Date lodged: 21 December 2017
To ask the Scottish Government what its response is to reported concerns that the Crown Office and Procurator Fiscal Service does not always prosecute dog owners whose animal has allegedly attacked a postal worker, despite the postal worker being injured.
Answered by: James Wolffe QC 15 January 2018
The Crown Office and Procurator Fiscal Service considers the facts and circumstances of any case reported to it by the police in order to assess whether or not there is sufficient evidence in law to take prosecutorial action and, if so, what action would be in the public interest.
The relevant offence is section 3 of the Dangerous Dogs Act 1991, the offence of a dog being dangerously out of control in any place.
‘Dangerously out of control’ is defined by s.10(3) of the Act in the following terms:
“For the purposes of this Act, a dog shall be regarded as being dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person or assistance dog, whether or not it actually does so”
The Crown accordingly requires to be in a position to prove that there were, at the relevant time, grounds for reasonable apprehension that the dog will injure any person or an assistance dog. It is not essential for there to be actual injury, though that is an aggravating factor in any offence. On the other hand, if there is insufficient evidence that there were, at the relevant time, grounds for reasonable apprehension that the dog will injure any person or an assistance dog, the Crown cannot take action under section 3 even if injury was caused.
In any circumstances the case can be brought to the attention of the relevant Local Authority, either by Police Scotland or by COPFS, in order that Local Authority Dog Wardens can consider exercising their separate powers under the Control of Dogs (Scotland) Act 2010.