CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) & Ors

For criminal injuries compensation, a tribunal must first decide whether a criminal offence was committed and then whether its nature makes it a crime of violence under paragraph 8(a) of the 2008 Criminal Injuries Compensation Scheme. A foetus in utero is not a person for section 23 of the Offences Against the Person Act 1861. The homicide exception permitting a causal chain from fetal injury to death after live birth does not extend to that offence. Section 23 requires administration of a noxious substance to a person and grievous bodily harm to that person. Injury caused before birth is not converted into post-birth damage by later symptoms or consequences. Limited statutory protection for the unborn and restrictions in the civil law reinforce that construction.

CP was born with Foetal Alcohol Spectrum Disorder after her mother consumed excessive quantities of alcohol during pregnancy. An application under the 2008 Criminal Injuries Compensation Scheme was rejected by the Criminal Injuries Compensation Authority on the basis that no injury was directly attributable to a crime of violence under paragraph 8(a).

The First-tier Tribunal allowed CP’s appeal, finding that her mother had committed an offence under section 23 of the Offences Against the Person Act 1861, that the offence was a crime of violence, and that the necessary mens rea existed. The Upper Tribunal granted judicial review on 18 December 2013 and quashed that decision, holding that a foetus was not any other person for section 23. The central issue before the Court of Appeal was whether the offence could be committed where the administration and injury occurred in utero but the child was born alive.

The Court of Appeal unanimously dismissed the appeal. Treacy LJ delivered the principal judgment, with Lady Justice King and the Master of the Rolls agreeing.

1. Section 23. A foetus in utero is not any other person within section 23 of the Offences Against the Person Act 1861. The foetus is a unique organism, but it is neither a distinct legal person nor an adjunct of the mother. The reasoning in Attorney General’s Reference (No 3 of 1994) [1998] AC 245 and Tait [1990] 1 QB 290 supported that conclusion.
2. No extension from homicide. The exception to the usual coincidence of actus reus and mens rea recognised in the Attorney General’s Reference concerned homicide, where the offence was completed by death. It allowed an unbroken causal chain from fetal injury to death after live birth. Section 23 was materially different. Its actus reus required administration of the noxious substance to a person and grievous bodily harm to that person.
3. Damage before birth. The harm caused by excessive alcohol consumption occurred in utero. Later symptoms, delayed diagnosis, growth limitations and lifelong consequences were consequences of that injury, not fresh damage inflicted after birth. Nothing equivalent to death occurred after birth to complete the actus reus.
4. Wider statutory context. The limited statutory provisions concerning fetal harm, including sections 58 and 59 of the 1861 Act and section 1 of the Infant Life (Preservation) Act 1929, supported caution before applying general criminal legislation to maternal conduct during pregnancy. The restrictions on claims against a mother under the Congenital Disabilities (Civil Liability) Act 1976 provided further coherence between civil and criminal law.
5. Alternative grounds. The respondent’s notice was moot after the primary conclusion. Treacy LJ nevertheless observed that a tribunal must assess the nature of the alleged crime of violence, and that inclusion of an offence in Schedule 15 to the Criminal Justice Act 2003 was not enough. He also held that the First-tier Tribunal had made sufficient findings on mens rea under section 23, applying R v Savage; DPP v Parmenter [1992] 1 AC 699, and had given adequate reasons. The appeal was dismissed without remittal.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1554, the appeal was dismissed and the Upper Tribunal’s decision was upheld.
• Upper Tribunal (Administrative Appeals Chamber): On 18 December 2013, judicial review was granted and the First-tier Tribunal’s decision was quashed. The Upper Tribunal held that the foetus was not any other person for section 23.
• First-tier Tribunal (Criminal Injuries Compensation): On 7 February 2011, CP’s appeal was allowed. The Tribunal found that she had suffered an injury caused by an offence under section 23, amounting to a crime of violence.
• Criminal Injuries Compensation Authority: CP’s application and subsequent review were rejected on the basis that her injury was not directly attributable to a crime of violence under paragraph 8(a) of the 2008 Criminal Injuries Compensation Scheme.