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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

 

  1. 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.

 

  1. 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.

 

  1. 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.

….

  1. 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. …
  2. 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]

 

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

 

  1. 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.

 

  1. 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)

Help, it’s the care-hair bunch!

 

 

I was idly pondering today the suggestion by Mr Justice Ryder’s Family justice modernisation group that some agreed research on some key topics be prepared, in order to have some basic key principles agreed with some research that the profession can have confidence in.

 

Here’s a suggestion for one – are hair-strand tests for alcohol and drug misuse  (as they presently exist) sufficiently accurate for the court to rely on, or is the desire to have something that proves for definite whether a clandestine and unwanted activity is taking place racing ahead of what the science can reliably achieve at this time?

 

I don’t think I’m madly atypicical for a Local Authority care lawyer, nor is my authority madly atypical.  I comfortably do 15 hair-strand tests per year (all of these figures are going to be under-estimates, so the final figure I come up with is even more of an under-estimate).  I have colleagues who do about the same amount – I’ll under-estimate that as SIX, although it is more.

 

Let’s say that my authority does 75 hair strand tests per year.  Now, although the costs of that are divided between the Local Authority and the publicly funded parties, it is all ultimately taxpayers money.  The cost of a hair-strand test varies on how many months, and how many substances you want to check for, but let’s say £1,000 is about average (again, under-estimating)

 

£75,000 per year, for one Local Authority.

 

My quick unscientific count of counties in England is 37, each of whom has at least one LA who deals with care proceedings. Let’s assume (again, underestimating) that we add another 13 LA’s  (London, Manchester and those metropolitan boroughs around the outskirts of Birmingham easily give you more than 13).

 

So, fifty Local Authorities running care proceedings, and each year they spend (together with the LSC) £75,000 on hair-strand testing.

 

That’s £3,750,000 per year.

 

I remind you, that this is an under-estimate, but on that under-estimate, the taxpayer is spending THREE and THREE-QUARTERS OF A MILLION POUNDS on hair-strand testing. And the only times that the Court have really grappled with the issue of how accurate this science is, it hasn’t been all that compelling. *  THREE and THREE-QUARTERS OF A MILLION POUNDS each year.

 

[*RICHMOND LONDON BOROUGH COUNCIL v (1) B (2) W (3) B (4&5) CB & CB (BY THEIR CHILDREN’S GUARDIAN) (2010) [2010] EWHC 2903 (Fam)

There was a need for considerable caution when hair tests were being interpreted and relied upon, both generally and particularly in isolation. When used, hair tests should be used only as part of the evidential picture, although findings of very high levels might form a significant part of the picture. Because of the respective strengths and weaknesses of the two tests, both tests should be used if hair tests were to be undertaken. The tests could produce conflicting results. The results should be used only for the purposes of determining whether they were consistent with excessive alcohol consumption by use of the cut-off levels. If the concentration found was below those levels, the results would be consistent with abstinence or social drinking; if it was above, the results would be consistent with excessive alcohol consumption. Further, at the cut-off levels, evidence suggested that 10 per cent of results would be false positives. The tests could not establish whether a person had been abstinent: non-detection on either test did not mean that the subject had not consumed alcohol; detection on either test below the cut-off levels did not mean that they had; and neither test was designed to establish abstinence or social drinking. The cut-off levels for both tests was for the proximal 3cm segment of hair. No levels had been established for 1cm segments, nor was there sufficient published data on testing such segments to enable the validity of such tests to be established. Accordingly, any evidence based on the testing of 1cm segments was unlikely to be sufficient to support conclusions as to the level of alcohol consumption. Further, in the absence of any peer reviewed and agreed cut-off between abstinence and social drinking, a court would need specific justification before accepting any such evidence]

 

and I’m also aware of another High Court case involving drugs which has not been reported, which was not quite as bleak as Richmond, but wasn’t a glowing endorsement either.

 

I am not a scientist – though in my younger days, I had aspirations to become one; so one of the things I understand is the concept of “false positives” and “false negatives”.  And it is absolutely key to determing how reliable these tests are, to know exactly what the rate of both is.

 

For those who aren’t science geeks, a false positive is where the test pops up an answer that says you used drugs/alcohol when you didn’t, and a false negative is where the test pops up an answer that says you are clean, when you had in fact used drugs/alcohol.

 

In terms of alcohol, the High Court established that the rate of false positives and false negatives with hair strand testing were each around 10%. [I have personal experience of asking the question of hair-strand testers what their rates of false positives and false negatives are, and haven’t had a satisfactory answer to date. The companies understandably don’t want, given that they are in competition, to give away commercially sensitive information like that].   I believe those figures were taken from studies where a proper blind control was used, of people known to be teetotal, submitting hair-strand tests and the false positive rate was around 10% there – I think they were teetotal Scandanavian students.

 

Okay, that’s fine – if there’s only a 10% risk that the test shows a false positive, that means they are 90% accurate, which for the purposes of family proceedings means that for any invidual test that shows the presence of drugs or alcohol, it is massively MORE LIKELY THAN NOT to be accurate. But remember the numbers we’re using –  an underestimated quick calculation shows 3,750 per year.  Any single case in that amount that produces a false positive has a hugely detrimental impact on the poor parent who was statistically unlikely to be telling the truth when they say the test was wrong but WERE in this individual case, because SOME of those tests will produce a false positive.

[I’m not going to fall into the trap of suggesting that it would be 10% of 3,750 – statistics and probability work in a more complicated way than that, and it would be easy to get caught out by approaching it in a common-sense way – cough, Professor Mea- cough.  If you ever want to feel like you no longer have any grasp of common sense, working out some problems on statistics and probabilities is a really good way to make you feel that nothing is real or as it seems  – for example, that if you put 23 people in a room together, it is more likely than not that two of them will have the same birthday, even though there are 365 days in a year, and you’d think that you’d need 180 people to get those odds]

 

Whilst the plural of anecdote is not data, I am fairly sure that any family lawyer reading this can think of several examples from their caseload fairly immediately, of parents who admitted drug use before the results came back, but they came back negative, or of parents who got negative tests but later admitted significant use. Those are the false negatives, and when deciding whether a parent has conquered their drug problem are important. The Court relying on a false negative can be just as bad as relying on a false positive. (Of course, the false negatives are the ones that stick in our mind, because we have confirmation from the admissions that the test is wrong, whereas a denial that the results are true doesn’t confirm to us whether the test is wrong, or the subject is lying)

 

My point is, the taxpayer is spending a significant amount of money each year on hair-strand tests – the outcome of these tests can be pivotal to the decisions the Court makes about the future of children. It would probably be worth spending a few thousand on research to establish, categorically whether the money is being well-spent.

 

To be provocative – here’s another scientific method for establishing whether someone has taken drugs, and it is based on science, and the accuracy rate is said to be higher than 90% *, and would be substantially cheaper. You hook the person up to a polygraph (or lie-detector, to use the common name) and ask them.   I suspect that you are now recoiling from the idea of lie-detector evidence being used in family courts and would hate to see it used.

 

And I’m being provocative of course, because I feel exactly the same, but it is worth contemplating why it provokes that unease, disquiet, even revulsion.  Is it fundamentally because, despite all scientific evidence to the contrary, we believe that human beings are good at spotting when someone is lying and that the best judge of whether someone is lying is… well, a Judge? Is it because a polygraph machine just summons up old-fashioned science-as-magic imagery, like mesmerism or seances, or is my own personal inner-confidence that I could beat a lie-detector test subconsciously shared by many of us so that we inherently doubt its accuracy, or do we just plain not trust looking at a bunch of lines on a piece of graph paper and calling a man a liar as a result of it?

 

*caveat – the accuracy of lie-detector tests is probably one of the most controversial debates in the american justice system, and the accuracy is said to be very high by people who support it, and very poor by people who are against it… And bizarrely, the one thing both groups seem to agree on is that the lie-detector is better at spotting when a guilty person is lying than when an innocent person  is telling the truth.    So, is our in-built prejudice based on the “fact” that they’re just not very good?

 

I’d like to see some research done on methods of testing for drug/alcohol misuse, with some proper blind studies (where there are samples taken from people who are unequivocally known to be users of substances, or categorically abstinent, and the people doing the testing have no idea which – and ideally neither do the people sending the samples) and I think a provocative, but interesting  measure would be whether the science of hair-strand testing proves to be more accurate than lie-detectors… or indeed someone just looking at a person closely while they plead that they’re not a drug-user…

 

By the way, you probably didn’t know that there has already been a pilot study about polygraph use in the UK, and legislation permitting its use – on assessing the risk of sex offenders in the West Midlands.  (The Polygraph Rules 2009 if you’re sceptical)    There’s also a very weird bit of research showing that when sex offenders were hooked up to an entirely bogus lie-detector, they were more honest about their offending as a result simply by the effect of believing that the machine WOULD reveal that they were lying, they became more honest.     http://www.springerlink.com/content/dm51518228jk8208/

 

I strongly suspect that proper scientific research would show that hair-strand testing for drugs IS reliable enough for family proceedings, but might assist us with how accurate it is, and the circumstances in which a second opinion or second test should be carried out  (not that there would be time in 26 week model for anyone to challenge the outcome) and the Court should KNOW what the false positive and false negative rates are. I am far less confident about alcohol testing – everything I’ve read and heard suggests that the method will eventually be refined and reliable but we’re not quite there yet.  But my overall point is that it shouldn’t be for me, or the Judge in a case to weigh up how confident one can be in the testing, we should have the research  (done by scientists who have no financial stake in the outcome) to tell us how reliable these tests are, and thus whether these tests are great value for money, or a waste of time, or somewhere in the middle.