A Typo in the Constitution

Greg Callus' musings on law, politics, media, culture, and life

Abortion, Gender & Prosecutorial Discretion

Disclaimer: Writing this article breaks my long-standing rule never to write about either the Middle East or Abortion. I know little about either subject, and have no particular interest in either moral quagmire, so I generally seek to avoid the grief that inevitably ensues from people who know as little as I do, but don’t consider that a barrier to being dangerously interested in them as political disputes. I do not identify as either pro-life or pro-choice. For the purposes of this article I make no statement about the underlying issue of abortion. I am interested in prosecutorial discretion, and its limits.


This article is about Abortion. More particularly, it is about the decision of the CPS not to prosecute doctors caught agreeing to abortions on the grounds of foetal gender, as exposed by an investigation in the Telegraph.

There are a variety of offences in connection with abortion. After the 28-week mark, the charge might be ‘child destruction’ contrary to section 1(1) of the Infant Life (Preservation) Act 1929. More often, the offence charged is to be found in sections 58 and 59 of the Offences Against the Person Act 1861 (the same statute that gives us GBH and Bigamy).

Section 58 concerns administering drugs or using instruments to procure abortion. Section 59 concerns procuring drugs, instruments or any thing with the intent to be unlawfully used with the intent of procuring an abortion. The Abortion Act 1967 itself only creates one offence – section 2(3) is a summary offence relating to wilfully breaching the certification and record-keeping demanded of doctors under the Abortion Regulations 1991. Otherwise, the Abortion Act 1967 doesn’t create offences, but rather provides defences for what would otherwise be breaches of ss58/59 or (at s5(1) of the Act) the Infant Life (Preservation) Act 1929.

Other than cases of life and limb or serious foetal disability, the Abortion Act 1967 gives an absolute defence – to pregnant woman, partner, doctor, or whomsoever - if the abortion arises after two registered medical practitioners are of the opinion, formed in good faith, that “…the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family” (section 1(1)(a)).

The discretion afforded doctors is very wide – ‘good faith’ simply requires honesty, integrity and genuineness, but doesn’t include any objective standard, such as reasonableness, or rationality, or lack of negligence: see for example SNCB Holding v UBS AG [2012] EWHC 2044 (Comm).

Whether or not a doctor acted in ‘good faith’ is a matter for the jury to be decided on the totality of the evidence, per the Court of Appeal in the leading case of R v Smith (John Anthony James) (1974) 58 Cr App R 106. Proving – beyond reasonable doubt – that a defendant doctor acted other than in good faith is very difficult for the prosecution. This might explain why prosecutions of doctors for abortion offences are so rare. Beyond R v Smith, the only other post-1967 conviction of a doctor I have found was overturned on appeal: R v Price (Herbert) [1969] 1 QB 541.

That being the background, what general rules do the CPS follow in deciding whether or not to prosecute a suspect? The ‘full code test’ has two parts: first, the CPS will assess whether there is sufficient evidence that there are reasonable prospects of securing a conviction. The Telegraph article includes the CPS statement indicating that in four cases relating to medical professionals referred by the newspaper, the decision was taken that there was not enough evidence.

If there is sufficient evidence, then the second part of the test is whether or not a prosecution would be ‘in the public interest’. The criteria for the public interest are given in detail on the CPS website, but broadly include seriousness of the offence, culpability of the suspect, age of suspect, harm to victim and proportionality. For avoidance of doubt, abortion offences mentioned above are certainly considered serious as a matter of law: child destruction is Class A, s58 is Class B, s59 is Class C.

However, it is not clear that there has been an offence committed under ss58 or 59 here. No abortion was in fact performed, which renders s58 largely moot. It seems unlikely that specific instruments or drugs were procured for the abortion to be performed on the Telegraph’s sting operative. Procurement under s59 must itself be unlawful, and be with intent to be unlawfully used – this goes further than merely the absence of good faith: the doctor would have to intentionally be procuring drugs or instruments with the intent that their use should be unlawful. Actual bad faith must be proven beyond reasonable doubt.

In R v Ahmed (Ajaz) [2010] EWCA Crim 1949, a husband accompanied his wife to the doctors to procure her an abortion, as she did not speak English. An Urdu-speaking nurse told the wife just before the procedure that it was a termination, and the wife was horrified. However, s59 did not outlaw ‘procuring an abortion’, but procuring things that could be possessed and transferred from one person to another, like poisons or surgical instruments (per R v Mills [1963] 1 QB 522). It was not apt to cover ‘arranging a surgical procedure’. Ahmed’s appeal was allowed.

Already then, in the absence of an abortion taking place, it is not clear what offence has clearly been committed by the doctors, unless their record-keeping breached the Abortion Regulations 1991. That would explain CPS’ Jenny Hopkins reliance on the Criminal Attempts Act 1981. This would, as far as I can tell, be a novel development in English law. There are some Scottish cases (different laws on abortion) that have considered ‘attempts’ (as a species of crime) in connection with abortions – see HM Advocate v Baxter (1908) 16 SLT 475; HM Advocate v Anderson (1928) JC 1; HM Advocate v Semple (1937) SLT 48 – see also the differing approaches of the English and Scottish courts on attempt, referencing these cases in Docherty (James) v Brown (1996) JC 48.

From the outset, a successful prosecution on the basis of combining ss58/59 with the Criminal Attempts Act 1981 would have to overcome significant legal obstacles. Is the mere agreement of the doctors an act that is ‘more than preparatory’ of the underlying offence? And is R v Smith (supra) (pp109-110) authority that the proper exercise of good faith discretion must simply be prior to the actual time at which the operation is undertaken (obviating a prior bad faith decision)? Such a case could open up a legal minefield.

Although the offence would be relatively serious (if it had been committed) the offence of ‘attempt’ would not rank so highly in the CPS calculation. There was no harm caused to any victim, and the culpability of the doctor is - it might reasonably be said - a matter much better left to the GMC than the CPS or a jury.

Ann Furedi, the CEO of the British Pregnancy Advisory Service (BPAS), noted the law’s silence on foetal gender as a grounds for abortion, allowing that it would be wrong only in some circumstances. Her position, whilst controversial, is probably correct in law. There is no express statutory provision prohibiting abortion on the grounds of foetal gender, and s1(2) of the Abortion Act 1967 says ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment’ – sometimes translated as ‘social reasons’, though the impact must be on the pregnant woman’s physical or mental health.

The gender of the foetus could legally – even legitimately – play a role in the doctor’s good faith exercise of discretion: if, for example, a pregnant woman knew that a her religious male partner would insist (against her very strong wishes) on circumcision of their child if it was one gender (but not the other), the inevitability of such surgery might be of massive significance in predicting her mental health during pregnancy. Irrespective of the moral rights and wrongs of the decision, a doctor could surely in good faith consider the foetus’ gender relevant – even determinative - for the purposes of the Abortion Act 1967.

The key factor is the ‘good faith’ exercise of the doctors’ discretion. As a general rule, courts are reluctant to challenge the exercise of discretion by qualified experts unless they are far outside the accepted bounds of professional decision-making. Laws LJ, in R (ex parte Pro-Life Alliance) v BBC [2002] EWCA Civ 297, remarked obiter dicta at §6 that many doctors apparently considered any pregnancy posed a greater risk of injury to a pregnant woman than an abortion, and so there was de facto abortion on demand.

The courts have said that the Abortion Act 1967 follows the common law as laid down in R v Bourne [1939] 1 KB 687, namely that the legality of an abortion depends on professional medical opinion of the patient. This imposes a significant social burden on doctors, but also on the regulator: the General Medical Council. Indeed, in Paton v BPAS [1979] QB 276 (a civil claim by a husband seeking an injunction against his wife from terminating a pregnancy) Sir George Baker P said at pp281-282 that:

“My own view is that it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967. The great social responsibility is firmly placed by the law upon the shoulders of the medical profession …

This certificate is clear, and not only would it be a bold and brave judge (I think Mr. Rankin used that expression) who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence. Even then, of course, the question is whether that is a matter which should be left to the Director of Public Prosecutions and the Attorney-General. I say no more for I have stated my view of the law of England.”

In the circumstances, I’m not sure that the Telegraph investigation showed clear bad faith and an obvious attempt to perpetrate a criminal offence. The discretion afforded to doctors is wide, and the CPS – whether rightly or wrongly – I think was clearly within its rights to determine that this was better dealt with by the GMC than by a Crown Court jury. I do not think that the CPS’ decision – namely, its discretion in assessing a doctor’s discretion – could be described as either irrational or Wednesbury unreasonable. Even if morally repugnant to many, it was almost certainly a conclusion within the bounds the CPS could reasonably reach. I would expect the decision to easily resist judicial review.

I have yet to examine my own conscience to reach a settled view on the morality of what has been uncovered by the Telegraph. But as a matter of purest law, I find myself much less outraged at the CPS decision than most of the reaction I’ve seen, and so I hope that this article has done something to at least explain how their decision might be legally – if not morally – justified.

Thoughts - on the law, not on abortion - welcome. Reach me by sending a message to @Greg_Callus on Twitter.

UPDATE 09:11 I’m grateful to @RobertaWedge for pointing out that on two occasions I originally referred to ‘mother’ and ‘father’, rather than the more legally correct (and less emotive) ‘pregnant woman’ and ‘partner’. Apologies - perils of writing at 2am! I’ve changed those, but have kept references to ‘husband’ and ‘wife’ when referring to cases where the official reports explain the parties’ relationship that way. 

  • 6 September 2013