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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) & Ors  EWCA Civ 1554 (04 December 2014)
Cite as:  2 FLR 1163,  Fam Law 123,  QB 459,  1 Cr App R 19,  EWCA Civ 1554,  4 All ER 60,  1 QB 459, (2015) 142 BMLR 18,  PIQR P12,  WLR(D) 520,  2 WLR 463
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ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TREACY
LADY JUSTICE ELEANOR KING
| CP (A Child)
|- and -
| First-tier Tribunal (Criminal Injuries Compensation)
Criminal Injuries Compensation Authority
British Pregnancy Advisory Service/Birthrights
Pro-Life Research Unit
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ben Collins & Jamie Sharma (instructed by The Treasury Solicitors for the Interested Party
The Interveners were permitted to make written submissions
Hearing dates : 5th November 2014
Crown Copyright ©
Lord Justice Treacy :
"For the purposes of this Scheme, criminal injury means one or more personal injuries as described in paragraph 9, being an injury sustained in and directly attributable to an act occurring in Great Britain…which is:
(a) a crime of violence (including arson, fire-raising or an act of poisoning); …"
"It is not necessary for the assailant to have been convicted of a criminal offence in connection with the injury"…
"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"
"One of these was 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. As Lord Mustill said (at 262D, my emphasis): "The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person… "."
"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 s23 and as a matter of law, her mother could not have committed a criminal offence contrary to s23 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  76 Cr App R 223; R v Miller  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 Metroplitan Police Commissioner  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.
23. I can see nothing in the 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 s23 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".
The Appellant's Argument
"The able arguments of counsel were founded on a series of rules which, whatever may be said about their justice or logic, are undeniable features of the criminal law today."
"3. Except under statute an embryo or foetus in utero can not be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.
4. The existence of an interval of time between the doing of an act by a defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death.
5. Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero."
"I have no difficulty in finding in the facts of this case all the elements that were needed to establish the actus reus both of murder and of manslaughter. The actus reus of a crime is not confined to the initial deliberate and unlawful act which is done by the perpetrator. It includes all the consequences of that act, which may not emerge until many hours, days, or even months afterwards. In the case of murder by poisoning, for example, there is likely to be an interval between the introduction of the victim to the poison and the victims death…..What is needed in order to complete the proof of the crime is evidence of an unbroken chain of causation between the defendant's act and the victim's death….It was not disputed that injury to a foetus before death which results in harm to the child when it is born can give rise to criminal responsibility for that injury. So the fact that the child is not yet born when the stabbing took place does not prevent the requirements for the actus reus from being satisfied in this case, both for murder and for manslaughter, in regard to her subsequent death."
"It is enough that the original unlawful and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events".
"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 s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child."
Conclusion on the primary issue
"…an embryo is in reality a separate organism from the mother from the moment of its conception. This individual reality is contained by it throughout its development until it achieves independent existence on being born. So the foetus cannot be regarded as an integral part of the mother…notwithstanding its dependence upon the mother for its survival until birth."
" it would, I believe be most imprudent to enter upon any of them without resolving to pursue them in depth, and I would wish to proceed with particular care in relation to allegations of murder stemming from an injury to the foetus unaccompanied by any causative injury to the mother".
"The essentials of an offence under s23 of the Offences Against the Persons Act 1861 have been made out. Such an offence is a specified 'violent' offence within Schedule 15 to the Criminal Justice Act 2003."
"It is for the Board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence".
He continued at pp79-80:
"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…"
In the present case there was insufficient consideration demonstrated by the First Tier Tribunal. In particular the reference to Schedule 15 of the 2003 Act does not seem to me to be sufficient; firstly, because the inclusion of the s.23 offence as a specified violent offence within schedule 15 was done for a wholly different legislative purpose. Secondly, the mere fact that the s.23 offence was included in a list of offences for the purposes of the Schedule does not amount to a sufficiently close focus on the facts of the offence. For my part, I saw force in Mr Collins' submission that the mere reference to poisoning and arson in paragraph 8(a) of the Scheme would not of itself suffice without further analysis. Both are offences which may be committed intentionally or recklessly. It may well be that those differing states of mind have a bearing on the question on whether the crime committed is a crime of violence. There is, however, in the circumstances no purpose in our seeking to determine the matter for ourselves or to remit the issue for further consideration.
"On the balance of probabilities, the mother was through her general knowledge; by engaging with her General Practitioner and the maternity services during her two pregnancies; and by attending at the Thomas Project, aware of the dangers to her baby of the excessive consumption of alcohol during pregnancy. "
"It is well established, as an aspect of tribunal law and conduct, that judicial constraint should be exercised when the reasons a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the Tribunal misdirected itself just because not every step in its reasoning is fully set out in it. "
Lady Justice King
Master of the Rolls
"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."