CP v F-tT and CICA JR 1201 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge H. Levenson |
| Judgment Date | 04 December 2014 |
| Neutral Citation | 2013 UKUT 638 AAC |
| Subject Matter | Criminal Injuries Compensation |
| Respondent | FTT and CP (CIC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 1201 2011 |
| Appellant | CP v F-tT and CICA |
[2015] AACR 8
(CP v First-tier Tribunal and Criminal Injuries Compensation Authority
Judge Levenson JR/1201/2011
18 December 2103
CA (Lord Dyson MR, Treacy, and King LJJ)
4 December 2014
Criminal injuries compensation – claims – eligibility of child born with foetal alcohol spectrum disorder as consequence of mother’s drinking while pregnant
The claimant, who was born in June 2007, had foetal alcohol spectrum disorder due to her mother’s consumption of alcohol. In November 2009, a claim was made on her behalf for compensation under the Criminal Injuries Compensation Scheme. The Criminal Injuries Compensation Authority (CICA) refused the claim on the grounds that she had not been the victim of a crime of violence. Following an unsuccessful review, the First-tier Tribunal (F‑tT) held that the claimant had sustained personal injury directly attributable to a crime of violence and was eligible for compensation. On CICA’s application to the Upper Tribunal (UT) for judicial review, the UT decided that as a matter of law a foetus cannot be another person before birth, that an offence under section 23 of the Offences against the Person Act 1861 cannot be committed by a pregnant woman drinking alcohol during her pregnancy, such as to cause damage to her unborn child, and that no evidence or argument had been offered in respect of the commission of any other offence. It also rejected an argument, based on the House of Lords’ decision in Attorney-General’s Reference No 3 of 1994 [1998] AC 245, that the F-tT was entitled to link, for the purposes of criminal liability, the essence of the actus reus of the section 23 offence to the born child so that the unborn foetus in effect became another person. CP appealed to the Court of Appeal where it was submitted on her behalf that a foetus was capable of being another person within the meaning of section 23 of the 1861 Act and, secondly and alternatively, following the reasoning in the Attorney-General’s Reference No 3 of 1994, the actus reus of manslaughter was a continuing act and there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm which resulted in grievous bodily harm evident after birth.
Held, dismissing the appeal, that:
- the decision in Attorney-General’s Reference No 3 of 1994 itself was fatal to the first submission as both Lord Mustill and Lord Hope had agreed that a foetus was not to be regarded as another person. It was neither a distinct person nor an adjunct of the mother but was a unique organism (paragraph 37)
- the attempt to equate the section 23 offence with the decision in Attorney-General’s Reference No 3 of 1994 could not succeed. That decision was primarily based on an exception to the normal rule that actus reus and mens rea should coincide. Grievous bodily harm occurred whilst the appellant was in the womb and at that stage she did not have legal personality so as to constitute “any other person” within the meaning of section 23. The basis upon which the actus reus was extended in Attorney-General’s Reference No 3 of 1994 could not apply since nothing equivalent to death occurred to the appellant after her birth. The UT was therefore correct to conclude that there was no link between the administration of the alcohol and the born child for the purposes of section 23 (paragraphs 40 to 45)
- (per Lord Dyson MR) the analogy with the decision in the Attorney-General’s Reference No 3 of 1994 case was flawed. An essential ingredient of actus reus of an offence contrary to section 23 was the infliction of grievous bodily harm on a person; grievous bodily harm to a foetus would not suffice. The distinction between (i) harm or injury caused by an act and (ii) the consequences of the harm or injury was critical. An offence contrary to section 23 was complete if a defendant, with the requisite mens rea, inflicted grievous bodily harm on the victim. If the victim suffered further harm as a result of the grievous bodily harm, that did not give rise to a further offence. The further harm was simply a consequence of the grievous bodily harm. It might be relevant to an assessment of the gravity of the offence that had been committed, but it was not part of the actus reus of the offence itself (paragraph 63)
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
[2013] UKUT 638 (AAC)
Decision and hearing1. This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) sitting in Manchester to allow an appeal against the decision of the Criminal Injuries Compensation Authority (CICA) not to make an award. The decision of the First-tier Tribunal was made on 7 February 2011 after a hearing on 12 January 2011 and was made under reference 9/256563. I substitute my own decision as being the only proper decision that the First-tier Tribunal could have reached had it not made the error of law that I identify below. This is to the effect that the claimant is not entitled to criminal injuries compensation in respect of her claim made on or about 18 November 2009 in relation to foetal alcohol spectrum disorder.
2. I held an oral hearing of this application for judicial review on 6 November 2013. The applicant, the Criminal Injuries Compensation Authority, was represented by Ben Collins of counsel, instructed by the Treasury Solicitor. The claim for compensation was made by a local authority on behalf of a child to whom I shall refer as CP. They were represented by John Foy QC and Laura Begley of counsel, instructed by GLP Solicitors of Greater Manchester. I am grateful to them all for their assistance. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings.
Background and procedure
3. The basic facts are agreed in this case. CP is a girl who was born on 10 June 2007. Her mother was quite young but CP is her second child. During the pregnancy CP’s mother (in the words of the First-tier Tribunal) “consumed grossly excessive quantities of alcohol” (paragraph 48 of the written reasons). She had been “using drugs” (presumably unlawfully taking non-prescription, recreational drugs) but stopped doing this during her pregnancy and also reduced her consumption of alcohol. She did engage with maternity services and saw her GP, a midwife, a health visitor and a social worker (with whom she discussed the dangers of alcohol consumption on at least two occasions) and was referred to an alcohol counselling project. The First-tier Tribunal found (paragraph 50) that she “had no learning disabilities or mental health or other issues to affect her ability to understand the dangers to her baby of drinking during pregnancy” and that such dangers were commonly known to the population at large (paragraph 51). Accordingly, the tribunal concluded that she was aware of such dangers (paragraph 52).
4. CP was born with foetal alcohol spectrum disorder as a direct result of her mother’s consumption of alcohol during pregnancy. This was not diagnosed until birth, when CP displayed signs of intrauterine growth retardation, small stature and particular facial features. There was a failure to thrive and there was a risk of neurodevelopment, intellectual and behavioural difficulties, organ dysfunction and other problems. CP is now six years old but I do not know her current condition or prognosis.
5. On 20 November 2009 a claim was made on CP’s behalf for compensation under the 2008 Criminal Injuries Compensation Scheme (the 2008 Scheme). On 27 November 2009 CICA refused to make an award on the basis that CP had not been the victim of a crime of violence. CICA maintained its decision on review on 19 January 2010 and on 16 April 2010 an appeal against that decision was made to the First-tier Tribunal. The First-tier Tribunal heard the matter on 12 January 2011 and its written decision and reasons were signed on 7 February 2011. It allowed the appeal to the extent of deciding that CP had sustained personal injury directly attributable to a crime of violence and was eligible for compensation, and directed further submissions in relation to further determination of the claim.
6. CICA remained of the view that there had been no crime of violence and on 5 May 2011 applied to the Upper Tribunal for judicial review of the decision of the First-tier...
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