Upper Tribunal Grants Compensation for Genetic Disorder Resulting from Incest

Y v (1) First-tier Tribunal and (2) [NAME] Authority ([NAME])

[2016] UKUT 0202 (AAC)

2 JR/2930/2014

DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. This application succeeds. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I make a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to refuse an appeal against the decision of [NAME] Authority (“the Authority” or “[NAME]”) not to make an award under the [NAME] Scheme 2008 (“the 2008 scheme”). The decision of the First-tier Tribunal was made on 20th March 2014 and the [NAME] reference is X/12/207179.

2. I substitute my own decision as being the only decision that the First-tier Tribunal could properly have made. This is that (a) Y is eligible for an award of compensation on the basis and for the reasons given below and (b) the matter is referred to the Authority for further consideration of the claim on this basis and on the basis that (as agreed between the parties) Y sustained a criminal injury and was a [NAME] of a crime of violence and that his condition resulted from the incestuous relationship between his mother and her own father.

3. I held an oral hearing of this application for judicial review at Field House in London on 21st January 2016. The [NAME], who is the claimant for compensation, did not attend in person but was represented by [NAME], solicitor of [NAME]. The Authority, which is the interested party in this application, was represented by [NAME] of counsel, instructed by the Treasury Solicitor. I am grateful to them for their assistance. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings. I refer below to actions having been taken by “the [NAME]” but in practice reference is to actions taken on his behalf.

The 2008 Scheme

4. This case is about the application of certain provisions of the 2008 scheme, under which the claim for compensation was made. So far as is relevant paragraphs 6 and 8 of the scheme provide as follows:

6. Compensation may be paid in accordance with this Scheme:

(a) to an [NAME] who has sustained a criminal injury on or after 1 August 1964;

(b) …

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3 For the purposes of this Scheme “[NAME] means any person for whose benefit an application for compensation is made, even where it is made on his or behalf by [NAME].

8. For the purpose 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 …

5. It is not necessary to set out paragraph 9. It is not disputed in this case that there was a crime of violence that occurred in Great Britain. The First-tier Tribunal stated that “the issue is whether the [NAME] sustained personal injury directly attributable to a crime of violence”.

Background and Procedure

6. The [NAME] is a man who was born on [DATE]. His mother was born on 14th October 1966. From about 1975 her father began to abuse her, including having sexual intercourse with her from when she was aged about 11. In about 1991 her father pleaded guilty at the Crown Court to 4 counts of incest occurring between 1982 and 1990 and was sentenced to three years imprisonment. DNA tests have shown that Y’s grandfather is in fact also his father, and is also the father of Y’s sibling born on [DATE]. This is not disputed and Y’s mother has been awarded compensation in her own right in respect of the assaults on her by her own father. Y was born with a genetic disorder or disorders described as “a recessive syndrome with learning and joint problems”. He has severe learning difficulties, developmental delay, a heart murmur, hearing and sight problems, lax joints, epilepsy and no sense of danger. His sibling does not have this condition or these problems. As I understand it there is a 50% chance of such problems appearing in those who were born of an incestuous relationship, compared with a 2% or 3% chance in the general population. Based on expert evidence the First-tier Tribunal found that Y’s problems resulted from him being born of an incestuous relationship and this is now agreed between the parties. Y’s mother receives carer’s allowance in respect of looking after him.

7. In about February 2012 a claim was made for compensation for Y. On 25th June 2012 the Authority refused to make an award on the basis that Y had not been injured in a crime of violence and that his congenital condition was a result of the relationship between his parents and not of the assault itself. This decision was maintained on review by the Authority on 7th December 2012 and on 6th March 2013 the [NAME] appealed to the First-tier Tribunal against the decision of the Authority. The tribunal heard the appeal on 19th March 2014 and in a full decision dated 20th March 2014 confirmed the decision of the Authority.

8. On 3rd June 2014 the [NAME] applied to the Upper Tribunal for judicial review of the decision of the First-tier Tribunal and on 4th July 2015 I gave him permission to proceed with the application on the basis of consideration of the papers. However, I

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4 stayed further proceedings pending the decision of the Court of Appeal in the foetal alcohol case (see further below). [ADDRESS] of Appeal decision in that case was issued on 4th December 2014 and the parties in the present case were given the opportunity to make further written submissions. There was then a further delay while the Supreme Court considered whether to grant permission to appeal in the foetal alcohol case, which it refused to do at the end of March 2015. On 5th August 2015 I directed that there be an oral hearing of the substantive application in the present case. Unfortunately it was not possible for the hearing to take place until 21st January 2016. The Authority opposes the application for judicial review and supports the decision of the First-tier Tribunal.

The First-tier Tribunal Decision

9. The First-tier Tribunal regarded as “the most valuable authority” a decision of the [NAME] in Scotland in [NAME] ([NAME] to [NAME]) v [NAME] 197 SLT 1180 dated 13th November 1996 (“the [NAME] case”) in relation to the 1969 [NAME] scheme. It adopted the reasoning in the [NAME] case “in its entirety”. I return to that case below but here I indicate that the First-tier Tribunal took from it the proposition that a genetic disorder arising as a result of the consanguinity of the parents could not be a personal injury within the scheme. There was no uninjured state in which Y could exist without the genetic disorder from which he suffers. There was no “pre-assault” Y.

10. The First-tier Tribunal declined to treat the conception and birth as being an injury because that would involve accepting a claim for “wrongful life” and that being born at all would be the actionable injury, the [NAME] did not recognise a claim for this, it would be impossible to quantify the claim or define the injury, and it was implausible that the 2008 scheme would have provided far greater recovery out of public funds than that available under the [NAME]. As Y did not have and could never have had an uninjured state it is impossible to talk of him being injured.

11. Some of this reasoning seems to me to be fallacious. If Y had been attacked as a very small baby, perhaps with blows to the head, it may well be that such an attack could have caused injuries with similar effects to some of the manifestations of his genetic disorder. Then there would have been no choice but to try to quantify the amount of compensation within the provisions of the scheme. The tribunal had already acknowledged (paragraph 15) that “It is perfectly clear that the 2008 Scheme is not to be interpreted according to [NAME] principles as it is expressly required that that compensation is determined in accordance with the Scheme” and added (paragraph 42) that the fact that Y’s claim would not be recognised at [NAME] “does not of itself exclude his claim from the terms of the Scheme but it is relevant to the Tribunal’s approach to the “injury” issue”.

The [NAME] Therein

12. The [NAME] of the [ADDRESS] of Session was considering an application for judicial review of a decision of the [NAME] (“[NAME]”, a predecessor of [NAME]) made under the [NAME]

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5 Scheme 1964, revised 1969 (“the 1969 Scheme”). The decision was made by [NAME], a senior and distinguished Scottish judge. Nevertheless decisions of the [NAME] are not binding on the Upper Tribunal.

13. The facts were very similar to those of the present case. The [NAME] was a child who had been conceived and born as the result of an incestuous rape of her mother by her maternal grandfather. She was born with a set of congenital characteristics not present in the general population which arose directly from the consanguinity of her parents. These included profound mental handicap, deafness and microcephaly.

14. In general terms the 1969 Scheme provided for an ex gratia payment of compensation, assessed on the basis of [NAME] damages, “where the [NAME] … sustained … personal injury directly attributable to a crime of violence” (paragraph 5). There was no authority directly on the point but [NAME] was referred to a number of authorities (including some from the United States) relating to injury in other contexts. On this basis he concluded that “the weight of American authority” is to the effect that in the law of negligence in America wrongful life claims were not admissible because of the “conceptual problem of regarding a genetic defect as an injury and the impossibility of assessment of the damages on any rational basis”. In concluding this, he relied on two cases in particular. In [NAME] the [ADDRESS] of Appeals considered an action for negligence by a child who had been conceived after a sexual assault on his mother, a patient in a state mental hospital, against New York State for negligently failing to prevent the assault. The New York court explained that damages in tort are awarded on the basis of a comparison between the present position and the one that that the plaintiff would have been in had the negligent act not occurred and that comparison could not really be done in that case. [NAME] v [NAME] a [NAME] who sought damages for the defendants’ failure to advise its parents of the possibility of hereditary deafness “thus depriving them of the opportunity to choose not to conceive the child”. In rejecting the claim the Supreme Court of California observed that the child never had a chance to be born “as a whole, functional human being without total deafness” and that had the defendants done their job properly the child would not have been born at all.

15. [NAME] also referred in particular to one United Kingdom decision, McKay v Essex Area Health Authority [1982] 1QB 1166. The claim there was that while the child was in the womb the mother was infected with rubella which caused the child to be born with deformities. One aspect of the action was in effect a claim that the doctors had been negligent in allowing the child top be born alive rather than advising and assisting the mother to have a lawful termination. [ADDRESS] of Appeal held that that aspect of the claim was contrary to public policy as being a violation of the sanctity of human life, and that the court could not evaluate non-existence for the purpose of awarding damages for the denial of it.

16. [NAME]’s conclusion was as follows (page 34 of the version of the decision with which I have been supplied):

“I have reached the conclusion that [[NAME]] did not err in law when they concluded in their written decision that that “Congenital deficiencies cannot

[2016] UKUT 0202 (AAC)

6 properly be held to be injuries within the meaning of the Scheme”. … It appears to me that the concept of injury, in the context of a situation in which compensation for it must be assessed, presupposes a pre-injury state which is capable of assessment and comparison with the post-injury state. It is obvious from the circumstances of this case that the [NAME] never had, nor could have, any existence save in a defective state.

Accordingly, in my opinion, it is inevitable that her plight, grievous though it may be, cannot be seen as “personal injury”, within the meaning of para 5 of the revised 1969 Scheme”.

17. [NAME] was “confirmed” in his view by the fact that the particular Scheme that he was considering provided that compensation was to be assessed on the basis of [NAME] damages. It was “quite evident” that such an assessment would be impossible and that “The [NAME], in my opinion with logical justification, has set its face against the possibility of making an assessment of damages in a case such as this”. He said that this state of affairs was one that he could properly take into account in interpreting the expression “personal injury” in the 1969 Scheme.

The [NAME]’s Arguments

18. For Y it was pointed out that even in the [NAME] case [NAME] considered that the birth of the child and its disabilities were both directly attributable to the rape. His decision was not based on the issue of attribution but on the meaning of “personal injury”. The key point is that that receiving a double dose of a defective gene was a personal injury for the purposes of the 2008 Scheme.

19. It was argued that the [NAME] should not be imported into the interpretation of the 2008 Scheme ([NAME] – Andrews v First-tier Tribunal [2011] EWCA Civ 1548) and that the plain meaning of the scheme means that the claimant was a [NAME] of a crime of violence. If the [NAME] is to be so imported, the law in relation to “wrongful birth” and “wrongful conception” has moved on considerably since [NAME]’s decision (1996). In McFarlane v Tayside Health Board [2000] 2 AC 59 the House of Lords upheld the right of a mother to claim for negligence arising from the failure of her husband’s vasectomy which led to pregnancy and associated costs. In [NAME] v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 the Court of Appeal considered the right of a mother to claim for negligence when her own sterilisation operation had failed. [ADDRESS] held that although there was no right to claim in respect of the costs of upbringing and caring for a normally healthy child, there might be entitlement in respect of the extra costs of bringing up a child with significant disability.

20. It was argued that [NAME] (specifically followed by the First-tier Tribunal in the present case) was wrong to say that “the [NAME] never had, nor could have, any existence save in a defective state”. There is an element of chance in how a child born to consanguineous parents will turn out. It is not obvious that Y could only have existed in “a defective state” – he could have been born in the same condition as his sibling. There had been many scientific, medical and legal developments in this are (dealt with at some length in the claimant’s written skeleton argument to the First-

[2016] UKUT 0202 (AAC)

7 tier Tribunal) and “There is nothing in the 2008 … Scheme that indicates that a [NAME] of a crime of violence has to be a fully formed embryo, foetus or new born child, nor that the crime of violence has to produce the damage at a particular stage in the formation of a human being”.

21. Incest is a crime precisely because it is sought to avoid the very harm that happened to Y in the present case. In Attorney-General’s Reference Non 3 of 1994 [1998] AC 245 the House of Lords had established that an assailant could be convicted of manslaughter against an [NAME]. Thus the criminal law will penalise those who commit crimes against a foetus “and by extension” a person in Y’s situation. Alternatively, there is nothing in the terms of the 2008 Scheme which precludes an [NAME] or person with technically no existence from making a claim when they come into existence.

22. The claimant also addressed arguments on human rights law to the First-tier Tribunal but it is not necessary for the purposes of my decision to go through those arguments or to make any specific comment on them.

[NAME]’s Arguments

23. [NAME] accepted that there was a crime of violence and that Y’s genetic disorder was probably caused by the incestuous intercourse between Y’s mother and her own father. However, in essence it adopted the reasoning in [NAME] and of the First-tier Tribunal in the present case. It was “necessarily correct” to say that Y’s uninjured state could only be never to have been conceived. Had the crime of violence not been committed Y would never have been born.

24. In any event the consequences of the crime of violence all took effect before Y was born and therefore at a time when he had no legal personality. Harm caused before birth which has consequences after birth cannot be treated as an injury sustained by a [NAME] (relying on the Court of Appeal decision in the foetal alcohol case – see further below).

25. [NAME] accepted that the 2008 Scheme falls to be interpreted by its own terms rather than by reference to the [NAME]. The First-tier Tribunal had interpreted the words “personal injury” according to their own meaning, not by reference to any [NAME] definition. However, the First-tier Tribunal was entitled to note that the [NAME] does not recognise a claim for wrongful life.

The Foetal Alcohol Case

26. CP v First-tier Tribunal and Criminal Injuries Compensation Authority [2014] EWCA Civ 1554 (“the foetal alcohol case”) was an unsuccessful appeal to the Court of Appeal from my decision in [2013] UKUT 638 (AAC).

27. During pregnancy [NAME]’s mother “consumed grossly excessive quantities of alcohol” as a direct result of which [NAME] was born with foetal alcohol spectrum disorder. The First-tier Tribunal decided that [NAME] was entitled to a criminal injuries

[2016] UKUT 0202 (AAC)

8 compensation award on the basis that the mother had committed an offence contrary to section 23 of the Offences Against the Person Act 1861, which requires administration of a destructive etc thing “to [NAME]”. I decided that as a matter of law the foetus cannot be [NAME] before birth and that the section 23 offence cannot be committed by a [NAME] drinking alcohol during her pregnancy and thereby causing damage to her [NAME]. I rejected an argument, supposedly based on Attorney-General’s Reference No 3 of 1994 [1998] AC 245 that the First-tier Tribunal was entitled 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 mean that the [NAME] foetus in effect becomes “[NAME]”.

28. [ADDRESS] of Appeal agreed with this analysis (eg in paragraphs 45 and 61). [NAME] relied in particular on the following parts of Lord Justice Treacy’s opinion:

42. … 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 … [In 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 administration of the drug.

43. … expert evidence … 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 deficiencies 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.

29. The [NAME] argued that his case is quite different. There is no dispute that the original sexual assault of his mother was a crime of violence or that his genetic disorder was probably caused by the incestuous relationship. There is no question of construing a criminal statute or considering actus reus and mens rea, which is what the foetal alcohol case was about.

Conclusions

30. During the course of this case there have been several references to the decision of the Court of Appeal in [NAME] – Andrews v First-tier Tribunal [2011] EWCA Civ 1548. That case [NAME] the assessment of compensation for loss of future earnings in a claim for [NAME] under the 2001 Scheme. Judgment was given

[2016] UKUT 0202 (AAC)

9 by Lord Justice Carnwath (who was also the Senior President of Tribunals). In paragraph 34 he said:

34. In my view … if one looks simply at the Scheme, rather than trying to fit it into a pre-conceived “[NAME]” model, this is a relatively straightforward case. The issue is not whether “[NAME] principles” apply. The [[NAME] Act 1995] answers that in the negative, since it expressly requires compensation to be determined in accordance with the Scheme. However … that does not require the exercise to be conducted in a straitjacket or mean that no help can be gained where appropriate from the wisdom reflected in authorities at the highest level dealing with similar issues.

31. In this context the arguments over the extent to which the [NAME] (whether in the United States or in this jurisdiction) does or does not recognise claims for “wrongful life”, or the extent of liability for negligence, are of very limited assistance. For example, the decision in the New York case of [NAME] (cited by [NAME] in [NAME]) arises from a totally different jurisprudential basis to the claim in the present case.

32. It is clear that [NAME] in [NAME] was heavily influenced by [NAME] developments in the law of negligence. That might have been appropriate under the 1969 Scheme, which explicitly provided that compensation was to be assessed on the basis of [NAME] damages. In contrast the 2008 Scheme has a self contained set of provisions for assessing the amount of compensation and (to this extent) I agree with the First-tier Tribunal that the fact that Y’s claim would not be recognised at [NAME] (assuming that to be the case) does not exclude his claim from the terms of the 2008 Scheme.

33. I have already observed above that it is no answer to Y’s claim that quantification of the amount of compensation would not be possible at [NAME]. Under the 2008 Scheme compensation may be paid in accordance with the scheme to a person who has sustained a criminal injury (paragraph 6(a)). The question of whether a claimant has sustained a personal injury is a logically and chronologically prior question and is not to be determined by a premature assessment of whether compensation can be calculated. I make one exception to this – that if it is absolutely clear that even if a person has sustained a personal injury the amount of compensation payable would be less than the minimum award (under paragraph 26 of the scheme), it might be legitimate to refuse compensation on that basis. I note that there is a maximum award payable in respect of a claim, whatever the circumstances (paragraph 24) and this provides a safeguard in respect of any fear of vast awards. The fact that the scheme provides for both minimum and maximum awards contributes to making it very different from the [NAME] approach to damages.

34. Did the [NAME] sustain personal injury directly attributable to a crime of violence? The First-tier Tribunal indicated that, had it not been for the decision in [NAME], it would have been tempted to find that the conception not have happened without the assault although the direct reason why “the disorder eventuated was the consanguinity of his parents” paragraph 45). In my opinion this is an artificial

[2016] UKUT 0202 (AAC)

10 distinction in the circumstances of this case. The crime of violence was an incestuous rape which led both to the birth of the claimant in his condition. The issue is whether his condition can be regarded as a personal injury. On this issue I find the reliance on [NAME] unconvincing. I see in the scheme no requirement to establish facts about a “pre-injured” state. The scheme is intended to be a practical self-contained workable pragmatic scheme to compensate victims of crimes of violence. Subject to specific decisions of the Court of Appeal and Supreme Court/House of Lords it is inappropriate to consider its provisions in the context of deep philosophical discussions about the nature of life and existence.

35. Care must be taken in drawing parallels with the decision in the foetal alcohol case. The basis for the ultimate rejection of the claim in that case was that no criminal offence had been committed (and therefore no “crime of violence”). This was because the wording of section 23 of the 1861 Act required that the administration of the relevant substance in that case be to “[NAME]” and the House of Lords had decided in Attorney-General’s Reference No 3 of 1994 that a foetus is not a person. That is the context in which the paragraphs of the Court of Appeal decision in the foetal alcohol case on which [NAME] relied must be understood. In the present case there is no doubt that a crime of violence had been committed.

36. The 2008 Scheme provides that compensation be payable to “an [NAME]”. Clearly, at the time of the claim the [NAME] is a person. There is no provision in the scheme that the [NAME] must have been “a person” at the time that the crime of violence was committed. In everyday terms and in common parlance it seems to me that he has suffered injuries. Those injuries have been sustained in and are directly attributable to a crime of violence.

37. For the above reasons this application for judicial review succeeds and I make the order in paragraph 2 above.

H. Levenson Judge of the Upper Tribunal 25th April 2016

[2018] AACR 35 ([NAME] v [NAME] and Y)

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[2018] AACR 35 (Criminal Injuries Compensation Authority v First-tier Tribunal and Y [2017] EWCA Civ 139)

[NAME] (Sir Brian Leveson P, McFarlane and LJ Henderson LJ) JR/2930/2014 14 March 2017

[NAME] Authority— whether compensation payable to a person conceived and born with serious genetic disability as result of incestuous rape—whether injuries suffered directly attributable to a crime of violence Y who was born with a serious genetic disorder resulting from his conception and birth as a consequence of an act of incestuous rape, claimed compensation under the [NAME] Scheme 2008. The [NAME] Authority (‘[NAME]’) refused the claim on the grounds that Y was not a [NAME] of a crime of violence and that his congenital condition had arisen as a result of the relationship between his parents and not of the assault itself. The First-tier Tribunal dismissed Y’s appeal and concluded that as he had never had an uninjured state and had not suffered injury within the terms of the scheme. On an application for judicial review, the Upper Tribunal granted his application for relief, concluding that Y had “in common parlance” suffered injuries which were directly attributable to a crime of violence within the meaning of paragraph 8 of the 2008 scheme and so was entitled to compensation thereunder. The [NAME] appealed.

Held, allowing the appeal, that:

1. issues of entitlement to compensation under the [NAME] Scheme 2008 were to be determined by reference to the proper construction of the scheme which, being governed by section 1 of the [NAME] Act 1995, had to be read in accordance with the normal principles of statutory construction;

2. on the facts, the [NAME] of the crime of violence could only have been Y’s mother;

3. to suggest that Y, who had not been conceived at the time of the crime, was himself a [NAME] of crime (the nature of the crime involved being difficult to discern) or that it was possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffered, went beyond that which the scheme sought to cover.

The court set aside the decision of the Upper Tribunal (AAC) and upheld the decision of the First-tier Tribunal.

DECISION OF THE COURT OF APPEAL

[NAME]. (instructed by [NAME] Authority, [COMPANY], Glasgow) for the Appellant

[NAME] (of [NAME], London) for the Interested Party

The Respondent did not appear and was not represented.

Judgment

Sir Brian Leveson P: 1. How broad is the definition of those who can properly describe themselves as victims who have sustained personal injuries in and directly attributable to a crime of violence? The

[2018] AACR 35 ([NAME] v [NAME] and Y)

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question is determinative for qualification to claim compensation pursuant to the terms of the [NAME] Scheme now established by the [NAME] Act 1995 (“the 1995 Act”). In the usual case, the answer is straightforward and rarely gives rise to challenge. In this case, however, it raises a question of law as to the proper meaning of the Scheme.

2. The facts can be summarised very shortly. From the age of 9 years, M was sexually abused by her father [NAME] which, after two years, progressed to full sexual intercourse. Ten years later, on 14 October 1987, Y was born following incestuous sexual intercourse (agreed to have constituted rape) between M and [NAME] and just over two years later, M gave birth to [NAME] child, also by [NAME]. Thereafter, this course of conduct came to light and [NAME] subsequently pleaded guilty to incest and was sentenced to a term of three years’ imprisonment. M brought a successful claim under the [NAME] Scheme 1990 (“the 1990 Scheme”) on the basis of the crimes of violence (including that which led to the conception of Y) of which she was a [NAME].

3. Tragically, Y was born with a serious genetic disorder which it is accepted was probably caused by the incestuous intercourse. This conclusion has been reached on the basis that there is a 50% chance of such problems appearing in those born of an incestuous relationship as compared with a chance of 2-3% in the general population. In that regard, it is noteworthy that Y’s sibling did not have the genetic disorder. I add that the compensation which M received did not encompass any payment in relation to the condition, care or upbringing of Y.

4. In February 2012, a claim was made on behalf of Y under the [NAME] Scheme 2008 (“the 2008 Scheme”) which, on 25 June 2012, was refused on the grounds that Y was not a [NAME] of a crime of violence and that his congenital condition was a result of the relationship between his parents and not of the assault itself. The decision was maintained after review. On appeal, the decision being dated 20 March 2014, the First- tier Tribunal (“[NAME]”) followed the reasoning of [NAME] in the Scottish case of [NAME] ([NAME] to [NAME]) v [NAME] 197 SLT 1180, 13 November 1996. It concluded that Y “did not have and could never have had an uninjured state” and had not suffered an injury within the terms of the 2008 Scheme. Thus, the appeal was dismissed.

5. Acting with his mother as his litigation friend, Y then sought judicial review of the [NAME] by application to the Administrative Appeals Chamber of the Upper Tribunal (“[NAME]”) which stayed the hearing pending an appeal in [NAME] v First-tier Tribunal and [NAME] Authority. That case [NAME] foetal injury caused by maternal self-induced alcohol poisoning: see [2014] EWCA Civ 1554. As a result, it was only on 25 April 2016 that Judge H. Levenson sitting in the [NAME] determined the appeal, reversing the decision and concluding that Y was eligible for an award of compensation. On 19 May 2016, the judge granted permission to the [NAME] Authority (“[NAME]”), interested parties to the application, to appeal to this court. The 2008 Scheme 6. The 2008 Scheme is governed by s. 1 of the 1995 Act which requires the Secretary of State to make arrangements for the payment of compensation to, or in respect of, persons who have sustained criminal injuries, the phrase ‘criminal injury’ being defined in the Scheme itself. It applies to any application for compensation received on or after that date and provides (at para. 6) that compensation may be paid to “an [NAME] who has sustained a

[2018] AACR 35 ([NAME] v [NAME] and Y)

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criminal injury on or after 1 August 1964” (i.e. after the date when a compensation scheme was first started).

7. The phrase ‘criminal injury’ is defined by para. 8 in terms as meaning one or more personal injuries being an injury or injuries sustained in and directly attributable to an act occurring in Great Britain as described in para. 9 which is in these terms: “For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety … or a disabling mental illness…) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the [NAME]: (a) was put in reasonable fear of immediate physical harm to his or her own person; or (b) had a close relationship of love and affection with [NAME] at the time when that person sustained physical and/or mental injury … and (i) that relationship still subsists (unless the [NAME] has since died) and (ii) the [NAME] either witnessed and was present on the occasion when the other person sustained the injury or was closely involved in its aftermath; or (c) in a claim arising out of a sexual offence, was the non-consenting [NAME] of that offence (which does not include a [NAME] who consented in fact but was deemed in law not to have consented).” 8. Putting these provisions together generates two questions which, on analysis, can be linked. The first is whether the [NAME] for compensation, Y, is a [NAME] who sustained an injury (including a medically recognised condition) directly attributable to the act of incestuous rape. This involves a consideration of the necessity for a pre-existing state which is altered by the relevant act (i.e. the rape). The second is whether compensation is being claimed in respect of a sexual offence which is caught by para. 9 and whether that provision itself presupposes the existence of Y at the time of the offence (rather than being conceived as a consequence of it). The link is the fundamental issue of whether it is sufficient that Y’s condition is a consequence of the act of sexual violence which occurred prior to Y’s existence. [ADDRESS] of the Tribunals 9. The facts which form the background to this case are identical to those considered in [NAME] (supra), decided under the 1969 Scheme. The Board then argued that the [NAME] had not suffered injury as her condition and disabilities were congenital and ‘inherent’ to her. Having reviewed UK and US authorities, [NAME] agreed with the first submission. He said (at 1199): “It appears to me that the concept of injury, in the context of a situation in which compensation for it must be assessed, presupposes a pre-injury state which is capable

[2018] AACR 35 ([NAME] v [NAME] and Y)

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of assessment and comparison with the post-injury state. It is obvious from the circumstances of this case that the [NAME] never had, nor could have, any existence save in a defective state.

Accordingly, in my opinion, it is inevitable that her plight, grievous though it may be, cannot be seen as ‘personal injury’, within the meaning of para. 5 of the revised 1969 Scheme.” 10. At the [NAME], it was argued that reliance should not be placed on [NAME] because it was decided under a scheme founded on [NAME] principles of damages that had no place under the 2008 Scheme. The Tribunal concluded however that the issue – could the [NAME] show that he had suffered personal injury which was directly attributable to a crime of violence? – remained at the heart of the 2008 Scheme and was in almost identical terms to the relevant language of the 1969 Scheme. Further, Y’s ‘uninjured’ state could only be never to have been conceived. The fact that 50% of children conceived by his parents could have avoided the disorder did not assist because the question had to be articulated whether, prior to the assault, there was a person or entity ‘Y’ upon whom the impact of the crime of violence could be measured. The answer was that there was not.

11. The Tribunal set out the reasons for refusing to treat Y’s conception and birth as being an injury for the purposes of the 2008 Scheme in the following terms: “(a) That argument would require a submission that [Y] has a claim for ‘wrongful life’. The fact of his being born at all would be his actionable injury. (b) The [NAME] does not recognise a claim for ‘wrongful life’ by a child whether injured or uninjured: [McKay v Essex Health Authority [1982] QB 1166] has been unchallenged authority for that proposition for over 30 years. (c) Although the Scheme is a free-standing scheme the terms of which are to be applied to the evidence presented, it is not to be interpreted in a vacuum; regard can and should be had to the relevant [NAME] where appropriate ([[NAME] v. [NAME] (Social Entitlement Chamber and [NAME]) [2012] PIQR P7; [2011] EWCA Civ 1548 at para. 34]). … (d) At [NAME] [Y] would have no claim (although his mother would have a claim for certain additional costs of bringing up a disabled child). (e) It would be impossible to quantify [Y’s] claim. How does one define his ‘injury’, if his uninjured state is to be defined as not being conceived or born at all? Where does his condition fall in the tariff of awards? What is the benchmark against which loss of earnings and loss of earning capacity are to be assessed? (f) It is implausible that the Scheme would have provided far greater recovery (out of public funds) than that available under the [NAME] (the cost of being looked after without any discount for the cost of raising a child without his genetic disorder) at the very least without a specific provision to that effect. (g) The only possible comparator which could lead to a meaningful quantification of compensation for ‘special expenses’ under para. 35 is a child born without the genetic disorder from which [Y] suffers. But [Y] could never be that child: from the moment of conception his genetic disorder and consequent disability were pre- determined – not because every fruit of conception between those parents was bound

[2018] AACR 35 ([NAME] v [NAME] and Y)

5

to suffer that disorder but because [Y] was so bound and was in fact born with that disorder.” 12. The [NAME] recognised that the 2008 Scheme recognised novel claims which would not succeed at [NAME] (such as claims arising out of the apprehension of an offender) and thus Y’s claim was not, for that reason, excluded, but it concluded that the decision in [NAME] although based on the 1969 Scheme applied with equal force to the 2008 Scheme. Thus the claim was rejected.

13. On appeal to the [NAME], citing [NAME], it was argued on behalf of Y that the [NAME] should not be imported into an interpretation of the 2008 Scheme but that, even if it was, the law relating to wrongful birth and wrongful conception had moved on since 1996. Thus, claims had been upheld for pregnancy and associated costs following the negligent failure of a vasectomy (McFarlane v Tayside Health Board [2000] 2 AC 59) and in respect of the extra costs of bringing up a disabled child following a negligently conducted failed sterilisation ([NAME] v St James and Seacroft University Hospital NHS Trust [2002] QB 266; [2001] EWCA Civ 530). It was wrong to say that the child could not have had an existence save in a defective state because there was an element of chance involved.

14. It was also argued that there was nothing in the 2008 Scheme that indicated that a [NAME] of a crime of violence had to be a fully formed embryo, foetus or new born child and, indeed, a conviction for manslaughter could follow the death of an [NAME]: see Attorney General’s Reference No 3 of 1994 [1998] AC 245. Thus, the criminal law could penalise those who commit crimes against a foetus “and by extension” a person in Y’s situation: the claim could be formulated when such a child came into existence.

15. In response, following [NAME], the [NAME] submitted that it was ‘necessarily correct’ to say that Y’s uninjured state could only be never to have been conceived and that, in the absence of the crime of violence, Y would never have been born. Furthermore, following the foetal alcohol case, [NAME], harm caused before birth which had consequences after birth could not be treated as injury sustained by a [NAME], although (as [NAME]. for [NAME] now concedes) that case [NAME] the conclusion that an offence under s. 23 of the Offences Against the Person Act 1861 (administration of a noxious thing to a person) could not be committed by the mother in relation to her then [NAME] and does not take this case further.

16. In the [NAME], Judge Levenson considered that the development of claims relating to wrongful life were of limited assistance, albeit that [NAME] had been heavily influenced in [NAME] by [NAME] developments, as to which he went on (at para. 32): “That might have been appropriate under the 1969 Scheme, which explicitly provided that compensation was to be assessed on the basis of [NAME] damages. In contrast the 2008 Scheme has a self-contained set of provisions for assessing the amount of compensation…” 17. The judge in the [NAME] recognised that whether a claimant had sustained a personal injury was logically and chronologically a prior question, not to be determined by a premature assessment of whether compensation can be calculated (save only where it could not meet the minimum award). He concluded (at paras. 34 and 36):

[2018] AACR 35 ([NAME] v [NAME] and Y)

6

“The crime of violence was an incestuous rape which led both to the birth of the claimant in his condition (sic). The issue is whether his condition can be regarded as a personal injury. On this issue I find the reliance on [NAME] unconvincing. … The scheme is intended to be a practical self-contained workable pragmatic scheme to compensate victims of crimes of violence. Subject to specific decisions of the Court of Appeal and Supreme Court/House of Lords, it is inappropriate to consider its provisions in the context of deep philosophical discussions about the nature of life and existence. … The 2008 Scheme provides that compensation be payable to ‘an [NAME]’. Clearly, at the time of the claim, the [NAME] is a person. There is no provision in the scheme that the [NAME] must have been ‘a person’ at the time that the crime of violence was committed. In everyday terms and in common parlance it seems to me that he has suffered injuries. Those injuries have been sustained in and are directly attributable to a crime of violence.” The Appeal 18. In this court, [NAME] made it clear that the [NAME] had conceded, for the purposes of this case, that the disability suffered by Y was ‘sustained in and directly attributable to an act occurring in Great Britain’ (within the language of para. 8 of the Scheme) and, thus, it is important not to look to this judgment for an evaluation of that issue. The issues were, first, whether it was possible to identify an injury without there having been a person who had been injured, existing in a pre-injured state. A related point could be articulated by asking the question whether Y was a [NAME] of a crime of sexual violence. The second issue, raised in a supplementary skeleton argument was whether para. 9(c) precluded an [NAME] from obtaining compensation in respect of a sexual offence unless he or she was a non-consenting [NAME] of that offence.

19. In short, [NAME] relied upon [NAME] and its citation from [NAME] v [NAME] Authority (supra) in which Ackner LJ (as he then was) dealt with the claim for damages of a child born disabled as a result of an infection of rubella. In relation to the assessment of damages when the complaint had to be that the child was allowed to be born at all, Ackner LJ observed (at 1189) that the compensation would have to be based on a comparison between the value of non-existence (the negligence having deprived her of that) and the value of her existence in a disabled state. He went on: “But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns’? No comparison is possible and therefore no damage can be established which a court could recognise.” 20. The claims for wrongful birth identified above are claims by the mother, not the child who was the product: the only exception is provided by statute in the Congenital Disabilities (Civil Liability) Act 1976. Thus, if the crime of violence had not been committed, Y would not have existed; Y could not be a [NAME] prior to conception and if he had not received the genetic material that caused him to fall on the wrong side of the 50% possibility of genetic disorder, he would not have been ‘Y’ but some other person. Putting the matter [NAME] way, it is impossible to assume that Y had a pre-disability state from which to measure the extent of injury.

[2018] AACR 35 ([NAME] v [NAME] and Y)

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21. Furthermore, although [NAME] recognised that para. 9(c) of the 2008 Scheme was intended to remove the right to claim compensation following consensual sexual activity (rendered unlawful by age or other reason), it underlined the need for the [NAME] to exist at the time and to have been the subject of the sexual offence, looking at his or her state of mind at the time. 22. [NAME] for Y went back to R v [NAME] ex parte Webb [1987] QB 74, in which, dealing with what was then the non-statutory scheme, Lawton LJ observed (at 78A) that the court should not construe the scheme as if it were a statute but “as a public announcement of what the government was willing to do”, adding: “This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.” This phrase, [NAME] argued, echoed the observations in the [NAME] referring to what would be understood “in everyday terms and in common parlance”. 23. [NAME] underlined that submission by arguing that caution had to be exercised before bringing the [NAME] into the construction of a scheme intended to be understood and applied by lay people, seeking support from observations in Rust-Andrews v First-tier Tribunal [2011] EWCA Civ 1548 directed (per Carnwath LJ at [34]) to avoiding trying to fit the Scheme into “a pre-conceived ‘[NAME]’ model”. A reasonable and literate man would say that Y’s disabilities were a consequence of the incestuous rape. As for para. 9(c), it was important to read it in the context of ruling claims based on consensual activity out of the Scheme. That was not this case. Discussion 24. It is important to underline that whatever might have been its origins, the 2008 Scheme is governed by the 1995 Act and, by s 11(1) and (2), had to be laid before Parliament and approved by resolution of both Houses. It must now be governed by the rules of statutory construction which apply to all such instruments and the observations that some different standard should be deployed no longer apply. Having said that, however, [NAME] was unable to point to a difference between an approach adopted applying the usual rules of construction and those adopted applying the ‘reasonable and literate man’ test.

25. Furthermore, although the assessment of compensation is no longer to be approached using preconceived [NAME] models, that is not because the 2008 Scheme is a different species of law but because the 1995 Act and the 2008 Scheme no longer assess damages by reference to [NAME] principles but rather on a prescribed tariff. No authority suggests that it is appropriate to approach issues of entitlement other than by reference to a proper construction of the terms of the 2008 Scheme.

26. For my part, I would construe the 2008 Scheme to mean that the [NAME] of the crime of violence in this case could only be M (with the result that she was entitled to receive compensation for the personal consequences to her of her father’s actions). To suggest that Y, who had not been conceived at the time of the crime, was himself a [NAME] of crime (the nature of the crime involved being difficult to discern) or that it is possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that

[2018] AACR 35 ([NAME] v [NAME] and Y)

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which the Scheme was seeking to cover. That M (and mothers in her position) should receive compensation to reflect the undeniable difficulties which she has experienced and continues to experience in carrying the responsibility for caring for a disabled child born as a result of the sexual crime of violence committed against her is [NAME] matter and one that should be addressed by the Secretary of State: for my part, it is difficult to see why, as a matter of fairness, the [NAME] approach adopted in such cases as [NAME] v St James and Seacroft University Hospital NHS Trust should not be incorporated into the Scheme.

27. There are aspects of [NAME] which no longer fit with developments in the [NAME] but I have no doubt that the fundamental analysis remains sound, as is the analysis of the [NAME] which I would endorse. I agree with [NAME]’ submission that it was insufficient for the [NAME] to conclude that in common parlance Y had suffered injury without adequate reasoning to justify that conclusion.

28. I cannot leave this case without again repeating my profound sympathy for M and the difficulties that Y experiences. That cannot, however, blind me to what I consider as the only proper construction of the 2008 Scheme. In the circumstances, I would allow the appeal and restore the order of the [NAME]. Lord Justice McFarlane:

29. I agree with all that my Lord, the President, has said and agree that, as a result, the appeal must be allowed. In particular I would wish to associate myself with his expression of profound sympathy for M and for Y. The courts are, sadly, familiar with cases in which both the physical and long-term emotional impact of child sexual abuse are all too plain to see. Here, because the abuse occurred over many years, the emotional impact on M is likely to have been, and to continue to be, of the highest order. The present case, however, goes even further than that for M and, in so far as he may understand it, Y, who have had to live out the adverse consequences of the close-blood relationship of Y’s parents on a daily basis for the past 30 years. We know little of their circumstances, but I strongly suspect that M’s action in bringing this claim on behalf of Y is but one example of the way that she has stood up for him, and stood by him, throughout this long period. Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect. Lord Justice Henderson:

30. This is a very sad case, and I too wish to associate myself with the President’s expression of profound sympathy for both M and Y. Nevertheless, for the reasons given by the President, with which I am in full agreement, I am satisfied that Y’s claim for compensation under the 2008 Scheme cannot succeed.

31. The difficulties which confront Y’s claim can be articulated in various ways, but to my mind one of the central points made by [NAME] in his submissions for the [NAME] is that Y is a person who, of necessity, has never had any existence except as the genetic product of the union between his mother, M, and her father. This union involved the commission of a crime of violence, of which M was undoubtedly a [NAME], and in respect of which she has claimed and been awarded compensation in 1994 under an earlier version of the Scheme. But Y cannot claim to have sustained a personal injury in and directly attributable to that same

[2018] AACR 35 ([NAME] v [NAME] and Y)

9

crime of violence, within the meaning of “criminal injury” in paragraph 8 of the 2008 Scheme, because he had no prior existence when the crime was committed. The injury of which he complains is, in truth, a complaint about the genetic inheritance which made him the unique person who he is. That is not a complaint of an injury sustained by him, because he, the person allegedly injured, has never existed in an uninjured state. On analysis, his real complaint would have to be that he should never have been conceived at all. A complaint of that nature, however, is not a claim for personal injury, but a claim for wrongful existence, which as this court explained in [NAME] v [NAME] Authority is not one which the law can recognise, or for which compensation could be assessed.