Friday, 4 July 2014

My submission to the Law Commission asking for them to work on repealing BSL

Below is a cut and paste copy of the text of the Law Commission's consultation programme form, together with my submission within the rubric of the form, asking for them to work to repeal UK Canine Breed Specific Legislation. They rejected this, and their rationale contained various problems, as outlined in my previous blog post here "Canine Breed Specific Legislation and Irrationality in UK Law" (Monday 14 April 2014).

I have left out my personal details such as address and telephone number only.
I have bolded my own writing for ease of reference.

The Law Commission
Steel House
11 Tothill Street

020 3334 0252
Dear consultee

The Law Commission carries out law reform projects with the aim of making the law fair, simple, clear and cost-effective.

We are currently consulting on what new areas of law should be addressed in our next programme of law reform. To do this, we are asking: where is the law failing to work properly? Please use this questionnaire to tell us where you think there is a significant problem with the law. We want to know what you think is wrong and what practical problems arise. Please give us as much information as you can, even if you cannot answer all the questions. If we need to know more, we may contact you.
What types of problem will we investigate?

Not all legal reform is suitable for the Law Commission. Please tell us about a problem only if it relates to the law and is:

causing substantial unfairness, or

widely discriminatory or disproportionately costly, or

caused by laws or policies that are complex and hard to understand or

caused by laws or policies being out of step with modern standards.

Please also tell us if you think it would be beneficial to bring together (consolidate) a number of statutes that all deal with the same area of law into a single new Act. That might just require the relevant legislation to be redrafted or might involve reform of some of the underlying law. Proposals for consolidation that do not involve substantial law reform will be considered separately from the law reform programme, but we are happy to receive suggestions for such work as part of this consultation.

Our law reform programme will not include subjects where the considerations are shaped primarily by political judgements (for example, abortion, immigration, membership of the EU, the Human Rights Act, capital punishment, decriminalisation of drug use) or issues of established Government policy, such as taxation. We will not consider problems that relate only to a particular individual’s experience of the law as opposed to a more general problem. We do not work on issues that arise only in Scotland or Northern Ireland.

How we make decisions

When considering a potential law reform project, we are guided by our Protocol with Government (see which is intended to ensure that our recommendations have the best possible chance of becoming law. Some key points that we will look at when considering a project are:

How important is the project: to what extent is the law unsatisfactory (eg, unfair, unduly complex, inaccessible or out of date)? What are the potential benefits of reform?

Is the independent, non-political Commission the most suitable body to conduct the project?

Are the necessary resources (for example, sufficient relevant experience, project-specific funding) available to enable us to carry out the project effectively?
Would the project require involvement from the Welsh Government and/or the Scottish or Northern Ireland Law Commissions?

We will also assess whether there is likely to be Government support for a project. In order for a project to form part of our programme, a Government department must confirm that it has a “serious intention” to take forward law reform in that area. If Government does not seriously intend to see the law reformed there is no realistic prospect of any recommendations we make becoming law.

What happens next?

We will review all responses before drawing up a list of potential projects, where appropriate working with the relevant Government departments. As set out in the Law Commissions Act 1965, the Lord Chancellor will decide the final contents of the Twelfth Programme. We expect this to be during 2014.

We are likely to receive a large number of responses but can only accept a small number of projects for the Twelfth Programme; for our Eleventh Programme we received over 200 responses, which led to 14 new projects. We understand you may be disappointed if your proposal is not taken forward but please be assured we are grateful for your contribution. If you have any questions about the consultation process, please contact us on 020 3334 0252 or via

Kind regards

The Law Commission

Please send us your response no later than
Thursday 31 October 2013.
Twelfth Programme of Law Reform consultation response

Please answer as many of these questions as you can, as fully as you can. If necessary, continue on additional sheets. Please also indicate where you are not able to provide an answer.

Please tell us about yourself:
Name: Angela Kennedy

(Please tick one or more box)

Member of the public Yes
Third sector/voluntary sector Commercial sector/business
Nature of third sector/business organisation:
Practising lawyer Academic Yes
Specialist area: Specialist area:
Member of the judiciary Government official
Court or tribunal: Department:
Local authority staff member Parliamentarian
Other (please state):

Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at:
We treat all responses as public documents in accordance with the Freedom of Information Act and we may include the names of respondents and attribute comments in any publication relating to this consultation. If you want your submission to remain confidential, you should contact us before sending your response. (Please note that we disregard automatic IT-generated confidentiality statements.)

In general terms, what is the problem that requires reform?

Specific Legislation (BSL), that is, part 1 of the Dangerous Dogs Act, needs to be repealed. The legislation can be demonstrated to be perversely unfair and irrational, does not provide safety for the public, has led to many dogs being destroyed needlessly, or have their lives severely proscribed leading to adverse quality of life, criminalises people unfairly, and is causing widespread, needless distress to many families in the UK. I believe the BSL can be demonstrated by the evidence below to be causing substantial unfairness; to be both widely discriminatory and disproportionately costly; and to be irrational (and therefore incoherent and difficult to both enforce and understand).

Can you give an example of what happens in practice?
For example, if you are a solicitor or barrister, you might describe how the problem affects your clients.

I am a dog owner and an academic, a social science lecturer and researcher, with a research interest in the social and material effects (on both people and dogs) of breed specific legislation (or BSL), and in public and state construction and management of risk. I made a submission to the Select Committee on Dog Control and Welfare last year which was published by them (see below). I believe this submission provides a more detailed summary than I can give here, and would advise that it be read in its entirety.

The general problems of BSL in practice are as follows:

Family dogs of 'bull-breeds' ('molosser' type, of all shapes and sizes and various breed mixes, but even including pedigree, Kennel Club registered Staffordshire Bull Terriers), are being seized just for looking a certain way (the so-called 'pit-bull type'), according to a highly subjective standard (there is no such genetic breed of 'pit-bull'). These dogs have been killed summarily if signed over by the owners to police in good faith, leading to dog welfare organisations, and solicitors, to advise owners never to sign over their dog to police on seizure.

In the court process, they are either ordered to be killed (for example because one owner was disabled - the case of Lennox the dog in Northern Ireland), or forced to wear a muzzle and lead in public for life (and be tattooed). The burden of proof that a dog is NOT a 'pit-bull type' is on the owner-defendant (which I have been given to understand, though am not sure, might be unprecedented in British criminal law), and this is - logically - impossible to disprove because the assertion of 'pit-bull type' is not done in a scientific way - but is instead subject to subjective beliefs of the 'enforcer'. It is rather like trying to disprove the existence of God to a believer. DEFRA's guidance refers to a 'pit bull' fancier's magazine from the 1970s: the "American Dog Breeders Association standard of conformation as published in the Pit Bull Gazette, vol 1, issue 3 1977". To date I have not been able to access this document. DEFRA have so far failed to respond to my request for this, failing their own targets for response. I contend that this is odd in itself: a document ostensibly needed by law enforcers should be easily accessible.

The DEFRA 'guidance for enforcers' (listed below in the literature section) gives, on page 16, guidance for identifying 'pit bull types'. The language used is overwhelmingly subjective in its description. Examples of this include (but are not limited to) 'good', 'light', 'fine', 'about equal', 'nearly', 'old-fashioned pump handle', 'athletic appearance' [One could immediately ask which 'athletic' appearance? The weightlifter? The sprinter? The footballer? The sumo wrestler?]. In addition, certain characteristics can be said to be present in many dogs. There is no unique characteristic of a 'pit bull', especially as there is, genetically, no specific breed of 'pit bull'. The so called 'pit bull' (or even the 'American Pit Bull Terrier') is not recognised by the Kennel Club as a breed in the UK. Nor are the other three breeds that are deemed 'illegal', However, it is also noteworthy that DEFRA give no 'standards' to identify the three other 'illegal breeds': the Japanese Tosa; Dogo Argentino; Fila Brasileiro. Even pedigree Staffordshire Bull Terriers are apparently not protected under the law from being subjectively deemed 'pit bull type', even if they are genetically demonstrated to be such, or are Kennel Club registered.
The stigmatizing effect for families is great, and the opportunities for socialising and exercise for dogs is severely curtailed: and these measures are available only for dogs with impeccable records of non-aggression. If a dog is 'dog-reactive' (even if not a threat to humans) they may be killed. Yet all dogs are potentially dog reactive in certain circumstances. Dog-owners are criminalised for owning a dog that by genetic chance, has grown to merely look like a subjectively asserted 'type'. It can be (and has been) argued there is a form of canine 'racial profiling' going on, an irrational process.

There is evidence to suggest that BSL is often passed as an example of 'panic policy making', or even as 'policing a crisis', i.e a show of political force (of being 'tough on law and order') on an easy target, which has very little to do with the issue of risk management.

Injuries to humans by dogs need to be considered in a risk management and epidemiological context. Dog-bite fatalities are, for example, extremely rare. According to DEFRA's website in 2012, there were 5 fatalities from 2007-2012 (an average of one a year). To put the relative risk of death from dog-bite into perspective: In 2010, 1,850 people were killed in road traffic accidents, with 1,901 killed in 2011, according to government figures. North American figures show that one of the largest source of lethal danger to children is from family caregivers (see Bradley, 2008: 21-22). To compare the two categories of causes of death in children would require a graph 8 feet tall in order to incorporate the ‘death by caregiver’ category. Figures from the Home Office indicate that on average 2 women a week are killed by a male partner or former partner. To place the risk of injury from dog-bite into perspective, as with all injuries, the description of ‘serious injuries’ is itself subjective and subject to instability in definition, but life-threatening injuries due to dog-bite also appear to be rare. The relative risk of dog bites was studied, for example, by Kahn et al (2003) who found dog bite injuries were about one quarter as frequent as road traffic casualties and about one third as frequent as burns at home. Child attendance at Accident and Emergency departments due to dog bite equalled less that 0.24% of all children attending Accident and Emergency departments. This is not to trivialise dog-related injuries, especially in children. However the low relative risk of dog-bite injuries has to be taken into context if rational and safe social policy and law are to be made. This information may seem counter-intuitive to the perception of risk from ‘dangerous dogs‘, but this is likely to be because of the moral panic (Cohen, 2002) around dogs that is a common feature in current media reporting practices, where rare events are reported, but appear to be more frequent in occurrence because of the frequency of reporting in the media.

With fatalities being so rare, and in general, the relative risk of dog bite being so low (especially considering the enormous amount of dogs and dog-human interaction in the UK) it is impossible to provide a scientifically rigorous, let alone definitive, relative risk related to breed. It is also relevant, for example, that of the four so-called ‘banned breeds’ in the UK, there has been, to my knowledge and after research, no fatalities recorded from dog-bites from any of the Japanese Tosa, Dogo Argentino or Fila Brasileiros breeds. As regards the category of so-called ’pit-bull’, because of the gross discrepancies in how this so-called ’breed’ in conceptualised in the UK, the establishment of a scientifically rigorous, let alone definitive, relative risk related to 'pit bulls' or even 'pit bull types' is impossible.

Ironically, the prohibition of organised fighting does not appear to be specifically delineated within British law. Very little, if any, positive progress to eliminate organised dog fighting has apparently been made.

To which area(s) of the law does the problem relate (please tick one or more box)?
Administrative or public law YES Criminal law YES
Property or land law Family law
Trusts and wills Commercial or contract law
Consumer law Regulatory law
Planning and environment YES Don’t know POSSIBLY
Other (please state):

We will be looking into the existing law that relates to the problem you have described. Please tell us about any court/tribunal cases, legislation or journal articles that relate to this problem.

You may be able to tell us the name of the particular Act or a case that relates to the problem.

Below is a list of selected publications. There are many more, and I and others can certainly point towards more literature if required, or provide at least some of these as PDFs:

1. My submission to the Select Committee on Dog Control and Welfare is available via this URL:

Other submissions can also be accessed via this link.

2. The Select Committee's report can be accessed here:

3. The Dangerous Dogs Act 1991 can be accessed here:

4. Discussion of problems of Breed Identification template in Victoria, Australia, with similar problems to the UK:

5. Article on the problems of Breed Specific Legislation and how it affects pedigree dogs such as Staffordshire Bull Terrier. Although Australian, very similar problems are presenting in the UK:

6. Bradley, J. (2005) Dogs Bite: But Balloons and Slippers are More Dangerous Berkeley: James and Kenneth Press. (Amazon link supplied here for convenience):

7. Delise, K. (2007) The Pitbull Placebo : The Media, Myths and Politics of Canine Aggression New Jersey: Anubis. Also available as a free pdf at:

8. Kahn, A., Bauche, P. Lamoureux, J. (2003) ‘Child victims of dog bites rated in emergency departments: a prospective survey’, European Journal of Pediatrics 162:254-258.

9. Kaspersson, M. (2008) 'On Treating the Symptoms and not the Cause:
Reflections on the Dangerous Dogs Act' Papers from the British Criminology Conference British Society of Criminology Vol. 8: 205-225.

10. Lodge, M. and Hood, C. (2002) ‘Pavlovian policy responses to media feeding frenzies? Dangerous dogs regulation in comparative perspective’ Journal of Contingencies and Crisis Management 10, 1: 1-13.

11. Article on BSL in the U.S. by a North American lawyer:

12. Information from a dog breed genetic testing company about the impossibility of establishing a genetic 'breed' of 'pit bull' (see FAQ answer to the question "Does Wisdom Panel (TM) Insights test for "Pit Bull"?) :

13. DEFRA's "Guidance for enforcers" (particularly note page 16):

14. DEFRA's guidance refers to the "American Dog Breeders Association standard of conformation as published in the Pit Bull Gazette, vol 1, issue 3 1977" To date I have not been able to access this document.

15. R v Knightsbridge Crown Court ex p Dunne; Brock v DPP [1993].

16. Statement by Sarah Fisher about her role in the case of Lennox the dog:

17. Huffington Post article on the widely covered case of Lennox:

18. Article on kennelling costs incurred by the police:

19. Statement by the American Humane Society on uselessness of BSL, with other references:

20. Klaassen, Buckley and Esmail academic article in 'Injury' journal:

21 American Bar Association Report to the House of Delegates:

22. Cohen, S. (2002) Folk Devils and Moral Panics: 30th Anniversary Edition: Creation of Mods and Rockers London: Routledge.

23. Cohen, J. Richardson, J. (2002) ‘Pit Bull Panic’ Journal of Popular Culture 36, 2: 285-317.

24. Statement by the Kennel Club about BSL:

25. Lord Redesdale's Dog Control Bill:

Can you give us information about how the problem is approached in other legal systems?
You might have some information about how overseas courts or tribunals approach the problem.

I have included information in the literature section here: items 4, 5, 6, 7, 11, 21, contain relevant information about other legal systems. I should point out that the problems in BSL in UK are found in other legal systems, and that some legal systems are repealing BSL in favour of 'breed neutral' dog control laws.
Examples where BSL has been repealed (or voided), and 'breed neutral' legislation passed (often after studies demonstrating the futility of such legislation) include but are not limited to: the Netherlands (2008); Italy (2009); Administrative Court of Berlin (2002); certain U.S. regions (e.g. Ohio); certain Canadian regions (e.g. Calgary). Organised objections to BSL can be found in nearly all countries that have BSL, my research has found.

Within the United Kingdom, does the problem occur in any or all of England, Wales, Scotland or Northern Ireland?

This problem occurs in all of England, Wales, Scotland and Northern Ireland.

What do you think needs to be done to solve the problem?

I believe complete Repeal of the Breed Specific Legislation (that is, Part 1) of the Dangerous Dogs Act is needed, and continued evolution of rational breed neutral legislation to ensure safe and responsible dog ownership. Crucially, I believe that very little needs to be done to reform the legislation in this way.

What is the scale of the problem?
This might include information about the number of people affected this year or the number of cases which were heard in a court or tribunal over a particular period.

As far as I know and after research, there are no figures for national rates of seizure and prosecution of owners of bullbreeds under Breed Specific Legislation. However, there is some evidence available that might given an indication of the scale of the problem nationally:

1. There was a recent 'blitz' in Liverpool (which appears to be a regular occurence) by the police, in which just under 50 dogs were seized, though the breakdown of how many were due to BSL and how many due to other reasons has not been publicised. In 2011, it was reported that 'hundreds' of dogs were seized in a similar 'blitz':

2. In 2012, the Metropolitan Police are reported as seizing 'nearly 800' dogs:

3. There is the apparent evidence obtained by FOI of the following:

"A Freedom of Information (FOI) request, submitted by a member of the Pet Owners Parliament, has revealed that a total of sixty dogs have died while under the care of the Metropolitan police force in little over a year...Figures released earlier this week show that on average, the Met Police seized one dog each day under the Dangerous Dogs Act between April 2007 and 23rd May 2008 and an average of one in every seven dogs held, or one dog each week, died during their time in kennels. The FOI reply also revealed that the “majority” of these deaths were from illnesses although specific statistics on causes of death are not kept."

What would be the benefits of reform? In particular, can you identify any:
economic benefits (costs of the problem that would be saved by reform); or
other benefits, such as societal or environmental benefits?
For example, if the problem is one which must usually be resolved in court, court fees might be payable; this money might be saved if the problem was reformed. If it involves consulting a solicitor or barrister, legal costs might be relevant. Or, if the problem was one which caused significant costs to businesses, you might be able to tell us how much time or money businesses would save.

I believe the benefits of reform would fall in the following areas:

1. Repeal of BSL would save on court fees and legal costs, costs of police and other agencies manpower on a useless objective (for example, the most recent blitz on 'pit bull types' undertaken by Liverpool police), kennelling costs etc.

2. Dog welfare - as dogs will not either be killed, or have their lives severely proscribed, needlessly. This will also mean families will not be subject to enforced seizure, killing, or severe limitations imposed on their loved pet. They would also not be forced to pay for exorbitant insurance fees, or tattooing their pets (currently required under the legislation).

3. Public safety and welfare- the focus on certain breed types, and what they look like, appears to have caused a tendency for other dog breed owners to downplay their own responsibility for control of their dogs. Fair and equitable treatment of bull-breeds will enable all owners to develop their skills as responsible dog owners. Currently (especially as there is a large amount of media hype around bull-breeds) people are demonized if owners of bull breeds such as Staffordshire Bull Terriers, American Bulldogs, and their many crosses, especially if owners are working class males. This is not conducive to safe and responsible dog ownership for such owners, who may be afraid to seek advice on dog behaviour, training techniques, even vet care, once they realise their dogs might be summarily seized if they are noticed. Fear among the bull-breed owning community (in all demographics) of having their non-aggressive dogs summarily seized and killed appears very high at present. This is very evident among social network users, for example. There is evidence of some people committing suicide and developing mental health problems due to grief, after their dogs have been killed under BSL.

4. It should also be remembered that the relative risks of dog attacks are actually small, and what is more there is no sound evidence that bull breeds of any type (including any dog subjectively deemed 'pit bull type') pose more risks than other, permitted breeds. Therefore a large amount of money is being wasted on policing non-aggressive dogs (and their owners) purely because of their looks.

5. The relatively small amount of work needed to repeal the BSL part of the DDA, in relation to the benefits and cost savings, would be highly cost-effective, I would argue.

If this area of the law is reformed, can you identify what the costs of reform might be?
The costs of reform might include, for example, the cost of the legal profession and judiciary undertaking training to learn about a new statute.

I do not foresee any costs of reform apart from the cost that would apply to repealing any other law.

Does the problem affect certain groups in society, or particular areas of the country, more than others? If so, what are those groups or areas?
As an example, if the law relates to agricultural land, it might affect farmers and their families more than the general population.

This legislation appears to disproportionately affect working class people of all demographics (though especially young males), as bull-breeds (especially the Staffordshire Bull Terrier) are popular with working class people, although more and more people of other demographics appear to have become enamoured with them, especially as so many bull-breeds appear to come into animal rescues.

In your view, why is the Law Commission the appropriate body to undertake this work, as opposed to, for example, a Government department, Parliamentary committee, or a non-Governmental organisation?

Successive governments appear to be swayed by the "ideology" of the issue - including media misrepresentation of bull-breeds as 'devil dogs', problematic use by police of the term 'status dog', and some public (I would argue misguided) perception of risk and consequent fears. There may be a vested interest in parading a 'tough on law and order' facade, though using a very easy target, even if there is no resulting actual gain in public safety. There does appear to be a 'moral panic' (Cohen, 2002) with regard to bullbreeds. I believe that the Law Commission would inevitably be working on examining the issue from a specifically rational perspective pertaining to jurisprudence, and that this methodical work will uncover how problematic BSL actually is, and why it should be repealed. This would be in marked contrast to Government and Parliamentary approaches so far. Many non-Governmental organisations globally have analysed BSL, found it unfair, irrational and not useful to public safety, but have been unfortunately ignored by governments.

Have you been in touch with any part of the Government (either central or local) about this problem? What did they say?

Appeals and petitions, in a wide variety of forms, have been made to successive governments since 1991 by many people. In recent years, nation wide demonstrations have been regularly held in protest at BSL. There has been a remarkable intransigence by government representatives on this issue. As just one example (and as is evident in their Report and Executive Summary included in the literature bibliography above), the recent Select Committee on Dog Control and Welfare, despite repeated calls from dog behaviourists, and organistions such as the Dogs Trust, Kennel Club, and the RSPCA to repeal BSL, and evidence supporting the repeal of BSL being brought to their attention, nevertheless recommended extending BSL as the government wishes. Various organisations and individuals such as the Dogs Trust, Battersea Dog's Home, and solicitor Nick Freeman have worked to promote the Staffordshire Bull Terrier breed (a breed inordinately adversely affected by both the legislation and consequent moral panic), yet this appears to have fallen on deaf ears as far as most government representatives are concerned.

Is any other organisation such as the Government or a non-Governmental group currently considering this problem? Have they considered it recently? If so, please give us the details of their investigation of this issue, and why you think the Law Commission should also look into the problem.

I have mentioned the Select Committee on Dog Control and Welfare above. Various organisations and individuals both nationally and internationally have considered the issue - some of which are stated in the relevant literature section of this form.

Thank you for your response.
Please send it to us by Thursday 31 October 2013.

Send to: Twelfth Programme Project Officer
Law Commission
Steel House
11 Tothill Street
London SW1H 9LJ
Tel: 020 3334 0252
Fax: 020 3334 0201