Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos.  JR/1202/2014

ADMINISTRATIVE APPEALS CHAMBER  & JR/1209/2014

 

 

Before Upper Tribunal Judge Wikeley

 

Attendances:

 

The Applicant: was represented by Mr Robert Moretto of Counsel, instructed by the

Treasury Solicitor.

 

The Respondent neither appeared nor was represented.

 

The Interested Parties were represented by Mr Gareth Shires of Counsel, instructed by Jackson & Canter

 

 

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

I grant the applications by the Criminal Injuries Compensation Authority for judicial review of the decisions of the First-tier Tribunal (FTT) (Social Entitlement Chamber) dated 2 December 2013 (and as set out in the statement of reasons dated 4 February 2014).

 

The Upper Tribunal’s order is:

 

(i)            to quash the decisions of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 2 December 2013; and

 

(ii)          to remit the claimants’ appeals against the Criminal Injuries Compensation Authority’s review decisions (dated 30 November 2012) to a differently constituted First-tier Tribunal for reconsideration in accordance with the directions in paragraph 35 below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

 

 

REASONS FOR DECISION

 

An introduction to this application for judicial review

1. The legal issue at the heart of this case is the proper meaning and application of the term “crime of violence” in the criminal injuries compensation scheme in the context of an incident in which the victims were attacked by a dog (or, to be precise, two dogs).

 

2. The Applicant in the present case is the Criminal Injuries Compensation Authority (CICA). CICA is the Applicant because the First-tier Tribunal (“the Tribunal”) ruled that the incident in question did indeed amount to a “crime of violence”. Technically, the Respondent to the application for judicial review is the Tribunal itself, but in accordance with its usual practice it has quite properly taken no part in the present proceedings. The Interested Parties are the mother and daughter who were bitten by the dogs. As the material issues are identical, it is convenient to deal with both applications for judicial review in this single decision.

 

3. I gave CICA permission to apply for judicial review on the papers. I then held an oral hearing of the application for judicial review itself in Manchester on 5 November 2014. CICA was represented by Mr Robert Moretto of Counsel. The Interested Parties were represented by Mr Gareth Shires of Counsel. I am indebted to them both for their helpful arguments, both in writing and orally.

 

The incident in question

4. The essential facts are not really in dispute, even if there may be some disagreement as to peripheral matters of detail. On 13 December 2011 the mother (FC) was accompanying her daughter (CC) to school. They left their home and entered a communal backyard serving a number of other properties, including that of Mr McKevitt, whose two dogs, American Bulldogs or Bull Mastiffs, were in the yard unsupervised. The dogs approached and bit both FC and CC, who had done nothing to provoke them. There is no doubt that it was an extremely nasty and distressing incident. The gate between Mr McKevitt’s property and the communal yard was in a state of disrepair. The dogs in question, although powerfully built, were not prohibited breeds and were not previously known to the police. Mr McKevitt was subsequently prosecuted and pleaded guilty to possession of dogs that were dangerously out of control (Dangerous Dogs Act 1991, section 3(1)). The criminal court made a compensation order in a modest amount in favour of both FC and CC.  

 

The application for criminal injuries compensation

5. On 4 February 2012 FC made a claim to CICA for compensation both on her own behalf and on behalf of CC. Her application was therefore under the Criminal Injuries Compensation Scheme 2008 (it so happens the current 2012 Scheme excludes attacks by dogs and indeed other animals “unless the animal was used with intent to cause injury to a person” – see 2012 Scheme, paragraph 4 and Annex B, paragraph 4(1)(b) – but that exclusion is irrelevant for present purposes). On 10 September 2012 CICA refused to make an award, arguing that the incident was not a crime of violence. This was said to be because “the person in charge of the animal … did not deliberately set it upon them, nor did the attack result from the owner’s recklessness by failing to control a known vicious animal”.

 

6. FC then asked for both decisions to be reconsidered. On 30 November 2012 CICA reviewed but confirmed its earlier refusals to make any award, arguing that Mr McKevitt’s conviction was not determinative as “there is no evidence that the dog was previously known by the owner or the police as being a vicious animal”. On 4 February 2013 FC appealed to the Tribunal, again both on her own behalf and for her daughter. 

 

The First-tier Tribunal’s decision

7. The Tribunal considered the appeals by FC and CC jointly at a hearing in Liverpool on 2 December 2013. The Tribunal heard evidence from the investigating officer, PC Patterson, and from FC. The Tribunal found them both to be credible and reliable witnesses as to the facts. The Tribunal’s decision, announced on the day, was to allow both appeals and to rule that both FC and CC were eligible for an award of criminal injuries compensation under the 2008 Scheme.

 

8. In the “Summary of Reasons” on the Decision Notice, issued on the day of the hearing, the Tribunal recorded its explanation as follows:

 

“Award made – wicked recklessness on part of owner. Note that charge was approved by PC Patterson’s ‘managing’ sergeants and, of course, by CPS. That refers to dogs being ‘dangerously out of control in a public place’ – T2. The A/O [alleged offender] pled G [guilty therefore] admitted gravamen of the complaint. It seems that dogs broke through an old and insecure gate at owner’s backyard obviously insufficient to contain them. Dog excrement suggested that they had been allowed to roam there for some time. Owner, when interviewed by police, smelled of cannabis – might have been under influence. Dogs both of muscular build. Adult dog 2½ foot high. Compensation order made to mother and daughter.”

 

9. At CICA’s request the Tribunal later issued full written reasons for its decision. The Tribunal first summarised the background to the appeals, then identified the issue to be decided as follows:

 

“7. The particular issue for the Tribunal to decide was whether the owner of the dogs had committed a crime of violence or been guilty of reckless behaviour in relation to his care and control of the animals.”

 

10.  The Tribunal then summarised the evidence and the parties’ submissions. FC and CC were represented by a McKenzie Friend. His argument was recorded as follows: “The owner should have appreciated the risk of injury being caused by the dogs. The gate was insecure. There was obvious carelessness on the part of the A/O. The dogs were an obvious weapon” (at paragraph 9). The Tribunal then set out various findings of fact (which I have summarised at paragraph 4 above).

 

11.  The key reasons for the Tribunal’s decision were explained as follows:

 

“Reasons

11. The Tribunal considered that awards were appropriate in each case. It found the evidence of PC Patterson credible, reliable and very helpful in its deliberations. It found [FC] a credible and reliable witness. In view of her age it was inappropriate for [CC] to give evidence.

 

The Tribunal appreciates the terms of the Authority’s guidance, which suggests that an award is inappropriate where a dog is not a proscribed breed, is not known to the police, and has not been set upon the Appellant. However, in the present case having regard to the whole circumstances of the incident as set out in the Findings-in-fact, the Tribunal concluded that the Appellants had been victims of a crime of violence et seperatim had been injured as a result of the recklessness of the A/O in failing to supervise and control his dogs. The Tribunal was satisfied on (at least) the balance of probabilities that the necessary mens rea on the point of the A/O had been exhibited (in that respect we note the decision of the Court of Appeal in Jones [2011] EWCA Civ 400). Further the terms of the charge had been carefully considered and adopted by the CPS for prosecution purposes. The A/O pled guilty. Having regard to that and the terms of the offence, awards to each of the Appellants as victims of a crime of violence were appropriate in the Tribunal’s view.”

 

12.  CICA applied to the Upper Tribunal for permission to apply for judicial review of the FTT’s decision, there being no right of appeal as such against the decision of the First-tier Tribunal (Social Entitlement Chamber) in matters relating to the Criminal Injuries Compensation Scheme.  I gave CICA permission to apply on consideration of the papers.

 

13.  I simply note here that although the Tribunal referred in its reasons to the Court of Appeal’s decision in Jones, by the date of the Tribunal’s decision (in December 2013) that authority had actually been reversed by the Supreme Court in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 (reported in April 2013). What is clear is that the Tribunal did not have the benefit of the Court of Appeal’s subsequent decision in CICA v First-tier Tribunal (Social Entitlement Chamber) and TS [2014] EWCA Civ 65 (“CICA v FTT and TS”), which was not decided until February 2014.

 

The proceedings before the Upper Tribunal

The submissions on behalf of CICA

14.  CICA’s judicial review challenge to the Tribunal’s decision is in three parts: (1) failure to apply the correct legal test; (2) inadequacy of reasons; and (3) irrationality.

 

15.  Its first ground is that the Tribunal, CICA says, failed to apply the correct legal test. Reliance is placed on the ruling by Lord Hope DPSC in Jones, who identified two questions the Tribunal had to consider in deciding whether or not the expression “a crime of violence” applied to the proven facts of the case:

 

“The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence” (at paragraph 16).

 

16.  As to the first issue, Mr Moretto argues that the Tribunal did not expressly identify the crime that had been committed, although the context suggests that the Tribunal had in mind the offence under section 3(1) of the Dangerous Dogs Act 1991. However, the main thrust of Mr Moretto’s challenge relates to the second question posed by Lord Hope. CICA submits that in formulating the question to be determined as it did in paragraph 7 of its written reasons (see paragraph 9 above), the Tribunal erroneously separated out the issue of whether a crime of violence had been committed from the issue of whether the owner had been “guilty of reckless behaviour in relation to his care and control of the animals”. Further, although acknowledging that the necessary mens rea (mental element) had been shown on the part of the owner, the Tribunal had singularly failed to address the question of whether Mr McKevitt was actually aware of the risk to others, i.e. had demonstrated subjective recklessness. 

 

17.  The second ground of challenge is CICA’s argument that the Tribunal failed to provide adequate reasons. The Court of Appeal’s decision in CICA v FTT and TS is authority for the proposition that an offence under section 3(1) of the 1991 Act is not by its nature (as opposed to its consequences) necessarily a crime of violence. The offence under section 3 may be committed without any violent conduct and without any intention (or even apprehension) on the part of the dog owner that harm might result. In particular, CICA argues that the Tribunal made no findings about the dog owner’s state of mind. Any negligence by Mr McKevitt in allowing the dogs to roam free could not render later aggression by those dogs as a “crime of violence” by the owner. It is also argued that the Tribunal failed to make further sufficient findings of fact, e.g. as to the state of the back gate and as to the significance (if any) of the presence of dog excrement in the communal yard.

 

18.  The third strand of CICA’s challenge is one of irrationality. CICA v FTT and TS shows that negligence in controlling dogs cannot amount to a crime of violence, giving that term its ordinary meaning. According to CICA, the most that could be said was that Mr McKevitt had been negligent in his supervision of the dogs, just as the owner had been in CICA v FTT and TS. Indeed, unlike that case, there was actually no evidence here that the owner was aware that the two dogs were aggressive to strangers. A crime does not become a crime of violence simply because it results in injury to the person.

 

The submissions on behalf of FC and CC

19.  Mr Shires for the interested parties FC and CC argues that CICA v FTT and TS can be distinguished from the present case for a number of reasons. In summary these were that (1) the owner pleaded guilty in the present case; (2) as such he must have accepted there were “grounds for reasonable apprehension that it will injure any person” (see section 10 of the 1991 Act); (3) in allowing the dogs to escape, the owner must have had such a reasonable apprehension in fact; (4) the Tribunal found that the owner here was reckless in letting the dogs loose and had the required mens rea for the offence under section 3(1); (5) in CICA v FTT and TS the owner was negligent, whereas this case went beyond mere negligence; and (6) given the Tribunal’s finding that the owner was reckless and the reasonable apprehension they might cause injury, the offence on its facts was properly a crime of violence under the 2008 Scheme.

 

20.  In response to CICA’s particularised grounds, Mr Shires submits first that the Tribunal did apply the proper legal test, as can be seen by its reasoning in paragraph 11 in the light of “the whole circumstances of the incident”. As to the second ground, Mr Shires argues that reading the decision as a whole, the Tribunal made sufficiently particularised findings of fact, sustainable on the evidence before it, which supported the reasoning in its decision. CICA, he argued, was seeking to place too high a burden on the fact-finding tribunal. The same arguments are advanced in response to the third ground of irrationality.

 

The Upper Tribunal’s analysis

21.  I accept Mr Shires’s point that the Tribunal’s decision has to be read as a whole. I also acknowledge his argument that, as Lord Hope observed in Jones, it is “well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (at paragraph 25). Likewise, according to Moore-Bick LJ in CICA v FTT and TS, First-tier Tribunal decisions should be “read benevolently” and “both the Upper Tribunal and the Court of Appeal should be cautious about interfering with its decisions, even when they are less fully expressed than might be desirable” (at paragraph 20). I also recognise that the Tribunal did not have the benefit of the Court of Appeal’s decision in CICA v FTT and TS. However, even cutting the Tribunal the appropriate degree of slack, I am persuaded by Mr Moretto’s submissions that its statement of reasons involves a material error of law. Mr Squires’s well-crafted submissions were a valiant attempt to backfill the deficiencies in the Tribunal’s reasoning process.

 

22.  Although the Tribunal did not have the benefit of the Court of Appeal’s decision in CICA v FTT and TS, it should have been aware of the Supreme Court’s decision in Jones (and not simply the decision by the Court of Appeal in that litigation, which was of course reversed). The Tribunal should have asked itself first whether a criminal offence has been committed (and if so what offence) and then, secondly, whether, “having regard to the nature of the criminal act, the offence that was committed was a crime of violence” (see paragraph 15 above).

 

23.  As to the first question, there is no suggestion in the Tribunal’s decision that it had concluded that some offence under the Offences against the Person Act 1861 had been committed. Although it is not expressly spelt out, the tenor of the Tribunal’s statement of reasons is that it was the admitted offence under section 3 of the Dangerous Dogs Act 1991 which was relied upon. So the Tribunal was certainly entitled to find that a criminal offence had been committed. However, it singularly failed to address the second question properly by applying the correct legal test to determine whether that offence was a “crime of violence”. The Tribunal’s reasons proceeded on the erroneous assumption that pleading guilty to the offence under section 3 of the 1991 Act demonstrated the dog owner had “the necessary mens rea”, when section 3 is an offence of strict liability (see CICA v FTT and TS per Moore-Bick LJ at paragraph 17 and see R v Bezzina [1994] 1 W.L.R. 1057).

 

24.  There are several other passages in the Tribunal’s statement of reasons which lead me to the conclusion that it failed to apply the correct legal test. This is not simply a question of “cherry picking” particular sentences and taking them out of context, as Mr Squires sought to persuade me. Three examples will suffice.

 

25.  First, as Mr Moretto pointed out, the Tribunal characterised the CICA review decision as being to the effect that “the injuries sustained by the Appellants were not attributable to a crime of violence or reckless behaviour in that the dogs which had bit them had not deliberately been set on them, nor did the attack result from the owner’s recklessness by failing to control a known vicious animal” (statement of reasons at paragraph 3). The latter part of this passage was obviously an accurate reflection of CICA’s then guidance. However, read as whole the passage plainly seeks to draw a distinction between a “crime of violence” on the one hand and “reckless behaviour” on the other.

 

26.  Second, and as Mr Moretto also submitted, in defining the very issue it had to resolve, the Tribunal again erroneously distinguished between the question of whether a crime of violence had been committed and the issue of whether the owner had been (in rather vague terms) “guilty of reckless behaviour in relation to his care and control of the animals” (at paragraph 7 of its written reasons).

 

27.  Third, the McKenzie Friend’s submissions on behalf of FC and CC were repeated (at paragraph 9) without any suggestion that a test based on “obvious carelessness” did not accurately reflect the legal requirement for a “crime of violence” in this context, focussing as it did on the consequences of the crime rather than its nature. The Tribunal also failed to make a clear finding of fact that Mr McKevitt had been actually aware of the risk to others, i.e. had demonstrated subjective recklessness, rather than been objectively reckless or grossly negligent. Indeed, insofar as the Tribunal did make any findings about his mental state, it was in its summary reasons to the effect that he “smelled of cannabis – might have been under the influence.”

 

28.  There is one final matter that I should refer to in this context. The Tribunal’s Decision Notice issued on the day stated that the dog owner had shown “wicked recklessness”, using a term so far as I am aware unknown to the law of England and Wales. I understand that under Scots criminal law “murder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies” (Drury v Her Majesty's Advocate, 2001 SCCR 583 per Lord Rodger, Lord Justice General, at paragraph 11). Thus under Scots law “wicked recklessness” (which might be translated as “extreme indifference”) may distinguish murder from culpable homicide. I simply emphasise that in the circumstances of the present case, involving an attack by dogs that took place in Liverpool, the issue of whether that incident amounted to a “crime of violence” within the 2008 Scheme has to be judged according to the law of England and Wales. The use of legal terminology from Scots law, with its own nuances of meaning, is not helpful.

 

29.  In these circumstances I do not need to address in any detail the second and third grounds on which this application for judicial review is brought.

 

30.  However, as regards the second ground, I agree with Mr Moretto that the Tribunal failed to provide adequate reasons, at least in so far as its explanation of the application of the proper legal test is concerned. I was not persuaded that all of Mr Moretto’s arguments under that second ground of appeal were made out. It seems to me that some of these arguments involved attacks on the Tribunal’s fact-finding where the Tribunal was entitled to make the findings it did on the evidence before it (e.g. that the gate had been inadequate to confine the dogs).

 

31.  So far as the third ground is concerned, I do not accept that the Tribunal necessarily reached a decision which no rational tribunal, correctly applying the law, could come to. In the absence of a finding that there has been some offence under the Offences against the Person Act 1861, it may well be difficult to find that the commission of the offence under section 3 of the Dangerous Dogs Act 1991 amounts to a crime of violence. However, although difficult it is not necessarily impossible. The Court of Appeal did not hold in CICA v FTT and TS that an offence under the 1991 Act could never be a “crime of violence” within the 2008 Scheme. True, Moore-Bick LJ expressed the view that he found “it difficult to accept that negligently to allow a dog to escape, even a dog known to be aggressive, constitutes a crime of violence, giving that expression its ordinary meaning” (at paragraph 23). However, his Lordship went on to observe that “Whether a crime of violence has been committed will depend on the particular circumstances of the case” (at paragraph 24).

 

32.  I therefore find that the first and (to the extent there is an overlap) the second grounds for judicial review are made out.

 

The Upper Tribunal’s decision and what happens next

33.  It is not my function on a judicial review application to rehear the claim for compensation on its merits. Questions of fact and credibility are for the First-tier Tribunal to decide. However, I am satisfied that the Tribunal’s decision in this case is flawed for the reasons given above.

 

34.  I therefore grant the applications for judicial review in both cases. The decision of the First-tier Tribunal (Social Entitlement Chamber) following the hearing in Liverpool on 2 December 2013 must be quashed. Given the inadequacy of the Tribunal’s fact-finding, it does not seem to me that this is the type of case in which “there would have been only one decision that the court or tribunal could have reached” (Tribunals, Courts and Enforcement Act (TCEA) 2007, section 17(2)(b)). In the circumstances, therefore, the interested parties’ appeals against the CICA review decisions of 30 November 2012 must be remitted to the First-tier Tribunal for rehearing (TCEA 2007, section 17(1)(a)). I regret the obvious distress this will cause FC and CC.

 

35.  Neither the tribunal judge nor the members of the panel which first heard this appeal on 2 December 2013 should sit on the new tribunal. I leave it to a Tribunal Judge of the First-tier Tribunal to make whatever procedural directions, with time-limits, are thought fit for the purpose of the re-hearing. I emphasise that the evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal.

 

36.  FC should therefore understand that the fact that CICA has been successful in this application for judicial review before the Upper Tribunal does not carry any implication that it will necessarily also be successful in defeating her re-heard appeal before the new FTT. The decision on the facts in this case is still open.

 

Conclusion

37.  I therefore grant the application by the Criminal Injuries Compensation Authority for judicial review of the decision of the First-tier Tribunal (Social Entitlement Chamber) and make the order as set out above at the head of these reasons. 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 11 December 2014 Judge of the Upper Tribunal