[2025] UKUT 262 (AAC)

I have already set out in paragraph 16 above the contradiction inherent in seeking remission of the appeal to a new FTT to be redecided afresh on the basis of an argument that the FTT arrived at a decision which no rational FTT could have made. Moreover, to the extent that this perversity argument of CICA was predicated on the FTT having misdirected itself as to whether recklessness was sufficient, that argument has not succeeded.

Where this fourth ground is made out, however, is in relation to the adequacy of the FTT’s explanation for why it concluded, per AS, that the dog walker’s (or the dog owner’s, though this may be less likely on the known facts) aim or purpose at the relevant time was to use the dog to cause injury to the interested party. Despite the restraint which I should exercise in reading the FTT’s decision and its reasons, I cannot identify from the FTT’s fact-finding and reasoning why, having directed itself correctly on the intent test it had to apply, it concluded that the dog had been used with intent to cause injury to the interested party. This was a clear requirement of the interested party’s satisfaction of rule 4(1)(c) in Annex B to the 2012 Scheme, even assuming in her favour (as she now argues) that the crime committed against her when she was attacked by the dog was under section 47 of the OAPA. There is no obvious consideration by the FTT of the motive or purpose of the dog walker (or dog owner), or (per AS) what was in dog walker’s (or dog owner’s) mind before or during the dog attack.

I agree with CICA that the FTT failed to make any findings on whether it was the dog walker’s (or dog owner’s) aim or purpose to bring about an attack by the dog on the interested party so as to cause her injury. The dog’s propensity for violence and the dog owner’s (or dog walker’s) knowledge of that propensity and that the dog was fierce and aggressive were not itself a sufficient basis for the FTT’s finding in paragraph 21 that both the dog owner and the dog walker “intended that [the dog] should attack and hurt persons who….approached the persons who it was trained to guard, including the dog walker on walks”. And that finding as to intention was not otherwise explained by the FTT.

Nor was it sufficient to infer, as the FTT seemed to do, from the absence of measures to control the dog to a finding that the dog walker and dog owner used the dog with intent to cause injury to the interested party. A failure to take adequate measures to control an aggressive dog (such as muzzling it), may amount to no more than the dog owner or dog walker acting recklessly, in the sense, per R v G, of them being aware of the risk that the dog could cause injury to a person and, in the circumstances known to the dog walker or dog owner, it was unreasonable for either of them to take that risk. That does not necessarily equate with “intent” because, crucially, it leaves out of account what the dog walker’s (or dog owner’s) motive or purpose was in using the dog before and during the incident.

Was the motive or purpose of the dog walker (or dog owner) to use the dog to cause injury to the interested party? It is that critical question which the FTT’s reasons and fact finding failed in my judgement to answer.