[2025] UKUT 262 (AAC)

CICA’s argument here is that the FTT misdirected itself as to the distinction between intent and recklessness under paragraph 4(1)(c) in Annex B, and that this was material because for dog attacks under the 2012 Scheme the dog had to have been used with intent to cause injury; recklessness was not sufficient.

I am not satisfied that the FTT erred in law in this respect. It is true that the FTT held in paragraph 17 of its reasons that the dog owner and dog walker were reckless as to whether the interested party would be injured by the dog. However, the FTT then correctly directed itself in paragraph 18 of the reasons that it had to be shown that the dog walker or the dog owner intended the dog to harm the interested party, and later added at the end of paragraph 20 (it seems to me again correctly) that it had to be satisfied that an assailant intended to hurt the interested party.

The real complaint by CICA concerns paragraph 21 of the FTT’s reasons and its finding that it was “a borderline decision” and that there was “a thin line between actual intention and recklessness in this case”. CICA argue, in effect, that there is no thin line and that the criminal law shows there is “a considerable gulf between intent and recklessness” in the context of paragraph 4(1)(c) in Annex B to the 2012 Scheme. In this respect, CICA took me to R v Mohan [1976] QB 1 for the proposition that direct intent requires that, here, it was the dog walker’s or dog owner’s aim or purpose to bring about the prohibited consequence, namely to use the dog to cause injury to the interested party. Intent in criminal law might, however, be indirect, with indirect intent requiring that, here, the use of the dog to cause injury to the interested party was, per R v Woollin [1999] 1 AC 82 “a virtual certainty (barring some unforeseen intervention) as a result of the [dog walker’s or dog owner’s] actions and that the [dog owner or dog walker] appreciated that such was the case”. By contrast, recklessness in criminal law (only) requires, per R v G [2004] 1 AC 1034, that, again here, the dog walker or dog owner was 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.

The interested party makes two key submissions in response.

First, she argues that the FTT by its language in paragraph 17 and 21 of its reasons did not elide the concepts of intent and recklessness. Nor did it direct itself that as a matter of law there was a thin line between intent and recklessness in all case. All the FTT had said was that there was a thin line between actual intention and recklessness in this case. Thus the factual finding of actual intent may have been a borderline decision, but that was not the same as the FTT misdirecting itself as to the law. Further, whether the FTT was rationally entitled to conclude on the evidence before it, and for the reasons it gave, that the dog walker actually intended the dog to cause injury to the interested party was a matter for the fourth ground for judicial review.

Secondly, contrary to CICA’s argument that direct intent was not relevant on the facts of this case, the FTT had found that the dog walker had actually intended the dog to injure the interested party. In other words, the FTT had found the direct intent test was satisfied. In these circumstances, recourse to indirect intent was irrelevant and unnecessary. This was because, so the interested party argued, in criminal law the category of ‘indirect intent’ enables intent to be established where the defendant did not have the aim or purpose of bringing about the prohibited result, but appreciated that that result was a virtually certain consequence of their actions: see Woollin at 96B-H. It is, however, only in rare cases that it is necessary to establish indirect intent because if a person actually intended a prohibited result, the “virtual certainty” test does not apply: see R v MD [2004] EWCA Crim 1391, at paragraphs [28]-[29].

In my judgement, the FTT did not misdirect itself on the law as to what it was required to establish as a matter of law under paragraph 4(1)(c) in Annex B to the 2012 Scheme, and I prefer the submissions of the interested party on this point.

It was unnecessary for paragraph 4(1)(c) purposes for the FTT to be satisfied, as it held in paragraph 17 of its reasons, that the dog owner and dog walker were reckless whether or not the appellant would be injured by the dog. However, paragraphs 18, 20 and 21 of those reasons show that the FTT, contrary to an argument CICA made, did not stop at this point or think only in terms of recklessness. The FTT went on to consider whether the dog owner or dog walker intended the dog to harm the interested party, and that was a sufficient direction as to the law on intent in paragraph 4(1)(c) in Annex B. Moreover, on a fair reading of the FTT’s decision and reasons as a whole, the FTT did not direct itself that recklessness on the part of the dog owner or the dog walker would be sufficient.

Although I was taken to various decisions decided in the criminal courts in England and Wales, it seems to me that the correct starting point in respect of “intent” under paragraph 4(1)(c) should be Judge Knowles’s decision in the AS decision cited above. That decision was also concerned with the 2012 Scheme. Although AS was concerned with paragraph 4(1)(b) in Annex B to the 2012 Scheme, what it says about “intent” is in my view of more general application in relation to paragraph 4(1) in Annex B.

CICA referred to AS mainly in relation to the fourth ground for judicial review, which I address below, but neither party before me argued AS was wrong in what it said in relation to intent or how that should apply to paragraph 4(1)(c) in Annex B of the 2012 Scheme. I set out the key paragraphs from AS:

“70.

Since Mr S’s injuries resulted from the use of a vehicle, paragraph 4(1)(b) of the 2012 Scheme requires the tribunal to ask itself whether the vehicle was used “with intent to cause injury to a person”. The starting point for the tribunal was the meaning of the word “intent” and, as stated in paragraph [57] above, I find that tribunals should begin with the plain and ordinary meaning of the word in the 2012 Scheme. The meaning of “intent” in criminal law authorities may provide assistance but only insofar as these illuminate the natural meaning of the words in the 2012 Scheme. CICA helpfully reminded me that the 2012 Scheme applies throughout the United Kingdom whereas there are clear differences between Scots and English criminal law. Intent was thus not to be defined by reference to criminal law but by reference to its meaning in the Scheme.

71.

Mr Collins on behalf of CICA referred me to Volume 25 of Halsbury’s Laws [section 1(2)(iii)(8) citing R v Mohan [1976] QB 1 at 8] where the view is expressed that “a person intends a consequence where it is his aim or purpose to bring it about”. It was noted therein that such aim or purpose is not to be equated with desire [R v Maloney [1985] AC 905 at 926]. He submitted that this concept of “aim or purpose” was consistent with the natural meaning of the word “intent”….

72.

I find myself persuaded by the submissions of CICA on this issue. The plain meaning of “intent” as contended for by CICA is not nebulous – indeed tribunals may be more likely to err in law by applying criminal case law as an aid to interpret the ordinary language of the 2012 Scheme….

74.

When contemplating what a person’s aim or purpose was, the tribunal may be helped by considering what the person would have known – both what he ought to have known and, on balance of probabilities, what he did know - at the time when the act was done. To that extent the case of Woollin, relied on by the tribunal in paragraphs 57-63, may provide some limited assistance. It held that the jury in a murder trial may be helped by a direction to the effect that the necessary intention may be found where (a) the outcome was a virtually certain consequence of the defendant’s voluntary act and (b) the defendant appreciated that fact. I observe that Woollin concerned a direction to a jury in a murder trial whereas the circumstances in this case were wholly different.

75.

I conclude that over-reliance on Woollin rather than on the words of the Scheme may have led the tribunal into error. It was required to consider whether, in cycling towards Mr S at speed, X intended to cause injury. That required a focus on what was X’s aim or purpose during the incident – put simply, what was in his mind? Scrutiny of what X himself said about what happened as well as his actions was vital since all of those matters might shed light on his aim or purpose.” (The underlining is mine and has been added for emphasis, primarily in relation to the fourth ground for judicial review.)

AS is therefore existing Upper Tribunal authority on the meaning of “intent” where that word appears in paragraph 4(1) in Annex B to the 2012 Scheme. Consistently with the concept of direct intent in Mohan, it focuses on the person’s aim or purpose to bring about a prohibited consequence. In other words, and translating that wording to the present case, to be satisfied as to intent the FTT had to focus on what the aim or purpose of the dog walker (or dog owner) was in their use of the dog when the dog attacked the interested party.

This then provides a convenient stage to move CICA’s fourth ground for judicial review.