Scotland's proposed dog theft offence lacks bite to match its bark – Martyn McLaughlin

For all the good achieved at Holyrood over the past two decades, it still has the capacity to produce some legislative clangers which risk doing more harm than good. The proposal for a new law which would establish a specific offence of dog theft is a case in point.

Under plans being brought forward by Maurice Golden of the Scottish Conservatives, the existing common law provisions around theft will be codified so as to ensure that beloved pets are treated as valued members of a family as opposed to mere commodities.

His proposed private members’ bill would make the theft of dogs an offence punishable by up to five years’ imprisonment. “The current law doesn’t give dogs and owners enough protection,” Mr Golden argues. “I want to change that.”

On the face of it, the legislation put forward by the MSP for North East Scotland – who has done some fine work around animal welfare during his time in office – looks like a slam dunk. It has won the support of the Scottish SPCA, the Kennel Club, and the Dogs Trust, and it taps into widespread public concern.

An online petition set up last year which called for stronger penalties for dog theft in Scotland attracted more than 147,000 signatures, while upwards of 800 people have lent their name to a separate petition launched by Mr Golden as part of his campaign.

The MSP will raise the issue this afternoon during a member’s business debate in parliament. It would be helpful to all concerned were he to use the opportunity to address the fundamental flaw in his plans.

Under the common law offence of theft, which is used to prosecute pet thefts at present, offenders convicted in a sheriff court already face a maximum sentence of five years’ imprisonment. If the prosecution takes place via indictment in the High Court, there is no limit.

Maurice Golden MSP with his cocker spaniel, Leo, winner of the Holyrood Dog of the Year 2018 (Picture: Jane Barlow/PA Wire)

In other words, if Mr Golden is successful in bringing his bill to the statute books, it will lower the maximum punishment, and ensure that there is even less of an incentive for those intent on stealing a pet to think twice. It should not require an expert in criminal law to point out that this is problematic.

No doubt his intentions are laudable, and he makes a valid point that the lack of data around dog thefts is problematic in and of itself – a reliable Police Scotland contact informs me that the issue was the most requested topic in freedom of information requests fielded by the force last year, but due to the shortcomings of its incident recording systems, collating a nationwide picture is a task akin to the construction of the Panama Canal.

Mr Golden’s law may change that, and it will undoubtedly win him votes, but in the process, it will leave dog owners more vulnerable than they are at present. It is shaping up to be a classic case of rolling out counterintuitive legislation on the basis that ‘Something Must Be Done’.

There are echoes here of the recently introduced Protection of Workers (Scotland) Bill, which created a new offence for situations where retail workers are assaulted, threatened, or abused.

Was it a good thing that the toxic conditions faced by so many of those workers was recognised? Absolutely. Does the new law do what it says on the tin? Hardly. It merely puts in place lower maximum sentences for what were already criminal offences.

In Mr Golden’s defence, he cannot claim that his dubious idea is original. It is perhaps no coincidence that his proposed bill should arrive just months after the UK Government announced a new criminal offence for pet abduction.

Nearly 200 suspected dog thefts in Scotland in 2020, say police

That particular development was hailed by Home Secretary Priti Patel as an “additional tool” to bring “callous criminals” to justice. But amid the rhetoric, the government’s promise of toughening up the law rings hollow.

The change in question, detailed in clause 43 of the Animal Welfare (Kept Animals) Bill, makes it an offence for someone to “take or detain” a dog so as to remove it, or keep it, from the “lawful control” of its owner, punishable by a maximum sentence of five years’ imprisonment.

The bill has been widely welcomed by pet lovers and campaigners who have fought for years to bring about a change in the law. But there is a familiar shortcoming.

Under the Theft Act 1968, anyone found guilty of stealing a dog faces a maximum prison sentence of seven years, meaning that the new bill will reduce it by two years.

Quite how this serves an effective deterrent is a mystery. It means that someone convicted of stealing a dog’s collar could face a harsher sentence than someone convicted of stealing the animal itself.

But ministers say there is limited evidence that maximum sentences are handed down due to the fact that the monetary value of the items stolen is taken into consideration – which would be a convincing argument, were it not for the inconvenience of being untrue.

Under the sentencing council guidelines in England, judges must take into account the harm caused by a theft, including instances where the items stolen were of “substantial value to the loser – regardless of monetary worth”. The guidelines also note that any “emotional distress” caused should be taken into account. In other words, the legal provisions already in place ought to pose a sufficient deterrent.

None of this seems to have been debated at length by MPs, meaning that the new offence looks set to become one of the more curious additions to the statute book.

Holyrood should think carefully before following suit. The issue is not whether there is a need for new laws. It is whether the existing laws are being applied correctly. If there are problems, they must be addressed, but rushing headfirst to introduce a new bill which makes the situation worse is a waste of precious parliamentary time.

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