The most basic and vital human right is the right to life. Allied to that is the fact that if a person is accused of a crime they will not be convicted and sentenced without the protection guaranteed by a due legal process. It is why a person demanding their ‘day in court’ is in effect claiming their right to be treated fairly within our society. Their claim is a right to justice.
Most humans now have rights because all those within the species of homo sapiens are alike. Humans share the sense and sensibility of other humans. Therefore they know and understand how others feel because they share such sentience. Sentience is commonly described as the ability to perceive and feel pleasure and pain. An animal is sentient if ‘it is capable of being aware of its surroundings, its relationships with other animals and humans, and of sensations in its own body, including pain, hunger, heat or cold.’
While animals are only classified as ‘things’ in law and so are mere property rather than human beings, nevertheless like us they are sentient beings. Consequently when a person is charged with being the owner of a ‘dangerous’ dog under the Dangerous Dogs Act 1991 [DDA] it is important that there is a ‘fair trial’ for both the person and the dog.
After all at worst the person will only be sent to prison for a few weeks. Conversely the dog may be sentenced to death.
The DDA is drafted on the basis that dogs are sentient. For by the Anti-social Behaviour, Crime and Policing Act [ABPCA] 2014, which amended the DDA, the court has a duty to take into account the dog’s ‘temperament’ and the owner’s ‘character’:
That is a mandatory duty placed on the judge. When a court is deciding whether a dog would constitute a danger to public safety, the court must consider the temperament of the dog and its past behaviour, and whether the owner of the dog is a fit and proper person to be in charge of the dog.
A dog might be deemed to be ‘dangerous’ and so is likely to be destroyed by the court, when the real cause is a feckless reckless owner. Often it is just such an owner who fails in their duty and responsibility towards their dog. That new law protects the dog as against the owner as if he is not a ‘fit and proper person’ the dog’s life could be saved by the court.
As that Act allows the court to take into account the dog’s ‘temperament’, that would be relevant now if the person who was bitten had somehow provoked the dog. If the dog was generally good-natured and even-tempered, the ‘circumstances’ relating to the alleged offence must be considered by the court.
Even if a dog behaves badly that could be the result of training by the owner to attack people or other dogs. Criminals now use trophy dogs as a weapon in a drugs war as well as in dog-fighting gangs. If the owner had deliberately changed the dog’s ‘behaviour’ so they became violent that could be mitigation for the dog. It would also count against the owner as it reflects upon his ‘character’ while counting in favour of the dog.
A Fair Trial:
That approach underlines that the court must be even-handed in the interests of justice. Therefore as with the owner, there must be a fair trial for the dog too. If an owner is poor they might not be able to afford legal representation. In that event their dog could suffer through their poverty. As in the case of a person who is the subject of discrimination, it is much worse for a dog as they are hamstrung by being born without a human tongue.
The potential discrimination of dogs within the judicial system was considered in the High Court in such circumstances. Elsa had been sentenced to death and her owner could not afford the fees which might have freed her. On appeal Lord Justice McCowan addressed the issue head-on and delivered a positive description of what the trial process should achieve:
I would not criticise the Commissioner for making the application, it is important, in my judgment, that if the application were to be made, no steps should be taken which would prevent the dog having a fair trial. The relevant facts were that the applicant had no legal aid, no right of appeal to the Crown Court and no means to pay the £300…by insisting on a figure of £300 contribution to be made by the Applicant, the Commissioner made it well near impossible for the Applicant to get a fair trial for his dog.
Lord McCowan concluded, ‘there was not, in the result, a fair trial.’ The court quashed the destruction order on Elsa and ordered a rehearing.
The other judge in that appeal, Mister Justice Collins, emphasised what must be the aim of the court conducting the rehearing:
It seems to me that it is all the more important that the Magistrate, before whom the matter comes, ensures that there is a fair trial.
In another case the High Court has shown a prescience regarding the sentience of an incarcerated dog. The time between an alleged offence being committed and a trial and subsequent appeal is often lengthy, certainly months and maybe some years. Mister Justice Irwin noted the aftermath of an allegation that is often overlooked:
After this dog has been kept on death row, so to speak, for more than two-and-half years, it is time she was reprieved.
Once a dog has been deemed to be ‘dangerous’, it can be colloquial as well as legal that you ‘give a dog a bad name’ which then determines their fate. In a recent case in the Canadian High Court Mister Justice Smith considered the aim and approach the court should adopt. The judge quashed a destruction order on a dog and concluded:
In determining whether a dog is dangerous, the assessment must be in the context of a dog acting in the normal way of canines. When dealing with an analysis which may lead to a finding of a dog being declared dangerous, the quality of mercy should not be strained.
The allusion to ‘the quality of mercy’ is particularly pertinent given that Shakespeare’s play where it appears, The Merchant of Venice, examines prejudice in a court case.
These cases show the courts were concerned about the effect of the process on those dogs. A ‘fair’ trial for living creatures takes into account that an unfair trial could result in their death. Moreover you could only show ‘mercy’ to one who is sentient.
Equally these cases prove that dogs no less than people deserve fair treatment in and out of court. That means that, regardless of the legal classification of a dog as a ‘thing’, they must be judged as creatures that feel pain and pleasure and should not be easily deprived of their irreplaceable being: their life.
Sentience as a principle has been adopted in Austria, France, Germany, New Zealand and Switzerland. We are in a legal limbo at present as despite the government promising to strengthen the position of animals it remains a promise yet to be delivered.
By comparison the French Parliament granted ‘legal rights’ to animals as ‘sentient beings’ in 2016. Reha Hutin, who campaigned for the change, said, ‘Parliament has recognised an obvious fact; animals are being endowed with feelings. An animal is not a table.’ It is well beyond the rightful time that English Law follows the lead of France and accepts the same ‘obvious fact’. A dog is not a table. Every dog deserves their day in court because the voice of the law represents their bark when justice is delivered.