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Man with disabilities born from incestuous rape has right to compensation, rules judge

BMJ 2016; 353 doi: https://doi.org/10.1136/bmj.i2684 (Published 11 May 2016) Cite this as: BMJ 2016;353:i2684
  1. Clare Dyer
  1. The BMJ

A 29 year old man who was born with serious disabilities after an incestuous rape has won the right to criminal injuries compensation, in the first case of its kind in the United Kingdom.

The man, referred to as Y, has severe learning difficulties, developmental delay, a heart murmur, hearing and sight problems, lax joints, epilepsy, and no sense of danger. He was born as a result of his mother’s rape by her own father, who was later convicted of incest.

Y’s mother has already received compensation from the Criminal Injuries Compensation Authority, the state funded body that compensates victims of violent crime in England, Scotland, and Wales. But when Y’s lawyers applied to the authority, arguing that he too was a victim of violent crime, his claim was rejected.

An appeal to the first tier tribunal (Social Entitlement Chamber) also failed. But now the upper tribunal (Administrative Appeals Chamber) has quashed the first tier tribunal’s judgment and ruled that Y qualifies for compensation. He is expected to receive the maximum award of £500 000 (€633 000; $721 000) when the case goes back to the authority.

The ruling comes more than two years after the Court of Appeal decided that children born with fetal alcohol spectrum disorder did not qualify for criminal compensation because no crime had been committed.1

In that case, a local authority looking after a girl with the disorder had argued that mothers who drink excessively during pregnancy commit the offence of administering a poison or other “destructive or noxious thing” to another person—a crime under the Offences against the Person Act 1861. But the appeal court ruled that a fetus is not a person and that therefore this crime had not been committed.

In Y’s case, the authority argued that he had not been injured in a crime of violence and that his condition arose from the consanguineous relationship between his parents, not from the assault itself.

The first tier tribunal adopted the reasoning from a 1996 Scottish case similar to Y’s. The judge in that case decided that “congenital injuries cannot properly be held to be injuries within the meaning of the [1969 criminal injuries compensation] scheme.” He said that the idea of injuries presupposed the existence of a “pre-injury” and a “post-injury” state and said that the child involved never could have had any existence except in a defective state.

In Y’s case, however, Judge Howard Levenson said that the 2008 compensation scheme, which now applies, contained no requirement to establish facts about a “pre-injured” state. In addition, he said, the fetal alcohol syndrome cases were different from Y’s, because in those cases the crime could be committed only against a person, such that no crime and therefore no violent crime existed in those cases.

“There is no provision in the [2008] scheme that the applicant must have been ‘a person’ at the time that the crime of violence was committed,” said the judge. “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.”

Y’s solicitor, Malcolm Johnson, of BL Claims Solicitors, said that the “significant” judgment would open the way for other similarly injured people to claim compensation, although the numbers affected would probably be small.

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