Is there an offence if a caged dog bites a child who reaches into the cage?

11 October 2017

Not reviewed after the date of publication

Question:

If a dog was in a cage at the owner's address and their child reached through the bars and was bitten, would an offence have been committed?

Answer:

There are two offences that could be considered in such a situation (assault, and being in charge of a dog dangerously out of control).

Section 39 of the Criminal Justice Act 1988 provides the offence of common assault and battery. An assault is any intentional or reckless act with causes a person to apprehend immediate unlawful force or personal violence. Battery is any intention of reckless infliction of unlawful force or personal violence.

In order for a person to be liable for this offence when a dog injures someone, there would need to be an element of intention to cause injury or recklessness that such injury would be caused. Intention could be shown if the person ordered the dog to attack, or failed to stop it attacking where it was possible to do so. For example, in the case of L v CPS 2010, the court found that an owner was liable for assault because when his dog attacked another person in his presence (at the command of a third party), he failed to take control of the dog, which would have responded to his commands.

In your case, from the information you have provided, there doesn't seem to have been any intention to make the dog injure the girl or any recklessness (as it was kept securely in a cage).

The other offence to consider is being in charge of a dog that is dangerously out of control, under section 3 of the Dangerous Dogs Act 1991. This offence has been widened to include any place, including a private place and so would cover dogs in their own homes (although subsections (1A) and (1B) do provide a defence in relation to trespassers entering a private place).

The case of R v Bezzina; R v Codling; R v Elvin 1993 held that this offence is 'absolute' (strict liability) and no 'mens rea' is required on the part of the owner or handler. However, the provisions of the legislation still need to be satisfied (i.e. it will need to be shown that the dog was 'dangerously out of control'. Section 10(3) of the Act defines this term:

'10(3) For the purposes of this Act a dog shall be regarded as 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, but references to a dog injuring a person or assistance dog or there being grounds for reasonable apprehension that it will do so do not include references to any case in which the dog is being used for a lawful purpose by a constable or a person in the service of the Crown.'

In our view, it is unlikely that a person could apprehend injury by a dog that was securely kept in a cage.

Ultimately, it would be for the courts to decide whether either of these offences were committed, based on the full circumstances. However, based on the information provided, we believe it is unlikely that either offence will be made out in the situation described.

Just as an additional note, regardless of the circumstances, if the dog was of a particularly dangerous breed, offences may be committed under section 1 of the Dangerous Dogs Act 1991.

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