(1)Where a dog is seized under section 5(1) or (2) below[F2 or in exercise of a power of seizure conferred by any other enactment ] and it appears to a justice of the peace, or in Scotland a justice of the peace or sheriff—
(a)that no person has been or is to be prosecuted for an offence under this Act or an order under section 2 above in respect of that dog (whether because the owner cannot be found or for any other reason); or
(b)that the dog cannot be released into the custody or possession of its owner without the owner contravening the prohibition in section 1(3) above,
he may order the destruction of the dog and, subject to subsection (2) below, shall do so if it is one to which section 1 above applies.
(2)Nothing in subsection (1)(b) above shall require the justice or sheriff to order the destruction of a dog if he is satisfied—
(a)that the dog would not constitute a danger to public safety; and
(b)where the dog was born before 30th November 1991 and is subject to the prohibition in section 1(3) above, that there is a good reason why the dog has not been exempted from that prohibition.
[F3(2A)For the purposes of subsection (2)(a), when deciding whether a dog would constitute a danger to public safety, the justice or sheriff—
(i)the temperament of the dog and its past behaviour, and
(ii)whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and
(b)may consider any other relevant circumstances.]
(3)Where in a case falling within subsection (1)(b) above the justice or sheriff does not order the destruction of the dog, he shall order that, unless the dog is exempted from the prohibition in section 1(3) above within the requisite period, the dog shall be destroyed.
(4)Subsections (2) to (4) of section 4 above shall apply in relation to an order under subsection (1)(b) or (3) above as they apply in relation to an order under subsection (1)(a) of that section.
(5)Subsections (2) and (3) of section 4A above shall apply in relation to an order under subsection (3) above as they apply in relation to an order under subsection (1) of that section, except that the reference to the court in subsection (2) of that section shall be construed as a reference to the justice or sheriff.]