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Neutral Citation Number: 2013 UKUT 638 AAC
Reported Number:
File Number: JR 1201 2011
Appellant: CP v F-tT and CICA
Respondent: FTT and CP (CIC)
Judge/Commissioner: Judge H. Levenson
Date Of Decision: 04/12/2014
Date Added: 14/01/2014
Main Category: Criminal Injuries Compensation
Main Subcategory: claims
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2015] AACR 8. 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: 1. 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); 2. 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); 3. (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(s) to Download: [2015] AACR 8ws.doc [2015] AACR 8ws.doc