Dog Expert Witness Criminal and Civil Law

By Colin Christopher Tennant MA (Canine Behaviour & Psychology) FCFBA

Colin Tennant, a leading Canine Behaviourist and Psychologist, explains his work as an expert witness and introduces the Dangerous Dog Act of 1991.

English Dog Law has become more intrusive and egregious in the last decade for those of us who own pet dogs; the Dangerous Dogs Act (1991) has been amended a number of times and is designed to reduce harm to the public from dogs that pose a serious threat. Now who could argue with that, one might say? The Dogs Act (1871), however, already is suitable for most cases (excluding prohibited breeds). There are other Acts that can be used for the control of dogs or deal with owner responsibility.

Did you know that your car is not a private place for the purposes of the Dangerous Dogs Act? Under section 3(i) of the 1991 Act (as amended by the Anti-Social Behaviour, Crime and Policing Act 2014, (the ‘2014 Act’), if any dog is dangerously out of control in any place, including all private property, the owner or person for the time being in charge of the dog, is guilty of a summary offence. That offence becomes an aggravated offence and triable either way, if the dog injures any person or an assistance dog while out of control and an arrest may be made.

Definition of Expert Witness

I will begin with how the law describes an ‘expert witness’: An expert witness is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as an expert. The duty of an expert witness is to help the Court to achieve the overriding objective by giving opinion that is impartial and unbiased, in relation to matters within their expertise. This is a duty that is owed to the Court and overrides any obligation to the party from whom the expert is receiving instructions. Often defendants misunderstand this and see me as on their side, which I am not. I point out to them that I am on the side of the Court.

Dangerous Dogs Act (1991)

The Dangerous Dogs Act (1991) makes up most of my work and in essence, a dog owner can be required to appear in Court if their dog is deemed to be ‘dangerously out of control’ – for example, if the dog injures someone or causes someone to be afraid that it might injure them. This of course is open to misuse and interpretation. For example, if a dog is friendly and on a lead, but excitable whilst being walked and jumps at a person in the street, even making no contact, but perhaps barks; if the target person states they felt in fear of being attacked, for the purposes and interpretation of the legislation, the offence is technically committed. The person can lay a complaint to the Police; this has many possible outcomes, some of which are most serious. This does seem odd to me and to many others. I have walked past people who have a phobia with dogs and have screamed in fear of my dog that was on a lead and quietly walking past them.

Once a complaint is triggered via the Police and thereafter executed via the Crown Prosecution Service (CPS), then the law and bureaucracy takes on a life of its own and the experience for dog owners is always harrowing and stressful. I have sat with clients in courtrooms listening to their fear and upset; even when the law breaking is initially trivial, it often spirals out of control. Of course, if the dog owner has allowed the dog to be truly dangerous then it is natural that a complainant will want some form of justice and/or compensation.

My clients have rarely understood basic dog law or may have misinterpreted what in their view is common sense in dog ownership. Let me give you an abridged example of a recent case:

A couple walk their Setter through woods, they see 200 yards away, a lady walking an elderly Retriever in their direction, the Retriever on nearing the Setter growls furiously and snaps at the Setter which responds. The Retriever having weak hindquarters, falls and injures an already weak joint causing severe pain. No bites or injuries are inflicted, despite the cacophony of aggressive sub vocalisation by both dogs. No person is bitten. A complaint is made by the Retriever’s owner that her dog was attacked and has been injured needing hundreds of pounds worth of veterinary treatment to its joints. The Police are called and amazingly charge the Setter’s owners with an offence of having a dog dangerously out of control, because the lady owner of the Retriever said she felt in fear of being bitten when separating the dogs’ minor clash.

I was employed by a solicitor for the defence and visited the Setter’s owners at their home with my assistant Judy Cooper MA and spent three hours investigating the behaviours alluded too. Judy, the dog and its owners subsequently went to a local park where I filmed and assessed the Setter on a lead and collar. After a while it was obvious he was not attempting to snap, growl or be belligerent to any dogs he met when on a lead and other equipment I was using for safety. Other dogs ran over to sniff him and as I read each and every approach, action and counter-reaction, I began forming a behavioural opinion of the Setter’s attitude to a wide variety of dogs with different approaches. In essence the Setter minded its own business. There was a mild nervous edge to him, but it was obviously habituated to the park and dogs.

I wrote a 5,000-word report describing all the various tests that I conducted. The Police (prosecution) evidence solely depended on the Retriever owner’s evidence and veterinary bills.

It was my contention that the Retriever had triggered the main vocalised dispute and though the two dogs had physically collided for a second or two, both dogs ceased when the Retriever lost its balance due to a previous leg injury and weakened hindquarters. I concluded, from the evidence written and my observations, the Setter to be a well-balanced dog and socially good with all dogs; its action was defensive and normal. The Retriever’s owner would not let me assess her dog in the same way. It transpired that the elderly Retriever had serious hip and spinal problems, which needed treatment long before the incident and that the sudden physical interaction with the Setter may have caused it to aggravate an age-related physical disability.

Once the Crown Prosecution Service read my evidence the case was dropped a week before the trial, which often is the case. The Setter’s owners could not sleep for six months and lived in constant fear of appearing in Court with all the possible ramifications of being found guilty, fined and getting a criminal record.

Whilst writing this article I have just received a statement from a dog’s owner whose little dog was pounced upon by two large mastiffs and savaged. The mastiffs were on leads handled by a young girl who couldn’t hold one, let alone two large dogs. Passers-by tried to help and the little dog’s owner was badly bitten about her hands and arms by the mastiffs. In contrast the Police have refused to take any action and the local MP has so far been ineffective. I example this case for you to compare dog on dog activities and the extreme differences in how police forces react and proceed.

Cross-examination of witnesses

Inside the Court, which I often describe as a ‘theatre’, simply because the witness often puts on staggering performances of truth, dishonesty and misleading verbal descriptions. The CPS lawyers, whether in the magistrates or higher courts will lay out their case, their witnesses, usually police officers and civilians, will lay out their case and be cross examined by the defence lawyers I am working for. In turn, I will present my evidence alongside the other defence witnesses and the prosecution lawyers will scrutinise my evidence and try to drive holes in it. I have met colleagues who have come into this work and after one or two cases have sworn never to repeat the dreadful experience in court – it’s not like TV shows!

My duty as an expert witness is to the court not the defence or prosecution whoever employs me. My expertise as a Clinical Dog Behaviourist is about supplying independent evidence about the dog’s behaviour in the circumstances presented. The prosecution counsel and defence counsel can ask any questions they feel are pertinent and sometimes this can be unnerving for witnesses. As a former police officer, I do not find it stressful. You have to have a very active and sharp mind to work out the questions being asked and where they are leading to. Lawyers will, if opportunity arises, press with some ferocity their views to prove their case, which is the adversarial system in Great Britain.

Dog owners on the whole find the experience a very stressful time. Some court officials can be very considerate and understand the nervousness of witnesses whilst others seem to be indifferent. In the magistrates’ court, the Court Clerk, also known as a court legal adviser, is a qualified solicitor, possibly a barrister, assigned to this work and will preside over criminal or civil proceedings. They provide advice on applicable laws, judicial procedures and limitations. The magistrate or judge will thereafter decide the guilt or non-guilt of the defendant.

That’s the simple version, but as an example some cases can go on for years with trial after trial. The dog seized stays in incarceration and without doubt suffers psychologically, developing serious conditions of stress and aberrant behaviours, making them less likely to adapt back into our society. The authorities seem not care about this or should I say do nothing about it. That is my experience over 30 years in the work. The kennels in which they are kept vary from good to appalling and I have made complaints to the bad ones run by the West Midlands Police, conversely the Northamptonshire Police are outstanding and the officers I have met there have been very helpful, so it’s a very mixed picture.

The Dangerous Dog Act (1991) is for dogs dangerous to people, not dog on dog aggression, the latter cases actioned under The Dogs Act (1871) as a civil prosecution, which still has severe penalties including ordering a dog to be euthanized. However, many pet owners get caught up in the Dangerous Dogs Act (1991) when their dog is involved in a dog on dog dispute, because they are frequently bitten by dogs fighting.

A court could also decide that your dog is dangerously out of control if either of the following apples: (i) the owner of an animal thinks they could be injured if they tried to stop your dog attacking their dog and (ii) in the melee be bitten or attacked. The example here is that a dog attacking (even just vocally) can still put another dog owner in fear that they may be bitten. That immediately puts many thousands of dogs on the Police radar.

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