CRIMINAL INJURIES COMPENSATION AUTHORITY V FIRST TIER TRIBUNAL AND CP [2014] EWCA 1554
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 and succeeded before the Upper Tier Tribunal. The Applicant appealed to the Court of Appeal.
JUDGMENT:-
Lord Justice Treacy said that the issue raised in this appeal concerned the ability of a child, (CP), to claim criminal injuries compensation from the Criminal Injuries Compensation Authority, (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 Upper Tribunal did not rule on two additional grounds advanced by CICA: firstly that the mens rea of section 23 was not made out and/or that the First Tier Tribunal had failed to give adequate reasons for its findings in that respect; secondly, that even if an offence was made out it did not amount to a "crime of violence" within the meaning of the Scheme.
There had never been a prosecution of CP's mother, nor, as far as we are aware, in any other case. The offence that the mother is said to have committed was that set out in section 23 of the Offences Against the Persons Act 1861. This provided:
"Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years"
The Appellant's submission is that her mother was in fact guilty of that offence, notwithstanding the absence of prosecution, and that it constituted a crime of violence within the meaning of paragraph 8(a) of the Scheme. It was conceded for the purposes of this appeal that some of the ingredients of the offence are satisfied. There was no dispute that the mother administered to CP (whilst an embryo in the womb) a poison or other destructive or noxious thing by reason of the excessive quantities of alcohol she consumed at the time. There is no dispute that CP has in fact sustained grievous bodily harm.
The first issue which arose was whether CP was "any other person", given that she was a foetus at the time the alcohol was ingested. It was the Upper Tribunal's finding in favour of the CICA's argument that CP could not in those circumstances be "any other person", that was the primary issue in this appeal. CICA as the interested party, sought to sustain that finding, but in any event through its respondent's notice sought to justify the Upper Tribunal's quashing of the First Tier Tribunal's decision on two additional grounds. The first ground was that the First Tier Tribunal did not find that CP's mother foresaw harm to the child at the moment she was consuming alcohol and that the mens rea of section 23 was not made out. Allied to this was the assertion that the First Tier Tribunal failed to give adequate reasons for its findings. The second ground was that even if an offence contrary to section 23 was made out, the First Tier Tribunal was wrong to conclude that it amounted to a crime of violence for the purposes of the Scheme, and/or it failed to give adequate reasons for its findings in that respect. In Attorney General's Reference (No 3 of 1994) [1998] AC 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child's death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed. Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant's mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.
The Applicant’s counsel submitted that an offence contrary to section 23 should be regarded in the same way as manslaughter was in that decision. Had section 23 been before the House of Lords, it would have come to the same conclusion. The fact that CP had suffered injury rather than death because of her mother's drinking should not affect the outcome. There was no material difference between the two situations in circumstances where the mother had knowledge of the harmful effect of excessive drinking during pregnancy, and her drinking which would have otherwise been a lawful act, was to be regarded as an unlawful act akin to that required for manslaughter. The position under section 23 was stronger than in the manslaughter situation because the mens rea involved there was not directed at the victim. The foetus became a person when it was born. Since the Attorney General's Reference had analysed the actus reus of manslaughter as a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.
The CICA’s counsel submitted that the flaw in the appellant's argument was that it failed to address the terms of section 23 in detail and had taken instead a broad approach to the Attorney General's Reference, which was concerned with crimes of homicide where there might be a gap between the initial act causing injury and the resultant death. In those circumstances, there was justification for treating the actus reus as a continuum culminating with death. There was no warrant for taking a similar approach with the section 23 offence.
Treacy LJ referred to the case of R (Jones) v The First Tier Tribunal (Social Entitlement Chamber) (2013) 2 AC 48. Lord Hope, giving the judgment, said that in a criminal injuries compensation case there were two questions for a tribunal to consider. The first was whether, having regard to the established facts, a criminal offence had been committed. The second was whether, having regard to the nature of the criminal act, the offence committed was a crime of violence. The assessment of the first question, once facts are established, was clearly a question of law involving construction of the statute. It is on this aspect of the case that the answer to the primary question turned. The section required administration of the noxious substance to "any other person". The Applicant’s counsel had also argued that where FASD occurred, the foetus is damaged before birth, but that after birth there was continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these were continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms. Treacy J could not accept this analysis. The reality is that the harm has been done to the child whilst it was in utero. The fact that if the child was born alive it would suffer the consequences of the insult to it whilst in the womb does not mean that after birth it had sustained damage by reason of the administration of the noxious substance.
If a Tribunal found that a crime had been committed, it had to go on to consider whether that was a crime of violence in accordance with paragraph 8(a) of the Scheme, and the approach set out in Jones (supra). In Jones (supra), Lord Hope (at paragraph 14) approved the observations of Lawton LJ in R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74. Lawton LJ said that what mattered was the nature of the crime, not the likely consequences:-
"It was for the Board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence".
"Most crimes of violence will involve the infliction or threat of force, but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the Board, as a fact finding body may have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics, it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences…"
Two further matters had been raised by the CICA in the appeal.
In the present case the CICA said that there was insufficient consideration demonstrated by the First Tier Tribunal. They had made reference to Schedule 15 of the Criminal Justice Act 2003. This did not seem to Treacy LJ to be sufficient; firstly, because the inclusion of the section 23 offence as a specified violent offence within schedule 15 was done for a wholly different legislative purpose. Secondly, the mere fact that the section 23 offence was included in a list of offences for the purposes of the Schedule did not amount to a sufficiently close focus on the facts of the offence. There was, however, in the circumstances no purpose in the Court of Appeal seeking to determine the matter or to remit the issue for further consideration.
The second matter raised related to the assertion that the First Tier Tribunal did not properly find the mens rea of the section 23 offence proven and/or failed to give sufficient reasons for his finding. The mens rea of the offence was contained in the phrase "unlawfully or maliciously". It was common ground that, in a section 23 offence, "unlawfully" merely provided for an absence of lawful excuse, and that on the facts of this case if the other ingredients of the offence were proven, what was done was done unlawfully. As to "maliciously", it would be sufficient if the person accused under section.23 had foreseen that physical harm to another person, albeit of a minor character, might result from his action, and yet had gone on to take the risk of it. Treacy LJ had considered the decision of the First Tier Tribunal and he was satisfied that there were sufficient findings made to demonstrate the necessary mens rea and that sufficient reasons were given.
The appeal would be dismissed. King LJ and the Master of the Rolls agreed.
Firstly the approach to section 23 was consistent with the established structure of the criminal law as it related to the foetus. Parliament had identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provided for circumstances in which a woman administered poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus was an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.
Secondly, in English law women did not owe a duty of care in tort to their unborn child. A competent woman could not be forced to have a caesarean section or other medical treatment to prevent potential risk to the foetus during childbirth. The negligent acts of a third party tortfeasor, which inflicted harm on an unborn child, were actionable by the child on birth if the child is born with disabilities under section 1(1) of the Congenital Disabilities (Civil Liability) Act 1976. But claims could not be brought under this Act against the child's mother unless (section 2) the harm was caused by her when she was driving a motor vehicle. The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.
It was true that tort and crime were conceptually distinct. But the policy reasons underlying the state's view that a child should not be able to claim compensation from her mother for what is done (or not done) during pregnancy should rationally also lead to the conclusion that, save in the exceptional circumstances expressly recognised by Parliament, there should be no criminal liability for what a mother does (or does not do) during pregnancy. It would be all the more incoherent if the sole or even principal reason for treating what a mother did (or failed to do) during her pregnancy as attracting criminal liability was to enable the child to claim compensation from the CICA. It made no sense to say that a child who had been harmed by her mother's conduct during pregnancy could claim compensation from the CICA, but could not claim compensation from the person who caused the harm. In my view, the role of the state in these circumstances should be to provide care and support for the child who had suffered harm to the extent that this is necessary. It should not be to pay compensation on the basis that the child was the victim of a crime by her mother.
He would dismiss this appeal.
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 and succeeded before the Upper Tier Tribunal. The Applicant appealed to the Court of Appeal.
JUDGMENT:-
Lord Justice Treacy said that the issue raised in this appeal concerned the ability of a child, (CP), to claim criminal injuries compensation from the Criminal Injuries Compensation Authority, (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 Upper Tribunal did not rule on two additional grounds advanced by CICA: firstly that the mens rea of section 23 was not made out and/or that the First Tier Tribunal had failed to give adequate reasons for its findings in that respect; secondly, that even if an offence was made out it did not amount to a "crime of violence" within the meaning of the Scheme.
There had never been a prosecution of CP's mother, nor, as far as we are aware, in any other case. The offence that the mother is said to have committed was that set out in section 23 of the Offences Against the Persons Act 1861. This provided:
"Maliciously administering poison, etc so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully administer to… any other person, any poison or destructive or noxious thing, so as thereby…to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted there of shall be liable…to be kept in penal servitude for any term not exceeding ten years"
The Appellant's submission is that her mother was in fact guilty of that offence, notwithstanding the absence of prosecution, and that it constituted a crime of violence within the meaning of paragraph 8(a) of the Scheme. It was conceded for the purposes of this appeal that some of the ingredients of the offence are satisfied. There was no dispute that the mother administered to CP (whilst an embryo in the womb) a poison or other destructive or noxious thing by reason of the excessive quantities of alcohol she consumed at the time. There is no dispute that CP has in fact sustained grievous bodily harm.
The first issue which arose was whether CP was "any other person", given that she was a foetus at the time the alcohol was ingested. It was the Upper Tribunal's finding in favour of the CICA's argument that CP could not in those circumstances be "any other person", that was the primary issue in this appeal. CICA as the interested party, sought to sustain that finding, but in any event through its respondent's notice sought to justify the Upper Tribunal's quashing of the First Tier Tribunal's decision on two additional grounds. The first ground was that the First Tier Tribunal did not find that CP's mother foresaw harm to the child at the moment she was consuming alcohol and that the mens rea of section 23 was not made out. Allied to this was the assertion that the First Tier Tribunal failed to give adequate reasons for its findings. The second ground was that even if an offence contrary to section 23 was made out, the First Tier Tribunal was wrong to conclude that it amounted to a crime of violence for the purposes of the Scheme, and/or it failed to give adequate reasons for its findings in that respect. In Attorney General's Reference (No 3 of 1994) [1998] AC 245, the House of Lords considered the case of a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, which survived for only 121 days. The stabbing set in train events which caused the premature birth, which itself led to the child's death, its chances of survival being very significantly reduced by the fact of the premature birth. Thus, a chain of causation between the stabbing and the death of the child was established. The issue was whether in those circumstances the crimes of murder or manslaughter could be committed. Their Lordships held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother. It was held that whilst there could not be a conviction for murder, there was sufficient for a conviction for manslaughter. The defendant in stabbing, had intended to commit an act which was unlawful and which any reasonable person would recognise as creating a risk of harm to some other person. Although a foetus was not a living person, the possibility of a dangerous act directed at a pregnant woman causing harm to a child to whom she subsequently gave birth, made it permissible to regard that child as within the scope of the defendant's mens rea for the purposes of manslaughter when committing the unlawful act. Accordingly the crime of manslaughter could be committed even though the child was neither the intended victim nor could it have been foreseen as likely to suffer harm after being born alive. Thus the trial Judge should not have held that there was no case to answer on manslaughter on the basis that at the material time there was no victim capable of dying as a direct and immediate result of what was done.
The Applicant’s counsel submitted that an offence contrary to section 23 should be regarded in the same way as manslaughter was in that decision. Had section 23 been before the House of Lords, it would have come to the same conclusion. The fact that CP had suffered injury rather than death because of her mother's drinking should not affect the outcome. There was no material difference between the two situations in circumstances where the mother had knowledge of the harmful effect of excessive drinking during pregnancy, and her drinking which would have otherwise been a lawful act, was to be regarded as an unlawful act akin to that required for manslaughter. The position under section 23 was stronger than in the manslaughter situation because the mens rea involved there was not directed at the victim. The foetus became a person when it was born. Since the Attorney General's Reference had analysed the actus reus of manslaughter as a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.
The CICA’s counsel submitted that the flaw in the appellant's argument was that it failed to address the terms of section 23 in detail and had taken instead a broad approach to the Attorney General's Reference, which was concerned with crimes of homicide where there might be a gap between the initial act causing injury and the resultant death. In those circumstances, there was justification for treating the actus reus as a continuum culminating with death. There was no warrant for taking a similar approach with the section 23 offence.
Treacy LJ referred to the case of R (Jones) v The First Tier Tribunal (Social Entitlement Chamber) (2013) 2 AC 48. Lord Hope, giving the judgment, said that in a criminal injuries compensation case there were two questions for a tribunal to consider. The first was whether, having regard to the established facts, a criminal offence had been committed. The second was whether, having regard to the nature of the criminal act, the offence committed was a crime of violence. The assessment of the first question, once facts are established, was clearly a question of law involving construction of the statute. It is on this aspect of the case that the answer to the primary question turned. The section required administration of the noxious substance to "any other person". The Applicant’s counsel had also argued that where FASD occurred, the foetus is damaged before birth, but that after birth there was continuing damage by reason of retardation. To the observation that what occurred after birth was simply the consequences of damage caused before birth, he submitted that these were continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms. Treacy J could not accept this analysis. The reality is that the harm has been done to the child whilst it was in utero. The fact that if the child was born alive it would suffer the consequences of the insult to it whilst in the womb does not mean that after birth it had sustained damage by reason of the administration of the noxious substance.
If a Tribunal found that a crime had been committed, it had to go on to consider whether that was a crime of violence in accordance with paragraph 8(a) of the Scheme, and the approach set out in Jones (supra). In Jones (supra), Lord Hope (at paragraph 14) approved the observations of Lawton LJ in R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74. Lawton LJ said that what mattered was the nature of the crime, not the likely consequences:-
"It was for the Board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence".
"Most crimes of violence will involve the infliction or threat of force, but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the Board, as a fact finding body may have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics, it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences…"
Two further matters had been raised by the CICA in the appeal.
In the present case the CICA said that there was insufficient consideration demonstrated by the First Tier Tribunal. They had made reference to Schedule 15 of the Criminal Justice Act 2003. This did not seem to Treacy LJ to be sufficient; firstly, because the inclusion of the section 23 offence as a specified violent offence within schedule 15 was done for a wholly different legislative purpose. Secondly, the mere fact that the section 23 offence was included in a list of offences for the purposes of the Schedule did not amount to a sufficiently close focus on the facts of the offence. There was, however, in the circumstances no purpose in the Court of Appeal seeking to determine the matter or to remit the issue for further consideration.
The second matter raised related to the assertion that the First Tier Tribunal did not properly find the mens rea of the section 23 offence proven and/or failed to give sufficient reasons for his finding. The mens rea of the offence was contained in the phrase "unlawfully or maliciously". It was common ground that, in a section 23 offence, "unlawfully" merely provided for an absence of lawful excuse, and that on the facts of this case if the other ingredients of the offence were proven, what was done was done unlawfully. As to "maliciously", it would be sufficient if the person accused under section.23 had foreseen that physical harm to another person, albeit of a minor character, might result from his action, and yet had gone on to take the risk of it. Treacy LJ had considered the decision of the First Tier Tribunal and he was satisfied that there were sufficient findings made to demonstrate the necessary mens rea and that sufficient reasons were given.
The appeal would be dismissed. King LJ and the Master of the Rolls agreed.
Firstly the approach to section 23 was consistent with the established structure of the criminal law as it related to the foetus. Parliament had identified certain circumstances where criminal liability arises if a mother causes injury to her foetus. Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861) specifically provided for circumstances in which a woman administered poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent. Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born. Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences. Since the relationship between a pregnant woman and her foetus was an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.
Secondly, in English law women did not owe a duty of care in tort to their unborn child. A competent woman could not be forced to have a caesarean section or other medical treatment to prevent potential risk to the foetus during childbirth. The negligent acts of a third party tortfeasor, which inflicted harm on an unborn child, were actionable by the child on birth if the child is born with disabilities under section 1(1) of the Congenital Disabilities (Civil Liability) Act 1976. But claims could not be brought under this Act against the child's mother unless (section 2) the harm was caused by her when she was driving a motor vehicle. The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.
It was true that tort and crime were conceptually distinct. But the policy reasons underlying the state's view that a child should not be able to claim compensation from her mother for what is done (or not done) during pregnancy should rationally also lead to the conclusion that, save in the exceptional circumstances expressly recognised by Parliament, there should be no criminal liability for what a mother does (or does not do) during pregnancy. It would be all the more incoherent if the sole or even principal reason for treating what a mother did (or failed to do) during her pregnancy as attracting criminal liability was to enable the child to claim compensation from the CICA. It made no sense to say that a child who had been harmed by her mother's conduct during pregnancy could claim compensation from the CICA, but could not claim compensation from the person who caused the harm. In my view, the role of the state in these circumstances should be to provide care and support for the child who had suffered harm to the extent that this is necessary. It should not be to pay compensation on the basis that the child was the victim of a crime by her mother.
He would dismiss this appeal.