Commentary on Sections Section 4 – Powers to authorise entry, search, seizure etc.
29.Section 4 replaces section 2A of the 1953 Act with a new version.
30.The existing section 2A allows a justice of the peace to issue a warrant authorising a constable (i.e. police officer) to enter and search premises if the constable has reason to believe that a dog suspected of livestock worrying is on the premises, but only in order to identify the dog. The new section 2A expands on this in two respects: it allows a sheriff as well as a justice of the peace to issue the warrant; and it allows premises to be entered and searched not only to identify the dog but also to ascertain who the owner is, and to examine, seize and detain the dog in order to collect evidence.
31.Under subsections (1)(b) to (3) of new section 2A, one of the pre-conditions for seeking a warrant is that the constable has sought admission to the premises and been refused, and has then served notice of the intention to seek a warrant. But it also allows for situations where the constable has not sought admission because a refusal could reasonably be expected, and for situations where the constable hasn’t given notice of the intention to seek a warrant because doing so would frustrate the purpose of obtaining a warrant (for example, if it is likely that the dog would be removed from the premises before the warrant could be obtained). An alternative pre-condition is that the premises are unoccupied or the occupier is temporarily absent.
32.Subsection (4) of new section 2A allows the police officer to use reasonable force to enter the premises.
33.Under subsection (5) the warrant provides authority for opening “lockfast places” (for example, forcing open a locked door) and provides authorisation for individuals named in the warrant or for anyone carrying out a role specified in the warrant to accompany the police officer. (For example, it may be more practical to take a vet to the dog, rather than taking the dog to the vet.)
34.Subsections (6) and (7) of new section 2A specify how the rules on the detention of dogs (under section 3 of the Dogs Act 1906) apply in the case of dogs seized from premises under subsection (4) of section 2A. Where the dog is detained under subsection (4)(b), for the purpose of ascertaining who its owner is, it is treated on the same basis as a dog seized from land and detained for a similar purpose under section 2(2). Where the dog is detained under subsection (4)(c), for the purpose of gathering evidence, it is treated on the same basis as a dog seized from land and detained for a similar purpose under section 2(2A). In particular, this means that the owner may be required to repay the cost of detaining the dog if it is detained for the purpose of ascertaining who its owner is, but not if it is detained for evidence-gathering.
35.Section 4(2) inserts new section 2B into the 1953 Act. This new section provides for a police officer who has seized a dog for the purpose of gathering evidence to arrange for the dog to be examined by a vet, and for the vet to take samples from the dog. This can be done either with or without the owner being present.