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August 14, 2012
The scope of the Dangerous Dogs Act 1991 is the conduct of a dog in public. It is an offence for a dog to be 'dangerously out of control in a public place'.
What constitutes a 'public place' is a hurdle for the Crown and the defence must be alive to the difficulty it sometimes presents. Parliament chose to make narrow provision for an offence under this legislation to be committed in private. If a location is not a 'public place' the prosecution will fail and with it any application for destruction of the dog. The meaning of a 'public place' has been considered and does not include every location to which the public have access.
There are offences under the DDA 1991 that can be committed in private. The most common is owning a dog of a prohibited type contrary to S1. The possession of such an animal is an offence in any location. Also, S3 DDA 1991 prohibits the keeper of a dog or, if different, the person in charge of it from allowing a dog to enter a private place at which it is not permitted to be and therein either injuring a person or giving reasonable apprehension of doing so. In both instances, the issue of 'public place' is irrelevant.
However, the most common charges under this legislation are S3 and 3 DDA 1991. S3 creates penalties for the keeper, or person in charge, of a dog which is dangerously out of control in a public place. S10 DDA 1991 prescribes that a 'public place' constitutes 'any street, road or other place (whether or not enclosed) to which the public have or are permitted to have access, whether for payment or otherwise, and includes the common parts of a building containing two or more separate dwellings.' This is a comprehensive definition but case law has developed restrictions.
The question of what is meant by whether or not the public 'have or are permitted to have access' has been scrutinised. Any member of the public can gain access to any location if he is willing to act in defiance of a prohibition or overcome a physical restraint. That does not mean that location is a 'public place'. Case law has stipulated that it cannot have been the intention of Parliament to include locations to which people are invited as guests of the landowner. The defence should consider the case of Bogdal  EWCA Crim 1. In that case the defendant was the owner of two properties which shared a driveway that was the main means of access to both. There was no public right of way but there were no physical obstructions to prevent any member of the public from entering. Visitors to the property were bitten by an Alsatian dog. It was held that this was not a public place because those gaining access did so not in their capacity as members of the public but in their capacity as lawful visitors of the premises within.
There are further restrictions in the case of Roberts  EWCA 2753. This case involved a defendant who was found in his own front garden with a knife upon him. The garden was no more than one metre deep. The judge held that a public place might include land adjacent to areas where the public have access if the mischief against which the legislation sought to protect could be inflicted from that place. n this instance, the defendant could have reached out and used the weapon upon a passing pedestrian with ease. This was overset on appeal. It was held that 'such a construction could not possibly be correct' and that this location should have been considered a private place. This case did involve the possession of an offensive weapon rather than failing to control a dog but the dictum still applies. The case of Harriot v DPP  EWHC 965 considered whether a 'public place' could have different meanings depending upon the statute in question and it was decided that 'it would be disruptive of legal certainty if a phrase repeatedly used by Parliament, albeit for different purposes, were given different meanings in this way.' It is clear from the case of Fellowes  WL 964524 that a path leading to the appellant's front door was not a public place because any person who went to the front door would do so 'not qua member of the public but qua lawful visitor'. The landing of a block of flats was not a public place for a similar ratio in the case of Williams v DPP  Crim L.R. 503.
If a prosecution under S3 or S3 DDA 1991 fails because the location is not a public place, it is always open to the Crown to bring proceedings under the Dogs Act 1871. That statute covers a private place. There is advantage in that for the defence. A complaint under the Dogs Act 1871 is a civil matter without penal consequence and destruction orders are rare. A defendant would escape a criminal conviction and it is likely that the dog would be released to him under a Control Order. In addition, any complaint would have to be laid within six months of the date of the offence as
The defence should not assume that a location is a public place merely because a person who does not own the land has gained access. Any person is a member of the public but not all of his actions are performed in that capacity. Bogdal is clear that if land is only accessed by people acting in their capacity as lawful visitors not as members of the public then it is not a 'public place' and the defendant will not offend if his dog misbehaves therein.