Dangerous dogs and proportionate sentencing

The government is currently consulting on whether the maximum sentences for aggravated offences under the Dangerous Dogs Act 1991 should be increased. This offence category covers cases in which someone allows a dog to be dangerously out of control and the dog injures or kills a person or an assistance dog. Respondents to the survey can indicate whether they want tougher penalties for these sorts of cases. The suggested range of penalties for injury to a person – as well as death or injury of a guide dog – are three, five, seven or 10 years in prison. In relation to cases involving the death of a person, the respondent is asked: “Which of the following options most closely resembles the appropriate maximum penalty: seven years, 10 years, 14 years or life imprisonment?”

Given that the current maximum sentence for cases involving death is two years in prison, changing the law to match any of these options would represent a significant increase in the severity of the sanction. Whilst the current two-year maximum has understandably struck many as too low, it is important that those responding to the consultation — and those revising the law it is intended to inform — think carefully about the principles that would justify an increase.

When thinking about the quantum of punishment appropriate for an offence, the principal that guides many ‘just deserts’ theories of punishment is the proportionality principal. Roughly, the idea of proportionality is that the severity of the punishment should be commensurate with the seriousness of the offence: the severity of the sanction should not be more or less than the offender deserves. Sentencing practice in England and Wales is likewise guided by the proportionality principle. Accordingly, punishments should be proportionate to the seriousness of the offence, which is a function of the culpability of the offender for the offence and the level of harm caused or risked. However, punishment of the offender per se is not the only aim pursued. The statutory purposes of sentencing in England and Wales also derive from consequentialist theories concerned with the effects of the punishment (such as deterrence, reform, incapacitation etc. – see section 142 of the Criminal Justice Act 2003).

In relation to dangerous dog offences, the animal welfare minister Lord de Mauley has emphasised both the punishment of offenders (desert) and deterrence. He is reported as saying: “Dog attacks are terrifying and we need harsh penalties to punish those who allow their dog to injure people while out of control. We’re already toughening up laws to ensure that anyone who owns a dangerous dog can be brought to justice, regardless of where a dog attack takes place. It’s crucial that the laws we have in place act as a deterrent to stop such horrific incidents.”

However, with the range of sentence options for dangerous dog cases involving death extending to life imprisonment, thinking about proportionality will be a central feature of any principled discussion of the ‘correct’ punishment for these offences. It is important to bear in mind that the question asked in the survey is intended to capture people’s thoughts on what the maximum penalty should be. The maximum penalty will be reserved for only the most serious cases, and the circumstances surrounding every offender and offence will be carefully considered by the sentencing judge to ascertain how serious it is.

The question, then, is to estimate the severity of punishment proportionate to the most serious instances of dangerous dog cases involving death. Also important to note is that this category of offence is not supposed to cover cases in which the offender intended to kill the victim, essentially using the dog as a weapon. A person convicted of causing death by using a dog as a weapon may instead be convicted of the offence of murder and so may already be given a sentence of life imprisonment. The category of aggravated dangerous dog offences will include cases where the offender intentionally, recklessly or negligently allows the dog to be out of control but intention to kill would put the offence in the category of murder.

So, how do we know what the proportionate punishment for the most serious aggravated dangerous dog offences is? Punishment theory gives us some help by elaborating on the proportionality principal. A distinction can be drawn between ordinal and cardinal proportionality. Whilst ordinal proportionality requires that crimes of the same seriousness receive the same severity of punishment (and that offences are to be ranked in relation to each other, moving from the least serious to the most serious), cardinal proportionality concerns the upper and lower ‘anchoring points’ for the severity of the sanction attached to offences of a particular degree of seriousness. Cardinal proportionality thus sets the limits on the severity or leniency of the sanctions appropriate to each offence seriousness rank.

When thinking about the proportionate punishment for the most serious dangerous dogs cases, it is helpful to think about ordinal proportionality: for any of the sentencing options in the survey, which other offences receive punishments of the same severity, and are they more or less serious? Relevant to this exercise is the comparison that has been drawn between a dangerous dog causing death and dangerous driving causing death. The BBC quoted guide dog user Jim Moran as saying: “There’s got to be an answer to irresponsible dog ownership – it’s a bit like aiming a car at somebody.”

The current maximum sentence for causing death by dangerous driving is 14 years. Respondents to the survey who think that life imprisonment for the most serious aggravated dog attacks is appropriate would have to explain why this type of offence is more serious than causing death by dangerous driving. Remembering that intention to kill is never a feature of either of these offences, what possible justification could be given? How could allowing a dog to be dangerously out of control be worse than driving dangerously? Indeed, it might be argued that dangerous driving is worse since the driver has (in most cases) complete control over the car, whereas the owner of the dangerous dog does not have complete control over the dog. However, if we imagine plausibly that the most serious cases of aggravated dangerous dog attack will probably involve provocation and encouragement of the dog, it can hardly be argued that the dog’s aggressive state was not significantly down to the actions of the owner.

A different line of argument might focus on the difference between the motivations behind allowing a dangerous dog to be out of control and driving dangerously. Intuitively, people have dangerous dogs because of the power/status it confers on the owner, because of the pleasure taken in the ability to instil fear in others, or perhaps as a misguided attempt at defending oneself. Underlying all of these reasons is that the dog has the potential to harm others. If the dog did not have the potential to harm others, it could not confer power, instil fear or protect. Valuing the dog’s potential to harm, therefore, is integral to any of the reasons people have for possessing a dangerous dog and would likely feature prominently in the most serious cases of allowing such a dog to be dangerously out of control.

Dangerous driving, on the other hand, is mostly not undertaken because of its potential to harm. Whilst it certainly demonstrates an extreme lack of regard for the safety of others, dangerous driving is often undertaken for exhilaration and/or to show off — motivations not derived from the potential to harm. It may be a fine line between valuing the potential to harm others and disregarding their safety, but there does seem to be something more fundamentally connected to valuing the potential to harm others demonstrated in the most serious instances of allowing a dog to be dangerously out of control than in cases of dangerous driving.

However, whilst there do seem to be some interesting differences going on here, I do not think that they justify life sentences for dangerous dog attacks resulting in death. Even taking into account the need to deter, I believe life imprisonment would be disproportionately harsh. But, notwithstanding this judgement, it is difficult to pinpoint what lesser sentence would be proportionate. Using the principal of ordinal proportionality to compare offences of similar seriousness will be one of the most useful strategies for people responding to the consultation and for those revising the laws.