CRIMINAL INJURIES COMPENSATION AUTHORITY V FIRST TIER TRIBUNAL AND CP [2013] UKUT 638 (AAC) (18 December 2013)
Child Abuse Compensation Claims – CICA – Crime of violence
FACTS:-
CP was born in 2007. During her mother’s pregnancy, the mother consumed grossly excessive quantities of alcohol. She had 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 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. Accordingly, the tribunal concluded that she was aware of such dangers. CP was born with foetal alcohol spectrum disorder as a direct result of her mother’s consumption of alcohol during pregnancy. In 2009 a claim was made on CP’s behalf for compensation under the 2008 criminal injuries compensation scheme, but the 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 and the First-tier Tribunal 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. The CICA applied for judicial review.
JUDGMENT:-
Judge Levenson considered the terms of the CICA Scheme. It was agreed that foetal alcohol spectrum disorder was a physical injury within the meaning of the Scheme. The issue of whether or not CP’s mother was prosecuted or convicted was not relevant. Levenson J did not quite accept this, because a conviction would show that a crime had been committed (although not necessarily a crime of violence within the meaning of the 2008 scheme). The first real area of dispute in this appeal was indeed whether a crime was committed. There was no definition of “crime” in the 2008 scheme and reference must be had to the general criminal law. Neither was the concept of “crime of violence” further defined. The only relevant offence that it had been suggested was committed by the mother and of which CP could have been a victim for the purposes of the present case is that of maliciously administering poison etc so as to endanger life or inflict grievous bodily harm contrary to section 23 of the Offences Against the Person Act 1861, which stated:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for any term not exceeding ten years.”
The mens rea (mental attitude that had to be established before the offence could be proved to have been committed) was specified in the statute as “maliciously”. The meaning of this was explained by the Court of Criminal Appeal in a case involving a prosecution for an offence contrary to section 23: R v Cunningham [1957] QBD 396 at 399:
“In any statutory definition of a crime malice must be taken not in the old vague sense of wickedness in general but as requiring either
(1) An actual intention to do the particular kind of harm that was in fact done; or
(2) Recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
It is neither limited to nor does it indeed require any ill will towards the person injured”
That approach is well established. It was also well established that the harm foreseen by the accused need not be of the same degree as that prohibited, but it was enough that the accused foresaw that some physical harm to some person, albeit of a minor character, might result from his or her action (R v Mowatt [1968] 1QB 42; R v Savage; DPP v Parmenter 1 AC 699). The actus reus (the blameworthy acts and circumstances that must be established before the offence can be proved to have been committed) consisted of the rest of the definition of the offence in section 23. It was agreed that in this case there had been administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm. However, the statute required that administration be to “another person”.
The House of Lords decision Attorney-General’s Reference No 3 of 1994 [1998] AC 245 concerned the prosecution of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. She was treated in hospital and lived, but gave birth to a grossly premature child who lived for about four months. The case concerned the liability of the defendant for murder or manslaughter of the child, but during the course of delivering its opinion the House of Lords identified a number of established rules relating to criminal liability. One of these was that in the absence of a specific statutory provision an embryo or foetus in utero did not have a human personality and could not be the victim of a crime of violence. If CP was not a person while her mother was engaging in the relevant actions, then she was not “another person” for the purposes of section 23 and as a matter of law her mother could not have committed a criminal offence contrary to section 23 in relation to her unborn child.
The actus reus and the mens rea had to coincide in time (R v Jakeman (1982) 76 Cr App R 223; R v Miller [1982] 1 QB 532). If the actus reus was a continuing act this rule was satisfied if the defendant had mens rea during its continuance (Fagan v Metropolitan Police Commissioner [1969] 1 QB 439). Applying these basic rules to the present case, even if her mother had the necessary mens rea while CP was still a foetus, there was no “another person” and there was no actus reus at that time. However the Applicant’s counsel supported the approach of the First-tier Tribunal on the basis that the actus reus of the section 23 offence included both action and consequences, the consequences occurred or continued at or after birth (at which point CP became “another person”) and the mens rea could be linked with the actus reus at that stage. However that proposition would only apply to “unlawful and dangerous act manslaughter”. The mens rea of that offence depended on the definition of the particular unlawful act that had allegedly been committed and “dangerousness” depends on the assessment of “all sober and reasonable people” (R v Lamb [1996] 1 QB 59; R v Church [1967] 2 QB 981). This was quite different from the nature of criminal liability under section 23. Levenson J could see nothing in Attorney-General’s Reference No 3 of 1994 that entitles the First-tier Tribunal to link for the purposes of criminal liability the essence of the actus reus of the section 23 offence – the administration – to the born child so as mean that the unborn foetus in effect became “another person” which, as demonstrated above, it could not be. The Applicant argued that both the actus reus, in terms of drinking, and the mens rea were ongoing. However, any consumption of alcohol by the mother at or after birth obviously did not cause any damage to CP.
Accordingly the application for judicial review by the Criminal Injuries Compensation Authority succeeded.
Child Abuse Compensation Claims – CICA – Crime of violence
FACTS:-
CP was born in 2007. During her mother’s pregnancy, the mother consumed grossly excessive quantities of alcohol. She had 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 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. Accordingly, the tribunal concluded that she was aware of such dangers. CP was born with foetal alcohol spectrum disorder as a direct result of her mother’s consumption of alcohol during pregnancy. In 2009 a claim was made on CP’s behalf for compensation under the 2008 criminal injuries compensation scheme, but the 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 and the First-tier Tribunal 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. The CICA applied for judicial review.
JUDGMENT:-
Judge Levenson considered the terms of the CICA Scheme. It was agreed that foetal alcohol spectrum disorder was a physical injury within the meaning of the Scheme. The issue of whether or not CP’s mother was prosecuted or convicted was not relevant. Levenson J did not quite accept this, because a conviction would show that a crime had been committed (although not necessarily a crime of violence within the meaning of the 2008 scheme). The first real area of dispute in this appeal was indeed whether a crime was committed. There was no definition of “crime” in the 2008 scheme and reference must be had to the general criminal law. Neither was the concept of “crime of violence” further defined. The only relevant offence that it had been suggested was committed by the mother and of which CP could have been a victim for the purposes of the present case is that of maliciously administering poison etc so as to endanger life or inflict grievous bodily harm contrary to section 23 of the Offences Against the Person Act 1861, which stated:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for any term not exceeding ten years.”
The mens rea (mental attitude that had to be established before the offence could be proved to have been committed) was specified in the statute as “maliciously”. The meaning of this was explained by the Court of Criminal Appeal in a case involving a prosecution for an offence contrary to section 23: R v Cunningham [1957] QBD 396 at 399:
“In any statutory definition of a crime malice must be taken not in the old vague sense of wickedness in general but as requiring either
(1) An actual intention to do the particular kind of harm that was in fact done; or
(2) Recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
It is neither limited to nor does it indeed require any ill will towards the person injured”
That approach is well established. It was also well established that the harm foreseen by the accused need not be of the same degree as that prohibited, but it was enough that the accused foresaw that some physical harm to some person, albeit of a minor character, might result from his or her action (R v Mowatt [1968] 1QB 42; R v Savage; DPP v Parmenter 1 AC 699). The actus reus (the blameworthy acts and circumstances that must be established before the offence can be proved to have been committed) consisted of the rest of the definition of the offence in section 23. It was agreed that in this case there had been administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm. However, the statute required that administration be to “another person”.
The House of Lords decision Attorney-General’s Reference No 3 of 1994 [1998] AC 245 concerned the prosecution of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. She was treated in hospital and lived, but gave birth to a grossly premature child who lived for about four months. The case concerned the liability of the defendant for murder or manslaughter of the child, but during the course of delivering its opinion the House of Lords identified a number of established rules relating to criminal liability. One of these was that in the absence of a specific statutory provision an embryo or foetus in utero did not have a human personality and could not be the victim of a crime of violence. If CP was not a person while her mother was engaging in the relevant actions, then she was not “another person” for the purposes of section 23 and as a matter of law her mother could not have committed a criminal offence contrary to section 23 in relation to her unborn child.
The actus reus and the mens rea had to coincide in time (R v Jakeman (1982) 76 Cr App R 223; R v Miller [1982] 1 QB 532). If the actus reus was a continuing act this rule was satisfied if the defendant had mens rea during its continuance (Fagan v Metropolitan Police Commissioner [1969] 1 QB 439). Applying these basic rules to the present case, even if her mother had the necessary mens rea while CP was still a foetus, there was no “another person” and there was no actus reus at that time. However the Applicant’s counsel supported the approach of the First-tier Tribunal on the basis that the actus reus of the section 23 offence included both action and consequences, the consequences occurred or continued at or after birth (at which point CP became “another person”) and the mens rea could be linked with the actus reus at that stage. However that proposition would only apply to “unlawful and dangerous act manslaughter”. The mens rea of that offence depended on the definition of the particular unlawful act that had allegedly been committed and “dangerousness” depends on the assessment of “all sober and reasonable people” (R v Lamb [1996] 1 QB 59; R v Church [1967] 2 QB 981). This was quite different from the nature of criminal liability under section 23. Levenson J could see nothing in Attorney-General’s Reference No 3 of 1994 that entitles the First-tier Tribunal to link for the purposes of criminal liability the essence of the actus reus of the section 23 offence – the administration – to the born child so as mean that the unborn foetus in effect became “another person” which, as demonstrated above, it could not be. The Applicant argued that both the actus reus, in terms of drinking, and the mens rea were ongoing. However, any consumption of alcohol by the mother at or after birth obviously did not cause any damage to CP.
Accordingly the application for judicial review by the Criminal Injuries Compensation Authority succeeded.