[2025] UKUT 262 (AAC)

The Criminal Injuries Compensation Authority (“CICA”) consider the FTT erred in law in coming to the above decision. It sought and was given permission to seek a judicial review of the FTT’s decision on the following four grounds.

First, it is argued that the FTT erred in law in failing to identify an offence capable of constituting a crime of violence within the meaning of that term in the 2012 Scheme.CICA argue that the offence which the FTT identified as grounding a claim for compensation was the strict liability offence under section 3 of the Dangerous Dogs Act 1991 and that this discloses a clear error of law, as the offence cited does not have intent (or even recklessness) as its mens rea: per R v Bezzina [1994] 1 WLR 1057. As such, CICA argues, it does not fall within paragraph 2 of Annex B, which, per sub-paragraph (2), requires that a crime of violence must be done either intentionally or recklessly.

The second ground is that the FTT failed to have regard to a relevant consideration in that it failed to have regard to paragraph 2(1) of Annex B to the 2012 Scheme, which requires there to have been a physical attack, an act or omission of a violent nature, or an assault. The argument made by CICA here is that paragraph 2(1) of Annex B imposes the threshold requirement that a crime of violence must (insofar as relevant to this case) involve a physical attack, or an act or omission of a violent nature. It is said that the FTT did not engage with this requirement in its reasons, and did not explain how the inadequate supervision of a dog might constitute a violent omission. As a consequence, so CICA argue, the FTT failed to have regard to a relevant consideration, namely whether the offence in question fell within the definition of a crime of violence in paragraph 2(1), a requirement which needed to be satisfied before the question of intent even arose.

The third ground CICA have permission to argue is an argument that the FTT clearly misdirected itself in law as to the distinction between intent and recklessness. CICA contend that for a dog attack to fall within the 2012 Scheme, it must be a crime in which the mens rea is intent; recklessness is not sufficient. It is argued that this is clear from the wording of para 2(2) of Annex B to the Scheme, which refers to a crime of violence done recklessly or with intent, compared with paragraph 4 of Annex B, which refers to an animal used with intent and not recklessness. CICA further argue that the FTT’s description of the distinction between intent and recklessness being “a thin line” discloses a clear error of law. CICA submit that there is a considerable gulf between intent and recklessness in this context, and the FTT erred in law by eliding the two concepts on its way to making its decision. It is argued that direct intent (i.e., that it was the defendant’s intent or purpose to bring about the injury (per R v Mohan [1976] QB 1) was and is not relevant on the facts of this case. Indirect intent, however, requires that it was a virtual certainty that an injury would occur as a result of the acts or omissions of the dog walker, and that they appreciated the same (per R v Woollin [1999] 1 AC 82). CICA argues that there was no evidence in this case to support a conclusion of indirect intent. Recklessness, by contrast, required the dog walker to have been aware of a risk that injury might occur as a result of their acts or omissions, and that in the circumstances known to them it was unreasonable to take that risk, but even if that were so, recklessness would not be sufficient for the reasons given under the first ground. It is said by CICA that by misdirecting itself as to the difference between intent and recklessness, the FTT set itself an impermissibly low bar for moving from one form of mens rea to the other.

CICA’s final ground for judicial review is that in the light of the first three grounds and given the evidence before the FTT, the FTT’s decision was irrational. CICA sets out paragraph 21 of the FTT’s decision and proceeds from there as follows:

“25.

The FTT began with the dog owner and dog walker’s state of knowledge. Both were held to have been aware of the risk that the dog might attack passers-by. The FTT identified a series of omissions, such as the failure to muzzle the dog, to hold it on a shorter lead and so on. The FTT then leapt from those omissions to a finding of intent to harm passers-by, without any further explanation. The FTT did not explain how the omissions identified amounted to foresight of a virtual certainty of passers-by coming to harm, as required by the law on intent.

26.

Further, the introductory part of paragraph 21 is logically circular. It assumes (by the word ‘given’) that the dog walker and dog owner ‘intended that [the dog] should attack’ in certain circumstances. This presupposes intent in order to support a conclusion, later in the paragraph, that intent was present. The structure of the FTT’s reasoning therefore begs the question.

27.

For those reasons, the FTT’s decision was Wednesbury unreasonable; it was one which no reasonable Tribunal, properly directing itself, could have reached. In the alternative, the FTT’s decision was irrational in the sense set out in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin): it discloses a demonstrable flaw in the reasoning which led to the conclusion.”

The remedy sought by CICA is an order quashing the FTT’s decision and remitting the matter to a differently-constituted First-tier Tribunal for the interested party’s appeal to be redecided entirely afresh.

It is perhaps worth stating here that I struggle to understand how the remedy of remission sought by CICA, for the appeal to be redecided entirely afresh, fits with its first argument under its fourth (and final) ground for judicial review. If the FTT’s decision that the interested party had been the victim of a “crime of violence” under the 20121 Scheme was one that no reasonable FTT could have arrived at on the law and the evidence, it must follow (it seems to me) that the only reasonable result the FTT could have arrived at was that the interested party had not been subject to a “crime of violence” for the purposes of the 2012 Scheme. However, if that is correct, and this is the only result that could and can obtain, then left without a proper understanding of what there would be to be redecided by the new FTT on remittal, save perhaps for it simply to dismiss the appeal. However, dismissal of the appeal by the FTT is not the remedy sought by CICA as it wishes the appeal to be redecided afresh.