[2025] UKUT 262 (AAC)

It was not disputed before me that the crime which the FTT found both the dog walker and dog owner committed was under section 3 of the Dangerous Dogs Act 1991 “of having a dog which was dangerously out of control in a public place”. Section 3(1) of the Dangerous Dogs Act 1991 contains the relevant offence(s) and provides as follows:

“Keeping dogs under proper control

3:-(1) If a dog is dangerously out of control in any place in England or Wales (whether or not 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 or assistance dog, an aggravated offence, under this subsection.”

It was also not disputed before me that the offence(s) under section 3(1) are offences of strict liability following R v Bezzina [1994] 1 WLR 1057. I need do no more than quote the headnote from Bezzina to show that this is the case:

“….where a dog was in a public place and was shown to be acting in a way which gave grounds for reasonable apprehension that it would injure anyone, within section 10(3) of the Act of 1991, section 3(1) of the Act imposed absolute liability upon the owner or the person for the time being in charge of the dog; that it was no defence that the owner had no realisation that his dog might behave in such a way; and that the onus was on the owner to take steps which were effective to ensure that it did not do so.”

It follows that the crime which the FTT identified had been committed when the Alsatian dog attacked the interested party did not involve showing intent or even recklessness on the part of the dog walker or the dog owner.

In my judgment it must also follow from the crime the FTT identified as having been committed being a strict liability offence, that that crime was not a “crime of violence” for the purposes of the 2012 Scheme. This is because for the “crime to constitute a crime of violence in accordance with this Annex” (per paragraph 1 in Annex B to the 2012 Scheme), it needs (per paragraph 2 in Annex) to be a crime which involves a physical attack or any other act or omission of a violent nature which is done either intentionally or recklessly. That in my judgement is the plain effect of the language found in paragraph 2 of Annex B to the 2012 Scheme. It is the crime which has to involve an act or omission that is done either intentionally or recklessly.

I reject the interested party’s argument that paragraph 2(2) of Annex B to the Scheme does not require that intention or recklessness is an ingredient of the crime itself. The effect of the argument is to read paragraph 2 as setting up two separate criteria: with the first being, per paragraph 2(1), that the crime involves, inter alia, an act or omission of a violent nature; and the second being, per paragraph 2(2), that in order to (separately) constitute a “crime of violence” the act or omission has to be done either intentionally or recklessly, but not as part of the crime. On this reading, as I understand the argument, an offence under section 3(1) of the Dangerous Dogs Act 1991 would suffice to constitute a crime and a crime of violence under the 2012 Scheme if (a) it involved a physical attack or an act or omission of a violent nature, and (b) the physical attack, or act or omission, was done intentionally or recklessly, but not as part of the crime itself.

This argument should be rejected. An offence under section 3(1) may be committed simply if the dog is dangerously out of control in any place (in England and Wales). It does not require any attack on a person for the offence to be established. There may therefore be a crime committed which did not involve any physical attack or any other act or omission of a violent nature. However, paragraph 2(1) in Annex B requires that a “crime of violence” is “a crime which involves”, inter alia, a physical attack or another act omission of a violent nature. On the interested party’s argument the word “involves” here denotes no more than the particular factual circumstances within which the offence arose. So a crime under section 3(1) of the Dangerous Dogs Act 1991 would constitute a crime of violence if the factual matrix of the crime (but not the crime itself) involved, say, a physical attack. The words used in the sub-paragraphs in paragraph 2(1), however, are redolent of the constituent ingredients of particular criminal offences rather than simply the factual matrix within which any crime may occur. Moreover, the phrase “a crime which involves” is more obviously concerned with the ingredients of the offence itself rather than simply its factual setting.

This is emphasised, in my view by the words which go before the phrase “a crime which involves”, and is further informed by the purpose of Annex B within which paragraph 2 sits. What Annex B is concerned with is defining “a crime of violence” for the purposes of the 2012 Scheme, as it is only if person has been a direct victim of a crime of violence that they may be eligible for an award. But the starting point is that the definition may be assumed to be about rationally identifying a crime which is a crime of violence, and that is a crime which involves the matters identified in sub-paragraphs (a) to (e) of paragraph 2(1) in Annex B. This in my judgment is not a limited enquiry concerned with identifying the factual circumstances in which a crime has occurred.

Further, paragraphs 2(1) and 2(2) in Annex B are plainly intended to be read together, not least because the “act or omission” in paragraph 2(2) expressly relate back to acts or omissions under paragraph 2(1). If, as I have decided, sub-paragraphs (a) to (e) in paragraph 2(1) are about the ingredients of the criminal offence, the most natural reading of paragraph 2(2) is that it is also about the ingredients of the criminal offence, and therefore a crime involving a physical attack or another act or omission of a violent nature must have been done either intentionally or recklessly.

Nor can I identify any clear or good reason why paragraph 2(2) in Annex B should be read as not being about the ingredient of the criminal offence with which paragraph 2(1) in Annex is concerned. Both paragraph 2(1) and 2(2) are about what constitutes a “crime of violence” under the 2012 Scheme and, as already noted, paragraph 2(2) is about the act or omission under paragraph 2(1). Moreover, insofar as recourse may be had to the Consultation Paper, and the Government’s Response to it, which led to the 2012 Scheme, the concern expressed in the Response about making compensation awards to those who suffer serious injury as the direct result of deliberate violent crime, would accord more with the reading I favour. Although it is true that paragraph 2(2) is not expressly about what is a crime, by necessary implication it is taking out of the definition of “crime of violence” those crimes involving an act or omission where the act or omission was not done either intentionally or recklessly.

I am not persuaded either that the decision of the Upper Tribunal in CICA v (1) First-tier Tribunal (2) AS [2017] UKUT 43 (AAC) requires me to come to a contrary conclusion. Upper Tribunal Judge Knowles QC (as she then was) proceeded on the basis (see paragraph [56] of AS) that paragraph 2(2) in Annex B to the 2012 Scheme had no application to the case before her because of the exception in paragraph 4(1)(b) in Annex B to the 2012 Scheme. As I have indicated above, I do not read Annex B to the 2012 Scheme as meaning that paragraph 2 in Annex does not apply if paragraph 4 in Annex B does apply. Be this as it may, Judge Knowles was not considering paragraph 2(2) in Annex B or how it may affect whether a strict liability offence could constitute a crime of violence, and it is in this context (as I read it) that she left open (in paragraph [66])) that an offence under section 28 of the Road Traffic Act 1988 might on further factual enquiry have been a crime of violence under the 2012 Scheme.

Given the conclusions I have reached, it follows that the FTT erred in law in deciding that the crime of which the dog walker and dog walker were guilty of under section 3(1) of the Dangerous Dogs Act 1991 was a “crime of violence” under the 2012 Scheme. Whether this was because the FTT failed to consider paragraph 2 in Annex B to the 2012 Scheme, or adopted the view of paragraph 2 which the interested party now puts forward, does not really matter; although in either case it did not set out its reasoning clearly on the point. On a correct reading of paragraph 2 in Annex B to the 2012 Scheme, a crime under section 3(1) of the Dangerous Dogs Act 1991 cannot in law constitute a crime of violence under the 2012 Scheme. And that is the case both before and without needing to reach the exclusions in paragraph 4(1)(c) in Annex B to the 2012 Scheme.

However, the interested party argues that even if this is the correct conclusion on the Dangerous Dogs Act 1991, it is not the end of the matter under the first judicial review ground. This is because, so it is argued, the FTT would have been entitled to conclude on its findings that the relevant crime was instead under section 47 of the Offences Against the Person Act 1861 (the “OAPA”), and such an offence would satisfy paragraph 2 in Annex B to the 2012 Scheme.

Section 47 of the OAPA is in the following terms

“Assault occasioning bodily harm. Common assault.

47.- Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude.”

As the FTT never examined the OAPA or heard argument about it, this is an argument that the FTT’s error of law as set out above concerning the Dangerous Dogs Act 1991 was either not a material error of law or it was an error which made no difference to the outcome of the appeal to the FTT: per section 31(2A) of the Senior Courts Act 1991 and section 15(5A) of the Tribunals, Courts and Enforcement Act 2007.

I do not accept the FTT’s error of law was immaterial, or made no difference, to the outcome of the appeal. The argument made by the interested party here is that on its findings of fact and reasons, the FTT’s decision was consistent with and necessarily amounted to an offence having been committed under section 47 of the OAPA. Even on the interested party’s own case, however, this argument is dependent on all of CICA’s other judicial review grounds failing. In particular, it is dependent on my deciding that the FTT gave a rationally reasoned decision which shows why on the evidence the dog was used with intent to cause injury to the interested party. As those other grounds do not fail, I cannot be satisfied that the above error of law made no difference to the outcome of the appeal before the FTT.