JR/2617/2011

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision and Hearing

 

1. This application does not succeed. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I decline to interfere with the decision(s) of the Criminal Injuries Compensation Appeals Panel made on 12^th June 2006 and of the First-tier Tribunal (Social Entitlement Chamber) made on 2^nd December 2010 to make an award to the interested party of £499,155 under the Criminal Injuries Compensation Scheme 2001 (“the 2001 scheme”). The decision(s) was/were made under reference X/04/202064 in respect of an incident on 15^th August 2002.

 

2. I held an oral hearing of this application for judicial review on 8^th November 2012. The applicant, the Criminal Injuries Compensation Authority (the “authority” or “CICA”) was represented by Jeremy Johnson QC, instructed by the Treasury Solicitor. The respondent, who was the injured party and the claimant for compensation, and to whom I shall refer as TJ, was represented by Ms Shilpa Shah of counsel instructed by Wilkin Chapman Grange, solicitors. I am grateful to them for their assistance. The First-tier Tribunal, which now also exercises the former jurisdiction of the Criminal Injuries Compensation Appeals Panel (“the panel”) is the respondent but had, quite properly, taken no part in the proceedings.

 

Background and Procedure

 

3. The basic facts are agreed in this case. TJ was born on 1^st October 1987. On 15^th August 2002 (aged 14) he was riding his bicycle (apparently on the pavement) at about 5.15 pm. A dog escaped from the garden where it was supposed to be confined and started barking and snapping at TJ. He believed that he being attacked by the dog and “instinctively” cycled into the road to avoid it. He was hit by a car and seriously injured. The car driver was not to blame in the sense of incurring any criminal or civil liability. The dog owner could not afford to compensate TJ even if successful civil proceedings had been taken against her. The extent of TJ’s injuries was such that he was in hospital for four months and the tariff award (in addition to compensation for loss of earnings) was later assessed by the First-tier Tribunal at £115,280.

 

4. TJ had not previously known the dog or its owner. The dog owner gave evidence that the dog was generally aggressive towards people and had scared people by barking at them. The fence to her garden needed repairing and was insecure and this enabled the dog to escape now and again. This evidence was supported by that of a young neighbour. There is no evidence that the dog’s activities had previously come to the attention of the police. The dog owner was prosecuted in respect of the incident with TJ but she relinquished ownership of the dog, which was placed in a dog shelter, and therefore the prosecution was discontinued. I note here that it is agreed that a criminal conviction is not a prerequisite of entitlement to compensation under the 2001 scheme.

 

5. On 6^th January 2004 a claim was made on TJ’s behalf for compensation under the 2001 scheme. On 20^th April 2004 the authority refused to make an award on the basis that TJ had been the victim of an accident and not of a crime of violence. The authority maintained its decision on review on 31^st January 2005 and on 22^nd April 2005 an appeal against that decision was made to the panel, which had the relevant jurisdiction at that time. The panel allowed the appeal on 12^th June 2006 on the basis that TJ had been the victim of a crime of violence, no fault was attached to him and a full award should be made. It adjourned the question of the amount of compensation to await a report by a consultant neurologist. The further evidence took quite a while to emerge, during which time the criminal injuries appeal jurisdiction was transferred to the First-tier Tribunal. The First-tier Tribunal finally heard the matter on 7^th September 2010 and its decision was signed on 2^nd December 2010.

 

6. The authority remained of the view that there had been no crime of violence and on 28^th February 2011 applied to the Administrative Court of the QBD of the High Court for judicial review. On 25^th August 2011 Mrs Justice Dobbs transferred the application to the Upper Tribunal AAC. On 9^th December 2011 the file was passed to me and on 12^th December 2011 I gave the authority permission to apply for judicial review, limited to the issue of whether TJ’s injuries were attributable to a crime of violence for the purposes of the scheme. Following the receipt of written submissions, on 21^st May 2012 I directed that there be an oral hearing. This took place on 8^th November 2012. It is regrettable that this has all taken so long.

 

Relevant Criminal Injuries Provisions

 

7. The 2001 scheme was made under the authority of section 1 of the Criminal Injuries Compensation Act 1995. It is the relevant scheme for the purposes of the present case. The relevant paragraphs of the scheme provide as follows:

 

Paragraph 6. Compensation may be made in accordance with this scheme:

 

(a)   to an applicant who has sustained a criminal injury on or after 1^st  August 1964 …

 

For the purposes of this Scheme “applicant means any person for whose benefit an application for compensation is made, even where it is made on his behalf by another person

 

Paragraph 8. For the purposes of this Scheme “criminal injury” means one or more personal injuries as described in the following paragraphs …and directly attributable to:

 

(a)   a crime of violence (including arson, fire raising or an act of poisoning.

 

8. The parties are agreed that in the present case JT’s injuries came within the scheme and were attributable to the actions of the dog.

 

9. The dispute is whether there was a crime of violence. The concept of “crime of violence is not further defined by the 2001 scheme. The parties are agreed, as am I, that what matters is the nature of the crime and not its likely consequences (as stated by Lord Justice Lawton delivering the unanimous decision of the Court of Appeal in Ex Parte Webb [1987] 1 QB 74 at 79-80).

 

10. There is no specific reference in the 2001 scheme to attacks by dogs (or any other animal). The Authority has issued a Guide To The 2001 Compensation Scheme to help applicants, and to indicate how its staff will apply the scheme, but the Guide is not an authoritative statement of law and is not binding on the First-tier Tribunal or on the Upper Tribunal. It is not part of the scheme authorised by the 1995 Act and has not received parliamentary scrutiny  (a similar point was made by the Upper Tribunal in R(M) v First-tier Tribunal & CICA JR/1038/2011 [2011] UKUT 402 (AAC): see paragraphs 12 to 14). However, paragraphs 22 and 23 of Part 3 of the Guide state as follows:

 

22. Injuries caused by animals

You may be injured by an animal, for example of a dog attacks you. But even though these attacks can be savage and very distressing, we can make an award only if the attack was a violent crime.

 

23. We will consider making an award for an injury cause by a dog (or other animal) only if:

 

(a)   the person in charge of the dog deliberately set it on you; or

(b)  the attack was the result of the dog owner failing to control an animal which was known to be vicious towards humans, and the lack of control can be shown to be reckless. If, for example, a dog with a previous history of vicious behaviour towards humans was allowed out without suitable restraint or in the charge of a child, this would probably be reckless behaviour.

 

Dangerous Dogs Act 1991

 

11. The relevant provisions of the Dangerous Dogs Act 1991 state as follows:

 

Section 3

 

(1)  If a dog is dangerously out of control in a public place –

(a)   the owner …

 

is guilty of an offence or, if the dog while so out of control injuries any person, an aggravated offence, under this subsection.

 

Section 10

…

(2)  In this Act –

…

“public place” means any street, road or other place (whether or not enclosed) to which the public have or are permitted to have access whether for payment or otherwise …

(3)  For the purposes of this Act a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so …

 

12. I note that it is not necessary that a dog has actually injured any person for there to be a non-aggravated offence under section 3. It is also no defence that the owner did not realise that the dog might act in a particular and the onus was on the owner to to take effective steps to ensure that it did not do so (R v Bezzina [1994] 1 WLR 1057, Court of Appeal).

The Panel Decision

 

13. In explaining why it had decided that there had been a crime of violence the panel stated:

 

“We … were satisfied that the dog was aggressive towards the applicant. There was a history of the dog being aggressive if it got loose from the back yard. The evidence included that of the dog’s owner … and a young neighbour. In the circumstances the Panel considered, on a balance of probabilities that the appellant’s injuries were directly attributable to a crime of violence”.

 

The Arguments Before the Upper Tribunal

 

14. The authority argued that TS was not the victim of a crime of violence and that the panel had failed to make sufficient findings or give sufficient reasons for concluding that he was. The panel did not identify the crime of violence or the offender and, as Mr Johnson’s written skeleton argument put it (paragraph 14), “Nor did it make sufficient findings of fact to sustain its finding that an unidentified offender had committed some unspecified crime of violence”. Findings that the dog was aggressive towards TS and that there was a history of the dog being aggressive if it got loose from the backyard were insufficient to sustain a conclusion that a crime of violence had been committed. The panel’s conclusion amounted to an error of law “or was otherwise irrational” (paragraph 15).

 

16. Ms Shah, for TS, argued that the panel had carefully analysed and tested the evidence before it and made findings from which it was able and entitled to find that TS’s injuries were directly attributable to a crime of violence. There was an escaped aggressive dog with a history of escaping and scaring members of the public. A crime had clearly been committed under the 1991 Act, although the prosecution had been discontinued.

 

17. Mr Johnson replied that even if an offence had been committed under the 1991 Act, this was not an offence of violence and did not involve the infliction or threat of force, and violence is not within the nature of the offence, which is committed simply by failing to keep a dog under control.

 

18. Both parties also referred to paragraph 11 of the 2001 scheme. This excludes injuries attributable to the use of a vehicle “except where the vehicle was used so as deliberately to inflict, or attempt to inflict injury on any person”.

 

19. I do not find reference to paragraph 11 helpful. The scheme could have made a similar provision in relation to dogs, and did not do so, but that does not give any help on the matter before me. I also note that dog owners are unlikely to be insured in the same way as vehicle owners (with back up from the MIB).

 

The Case Law

 

20. The parties have both relied on the same legal authorities and I refer to the most significant of them.

 

21. In Ex Parte Webb [1987] 1 QB 74 at 79-80) in the Court of Appeal, to which I have referred above, Lord Justice Lawton continued:

 

“It is for the board to decide whether unlawful conduct, because of its nature, not its consequences, amounts to a crime of violence. As Lord Widgery CJ pointed out in Clowes’s case ([1977] 1 WLR 1353 at 1364) following what Lord Reid had said in Cozens v Brutus [1973] AC 854, the meaning of “crime of violence” is “very much a jury point”. Most crimes of violence will involve the infliction or threat of force but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences …”.

 

22. In Regina (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2011] EWCA Civ 400, [2012] QB 345, on appeal from the Upper Tribunal, the Court of Appeal adopted and explained what was said by Lord Justice Lawton in Ex Parte Webb. The main issue was whether a person committing suicide had committed an offence under section 20 of the Offences Against the Person Act 1861. Delivering the judgment of the Court, Lord Justice Patten said (at paragraphs 24, 27):

 

“The question whether a criminal offence has been committed and whether the applicant’s injuries are directly attributable to that offence are undoubtedly questions of fact for the [authority] or the [First-tier] tribunal. They are required to weigh up the evidence and decide whether it supports a finding that a criminal offence has been committed. As part of this process they have to decide what primary facts are established and what inferences it is possible to draw from those facts. But in this case I do not accept that the determination as to whether a section 20 offence is a crime of violence within the Scheme rule is anything but a question of law which can only admit of one answer … the reference by Lawton LJ in Ex Parte Webb to the meaning of a “crime of violence” being very much a jury point. But that was said in the context of his stated reluctance to attempt to produce an exhaustive definition of the term. To say that it is difficult to articulate the precise limits of a given description does not mean that there is no wrong answer in marginal cases …”.

23. The actual decision in that case is under appeal to the Supreme Court but both counsel were agreed that it was unlikely that the Supreme Court would depart from what was said above or that its decision would affect the outcome in the present case.

 

Conclusions

 

24. Applying the law as explained above, the first question is whether an offence under section 3 of the Dangerous Dogs Act 1991 is a crime of violence for the purposes of the 2001 scheme. This is a question of law. I can see nothing in the legislation, the 2001 scheme or the case law that would prevent such an offence being classed as a crime of violence. The offence can only be committed if a dog is “dangerously out of control” (my emphasis). Even the non-aggravated offence carries a possible sentence of six months imprisonment. The concept of the dog being dangerously out of control involves grounds for reasonable apprehension that it will injure any person (my emphasis). The fact that no mens rea (mental attitude that must be established before the offence can be proved to have been committed) is specified does not stop it being a crime of violence for the purposes of the scheme, notwithstanding Mr Johnson’s assertions to the contrary.

 

25. The parties are agreed, and it is well established, that although there must have been a crime committed, there need not have been a criminal conviction in respect of that crime. In the absence of a conviction, it is for the authority or (in this case) the First-tier Tribunal (or, formerly, the panel) to decide whether a relevant crime has actually been committed.

 

26. I accept that the reasons given by the panel in the present case could have been more detailed and extensive but I reject Mr Johnson’s caricature of the decision as being that “an unidentified offender had committed some unspecified crime of violence”. In my view the First-tier Tribunal did enough to establish that the dog’s owner had committed a crime of violence under the 1971 Act. It referred to the history of the dog being aggressive if it got loose from the back yard and it explicitly accepted evidence which (although the panel did not spell it out) established that the offence had been committed.

 

27. For the above reasons the authority’s application for judicial review does not succeed and paragraphs 22 and 23 of the Guidance to the 2001 scheme are inaccurate..

 

 

H. Levenson

Judge of the Upper Tribunal

 

19^th November 2012