Dogs that are not subject to breed specific legislation can be transferred as the Court or the defendant chooses. The difficulty lies with dogs that offend against S1 as the legislation does contain an apparent prohibition upon transfer. Often such dogs will not be found to be dangerous to public safety. They offend only by reason of their physical appearance and conformity to the American Dog Breeders Association test. The issue is not one of dog aggression but one of dog anatomy and the temperament of the animal has no relevance to the elements of the offence. The subject of a prosecution under S1 will regularly be a dog that has never shown aggression towards people or other animals. However, such a dog may be owned by a person who is unsuitable to be its keeper under a contingent destruction order for a variety of reasons. One may be that the owner has been disqualified from having custody of a dog under S4[b] Dangerous Dogs Act 1991. Another may be that the owner has been given a custodial sentence or a hospital order. In those circumstances, a Court faces the prospect of destroying a dog that is not dangerous unless there can be transfer of possession to another.
Many dogs are jointly owned. Most family dogs are owned by several people. In the case of a dog with multiple owners the defence is under no obligation to advance the most irresponsible of them to the Court as a keeper under a contingent destruction order. The best candidate should always be offered. The Court is more likely to trust such a person to comply with the requirements of an order.
However, there are cases where there is only one owner and he is unsuitable. In such a case the Court is faced with the task of deciding whether it is empowered to return the dog to another person. The Dangerous Dogs Act did prohibit the transfer of ownership of a prohibited dog. S1[b] makes it an offence to ‘sell or exchange’ such a dog. S1[c] creates a further offence of making or offering to make a gift of such a dog. The intention was clearly to restrict breeding for commercial gain. That does not preclude the Court from nominating a different keeper. The act of nominating a different keeper at the time that the contingent destruction order is made does not constitute sale, exchange or gifting. The dog under consideration is not owned by the Court. The Court would have to nominate a keeper to comply with the requirements of a contingent destruction order. Nominating one keeper seems an identical task to nominating another.
In any event, the legal ownership of the dog does not need to be transferred for the dog to be returned to a different keeper. The defendant can remain the legal owner of the dog while keepership rests with another person for the life of the dog. The legislation does not demand that the dog be kept by its legal owner. The conditions of a contingent destruction order for a S1 dog are set down in the Dangerous Dogs Compensation and Exemption Schemes Order 1991. S10 requires only that the agency are informed if the dog is kept at a different address from that on their records for more than thirty days.
In addition, Home Office Circular 67/1991 at point 41 seems to imply that Parliament envisaged a difference between ownership and keepership
‘In order to make it more difficult for people to escape responsibility as owners of specially controlled dogs, Part 1 of the notification form which has to be deposited at police stations, and Part 11 which has to be sent to the Index of Exempted Dogs, where it will be kept, requires the applicant to name, first the keeper of the dog, second, the address at which the dog is normally kept if different, and third, the owner of the dog if different from the keeper. In this way it is hoped that, in the event of any Court proceedings, it will have already been established who was the owner and who was the keeper of the dog.’
The public are in need of protection from dogs that are dangerous. There is a general duty upon courts to achieve legitimate aims in the most proportionate way. In the case of a dog that is beyond redemption that must include destruction. In the case of a dog that is not aggressive per se but has been incited or neglected by a bad master, danger to the public can be avoided by returning it to a responsible keeper.