Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case Nos.  JR/4873/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before Upper Tribunal Judge Wikeley

 

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

I grant the application by the Applicant for judicial review of the decision of the First-tier Tribunal (FTT) (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 4 August 2014 (and as set out in its written reasons dated 15 September 2014).

 

The Upper Tribunal’s order is:

 

(i)            to quash the decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) dated 4 August 2014; and

 

(ii)          to remit the claimant’s appeal against the Criminal Injuries Compensation Authority’s review decision (dated 6 March 2014) to a differently constituted First-tier Tribunal for reconsideration in accordance with the directions below (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)) and any further directions given by a First-tier Tribunal Judge.

 

 

REASONS FOR DECISION

 

The background to this application for judicial review

1. The legal issue in this case concerns the proper meaning and application of the term “crime of violence” in the Criminal Injuries Compensation Scheme 2008. This question arises here in the context of an incident in which the victim, while cycling down the street, was attacked and seriously injured by a dog. The dog’s owner was later convicted of an offence under the Dangerous Dogs Act 1991. But is that enough to make it a “crime of violence”? I conclude the short answer is that it may be. A new First-tier Tribunal will need to make that decision on the facts, one way or the other.

 

2. The Applicant for judicial review in the present case is the victim. The Criminal Injuries Compensation Authority (CICA, technically in these proceedings now the “Interested Party”) originally made an award of £2,500 in compensation. The Applicant asked for a review of that decision by CICA because he felt the award was insufficient, given the seriousness of his injuries.

 

3. On that review, CICA changed its mind and decided to make no award at all. The reason for its review decision was that, contrary to its original decision, CICA had now decided the Applicant had not been a victim of a “crime of violence” properly so-called at all. This was because CICA took the view that the dog had not been deliberately set upon the Applicant and the dog owner had not been reckless in failing to control a known vicious animal.

 

4. The Applicant then appealed to the First-tier Tribunal (“the Tribunal”). Following a hearing, the Tribunal dismissed his appeal. In summary, the Tribunal agreed with CICA’s review decision and took the view that “the incident, whilst horrific for the Appellant, was not a crime of violence”.

 

The application for permission to apply for judicial review

5. I gave the Applicant permission to apply for judicial review on the papers. I did so as it seemed arguable that the Tribunal had not approached the question of whether there had been a “crime of violence” in the manner required by the binding case law authority. I referred in particular to the decision of the Supreme Court in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 (“Jones”) and the Court of Appeal’s decision in CICA v First-tier Tribunal (FTT) and TS [2014] EWCA Civ 65 (“CICA v FTT and TS”).

 

6. Having given permission to apply for judicial review, I then invited further submissions from both CICA and the Applicant.

 

The parties’ further submissions

7. Mr Michael Hanlon, Solicitor to CICA, has made a detailed written submission on the application. In short, he accepts that the Tribunal did not adopt the approach required under the decisions of the Supreme Court in Jones and the Court of Appeal in CICA v FTT and TS. He also accepts that the Tribunal appears instead to have followed the approach in the official guidance issued by CICA. However, his argument is that despite these errors of law the Tribunal asked itself the right factual questions and reached the only decision it could have done on the facts as it found them to be, namely that there has been no “crime of violence” for the purposes of the CICA Scheme. Mr Hanlon therefore invites me to find (a) that there was no material error of law by the Tribunal or, failing that, (b) as a matter of discretion I should refuse this application for judicial review in any event.

 

8. The Applicant has also made a detailed written submission by letter. He explains in detail how the incident occurred, the injuries he sustained and the effects the attack has had on him. I should add that I have no doubt that it was a very distressing and traumatic incident, but that of itself does not necessarily make it a “crime of violence”, despite the injuries he suffered. He refers to the history of both the dog in question and its owner. He also points out, as he told the Tribunal, that the owner was convicted by the magistrates of an offence under section 3(1) of the Dangerous Dogs Act 1991 (“the 1991 Act”) and later lost an appeal to the Crown Court. Indeed, the owner was given a suspended 4-week prison sentence and the court also ordered the dog to be destroyed. Section 3(1) of the 1991 Act provided (before its amendment by the Anti-Social Behaviour, Crime and Policing Act 2014, which is irrelevant for present purposes) as follows:

 

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

(a) the owner; and

(b) if different, the person for the time being in charge of the dog,

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

 

The Upper Tribunal’s analysis

CICA’s change of mind

9. The first matter I should address is CICA’s change of mind. The Applicant is understandably upset that CICA should first make an award and then, when he questioned the amount of the award, take away his award of compensation altogether. However, in principle CICA acted entirely lawfully in doing so. A victim who lodges a request for a review has no guarantee that the existing award will be maintained as a minimum. The review decision is a completely fresh reconsideration of the original decision. As a result the award may go up, stay the same or be reduced or even withdrawn, depending on the view taken by the reviewing officer. It may be significant in this case that the original decision was taken in January 2013, before the Court of Appeal’s decision in CICA v FTT and TS. That Court of Appeal decision, which appeared to make it more difficult to claim compensation in cases involving attacks by dogs, was issued in February 2014. The review decision, refusing compensation altogether, was taken in March 2014 and so may reflect that new understanding of the relevant law.

 

The First-tier Tribunal’s decision: its approach and reasons

10.  As a starting point, I accept that the Tribunal’s decision needs to be read with a degree of leeway. It is not, and does not pretend to be as polished as, a High Court judgment. As Lord Hope observed in the case of 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 [25]). The same point was made by Moore-Bick LJ in CICA v FTT and TS,  namely that 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 [20]).

 

11.  However, it is less than clear that the Tribunal in this case applied the proper legal approach. Lord Hope in Jones identified two questions that 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).

 

12.  So the Tribunal here should have asked itself first whether a criminal offence had 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”.

 

13.  In the present case, however, on one reading the Tribunal appear to have sidestepped the first of Lord Hope’s questions altogether. It is true that the Tribunal’s summary reasons on the day recognised that the dog “was not under control in a public place”, which at least hints at the fact that an offence had been committed under section 3 of the 1991 Act, but the precise nature of that offence was not identified. However, in its fuller written reasons the Tribunal recorded the Applicant’s submission that the owner had been found guilty of allowing his dog to be dangerously out of control (see at [10]). CICA had not contested the fact of the owner’s conviction, which was a matter of public record. It follows that, despite the doubts I had when giving permission to apply for judicial review, I am satisfied that the Tribunal did find (at least implicitly) that a crime had been committed, even if the actual offence was not properly identified. It therefore indirectly asked and at least partly answered the first question, which was never in dispute anyway.

 

14.  That then takes us to the second of Lord Hope’s questions, and the crux of this case, namely whether “having regard to the nature of the criminal act, the offence that was committed was a crime of violence” (emphasis added). The term “crime of violence” is not defined by the Scheme. The leading case in this particular type of appeal is now the Court of Appeal’s decision in CICA v FTT and TS. This decision 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. CICA v FTT and TS also shows us that, as a matter of law, ‘simple’ negligence (i.e. carelessness) in controlling (or failing to control) a dog cannot amount to a “crime of violence”, giving that term its ordinary meaning. In short, a crime does not become a crime of violence simply because it results in injury to the person.

 

15.  The Tribunal in this case was not required specifically to refer to the Court of Appeal’s decision in CICA v FTT and TS. Rather, what the Tribunal had to do was to apply the law as laid down in that decision, whether or not it referred to that case by name. Instead – and this point is not really contested by Mr Hanlon for CICA – the Tribunal approached the issue in terms of the former official guidance as rehearsed in the book by C. Padley and L. Begley, Criminal Injuries Compensation Claims (2005). Official guidance is just that, guidance. It may or may not coincide with the proper legal test. In fact the guidance is expressed in rather different terms, focussing on whether the dog had been deliberately set upon the victim or whether the owner had been reckless by failing to control a known vicious animal.

 

16.  The Tribunal stated its decision, in summary, as being that “the attack upon the Appellant by the dog was random in nature and did not amount to a crime of violence under paragraph 6 and 8 of the Scheme” (at [12]). In itself this reasoning is, with respect, less than clear. The fact that the attack may have been “random in nature” hardly explains the Tribunal’s decision. An assault by one individual on another can be entirely “random in nature” and yet be both a crime and, furthermore, a crime of violence. The question the Tribunal had to address was whether the attack by the dog amounted to a “crime of violence”, whether or not it was random in nature.

 

17.  The Tribunal also made four specific findings of fact, which were also reflected in what the Tribunal described as the reasons for its decision. These four reasons were set out (in their entirety) as follows:

 

“1. There was no previous recorded history, either by way of complaints or prosecutions, by the police of any attacks by the dog upon other people.

2. There was no reliable knowledge of the dog attacking other people prior to the attack upon the Appellant.

3. The dog was not deliberately set upon the Appellant.

4. The fact that the dog was not under proper control by its owner is not evidence that it was dangerous.”

 

18.  As to the first reason, there was certainly evidence before the Tribunal to justify that finding. For example, the police report to CICA was to the effect that “there is no record of the dog previously biting anybody else”. However, of itself that does not explain why the incident was not a “crime of violence”.

 

19.  As regards the second reason, the Tribunal discounted the Appellant’s evidence that there had been other incidents prior to the attack on him as they were “vague and not sufficiently detailed to indicate that the dog had a known vicious propensity”. Given they were necessarily hearsay accounts reported second-hand from neighbours, it is perhaps rather harsh for the Tribunal to conclude not simply that they were “vague” but they were not reliable. Short of having the neighbours called to give evidence, which the Appellant may not have realised would have been helpful, it is difficult to see how he could have been more specific. As it happens, the Appellant reports that, people were unwilling to make formal reports for fear of reprisals, as the dog’s owner was already known to the police in connection with drugs matters. In any event the Tribunal’s reasoning was plainly directed to the wrong test, namely whether the dog had a “known vicious propensity”.

 

20.  So far as the third reason is concerned, this was not in dispute. The Appellant had never suggested the dog had been deliberately set upon him. His version of events – which has not been contested – is that “the owner of the dog and the dog were walking down the road towards me, I was on my bike, the dog was not on a lead. The owner of the dog was swinging his arms around, the dog was jumping from side to side getting excited and pumped up. As the owner of the dog and the dog got near their house the dog ran from its owner [into the road] and attacked me, pulling me to the floor with my bike. The dog then attacked me while I was lying on the floor.”

 

21.  The Tribunal’s fourth reason is confused, difficult to follow and borders on the perverse, at least if it amounts to a denial that the dog was dangerous. The Tribunal had previously made a finding of fact that the dog was a cross Staffordshire bull terrier type dog. It was certainly justified in making that finding, not least as that was the conclusion in the report by the police officer from the dog section, who had been trained to assess and identify such animals. The Tribunal was also entitled to conclude as it did (in broad terms, if rather inaccurately) that this was not one of the “breeds of dogs specified as dangerous under the Dangerous Dogs Act 1991”. However, this betrays a misunderstanding of the structure of the (admittedly badly drafted) 1991 Act, which does not define particular breeds of dog as being “dangerous”. Rather, it specifies various offences as being committed in connection with certain breeds of dog (see section 1). A cross Staffordshire bull terrier type dog is not one of the breeds listed under section 1, but an owner of such a dog can certainly still commit other offences (e.g. under section 3). Furthermore, the Tribunal’s implicit finding that the dog was not dangerous is, to put it mildly, difficult to reconcile with at least three features of the case.

 

22.  The first feature is what actually happened in the incident in question. Realistically there was only ever one answer to the simple question “was this dog dangerous?” As the Court of Appeal (Criminal Division) bluntly expressed the matter in the course of a refusal of permission to appeal in the analogous case of R v Gedminintate and Collier [2008] EWCA Crim 814:

 

“8. We ask ourselves: was this dog under control? The answer is patent: No. What is the evidence of that? It bit someone else who was innocently walking past it on the pavement and who exhibited no provocative behaviour. Was it dangerous? Yes, because the dog bit the boy.”

 

23.  The second feature concerns the other evidence in the case, and especially that given by the police dog handler who reported that, on inspection at the kennels, the dog was “exceptionally unpredictable and aggressive”. Indeed, the police officer reported that although he could get close enough to confirm it was not a pit bull terrier he (very wisely) could not get close enough for a full “hands on examination” to determine its breed.

 

24.  The third feature relates to the outcome of the prosecution of the owner. This included a destruction order for the dog under section 4 of the 1991 Act as “the court cannot be satisfied that the dog would not constitute a danger to public safety” (letter to Applicant from Witness Care Officer).

 

25.  In the present case the Tribunal’s flawed approach to the legal issues it had to decide meant that it failed to ask itself all the relevant factual questions in deciding whether or not the crime that had been committed was a crime of violence. In particular, it failed to ask itself about the state of mind of the dog owner at the relevant time. The fact that offences under section 3(1) of the 1991 Act are crimes of strict liability, requiring no proof of any ‘mens rea’ (or ‘guilty mind’; see R v Bezzina [1994] 1 WLR 1057), does not mean that the offender’s actual state of mind is irrelevant. It is part of the wider factual matrix which needs to be considered in deciding whether what was committed was a crime of violence. True, in this case the dog owner was not a witness at the Tribunal hearing. However, the police crime report gave some inkling as to the owner’s state of mind, stating that when confronted by an officer shortly after the attack, at which point the dog had run off, “[the owner] was very aggressive in his demeanour and dismissive of the fact that the dog needed to be located…. ‘THE FUCKING DOG’S GONE LAD, GONE … YEAH LAD, BUT THE DOG’S GONE, SO WHAT’ (emphasis as in the original).” There was, therefore, at least some evidence that the owner may have been reckless in his conduct. There are two further matters which might have led the Tribunal to a different conclusion on the facts of this case but which were not taken into account.

 

26.  One relates to the owner’s conviction for the aggravated offence of causing injury under section 3(1). Mr Hanlon for CICA argues that the fact the conviction was for the aggravated, rather than the non-aggravated, offence is “of limited significance” as “any injury relates to the consequences of the offence and not its nature.” I disagree. The terms of section 3(1) are set out at paragraph 8 above. In one sense any injury necessarily relates to the consequences of the offence; as the Court of Appeal noted in R v Cox [2004] EWCA Crim 282, “Parliament demonstrated the clearest intention that the courts should in no small measure look at the consequences of the offence when determining the ultimate penalty” (at [8]). However, the consequences of the offence are also an integral element of the definition of the respective offences under section 3(1) (and hence of their nature) – so being responsible for a dog “dangerously out of control in a public place” is one (non-aggravated) offence, but being responsible for a dog “dangerously out of control in a public place” which then “while so out of control injures any person” is a different and aggravated offence. The former offence is triable only summarily, while the latter offence is triable either summarily or on indictment, with increased sentencing powers (1991 Act, section 3(4)).

 

27.  The other matter relates to the actual sentence imposed on the dog owner in the present case. The offences under section 3(1) may be punished by a fine or a term of imprisonment, with higher maxima for the aggravated offence. The relevant sentencing guidelines refer to a number of factors which must be taken into account, including both the harm caused by the offence and the degree of the offender’s culpability, along with any relevant aggravating or mitigating factors. In this case the owner was sentenced to 4 weeks’ imprisonment suspended for 12 months. The court therefore took the view that the custody threshold was passed, albeit it decided to suspend that term of imprisonment. But the purpose of the custody threshold is to reserve imprisonment for the most serious offences, i.e. those so serious that neither a fine alone nor a community sentence can be justified. In the present case, therefore, the decision to impose a term of imprisonment was a clear signal that the court regarded this as a very serious offence. It was not simply a penalty for a regulatory offence committed due to mere carelessness. The scope of the unsuccessful appeal to the Crown Court is unclear from the papers on file. It would doubtless have been helpful if the Tribunal could have had sight of a copy of the Judge’s sentencing remarks.

 

Conclusion on the judicial review of the First-tier Tribunal’s decision

28.  There are, therefore a number of problems with the Tribunal’s reasoning. Mr Hanlon’s argument for CICA is that despite this the Tribunal got to the right answer and indeed reached the only decision that it could reach. He makes that submission because he says the Tribunal investigated the right factual issues and its findings of fact supported only one conclusion. The prime difficulty with this argument is that the Tribunal’s enquiry was premised on posing the wrong legal test, and accordingly it did not necessarily ask itself all the right questions.

 

29.  I do not accept that it is inevitable that this claim for criminal injuries compensation will necessarily fail. It may be difficult but it is not impossible to establish a case under the 2008 Scheme in such circumstances. My decision is therefore to allow this application for judicial review, to set aside the Tribunal’s decision and to direct a fresh hearing before a new First-tier Tribunal. That new tribunal should take account of the following guidance on the relevant law.

 

The Upper Tribunal’s guidance

Attacks by dogs under the Criminal Injuries Compensation Scheme 2012

30. The present case concerns an application under the 2008 Scheme, but reference to the 2012 Scheme is instructive at least by way of contrast. Under the new 2012 Scheme “a crime of violence will not be considered to have been committed for the purposes of this Scheme if, in particular, an injury … resulted from an animal attack, unless the animal was used with intent to cause injury to a person” (Annex B, paragraph 4(1)(c)); emphasis added).

 

31. The 2012 Scheme followed a Ministry of Justice consultation paper, Getting it right for victims and witnesses (CP3/2012, January 2012). That document had proposed an express exclusion from the definition of crime of violence for various types of injury, including (at p.54 at paragraph 186):

 

“Where a person has been the victim of an animal attack, unless the animal itself was used deliberately to inflict an injury on that person. This is a tightening of current policy under which claims have in some cases been considered from applicants attacked by dangerous dogs not kept under proper control.”

 

32. The terms of the 2012 Scheme thus avowedly represented “a tightening of current policy” as it stood under the 2008 Scheme. Thus the official view was that dog attacks (save for cases of deliberate setting on) should fall “outside the scope of the revised Scheme, because as a matter of public policy we do not consider that it is consistent with the main purpose of the Scheme set out at paragraph 178 to use taxpayers’ money to compensate under the CICS in these cases” (p.53 at paragraph 185). That purpose was a reference to the following earlier passage (on p.52):

 

“178. The main purpose of the Scheme is to provide payments to those who suffer serious physical or mental injury as the direct result of deliberate violent crime, including sexual offences, of which they are the innocent victim. This purpose underpins all of our proposals, and it reflects the current Scheme.”

 

33. Two short observations are in order in this context.

 

34. The first is that the word “deliberate” in the phrase “deliberate violent crime” is a bit of a weasel word. Deliberate is not the same as intentional. This much is recognised by the 2012 Scheme itself, which asserts that an act or omission which meets the new criteria for a crime of violence, as set out in paragraph 2(1) of Annex B, “will not constitute a crime of violence unless it is done intentionally or recklessly” (Annex B, paragraph 2(2), emphasis added).

 

35. The second is that the 2008 Scheme must be construed on its own terms. It should not be read through the lens of the more restrictive 2012 Scheme. Logically, indeed, the consultation paper (at paragraph 186, see paragraph 31 above) in effect acknowledged that in principle dog attacks that fell short of those where the dog had been deliberately set upon the victim came within the scope of the 2008 Scheme.

 

Attacks by dogs under the Criminal Injuries Compensation Scheme 2008

The Court of Appeal’s decision in CICA v FTT and TS

36. The consultation paper Getting it right for victims and witnesses was published two years before the Court of Appeal’s decision in CICA v FTT and TS, a proper understanding of which is especially important in this context. That was a case in which a small aggressive dog had escaped from its owner’s garden and had run onto the pavement barking. A boy (TS) was cycling down the pavement; he swerved instinctively to avoid the dog and sadly fell into the path of a passing car, suffering serious injuries as a result. A prosecution under section 3 of the 1991 Act was discontinued when the owner gave up ownership of the dog. The First-tier Tribunal decided the boy was the victim of a crime of violence, a decision upheld on appeal by Upper Tribunal Judge Levenson. The Court of Appeal, however, allowed CICA’s appeal.

 

37. There are, of course, a number of important factual differences between the circumstances in CICA v FTT and TS and the present case. For example, in that case the dog had escaped from private property onto the public highway; here the dog was already in the road, untethered and in an excitable state. Similarly, in CICA v FTT and TS the direct cause of the boy’s injuries was the collision with the car, whereas in the present case the dog attacked and bit the Applicant. In addition there was no conviction in that case but there was in the instant appeal; furthermore in the present case the conviction was for the aggravated offence, whereas in CICA v FTT and TS realistically only the non-aggravated charge could have been brought. However, what matters for present purposes are the relevant legal principles as laid down by the Court of Appeal (which the Court has since reaffirmed in CP (A Child) v FTT and CICA [2014] EWCA Civ 1554).

 

38. Moore-Bick LJ gave the leading judgment in the Court of Appeal in CICA v FTT and TS. His Lordship began his analysis of the expression “crime of violence” by referring to the earlier authority of R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74. There the Court of Appeal had acknowledged that there was an impressionistic element at the heart of the assessment:

 

“It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence. As Lord Widgery C.J. pointed out in Clowes's case, at p. 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 ..." (Lawton LJ at 79H-80B).

 

39. Ex parte Webb had made it clear that “when deciding whether a crime is a ‘crime of violence’ it is necessary to have regard to the nature of the offence rather than its consequences. However, since some conduct may constitute an offence whether or not it is accompanied by violence, it is necessary to have regard to the facts of the offence itself in order to decide whether it amounts to a crime of violence” (Moore-Bick LJ at [17]). Moreover, the offence under section 3 of the 1991 Act may be “committed without any violence on the part of the owner or even on the part of the dog. If, however, the owner of a dog known to be vicious were to release it in a public place in order to enable it to attack someone, I can see that the crime might be categorised as one of violence. In those circumstances, however, other, more serious, offences of a violent nature are likely to have been committed” (Moore-Bick LJ, also at [17]).

 

40. Moore-Bick LJ concluded as follows in CICA v FTT and TS:

 

“22. For the reasons I have given I have no doubt that the First-tier Tribunal was right to find that an offence under the Dangerous Dogs Act 1991 had been committed, but in any event that was a finding of fact reasonably open to it on the evidence and so not open to review by the Upper Tribunal or this court. Whether the offence was properly to be characterised as a crime of violence for these purposes is, however, more difficult. The tribunal held that it was, without explaining why it reached that decision. The decision may have been instinctive, as Lawton's L.J.'s comment in Ex parte Webb suggested might be the case, but it is none the worse for that, provided it was one to which a rational tribunal, correctly applying the law, could come.

 

23. The critical distinction for these purposes is between the nature of the crime and its consequences. The tribunal did not find, expressly or by implication, that the dog had been deliberately allowed out of the garden; on the contrary, the indications are that the owner was negligent at worst in failing to prevent its escape. I find 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. It is clear from Ex parte Webb that a crime does not become a crime of violence for these purposes just because it results in injury to the person. The nature of a crime is different from its consequences, even if they might reasonably have been foreseen, as in the case of failing to fence a dangerous part of a machine or leaving a vehicle in a dangerous position on the road, two examples given by Lawton L.J. in that case.

 

24. In my view the offence in this case could only be described as a crime of violence if one were to have regard to its consequences rather than its nature. Although he had referred to Ex parte Webb at an earlier stage in his reasons, Judge Levenson did not really deal with the distinction between nature and consequences when he came to make his decision. In my judgment, in common with the First-tier Tribunal he concentrated on the consequences of the crime rather than its essential nature. Whether a crime of violence has been committed will depend on the particular circumstances of the case. The fact that the dog was known to be aggressive clearly weighed with both the First-tier and Upper Tribunals, but I do not think it is sufficient to enable the offence to be characterised as a crime of violence, any more than would be the case of an unfenced machine known to be dangerous.”

 

Applying the Court of Appeal’s decision in CICA v FTT and TS in other cases

41. Attacks by dogs obviously vary greatly in nature, It follows that any such incident giving rise to liability under section 3 of the 1991 Act may fall at any point on a spectrum in terms of its intrinsic seriousness. At one extreme is the case of the “attack dog”, where the owner of a dangerous dog intentionally sets the animal on a victim, who thereby suffers physical (and perhaps mental) injury. In this type of case the dog is being used as a weapon, and the owner may well be guilty of an offence under either section 18 or 20 of the Offences Against the Person Act 1861, either of which is patently a crime of violence for the purpose of the 2008 (and indeed the 2012) Scheme. The fact that an offence may also have been committed under section 3(1) of the 1991 Act as well is, in one sense, incidental (see CICA v FTT and TS per Moore-Bick LJ at [17]). The scenario in which a dog is deliberately set upon another person may also amount to the common law offence of affray (see R v Dixon [1993] Crim LR 579). At the other extreme is the owner who accidentally or negligently allows their dog to escape from their private property and for it to become dangerously out of control in a public place (within the meaning of the 1991 Act). In the latter example, although there is a crime under section 3(1), there is not a crime of violence, as demonstrated on the facts of CICA v FTT and TS itself.

 

42.  There are, by definition, many types of cases falling in between these two extremes. One difficulty in seeking to apply the Court of Appeal’s decision in CICA v FTT and TS in practice is to know quite where or how the line is to be drawn between those actual or potential section 3 cases that may amount to a crime of violence and those that do not.

 

43.  The first issue to address is whether conduct that falls within section 3(1) (but which does not amount to some other type of crime that would itself separately constitute a crime of violence) can ever be a crime of violence. However, CICA v FTT and TS is certainly not authority for the proposition that the commission of an offence under section 3(1) of the Dangerous Dogs Act 1991 can never be a crime of violence for the purposes of the 2008 Scheme. There are at least two reasons for this.

 

44.  First, if that were indeed the case, the Court of Appeal could easily have said as much – but it made no such finding. Moreover, Moore-Bick LJ’s observation that the “tribunal did not find, expressly or by implication, that the dog had been deliberately allowed out of the garden” necessarily presupposed that in certain circumstances such an offence could be a crime of violence. His Lordship went on to hold that “the offence in this case could only be described as a crime of violence if one were to have regard to its consequences rather than its nature” (emphasis added) and that “whether a crime of violence has been committed will depend on the particular circumstances of the case” (again, emphasis added), all of which implies that in certain circumstances a section 3(1) offence may constitute a crime of violence.

45. Second, such an exclusionary approach would be inconsistent with previous Court of Appeal authority. As Buxton LJ confirmed in R v CICAP ex parte August and Brown [2001] 1 QB 774, a case involving sexual offences, “the correct approach is not to classify particular offences, i.e. particular crimes such as ‘buggery’ or ‘assault’, as crimes of violence. Rather,  the task of the Panel is to decide whether the events that actually occurred were (i) a crime; (ii) a crime of violence” (at 782F).

46.  The next issue to address is whether the only type of section 3(1) offence that can amount to a crime of violence is that involving a dog being deliberately set on a third party. The answer must again be in the negative. That type of case is the most obvious and extreme example, but it is not the only possible example. As well as impermissibly interpreting the 2008 Scheme through the lens of the narrower 2012 Scheme, such an approach would be wholly inconsistent with the line of authority going back to ex parte Webb that “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.”

 

47.  Accordingly one is left with the premise that whether a crime of violence has taken place is a jury question, and so depends on “a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence” (ex parte Webb at 78A). In terms of defining a crime of violence, this comes perilously close to the well-known elephant test – I know one when I see one, even if I find it difficult to describe. Furthermore, of course, and as reinforced by CICA v FTT and TS, one must to look at the nature, and not at the results, of the unlawful conduct.

 

Conclusion

48.  Despite CICA v FTT and TS, it was by no means inevitable that a properly directed Tribunal would necessarily conclude that the offence in the present case was not a crime of violence for the purposes of the 2008 Scheme. The new Tribunal must apply the approach laid down in Jones and CICA v FTT and TS and reach its own assessment of the jury question as to whether, in the particular circumstances of this case, and having found all the relevant facts, the aggravated section 3(1) offence for which the dog owner was convicted amounted to a crime of violence.

 

49. This case has proceeded all along on the basis that if there was a crime of violence it was the owner’s aggravated offence under section 3(1) of the 1991 Act. However, the new Tribunal should bear in mind that in extreme cases of intentional or reckless conduct involving dangerous dogs, it is conceivable that an offence may be committed by the owner under e.g. section 20 of the Offences Against the Person Act 1861. This would, however, require actual foresight of the risk of harm on the owner’s part; see further Jones and Criminal Injuries Compensation Authority v First‑tier Tribunal and Doyle [2014] UKUT 556 (AAC).

 

The Upper Tribunal’s decision and what happens next

50.  It is not my function on a judicial review application to rehear the claim for criminal injuries 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.

 

51.  I therefore grant the application by the Applicant for judicial review. The decision of the First-tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) following the hearing in Liverpool on 4 August 2014 must be quashed. For the reasons I have explained 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 Applicant’s original appeal against the CICA review decision must be remitted (or sent back) to the First-tier Tribunal for rehearing (TCEA 2007, section 17(1)(a)).

 

52.  Neither the tribunal judge nor the members of the panel which first heard this appeal on 4 August 2014 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. Those directions might well include a request for the Judge’s sentencing remarks at Liverpool Crown Court on 1 March 2013 (ref 05F32718312; see p. B10). I emphasise that the evaluation of all the evidence will be entirely a matter for the good judgment of the members of the new Tribunal.

 

53.  The Applicant should therefore understand that the fact that he has been successful in this application for judicial review before the Upper Tribunal does not carry any implication that he will necessarily also be successful in at the re-heard appeal before the new Tribunal. The decision on the facts in this case is still open.

 

Conclusion

54.  I therefore grant the application by the Applicant for judicial review of the decision of the First-tier Tribunal and make the order as set out above at the head of these reasons. 

 

 

 

 

Signed on the original Nicholas Wikeley

on 22 April 2015 Judge of the Upper Tribunal