I noted during the earlier evidence session that the committee does not appear to have a copy of the relevant protocol. The issue is covered in the protocol, so I ask the committee to view some of the evidence that it has heard from individual local authorities through the lens of the protocol, and what it provides for in relation to the interaction between the 1991 act offence and the 2010 act offence.
The second paragraph on page 5 of the protocol says:
“This is an important point to note as while the policy presentation of the 2010 Act has often been in the context of the DCN regime being about trying to prevent attacks from taking place, the law itself does not restrict imposition of a DCN to only where attacks have not taken place. Given the discussion about ... the 1991 Act”
and the challenges that prosecutors and the police face in relation to the act, which is fully discussed in the protocol—that discussion has been mirrored this morning—
“it can be the case that imposition of a DCN may be appropriate for cases originally considered under the 1991 Act but where a lack of evidence exists to support a prosecution.”
The system that is operated by the COPFS is that, when a prosecutor cannot take forward a case as a result of the evidential test that must be met under the 1991 act not being met, they ask the police to refer the matter to the relevant local authority. That process was described by witnesses earlier this morning.
Some witnesses described what we understand to be a complementary approach in which, if an offence cannot be progressed under the 1991 act, there is an opportunity for the local authority to consider taking action through issuing a dog control notice, because of the different evidential tests that must be met for DCNs. As my police colleague said, a DCN might be a reference point, should the dog misbehave in the future and an opportunity is available again to consider whether prosecution under the 1991 act is possible.