Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 12 Nov 1986

Vol. 114 No. 14

Control of Dogs Bill, 1986: Committee Stage (Resumed).

Question proposed: "That section 23 stand part of the Bill."

This is a very important section because under the Dogs (Protection of Livestock) Act, 1960, it is a good defence for shooting a dog if the defendant proves that the dog was shot while worrying livestock on agricultural land. The provisions in this section are now widened to permit the shooting of dogs worrying or about to worry livestock no matter where they are, and of stray dogs which had not left the vicinity where livestock had been injured or killed and which could not be seized or identified. This is a good section provided we do not have some trigger-happy, gun-toting farmers who are prepared to shoot every dog in sight and use this section as an excuse for doing so. I wonder what kind of evidence they have to produce. It could be very hard in court to prove that a dog intended to worry your stock or that you thought he was about to worry your stock. I wonder would it hold up in a court of law.

I join with Senator Hussey in saying that this is a good section. I compliment the Minister on introducing it. As the Minister said in his Second Stage speech, it extends the provisions of section 4 of the Dogs (Protection of Livestock) Act, 1960. There are one or two things in this section which must give cause for worry — perhaps it might be better if I use the word "concern". The first thing is the use of the word "worrying" and I come back to the remarks I made when I addressed the Minister on the general definition of the word "worry" in the interpretation section, section 1 of this Bill. It says that worry means to attack, or kill, or to chase livestock. If you are "worrying" that means that you are attacking, you are killing, or you are chasing. There are circumstances where dogs can be present without doing any of these things and can be having an effect on livestock which can be detrimental or damaging to livestock. That is why I want once again to express my concern about the definition of the word "worry" contained in section 1 of the Bill.

I fully support the principle underlying this Bill and I compliment the Minister of State on bringing it forward but if it is to have teeth the definition of the word "worry" in section 1 will have to be looked at again. If it is not looked at again this section and many of the provisions of this Bill will become a source of considerable meat to lawyers in various courts in the country. With a view to ensuring that the provisions of section 23 (1) (a) have proper and full effect, I would like to see the Minister extending or expanding the definition of the word "worry".

The second point I would like to make on this section arises in relation to section 23 (1) (b), (c) and (d). This is the provision which allows a person under certain circumstances to shoot a stray dog. It would appear that the right thereby conferred on a defendant to make use of this new statutory defence is limited to a person who is the person in charge of livestock at the material time. If one refers to section 4 of the Dogs (Protection of Livestock) Act, 1960, one sees that that section also provides a statutory defence for the shooting of a dog, but it is a defence that is available to and I quote:

(1) the occupier of the land, a member of his family or a person employed by him, or (2) the owner of the livestock, a member of his family or a person employed by him.

Section 23 (1) (c) requires to be expanded beyond the simple phraseology, and I quote, "the person in charge of the livestock". The right conferred there should be extended beyond that person to members of that person's family, to any members of a farmer's family or to any person employed by the farmer and, indeed, to the owner. It may be that the owner is not in charge of the livestock.

It applies to the person in charge of the livestock at the time.

No, it only applies to the person who is in charge but it means that somebody else who is present, who is not in charge, does not have the right to shoot. I cannot see the basis for limiting the right. A broad discretion is given in the 1960 Act. The 1960 Act states "the occupier, a member of his family or a person employed by him." I cannot see why this Bill does not go to that extent also.

The person in charge is defined in section 1. With regard to the definition of the word "worry", I agree with Senator Hussey that there may be some trigger-happy person. That is true but, at the same time, you cannot wait until a sheep is killed or slaughtered to take action. When this Bill is enacted and when people become aware we are serious about it dog owners will take care that their dog is not wandering around where there are sheep. For instance, where there are sheep on land the owner of the dog may not be aware that the dog is doing any harm and he will not expect anybody to come along and shoot the animal. Where livestock and sheep are concerned I hope the person in charge of the animals would take in the dog but he would certainly be entitled to shoot the dog.

While farmers are never trigger-happy, they cannot wait all day to make up their minds whether a dog is going to kill sheep. If there is a dog on their land and their sheep are under threat, I would give them the right to defend their property.

Question put and agreed to.
Question proposed: "That section 24 stand part of the Bill."

Who must enforce the law in relation to this section? Is it the dog warden or is it the Garda in relation to carcases that have been left unburied?

In this section it would be the local authority, and presumably the dog warden who would be an employee of the local authority.

Question put and agreed to.

Amendments Nos. 18, 19 and 20 are related and may be discussed together.

Government amendment No. 18:
In page 17, line 3, to delete "application by any person to the District Court", and to substitute "a complaint being made to the District Court by any person".

These are merely technical amendments which bring the wording of the section into line with section 22 where access to the District Court is also provided for. Amendment No. 20 is designed to provide a simple and clear procedure for an aggrieved party to notify a person that a complaint to the court has been made due to excessive barking. This should avoid cases failing on procedural grounds rather than on their merits.

Probably it is difficult to define it but what is excessive barking? Is the judge going to decide that one has to record a dog barking all night? I know in general what he means but I am talking about the legal aspect.

We will deal with the amendments first and we will talk on the section afterwards.

I welcome the amendments as I welcome the section. The amendments provide a very simple process by which somebody may make an application to the District Court to abate a nuisance and the Minister must be complimented for introducing this amendment and for introducing the section.

As regards excessive barking, it is a matter for the court. The court has no problem normally in deciding what constitutes excessive barking.

Amendment agreed to.
Government amendment No. 19:
In page 17, line 15, to delete "an application", and to substitute "a complaint".
Amendment agreed to.
Government amendment No. 20:
In page 17, line 17, to delete "notice of his intention to make such an application", and to substitute "notice in the prescribed form, within such time as may be specified in the notice, of his intention to make such a complaint".
Amendment agreed to.
Question proposed: "That section 25, as amended, stand part of the Bill".

In regard to the point raised by Senator Browne, the court seems to have no problem. It is really a civil matter. The aggrieved person usually wins and it is up to the person concerned then to abate the nuisance.

The aggrieved person usually wins in spite of the fact that it might not be a legitimate complaint. I have experience of people making a complaint about what they termed to be excessive barking but where no barking had taken place. Maybe this legislation will tidy things up as certain definitions are laid down about nuisance of barking dogs. In the past people made complaints when, in fact, through technical means and otherwise, it could be proved that no barking had taken place. Because they felt aggrieved they kept on complaining, sending solicitors' letters and so on and eventually the person involved had to move the whole enterprise away from the district. That is the unfortunate thing about living beside somebody who would complain about anything. If they heard one dog bark in the middle of the night they would complain about the nuisance. I hope the courts will treat this matter properly and that evidence will have to be provided in a civil case to prove beyond doubt that there was excessive barking. They do not want frivolous complaints, as has happened in the past.

It is a fair point. There is a sort of a cooling-off procedure in the Bill, that before anybody makes a complaint to the District Court in relation to the nuisance of excessive barking of a dog he should serve notice of his intention to make such an application on the occupier of the premises. We have to accept that excessive barking of dogs can seriously diminish the comfort of life for neighbours and many complaints made to the Department relate to this problem. I hope the subsection will provide a remedy in the court to any person who wishes to pursue the matter.

Subsection (2) states:

Before any person makes an application to the District Court in relation to a nuisance caused by the excessive barking of a dog, he shall serve notice of his intention to make such an application on the occupier of the premises in which the dog is kept.

Very often the occupier of the premises in which the dog is kept may not be the owner of the dog. Should there not be something inserted to specify that the owner of the dog would also have to be notified?

I have already welcomed the section. It seems that if a person operates in breach of the court order no offence is created. This is one of the few sections in the Bill which does not appear to create an offence for non-compliance. If I am correct in saying that a new subsection should be added to the fact that if a person acts in breach of the court order that person shall be guilty of an offence and liable to a penalty. Section 27 deals with offences and penalties and there is no penalty in relation to the breach——

This is a civil matter.

It is a civil matter but it comes before the court by way of a summons. It does not come before the court by way of an ordinary civil process and an individual still has his civil remedies separate from this statutory section. This is a very good and novel section but to make it more effective and to give it teeth, there should be a provision that non-compliance with a court order will make the person liable to payment of a penalty. I am trying to give the section more of a bark.

On the point made by Senator Hussey, that is the normal wording of the existing legislation, "the occupier of the premises in which the dog is kept". I will have another look at this for snags but basically that is the existing wording and it does not seem to be causing any problems. We are trying to relate this Bill to offences under the control of the warden and the local authorities. If you go into the area suggested by Senator Durcan, you are talking about taking the whole Bill into the civil court area which is another matter entirely. I would prefer to leave it as it is.

The only worry I have is that the section provides that a court may order the occupier of a premises in which the dog is kept to abate the nuisance by exercising due control over the dog. Take, for instance, the situation where the court makes an order of that nature and the order is served on the dog owner. The dog owner says: "To blazes with the court; I am not going to comply with that order". There is nothing in this Bill that imposes any penalty for non-compliance. There is nothing in this Act which gives anybody any power to enforce the order. Whereas I think the provision in the Bill is a very novel one, it should be given more teeth and I ask the Minister to look at it between now and Report Stage.

I think the section is strong enough. I have experience of people in the country who have complained about one dog barking. This section gives the court power to serve a notice on the dog owner to abate the nuisance. What will the dog owner do? Will he come out and say to the dog: "You are not to bark please; there are neighbours complaining about it"? There is nothing to stop the dog barking again in the middle of the night. One must relate this to on-the-ground situations. Dogs will bark. A cribbing neighbour will avail of every single bark to close you down. This has happened.

I do not want any penalties in the section. If somebody makes a reasonable effort, he should keep the dogs and you must accept that they bark. I do not know how to stop a dog barking. If it is suggested that people should be fined because their dogs bark, we are living in an extraordinary society. With all due respect to Senator Durcan — and I am not pointing the finger at him in particular — I am worried about what would happen on the ground if he gave the Minister power to impose fines for a barking dog because all the dogs I know bark and a lot of them bite as well, especially during election time.

Senator Ferris misses the point. We are not giving power to the courts to make an order against the dog. We are giving power to the courts to make an order against the dog owner. What happens if the dog owner throws the court order in the air and says: "To blazes with that"? There will be two parties involved and the owner will know it was Senator Ferris or Senator Browne or somebody else who motivated the provision that led to the court order and he will say to his dogs: "Keep barking" to annoy Senator Ferris or to annoy Senator Browne. What I am worried about is that there is nothing in the section to say if that happens and if the owner does not exercise proper control, and if the barking increases, there is a penalty which can be imposed against the dog owner who does not exercise proper control.

Quite obviously, as the Senator surely knows, you can refer back to the court again and you can go before the same judge. I know the sort of treatment such an owner will get. He will be put in his place and it will be a very expensive business. That is what the law is all about. But we do not intend to get into that area.

As the section stands it is simply a pious platitude with no effect at all. It is a meaningless section. It is just a statement of good intent.

If the Senator is saying it is a good section and it is a meaningless section he changes his mind very quickly.

The thinking behind the section is very good and the basis of this section is a very good one if it is followed through.

It provides a simple procedure but to make the procedure effective you must have a penalty at the end of the day. This is one of the few instances where a court can make an order which does not have to be complied with and the person who does not comply with it is not subject to any penalty.

My experience of the courts is that not only do they make an order but they also impose a penalty. There is more to it than just an order. You are fined in the court. Assuming the person is prepared to pay these fines which will grow in size, I am sure they will have due respect for the law. We are certainly not going to get involved in that scenario.

But there is no fine at all.

Of course there is a fine. If you go to a district court as in the case of many other nuisances public and otherwise, the judge can and will impose a sentence. For instance there are various sections in this Bill relating to health and health matters which again would have to be dealt with by the district courts.

Question put and agreed to.
Section 26 agreed to.
Government amendment No. 21:
In page 18, line 7, to delete "dog".
Amendment agreed to.
Question proposed: "That section 27, as amended, stand part of the Bill."

Could I just ask the Minister for an explanation as to why there is a fine imposed here in section 27 when he said he was not getting into that area on section 25? Why could there not have been a fine imposed in section 25?

That is a totally different matter. This is part of the Bill over which we have direction too. In other words, dog wardens and local authorities who have a direct function in this legislation have the benefit of a series of penalties right through from cases of dogs worrying sheep to no licences. All the penalties are set out but in the other case it is a civil matter.

I take it then that, as the Minister stated, there are fines where there is no licence or where a dog is worrying sheep. But a dog worrying a person is just as great a nuisance. A dog can worry a sheep and a fine is imposed but where there is a dog worrying a human being and keeping a person awake at night there is no fine.

As a matter of fact we went through that earlier in the evening. We have been through all that and where a dog attacks a human being or an animal there are very specific fines.

I am talking about section 25.

The Senator may not talk about it.

I am relating it to section 27 and making a comparison with section 27.

The Senator will have to wait for the Final Stage of the Bill to do that.

I understand that, but why have a fine of £100 for an unlicensed dog in section 27 when a few moments ago the Minister said we could not have a fine in the Bill for a dog who keeps a person awake? That seems to me to be a contradiction.

I do not think so.

It is an interpretation of what I said but, at the same time, we are dealing with dogs that are out of control. Basically that is the whole thrust of the Bill. The thrust of the Bill is to do something about the damage being caused in the hinterland of this city and all over the country annually by dogs getting out of control and engaging in the slaughter of sheep and lambs. We tried to make the Bill as comprehensive as possible. We have done so but there are certain areas of the Bill that we are leaving to the local authorities themselves to deal with such as fouling footpaths and things like that. We will be leaving penalties for quite a lot of things. We are leaving it up to the local authorities themselves. We will be leaving penalties for quite a lot of things dogs do to the local authorities and to the Minister for the Environment. I am merely concerning myself with that section of the Bill where the dog is causing real problems.

Can the fines imposed under this section be varied by ministerial order?

Question put and agreed to.
Section 28 agreed to.
Government amendment No. 22:
In page 19, before section 29, to insert the following new section:
29. —Section 27 of the Protection of Animals (Amendment) Act, 1965, is hereby amended by the substitution for subsection (1) of the following subsection:
‘(1) A person in respect of whom an order under section 26 (2) of this Act or under section 18 (1) of the Control of Dogs Act, 1986, is made may, at any time after the expiration of three months from the date of the order and from time to time, apply to the Court by which the order was made to remove the disqualification imposed by the order, and on any such application the Court may, if it thinks it proper, having regard to the character of the person disqualified, his conduct subsequent to the order, the nature of the offence and the other circumstances of the case, by order remove the disqualification as from such date as may be specified in the order.' ".
Amendment agreed to.
Section 29, agreed to.
Question proposed: "That section 30 stand part of the Bill."

On section 30 will the regulations that can be made from time to time by the Minister have to be brought before the Houses of the Oireachtas?

Yes, before both Houses of the Oireachtas. We will have an amendment on Report Stage. The subsection imposes the onus on a defendant in a prosecution for an unlicensed dog of proving the age of the dog if the offence is for a dog under four months and is kept with its dam and does not require a licence by virtue of section 5 (e), that the dog was in fact licensed, that the dog had been imported into the State for a period not exceeding 30 days. I am advised that prosecutions for non-licensing might require an inordinate amount of proof that the dog was not licensed. For instance, it might be necessary to prove that the dog was not licensed by any of the 32 local authorities involved. Consequently, I propose to consider between now and Report Stage whether it would be appropriate to provide for a presumption that the dog required the licence and that it was not licensed unless the defendant can prove otherwise in place of the provision now contained in the subsection.

Question put and agreed to.
Sections 31 to 37, inclusive, agreed to.

An Leas-Chathaoirleach

Amendments Nos. 23 and 24 are related and may be discussed together.

Government amendment No. 23:
In page 21, before the entry relating to the Town Police Clauses Act, 1847, to insert in the first, second and third columns of the Schedule, the following:

“2 and 3 Vict. c. 78

Dublin Police Act 1839.

Section 15

5 and 6 Vict. c. 24

Dublin Police Act 1842

In section 14 (2), the words

‘or suffer to be at large any unmuzzled ferocious Dog, or set on a urge any Dog or other Animal to attack, worry, or put in Fear any Person, Horse, or other Animal'.”

It is necessary to mention the following. It is desired to amend amendment No. 23 by substituting an ampersand for the word "and" in each of two places where it appears in the left hand column. The reason is to make the entries consistent with the other entries already in the Schedule.

Amendment agreed to.
Government amendment No. 24:
In page 21, to delete the matter in the third column of the Schedule opposite the reference to the Summary Jurisdiction (Ireland) Act, 1851, in the second column thereof, and to substitute the following:
"In section 10 (1) the words ‘or set on or urge any dog or other animal to attack or worry any person, horse, or other animal,'; section 10 (7).".
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Report Stage ordered for Wednesday, 19 November, 1986.