintroduction of licencing dog owners.
‘But would this work?’ I hear you ask.
Well, in Calgary, Canada, the Responsible Pet Ownership Bylaw has switched the focus to encouraging responsible ownership on the basis of 5 principles:
- Licencing and providing permanent identification for dogs;
- Spaying and Neutering dogs;
- Providing training, physical care, socialisation and medical attention for dogs;
- Not allowing a dog to become a threat or a nuisance to the community; and
- Procuring pets ethically and from a reliable source.
Owners of dogs (and cats) need to licence their pets in order to comply with the Bylaw and the revenue raised is put towards programmes and services, which include dog safety, public awareness and education.
As a result, the number of dog bites between 1985 and 2008 decreased.
Another example comes from Australia, where the Australian Veterinary Association (“AVA”) has begun advocating for new legislation, focussing on identifying potentially dangerous animals and preventing attacks before they occur.
To achieve this aim, they have suggested:
- All dogs should be identified and registered;
- There should be a national reporting system with mandatory reporting of all dog bite incidents to a national database;
- Testing should be used to understand the risks and needs of individual breeds of dog and individual animals, with a view to assisting owner in making appropriate decisions for their pets and to give greater guidance to breeders to improve the temperament of puppies;
- Introducing a comprehensive education programme for pet owners, dog breeders, parents and children; and
- Rigorous enforcement of all regulations surrounding dog management.
Perhaps we should take our lead from these countries, recognise that BSL does not work and try an entirely different approach!
At Reeds, we are looking to introduce training sessions or webinars for pet-shops, vets, their customers and – at some stage – schools to give the general public a better understanding of the law and, in association with respected dog behaviourists, provide more comprehensive education as to general dog behaviour and training.
iii. Introduce Regulation for Dog Trainers
As stated above, there is presently no regulatory body for dog trainers in the UK.
It seems inconceivable that our society would blame individual dog breeds (or types) based on little more than bear-faced prejudices, without first looking to the people who teach our dogs how to behave in the first place.
iv. Stricter Regulation of Dog Breeders
Whilst there are restrictions on dog breeders in the UK, in recent years it has become clear that many slip through the net.
Whilst I am not suggesting that I disagree with the present system of licencing, there would appear to be merit in reviewing it and considering what more can be done to ensure that those breeding our dogs are doing so in a fair, responsible and considered way.
The issue of dog attacks is, naturally, an emotive and complex topic.
Breed Specific Legislation (BSL) had its time – 32 years of it! – to prove itself and there is absolutely nothing to suggest it has had any positive effects whatsoever.
First, they came for the Pit Bulls and now they’ve come for the XL Bully, with Rishi Sunak calling these dogs ‘a danger to our communities, particularly our children’ – but I find the graver danger to be the Governments tone deaf inability to learn from its past mistakes.
What leads them to think that BSL will work now, where it has failed so abysmally in the past? Perhaps they don’t! Call me cynical, but with Westminster as it is, perhaps they are begging, borrowing and stealing for every vote they can get – and the ‘safety of our children’ is an emotive narrative for them to spin.
Unfortunately, if history has anything to say about it, this new demonisation of yet another bull breed is unlikely to do anything to protect our children.
Until we recognise the insanity of repeating our past mistakes, in the hopes that they will yield different results, I fear that we shall continue to see the trend of dog bites rising. As the adage goes – ‘Those who cannot learn from history are doomed to repeat it!’