News - Foetal alcohol damages case dismissed by Court of Appeal

Personal Injury - Ben Collins QC

CP (a child) v first-tier tribunal & CICA [2014] EWCA CIV 1554

The Court of Appeal (the Master of the Rolls, Treacy and King LJJ) today handed down judgment in this landmark case.  Ben Collins successfully represented the Criminal Injuries Compensation Authority (‘CICA’), which was an Interested Party before the CA.

The issue raised in the appeal concerned the ability of a child to claim criminal injuries compensation from the CICA, as a result of being born with Foetal Alcohol Spectrum Disorder (FASD) as a direct consequence of her mother’s excessive drinking while pregnant in circumstances where it was asserted that the mother was aware of the danger of harm to her baby being caused by drinking to excess.

The case has attracted widespread media coverage in relation to the prospect of pregnant women being found guilty of a criminal offence as a result of drinking while pregnant. Over 80 children with claims for compensation have been awaiting the outcome of the appeal.

The Claimant, CP, was born in June 2007 and suffers from Foetal Alcohol Spectrum Disorder. CP’s mother consumed very large quantities of alcohol throughout her pregnancy.

In November 2009, CP’s local authority made an application to the CICA for compensation under the Criminal Injuries Compensation Scheme 2008, on the basis that CP had sustained a criminal injury under paragraph 8 of the Scheme: an injury sustained in and directly attributable to a crime of violence occurring in Great Britain.

The CICA rejected the application on the basis that CP had not sustained a criminal injury and reached the same decision on review. In April 2010, CP appealed to the First-Tier Tribunal (Criminal Injuries) (‘FTT’), which in February 2011 allowed the appeal, finding that CP’s mother had maliciously administered poison to another person, so as to endanger life or inflict grievous bodily harm, contrary to Section 23 of the Offences Against the Persons Act (‘OAPA’) 1861.  The FTT found that CP’s mother had been reckless as to whether harm might occur to CP when drinking alcohol, making out the necessary mens rea. The FTT found that Section 23 was a ‘crime of violence’ on the basis that it is a specified violent offence within Schedule 15 to the Criminal Justice Act 2003.

The CICA sought judicial review of the FTT’s decision from the Upper Tribunal (Administrative Appeals Chamber) (‘UT’), arguing that neither the actus reus nor mens rea of the Section 23 offence was made out; that the FTT at any rate could not conclude that the offence amounted to a crime of violence; and that the FTT had failed to give adequate reasons to substantiate its findings on mens rea and the commission of a crime of violence. The UT handed down judgment in December 2013, finding that the actus reus was not made out, because CP’s mother had not administered poison to another person. The UT found that an embryo or foetus in utero could not be the victim of a crime of violence, except in limited statutory offences such as using poison to cause miscarriage (contrary to Section 58, OAPA 1861) and child destruction (contrary to Section 1, Infant Life (Preservation) Act 1929). Having found this, the UT did not go on to consider the other issues raised by the CICA in its application. CP appealed the UT’s decision.

Before the Court of Appeal, the CICA reiterated its arguments on the status of the foetus in criminal law and responded to CP’s further arguments, which centred on The Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, a case in which the House of Lords found that a defendant who had stabbed a pregnant woman in the stomach could be convicted of unlawful act manslaughter.

The CA accepted the CICA’s arguments on both points and endorsed the UT’s reasoning. On the status of the foetus, Treacy LJ found that the Attorney-General’s case itself was “fatal” to CP’s argument that a foetus could be regarded as ‘another person’ – it reaffirms the long-established principle that the foetus does not have distinct legal personality before birth. On the argument that the Attorney-General’s case should be applied by analogy, so that the actus reus was an act continuing until after birth, the CA found that the “attempt to equate the s23 offence with their Lordships’ decision as to manslaughter cannot succeed.” The CA accepted the CICA’s submission that while the actus reus of manslaughter (or murder) is not complete until the death takes place, the administration of the poison is itself an essential ingredient of the actus reus of the Section 23 offence. This explains why the actus reus can be analysed as a continuum in the former case but not in the latter. As the foetus was not ‘another person’ at the time of the administration of the poison, the actus reus could not be made out. The appeal therefore fell to be dismissed.

The British Pregnancy Advisory Service and Birthrights and the Pro-Life Research Unit intervened, raising arguments based on public policy and human rights. The Court emphasised that, ultimately, the question it had to answer involved interpreting Section 23 of the OAPA 1861 and the Attorney-General’s case rather than policy considerations.

The right to claim compensation in these circumstances was expressly excluded from the 2012 Scheme. It is now clear that, absent an appeal to the Supreme Court, claims under earlier Schemes will fail also.

To read the full judgment, please click here.

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