Drinking during pregnancy, foetal personhood and mens rea

On 4 December the Appeal Court handed down its judgment in CP ( A Child) v First-tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554, which 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” [1].

CP was born in June 2007 to her mother, a young woman with alcohol addiction. In November 2009, an application was made under the CICA scheme on behalf of CP by her local authority. CICA rejected her application for compensation on the grounds that CP had not sustained an injury directly attributable to a crime of violence within the terms of paragraph 8(a) of CICA’s 2008 scheme. CP’s compensation claim was based on the assertion that her mother had committed an offence against her as defined under the Offences Against the Person Act 1861 by drinking excessively during pregnancy.

The Court of Appeal dismissed the appeal against the decision of the Upper Tribunal granting CICA’s application for judicial review and quashing a decision of the First-Tier Tribunal dated 7 February 2011 that she was eligible for compensation.

Compensation claim vs criminal offence

There was a degree of confusion in the media reporting of the case, some of which alluded to the mother being found not guilty of a criminal offence.  This is clarified in Neil Addison’s post in which he comments: “[t]here did not have to be a criminal prosecution of the mother in order for there to be a Criminal Injuries Compensation claim but in order for an award to be made the Criminal Injuries Compensation Authority (CICA) had to be satisfied that a crime had been committed”.

Court’s consideration and judgment

In his summing up, Lord Dyson MR ruled as follows:

“58. I agree that this appeal should be dismissed essentially for the reasons given by Treacy LJ. I add a few words of my own because there has been a difference of view as to the issue raised by this case between the First Tier Tribunal (Criminal Injuries) (“the FTT”) and the Upper Tribunal (Administrative Appeals Chamber) (“the UT”) and the issue is one of considerable public interest and importance.”

[…]

60. The CICA sought judicial review of the decision of the FTT that CP was eligible for compensation. The UT granted judicial review. It decided that EQ did not administer poison to “any other person” and that the actus reus of an offence contrary to section 23 of the 1861 Act was therefore not established. That was fatal to the claim for compensation and the UT did not consider any of the other issues that had been raised.

61. The UT dealt with the central issue with commendable succinctness at para 23[1]:

“I can 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 to mean that the unborn foetus in effect becomes ‘another person’ which, as demonstrated above, it could not be.”

[…]

64. If section 23 had expressly included a foetus as well as “any other person”, EQ would have committed the actus reus of the offence during her pregnancy. But that is not what Parliament has provided. Accordingly, it is because a foetus does not come within the ambit of section 23 that [the Appellant’s] argument breaks down.”

His Lordship adduced the following in support of his conclusions [65-67]:

  • 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 provides for circumstances in which a woman administers poison or a noxious thing to herself. This offence does not apply to the circumstances of the present case because it requires intent.
  • In English law a woman does not owe a duty of care in tort to her unborn child. A competent woman cannot 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 inflict harm on an unborn child, are 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 cannot be brought under this Act against the child’s mother unless (section 2) the harm is caused by her when she is driving a motor vehicle.
  • Whilst tort and crime are conceptually distinct, 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 does (or fails to do) during her pregnancy as attracting criminal liability is to enable the child to claim compensation from the CICA.

Comment

The case is important on several levels, two opposing aspects of which were raised by the British Pregnancy Advisory Service/Birthrights (which promote women’s rights in pregnancy and childbirth) and by the Pro-Life Research Unit (which promotes human life at all its stages including the foetal stage). Both were named as interveners; but Treacy LJ stated [55] that:

“Each set of submissions focused strongly on policy matters, adopting a different standpoint according to those whose interests they sought to advance. Whilst of interest and thought-provoking, those submissions have not informed this judgment since the appeal was concerned with the correct construction of the statute and the interpretation of the Attorney General’s Reference. Insofar as either intervener referred to matters of law, they did not materially add to the submissions received from the principal parties. Whilst the second intervener made reference to the decision of the ECtHR in Vo v France [53924/00 [2004] ECHR 326], it is clear from that decision that European learning on Article 2 [Right to life] cannot assist in determination of the matter before this court. This is an issue for individual states to determine and one which will be governed by domestic law.”

(In Vo, it should be noted in passing, a medical accident had resulted in the involuntary termination of Mrs Vo’s pregnancy and she complained that the terms of the French Criminal Code violated Article 2 ECHR because the offence of unintentional homicide did not extend to injury to an unborn child. By fourteen votes to three the Grand Chamber concluded [85] that it was “neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2”.)

Treacy LJ was echoed by Dyson MR:

“I respect the strength of the convictions which underpin the submissions of the interveners. But ultimately, the question we have to answer involves interpreting section 23 of the [Offences Against the Persons Act 1861]. For the reasons I have given, I conclude that EQ did not commit an offence contrary to section 23 of the 1861 Act. I am fortified in this conclusion by the wider considerations to which I have referred”  [70].

In short, though the facts raise very serious moral issues, we are back to a matter of statutory construction; and, in principle,

“… it remains the golden rule of construction that a statute means exactly what it says and does not mean what it does not say”: per Lord Bridge of Harwich in Associated Newspapers v Wilson [1995] UKHL 2 at page 8.

Moreover, the refusal of the Grand Chamber in Vo to rule on whether or not a foetus was a “person” for the purposes of Article 2 ECHR must have presented the Court of Appeal with a serious disincentive against taking the contrary view.

Future action

To date, there has been no indication from the Appellants on whether they will seek a further appeal to the Supreme Court.  However, it is reported that about there were about 80 similar cases awaiting the outcome CP (A Child) v First-tier Tribunal (Criminal Injuries Compensation) judgement, and from the potential future claimants’ point of view, there would be merit in such an appeal.

The British Pregnancy Advisory Service and Birthrights welcomed the judgement stating that they intervened “because they believed it would establish a legal precedent which could be used to prosecute women who drink while pregnant and would do nothing for the health of alcoholic mothers and their babies”.

LIFE, which has links to the second intervener- the Pro-Life Research Unit, has issued a press release critical of the judgement, expressing the hope that “the Supreme Court will overturn this perverse decision.” Lord Dyson noted [69]

“[t]he second interveners seek to promote respects for human life at all its stages. They say that children affected by FASD need a remedy and that to provide a remedy under the CICA Scheme is just, does not interfere inappropriately with maternal autonomy interests and would not open the floodgates to a large number of claims or to inappropriate prosecutions”.

But it depends how one defines the “floodgates” issue. In addition to the 80 cases pending on this judgement, it has been reported that the number of diagnosed cases of foetal alcohol syndrome is increasing significantly and in the period 2012-13 there were 252 diagnoses, a 37% increase since 2009-10.

Neil Addison comments

“On the basis of the law as it stands I can understand the decision and I respect the fact that the Court of Appeal made it clear that it was open to Parliament to legislate for the unborn child to have legal rights in this situation but it was not the task of the Courts to do so”.

It is fairly clear that further action need to be taken to address the increasing incidence of FASD, but whether changing the law is the appropriate solution is another matter.

_________________________

[1] The Upper Tribunal stated:

“16. If CP was not a person whilst her mother was engaging in the relevant actions, then she was not ‘another person’ for the purposes of s 23 and as a matter of law, her mother could not have committed a criminal offence contrary to s 23 in relation to her unborn child.

[…]

18. The point here is that the actus reus and the mens rea must coincide in time (R v Jakeman [1982] 76 Cr App R 223; R v Miller [1982] 1 QB 532). If the actus reus is a continuing act this rule is satisfied if the defendant has 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 whilst CP was still a foetus, there was no ‘another person’ and there was no actus reus at that time.”

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Cite this article as: David Pocklington and Frank Cranmer: “Foetal Alcohol Spectrum Disorder, foetal personhood and mens rea”, Law & Religion UK, 8 December 2014, https://www.lawandreligionuk.com/2014/12/08/drinking-during-pregnancy-foetal-personhood-and-mens-rea/.

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