Drinking during pregnancy

There was quite a lot of media attention about the Court of Appeal’s decision in

RE CP and Criminal Injuries Compensation Authority 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1554.html

and quite a bit of that media attention missed the point really.  [Which is fair enough, because the point was obscure and technical, and a far better story for selling newspapers is whether we are going to send mothers to prison for having a glass of wine during pregnancy]

The case was not about whether mothers should be prosecuted for drinking whilst pregnant, but whether technically they COULD be, which would allow for children who suffered damage (Foetal Alcohol Syndrome) to receive compensation from the Criminal Injuries Compensation Authority.

The Criminal Injuries Compensation Authority was set up by Government to make payments to people who are the innocent victims of crime.

“from people who have been physically or mentally injured because they were the innocent victim of a violent crime…”.

A person does not have to show that the perpetrator of that crime was later convicted of the offence, it is sufficient to show that (a)there was a violent crime and (b) they were physically or mentally injured.

The case was also not about whether or not it is a bad thing for mothers to drink during pregnancy. The Court did not hear arguments about whether consumption of alcohol causes harm to foetuses and whether that harm continues after the baby is born; that was a point that was accepted by all of the parties.

For a while, the Criminal Injuries Compensation Authority (CICA) were paying some claims on behalf of children who had Foetal Alcohol Syndrome due to their mother drinking during pregnancy, but then stopped.

CB’s case was brought as a test case for around 80 similar cases where children were possibly going to receive compensation if the Court of Appeal found that the consumption of alcohol in pregnancy was capable of being a crime.

If it isn’t capable of being a crime, no CICA compensation.

So, firstly, what crime are we talking about?

s23 of the Offences Against the Persons Act 1861. This provides:

“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”

As with any criminal offence, there are a lot of ingredients – unlawful administration, of something, to any other person that something being noxious, and the administration causing grievous bodily harm to that person

We could make this very complicated, but I’ll try instead to make it very simple.

If a mother takes her six year old child, and makes him drink a bottle of gin and he suffers as a result, liver damage or kidney failure, or even if he is just hospitalised, the offence under s23 is made out. The alcohol is a noxious thing, the administering is unlawful and grievous bodily harm was suffered.

But with a child in the womb, it was uncertain whether the offence under s23 was capable of being committed.

And that is a result of this bit in the statute “any other person”   – at the time the noxious thing was administered, was the victim a person?

That gets us into huge theological and pro-choice v pro-life debate; some people will feel very strongly that a foetus is a person, some will feel very strongly that until birth the foetus is not a person, some might feel that it depends on the age of the foetus, still others will feel that it depends if the foetus has reached a stage where it would be capable of being born alive.

But we can cut through all of that (fascinating and controversial as it is), because the Courts have given decisions on the legal position before.

And as the decision was from the House of Lords, it is powerful authority

17. In Attorney General’s Reference (No 3 of 1994) [1998] A.C. 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.

18. 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.

19. At paragraph 15 of its decision, the Upper Tribunal referred to the fact that Lord Mustill had identified a number of established rules relating to criminal liability. It continued;

“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… “.”

The “rules” set down by the House of Lords included these:-

“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.”

So, the CICA were arguing broadly that as the foetus was not a person at the time the mother was administering the noxious substance (alcohol), there was no s23 offence.

And those representing CB were arguing broadly that IF there was consumption of alcohol in the womb, but the consequences of the harm were suffered after the baby was born, the s23 offence is capable of being made out.

[The CICA placing weight on rule 3 above, and CB placing weight on rules 4 and 5 above]

41. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime. This, no doubt, is why Mr Foy albeit with some hesitation, sought to rely on the first limb of his argument as it would avoid this difficulty which arises under the second limb. He sought to meet the objection to the second limb by arguing that where FASD occurs, the foetus is damaged before birth, but that after birth there is 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 are continuing and that the court should be slow to distinguish between damage done and subsequent consequences or symptoms.

42. I cannot accept this analysis. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one’s mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.

43. Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.

44. It seems to me that this is fatal to the appellant’s contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute “any other person” within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.

What the Court of Appeal say in effect is that in the absence of Parliament specifically saying that an offence can be committed against a foetus in the womb, the Courts should be reluctant to take that upon themselves. Parliament has passed some legislation about offences that a mother can perpetrate on a foetus (using poison to attempt to procure a miscarriage, for example) and if Parliament had wanted to make excessive consumption of alcohol during pregnancy a criminal offence, it could have done so.

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 Mr Foy’s argument breaks down.

65. I am fortified in the conclusion that I have reached by a number of other considerations. First, the approach to section 23 that I have adopted is consistent with the established structure of the criminal law as it relates to the foetus. Parliament has 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 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. 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 is 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.

CB’s appeal was unsuccessful and it is therefore NOT a criminal offence to excessively consume alcohol during pregnancy. (As said at the outset, it is not a green light to mothers to do that)

I think that most lawyers felt that CB’s case was not going to succeed, and that a foetus would not (at present) be classed as ‘any other person’ in a legal sense to make out the s23 offence.

Does that mean that it was a waste of time? Well, not really. Firstly, it has drawn publicity and attention to the risks of drinking during pregnancy. Secondly, it has drawn attention to the fact that children like CB aren’t receiving compensation and won’t unless Parliament either change the law (or probably more sensibly change the terms of reference for the CICA to allow them to pay compensation for victims of violent offences AND victims of Foetal Alcohol Syndrome)