By Charles Foster
Philosophers have a non-identity problem. It is that they are not identified as relevant by the courts. This, in an age where funding and preferment are often linked to engagement with the non-academic world, is a worry.
M (‘the mother’) was raped repeatedly by her father. She gave birth to Y, who, because of the incest, suffered from a serious genetic disorder. Y claimed compensation under the Criminal Injuries Compensation Scheme. She was not entitled to compensation, said the Court of Appeal.
The President of the Queen’s Bench Division, Sir Brian Leveson said:
‘I would construe the 2008 Scheme to mean that the victim 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 victim 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 which the Scheme was seeking to cover.’1
He cited with approval2 the following passage from a Scottish case (Millar (Curator Bonis to AP) v Criminal Injuries Compensation Board)3, which was concerned with materially identical facts:
‘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.