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8 December 2021

From the NS archive: Bitten by dogs

29 December 1972: The law has got itself into a muddle about dogs and dog-lovers.

By CH Rolph

Dogs, the police officer and journalist CH Rolph wrote in 1972, are the “most law-bound animal not yet equipped with pants and walking upright”. Stories about dogs biting people regularly make the news, but the legalities of each situation are not straightforward. At the time, an Alsatian leaping on a woman in a pub led to a police report explaining that “every dog is allowed one bite”. Such a “hoary old buck-passer” did not surprise Rolph, but the more he inspected cases involving dogs, the more he realised such laws required fine-tuning. What about the 1947 Buckinghamshire County Council by-law that prohibited dogs barking at night, or the £1-a-day cumulative penalty to keep alive a dangerous dog before it is “destroyed”? Even lawyers and magistrates feel lost among “dog law”.

There is nothing funny about being bitten by a dog. But the law has got itself into such a muddle about dogs and dog lovers that it is as though it expected us to smile indulgently at what they do. Around the huge library which now comprises the law of England there slinks a figure known as the unmuzzled ferocious dog; not without status, so long as he wears a collar (not a little jacket) bearing the name and address of his owner, but an archetypal cur whom no one wants to own until the trouble has blown over. The law is not against the dog per canem. Indeed, it protects him against vivisection, cruelty, neglect, theft and being made to pull any cart, carriage, sledge, truck or barrow. More: a motorist who runs over him must stop and declare himself if possible to the owner – or, if not, to the police, within 24 hours; which is more than the law has ever done for cats, chickens and elephants.

But if a dog who has never bitten anyone, or thought of it, runs around frightening people, the magistrates can order that he be kept under control, or destroyed (whichever they think the better idea). His owner can appeal against the destruction order, but not against the one about keeping control. And, most effective but for some reason least known of all, the owner can be prosecuted under the Town Police Clauses Act of 1847 (and an assortment of similar Acts) for “suffering to be at large an unmuzzled ferocious dog”. There need be no proof that the dog has previously bitten or wanted to bite anyone; there need be no “muzzling order” in force (and there hasn’t been for many years); there need be no evidence that the owner knew him to be ferocious – only that he knew him to be at large. Nor does anyone know what “at large” really means, but it would surely include being in the bar of a pub at drinking time.

Now, in the London Diary on 24 November, Crucifer told us that when he was recently in a pub an Alsatian leapt suddenly upon a lady in his party and bit her. “A complaint to the police,” Crucifer wrote, “produced the old saw that ‘every dog is allowed one bite’. Why on earth?” he asked, rationally enough. It was no surprise to me that the police in some areas, notably dog-infested areas, should still be heard to use the hoary old buck-passer. What is surprising, perhaps, is its recent revival in the Family Guide to the Law published last year (and actually a marvellous compilation) by the Reader’s Digest, though here it was called a “well known adage” in the first edition and a “well known saying” – which is a bit younger than an adage – in the second:

The well-known saying that every dog is allowed one bite has a legal significance in the sense that the owner of an apparently docile dog may not be liable if it bit unexpectedly. But once a dog has bitten without provocation the owner can be sued for damages if it attacks someone a second time.

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Even so, “attacking someone a second time” doesn’t mean biting the same man twice. It can mean biting two different men on separate occasions. Bitten men have for too long been induced to accept the notion, popular only among unbitten dog-lover, that they must suffer a qualifying injury. The criminal law is not, by comparison with the civil, the work of dog-lovers, who tend to see it, in its many manifestations among the case-histories and the local by-laws, as the work of unmuzzled ferocious legislators. A glance at recent decisions may reveal scope for some tidying up.

In 1947 Buckinghamshire County Council made a by-law, at the instance of the electors of Chesham, prohibiting the barking of dogs at night. This was no matter for civil proceedings and damages. At night time, the dog that barks in Bucks is behaving criminally, though the intention is that it shall be the master who pays the fine or, having refused, goes off to prison while the dog goes to a home. I do not know of any other county which punishes barking, but I remember that dog-lovers rose up everywhere at the time to denounce and defeat a timely suggestion that barkless dogs should be bred from parents without vocal chords.

At Bath in 1954 a doctor who kept chickens in her garden was one of the first to invoke the Dogs (Protection of Livestock) Act 1953, which made it an offence to be the owner of a dog that worried livestock on “agricultural land”. Two dogs belonging to neighbours had got in and killed her chickens, and she prosecuted the neighbours. The magistrates decided that her back garden was not agricultural land (and it wasn’t, the way the statute defined it) and she lost.

In 1958 the Marlborough magistrates used the Dogs Act 1871 to order a lady to keep her three collies under control. They had trapped the postman in the garage, and he kept them at bay by kicking and shouting until she got up and rescued him. If you fail to comply with a “control order” you will get another summons to show cause why the dog shouldn’t be destroyed; after which there’s a cumulative penalty of £1 a day until the deed is done. People have run up enormous bills at £1 a day, and even been taken to higher courts to be enjoined and then committed for contempt. In the same year an Alsatian at Portsmouth was ordered to be destroyed for attacking motor cyclists. Its owner, a lady living on National Assistance, was unable to pay the £1 a day to keep it alive, which has come to be regarded as a kind of judicial blood money; and the Home Secretary (it was Mr R. A. Butler) was asked if he would amend the law so that ill-behaved dogs could be “sent to an approved quarantine”, which, when you come to think of it, is no more than we do with ill-behaved people.

No, he said. The following year a man at Harrow was fined for “suffering to be at large an unmuzzled ferocious dog” – this was under the Metropolitan Police Act of 1839. He used to take out six or seven greyhounds on a “master lead”, and one of them jumped at a passer-by and bit him. The magistrates decided that a dog on a lead was a dog “at large” if it bit people. But the High Court said this was wrong. The man could exercise control (the judges said) but didn’t. This was different from being unable to exercise it at all, and also from using a lead “so long that the control is minimal and the dog is to all intents and purposes at large”. How long would that have to be?

In 1960 there occurred the case of Smith v Baker, which makes a lot of policemen (because they misunderstand it) wash their hands of bad-dog cases as they did in Crucifer’s story. Alady from Ashford, Kent, appealed in the Queen’s Bench Division, having already failed at Quarter Sessions, against an order to destroy her Alsatian dog, which had attacked and injured a seven-year-old boy. Her argument was that the order had been made on the application of the police, who had no standing in the matter. The complaint should have come from the party aggrieved, i.e. the bitten boy or someone acting for him. The Lord Chief Justice agreed that proceedings under the Dogs Act 1871 were not criminal proceedings – until there was a failure to comply with an order to control the dog. Then they became criminal and the police could get busy. Nevertheless, they could be forgiven if they felt as lost among dog law as so many lawyers and magistrates have done.

In 1963 a lady at Tooting Bec was prosecuted for suffering to be at large an unmuzzled ferocious dog, and this time it was a corgi, which had bitten two small children. The magistrate dismissed the summons because (he said) a dog can have a disposition to bite small children without being ferocious. But about four months later, the same case came before him by way of an application for an order to have the corgi destroyed; and the facts presented to him were the same. He made the order, and the lady appealed to the High Court, arguing that the magistrate, having held that the dog was not ferocious, must now hold that it wasn’t dangerous. Not at all, said the judges. “A dog may have a disposition to bite through temper, or nervousness, or provocation. That is something quite different from ferocity.”

I suppose nothing better illustrates the general confusion than the prescribed penalties for culpable dog-owning. If your dog runs out on the road and causes an accident you may be civilly liable in an enormous sum of money – against which you can insure yourself up to £100,000 for a mere 50p. If it attacks or chases livestock the farmer can shoot it, then have you fined £20, and then recover damages for any ill consequences to his animals (loss of produce, abortion, etc). A dog licence still costs only 37p, and a dog collar about the same; but if two dogs come up for judgment, one with no licence and the other with no collar, which would be looked upon, do you think, as the worse dog? For having no licence the penalty is £10; for having no collar, believe it or not, £400. Think, then, what it may cost to go and claim him. You will have embarked on a subject which could sustain a fat law book on its own, the law of the lost, found, stray and stolen dog; the most law-bound animal not yet equipped with pants and walking upright.

Read more from the NS archive here, and sign up to the weekly “From the archive” newsletter here. A selection of pieces spanning the New Statesman’s history has recently been published as “Statesmanship” (Weidenfeld & Nicolson).

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