QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| R (on the application of AISLING HUBERT)
|- and -
|(1) DIRECTOR OF PUBLIC PROSECUTIONS
- and -
(1) DR PRABHA SIVARAMAN
(2) DR PALANIAPPAN RAJMOHAN
Steven Kovats QC (instructed by Crown Prosecution Service) for the Defendant
Jonathan Barnard (instructed by Hempsons Solicitors) for the First Interested Party
Hearing date: 1 December 2015
Crown Copyright ©
MR JUSTICE IRWIN:
"The case against Dr S
On 8 February 2012, a pregnant woman (referred to herein as "E") attended a clinic using a false name. She was accompanied by an Investigative Reporter at the Daily Telegraph, posing as E's step sister.
After initial exchanges, E explained to Dr S that she was eight weeks pregnant and that she had had a blood test in France which indicated that there was a "high chance" that she was having a girl. E said that a girl was not really appropriate for her and her partner "right now" and that they were hoping for a boy.
Dr S asked what sort of test took place in France.
E then stated that she had had a previous pregnancy involving a girl which did not go to plan. She said that there was a chromosomal abnormality and the pregnancy was lost at 22 weeks.
Dr S said, "I'm curious" and asked for reports of the test that took place in France. E said that she did not have any reports. Dr S said, "I don't ask questions, if you want a termination, you want a termination."
After a general discussion about E's health and a scan, Dr S clarified whether E wanted to go to a private clinic. Dr S then telephoned a colleague to make the necessary arrangements and, in doing so, said "she's had a foetal loss before at 22 weeks, but this time it's basically social reasons."
When Dr S was interviewed by the police, she produced a prepared statement. She said that E told her that she had previously miscarried a female foetus, which was found to have a foetal abnormality. She also said that although E told her that she had had a test in France which indicated the gender of the foetus, she (Dr S) did not believe her.
Dr S said that she did not know of any non-invasive test that could identify gender at such an early stage of pregnancy. She thought that E was not telling the truth and that there must have been some other reason why E wanted a termination.
Dr S said:
"A woman claiming to have discovered that the foetus is female when that is a scientific impossibility is plainly hiding the truth. It follows that the truth is likely to mean that there are serious problems surrounding the pregnancy such that a termination would be in accordance with the Act."
Dr S said that she believed that her management of E would be supported by a reasonable and responsible body of obstetricians and gynaecologists.
The case against Dr R
On 10 February 2012, the same pregnant woman ("E") was again engaged by the Daily Telegraph to attend a clinic, again using a false name.
After a scan conducted by a nurse, E told Dr R that she had had a previous pregnancy that ended at 22 weeks because the female foetus had "chromosomal defects'. When Dr R later asked E why she wanted a termination, E said:
"...me and my partner found out the gender in France through a blood test that you can have there in pregnancy and we found out it's another girl. We don't want a girl again because of the last time."
Dr R confirmed that this was the reason and then said "it's like female infanticide isn't it". E then asked if Dr R could put another reason down and Dr R agreed indicating that foetal gender is "not a good reason anytime". Dr R agreed to put down that E was too young for a pregnancy.
When interviewed by the police, Dr R provided a prepared statement in which he said he assessed the patient and the circumstances as explained to him and concluded that an abortion was justified on health grounds. He said the assessment was reasonable and arrived at in good faith.
An abortion can only be authorised if two medical practitioners are of the opinion, held in good faith that one of the lawful grounds for an abortion is made out, Form HSA/1 is the form that is used to record the decision of the two medical practitioners.
In the case of Dr R. there is evidence that another doctor in the same clinic, Dr K, pre-signed the form HSA/1 which was subsequently signed by Dr R. Dr K indicated on the form that he had not seen the patient. He signed as if he were the second doctor, but left the date blank."
"(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) 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; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment."
"Abortion on the grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act and therefore termination on this ground alone has been challenged as out with the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health, or that of her existing children, would be put at greater risk than if she terminated the pregnancy, the abortion would arguably be lawful under section 1(1) (a) of the Abortion Act. (see page 283) [Morgan D (2001) Issues in medical law and ethics, Cavendish Publishing, London, pp147-9]. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone, except in cases of severe sex-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide legal and ethical justification for a termination. They should be prepared to justify the decision if challenged."
"The discretion afforded to a doctor in assessing the risk to the mental or physical health of a patient wanting an abortion is wide and, having consulted an experienced consultant in obstetrics and gynaecology, it appears that there is no generally accepted approach among the medical profession."
"It is questionable whether the interests of justice are served in bringing a prosecution where such levels of uncertainty exist. In the absence of guidance the jury would have no yardstick by which they could measure the conduct of any doctor facing prosecution. … There is a serious risk that different juries would reach different decisions on essentially the same facts."
The First Judicial Review
"The only potentially admissible evidence is that contained in the extracts from the covert footage produced as exhibits. However these are heavily edited and reduced in length. It may be argued that the manner in which they have been edited means that they do not provide a fair and balanced representation of events at each consultation. Moreover, no witness who was actually present is relied upon who could perhaps be asked questions to put these extracts in their proper context. In these circumstances the judge is likely to exclude these extracts as evidence under Section 78 of the Police and Criminal Evidence Act 1984. When considering the evidential stage of the code for crown prosecutors, prosecutors must consider the admissibility of evidence."
"On the current evidence before the court there is insufficient evidence to form a realistic prospect of conviction. Even taking into account all the other evidence, there is insufficient evidence of a conspiracy to commit an offence contrary to Section 59. Whilst there is sufficient evidence for a realistic prospect of conviction of an offence under Section 58, this is truly very finely balanced indeed. However the public interest considerations in not pursuing a prosecution outweigh those in favour, as concluded and set out in 2013."
The Second Judicial Review
The Claimant's Arguments
"Provided there is evidence from which the jury may properly convict, it can only be in the rarest of circumstances that the prosecution may be required to justify the decision to prosecute."
LORD JUSTICE BURNETT: