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 EWCA Civ 65;  P.I.Q.R. P10; (2014) 158(6) S.J.L.B. 37; Times, February 21, 2014., Court of Appeal - Ben Collins QC
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Determining whether an offence is a "crime of violence" for the purposes of the Criminal Injuries Compensation Scheme depends on the nature of the offence not its consequences. Offences under the Dangerous Dogs Act 1991 s3(1) will not qualify unless additional factors indicative of violence are present e.g. intention to release a dangerous dog.
On 15 August 2002, a boy (TS) was cycling down a quiet street when a dog ran from its owner's garden, barking aggressively. TS swerved in front of a car and was seriously injured. The owner knew the dog had a history of escaping and barking aggressively at strangers, but prosecution under s3(1) Dangerous Dogs Act 1991 was discontinued when the dog was given away.
TS's claim for compensation was rejected by the Criminal Injuries Compensation Authority ("CICA") because it was not satisfied that his injuries arose from a crime of violence (a qualifying condition). On appeal, the First-tier Tribunal ("FTT") found that the dog's aggression had caused the injuries and awarded TS £499,155 (2 December 2010). The Upper Tribunal upheld the decision (19 November 2012). The CICA appealed to the Court of Appeal where Ben Collins of Old Square Chambers represented the CICA. He argued that the dog owner had not committed an offence, but even if she had, it was not a 'crime of violence'. Addressing these points in turn:
Under s3(1) of the Dangerous Dogs Act 1991, an offence is committed if "a dog is dangerously out of control," defined in s10(3) as “…grounds for reasonable apprehension” of injury.” The court found that "if a dog is behaving aggressively towards a person there will almost always be grounds for reasonable apprehension." The FTT found that the dog had behaved aggressively towards TS and the court was satisfied that a crime had been committed.
Crime of Violence?
The phrase "crime of violence" is not defined in the pre-2012 CICA schemes. In R v. Criminal Injuries Compensation Board ex parte Webb  QB 75, the court dismissed appeals made by train drivers who suffered psychological harm when trespassers were hit by their trains, on the grounds that "what matters is the nature of the crime, not its likely consequences." The Supreme Court approved this interpretation in J ones v. First-tier Tribunal (Social Entitlement Chamber)  UKSC 19), a case in which Ben Collins also appeared, but declined to give authoritative guidance on how to determine whether a crime is, by its nature, a crime of violence. This, it stated, depends on the facts.
In the case of TS, the Court of Appeal noted that the FTT had not found that the dog had been deliberately released. Comparing the case to one where the release had been deliberate (see paras. 17 and 23 of the judgment), the court concluded that it is:
"… 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… The nature of a crime is different from its consequences, even if they might reasonably have been foreseen."
The fact that the dog was known to be aggressive was therefore insufficient for its release to amount to a crime of violence, "any more than would be the case of an unfenced machine known to be dangerous." The court held that in concentrating on the consequences of the crime, the FTT and the Upper Tribunal had not followed the approach described in Webb. It therefore allowed the CICA's appeal.
This decision provides useful guidance for claims under the pre-2012 CICA schemes where there is any doubt as to whether the offence was a crime of violence. It is also consistent with the 2012 CICA Scheme which provides (in Annex B) that a crime of violence has not been committed if an injury results "from an animal attack, unless the animal was used with intent to cause injury to a person."
Case Summary written by Sophie Beesley, Old Square Chambers.