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Dog Fouling (R009664)

Freedom of Information: Dog Fouling (R009664)

I refer to your letters of 3 February 2015 and 19 February 2015. 

As advised in our previous correspondence, your letters have been passed to the Response and Information Unit which is a Unit set up to deal with complaints and Freedom of Information requests.

I have now had the opportunity to carry out some further investigation into the number of people who have been prosecuted under section 1 of the Dog Fouling (Scotland) Act 2013 and, more specifically, how many people have been prosecuted in the Borders area.

I hope that this letter will help to explain our approach to prosecutions under the Dog Fouling legislation and our robust prosecution policy. 

The legislation allows local authorities to nominate suitable representatives to issue fixed penalty notices for dog fouling.  The legislation does not require corroboration to establish the offence, which means that the local authority officer may issue a fixed penalty notice on the evidence of one witness.  There is a defence of reasonable excuse to the offence.  However, the legislation is clear that not being aware that the dog has defecated or not having a suitable receptacle with you is not a defence. The legislation has been drafted in a way which supports speedy intervention by the local authority in the expeditious resolution of cases by means of a fine.

Crown Office and Procurator Fiscal Service only plays a part where an individual chooses not to pay the fixed penalty and invokes their right under section 8 of the Act to a hearing.  Thus, where someone is issued and accepts a fixed penalty and subsequently fails to pay the fine, the case will still be dealt with by the local authority.  It is only where an individual elects to have a hearing, that the case will be reported to the Procurator Fiscal.

As such, the number of cases reported to the Crown is relatively small. Crown policy is robust and there is a presumption in favour of action in all cases where there is sufficient admissible evidence. 

Since the legislation came into force, the following numbers of charges have been reported to the Procurator Fiscal in Scotland:

(i)                 2011/2012 – 275 (2 in the Borders)

Action was taken in 189 cases: 69 cases were marked for court and 120 cases were given non-court disposals (a Fiscal Fine or a warning)

(ii)                2012/2013 – 322 (none in the Borders)

Action was taken in 271 cases: 79 cases were marked for court and 192 were given non-court disposals (a Fiscal Fine or a warning)

(iii)              2013/2014 – 251 (none in the Borders)

Action was taken in 243 cases: 163 cases were marked for court and 80 were given non-court disposals (a Fiscal Fine or a warning)

Please note that these figures related to the number of charges reported to the Procurator Fiscal, and not the number of people. This is due to the way in which our database is constructed as it is designed for live day to day case management and not the production of statistics. That means that more than one charge could relate to the same person, but I hope that the information as presented is helpful to you.

There can be a number of reasons why no action is taken, for example whether there is insufficient admissible evidence to proceed, or other circumstances that mean it is not in the public interest for action to be taken.

It may also be useful to you to obtain figures from your local authority on the number of people being issued penalty notices in relation to this offence. The number of prosecutions does not reflect the number of instances in which action has been taken.