Yesterday the Court of Appeal gave a vote of confidence in CICA’s recent policy change on FASD inflicted injuries. The Court concluded that, as a foetus was not ‘any other person’ in the eyes of the criminal law, the mother’s damagingly excessive alcohol consumption was NOT an act of violence susceptible to compensation.
The Appellant known as CP was born in June 2007 with severe Fetal Alchohol Spectrum Disorder (FASD) to a mother with alcohol addiction. An application on CP’s behalf was made by local authority to the CICA. Under previous schemes applications for FASD had been accepted CICA’s current policy is to refuse.
The CICA rejected the application on the basis that CP did not sustain an injury “directly attributable to a crime of violence” within the terms of paragraph 8(a) of the CICA 2008 scheme (see link Criminal-Injuries-Compensation-Scheme-2008.pdf)
The First Tier Tribunal decided on 7/2/2011 found that CP was entitled to compensation from the CICA on the basis that CP was a victim of an offence contrary to s.23 of the Offences Against the Person Act 1861, which qualified as a violent crime.
Section 23 reads:- “Whoever so shall unlawfully administer to… any other person, any poison or other destructive of noxious thing so as to thereby…. inflict upon any such person any grievous bodily harm, shall be guilty of a felony”
The Upper Tribunal quashed that decision and granted CICA’s application for JR on the basis of their conclusion that CP was not “any other person” within the meaning of the Act when she sustained her injury which was at a time when she was still a foetus within her mother’s womb.
ISSUES FOR THE COURT OF APPEAL
The first issue was whether or not a criminal offence had been committed, and secondly, if so, was it a crime of violence.
If therefore, the mother’s actions satisfied the wording of s.23 1861 Act offence properly construed; a crime of violence would have been committed such that CP would be entitled to compensation from the CICA pursuant to paragraph 8 of the 2008 Schedule. It was agreed that most elements of the offence had been made out ie the administration of a noxious substance, and the fact CP had sustained injury ,and as required by s.23,grievous bodily harm.
The battleground was therefore quite simply, whether or not a foetus qualifies “any other person” as required by the wording of s.23.
THE COURT OF APPEAL’S DECISION AND ITS REASONING
As in the lower courts, the Court of Appeal relied heavily on the House of Lords case, the Attorney General’s Reference (No 3 of 1994)  AC 245, in which the Defendant (who was not the mother) was found guilty of manslaughter for the death of a child which, as a result of his stabbing the mother in the stomach whilst the baby was still in the womb, had caused the child’s premature birth and subsequent death. Lord Mustill laid down various ‘rules’ which set out the current position that the English law takes of the foetus in utero. He said (para 15) that
“in the absence of a specific statutory provision, an embryo or foetus in utero does not have a human personality and cannot be the victim of a crime of violence. Although the foetus is a unique organism it does not have the attributes that make it a person.”
The Court of Appeal, deliberately confining itself to the proper construction of s23 therefore concluded, without much debate, that a foetus could not be ‘any other person’ for the purposes of s.23, and that CP’s argument clearly and conclusively failed at this point. The Court of Appeal was unanimous in its conclusion that, as per Lord Hope’s comments in Attorney General’s Reference (No 3 of 1994)  AC 245, a foetus, whilst a separate organism from the mother, is not to be regarded as another distinct person and could not therefore be regarded as ‘any other person’ for the purposes of s.23 of the OAPA 1861. It followed that no criminal offence had been committed, such that paragraph 8 CICA Schedule 2008 did not bite and the court did not need to go on to consider the second issue.
Having come to conclusion on the narrow question of the interpretation of s.23 relatively easily; the Court of Appeal was also careful to consider the wider context.
Lord Dyson in particular, took the opportunity to set out the legal context for intervention into the relationship between a mother and her unborn child:-
- Section 58 of The Offences Against the Person Act 1861 makes it a criminal offence where a pregnant woman uses poison, with intent to procure her own miscarriage and specifically provides for circumstances in which a woman administers a poison /noxious thing to herself. This obviously doesn’t apply in this case due to the absence of the mental element.
- 1 of the Infant Life (Preservation) act 1929 provides that it is a criminal offence to destroy the life of a child capable of being born alive before it is born. Again this doesn’t apply as CP was born.
- Section 1 Congenital Disabilities (Civil Liabilities) Act 1976 restricts the ability of a child born disabled to sue its mother in tort in circumstances such as these. The only circumstances in which mother can be sued is when harm is caused by her when she is driving a motor vehicle (Section 2)
- Pregnant women do not have a duty of care in tort to their unborn child. A competent woman cannot be forced to have a caesarean section or other treatment so as to prevent potential risk to the foetus during childbirth.
- European learning does not assist in this instance:- In Vo v France  2 FCR 577 the ECtHR made it clear that it this is an issue for individual states to determine and one which will be governed by domestic law.
The Court of Appeal, were careful to articulate that, in this context, it would be incoherent for the courts to construct s.23 so as to include injury to a foetus as ‘any other person’ when, notwithstanding that parliament has made specific conscious limited interventions into the relationship between a pregnant woman and her child, it has chosen not to legislate to this extent.
Whilst it is likely that CP will appeal to the Supreme Court, in the writer’s humble opinion it is unlikely to succeed at that level either. As outlined by Lord Dyson, this is a matter upon which Parliament ought to intervene if there is to be a change in the status of the foetus. Given the far-reaching implications of defining a foetus as a legal person, as well as the difficulties involving in defining the parameters of that definition, it is unlikely that Parliament will take such a step
Finally, though it was not discussed in this judgment, there may be an argument to suggest that, if Parliament did intervene and provide legislation that defined the foetus as a person; such legislation would be declared incompatible with the Human Rights Act 200) on the basis on that it constituted a breach of pregnant womens’ Article 8 rights, namely the right to private and family life.
Whilst this case has made headlines for obvious reasons, the legal issues involved are well established and relatively simple to apply. If the Supreme Court is required to consider it I do no expect that it will trouble them for very long.