The CPS has decided not to prosecute doctors apparently willing to perform abortions for the purpose of sex selection. Following an investigation instigated by the Daily Telegraph, the police presented the CPS with what appears to have been strong evidence that two separate doctors were prepared to perform an abortion on an undercover journalist simply because she said that she did not want to give birth to a girl.
The decision has been heavily criticised, not just by those who oppose all abortion but also by those who generally support it such as the shadow Attorney General, Emily Thornberry. Ms Thornberry is usually a strong supporter of a woman’s right to choose, but she is opposed to that choice being exercised for reasons of gender selection.
According to the CPS statement there was, on balance sufficient evidence to proceed with a prosecution of two doctors for “attempt”. Oddly the statement omitted to identify which offence might have been attempted.
The only obvious candidate is S.58 of the Offences Against the Person Act 1861 which provides that:
“… whosoever with intent to procure the miscarriage of any woman … shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent shall … be liable … to imprisonment for life …”
According to the Daily Telegraph the closest that a doctor got to actually performing an abortion was to ask the reporter to book in for an appointment for a termination the following week.
An attempt to commit an offence under S.1 of the Criminal Attempts Act 1981 occurs when a person does an act which is “more than merely preparatory” to the offence. It is hard to think of a better example of what would be a “merely preparatory” step than inviting a patient to book herself in for an appointment.
Of course it is possible that the police investigation revealed that a doctor came closer to performing the procedure than this, but if not it seems pretty basic law that no attempt to commit an offence under S.58 was made out.
What about other offences? There are strict requirements on doctors to keep records under the Abortion Regulations 1991, and it is possible that these were breached. Indeed one of the doctors was reported as saying that he would put a false reason on the necessary certificate. But this does not seem to have been the focus of the DPP’s decision. He could hardly have been referring to an attempt to keep inadequate or false records.
So, given the obvious difficulty in identifying any offence that had been committed, it is, on the face of it, curious that the decision not to prosecute was taken on public interest grounds.
According to the CPS a public interest factor that seem to have weighed particularly heavily was the fact that the law gives “a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists.” This sounds like an evidential rather than a public interest factor against prosecution, but it is certainly true. S.1 of the 1967 Abortion Act provides a defence to any doctor who performs an abortion when two doctors have formed an opinion in good faith that, amongst other things:
(c) … the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated.
Any doctor acting in good faith is usually entitled, and often almost bound, to conclude that abortion is far safer than pregnancy. A recent US study1 concluded that the risk of death associated with childbirth is approximately 14 times higher than that with abortion. The BMA takes the view that “virtually all women seeking an abortion in the first trimester will meet the current medical criteria for an abortion.”2
The law does not require the doctor’s reason for authorising an abortion to coincide with the woman’s reason for wanting one. Indeed, in law the woman’s reason for wanting an abortion is immaterial.
In practice the law permits abortion on demand.
The CPS therefore made the right decision, albeit for the wrong reasons.
(A slightly shorter version of this article first appeared in Criminal Law and Justice Weekly on September 21 2013)
2The Law and Ethics of Abortion BMA Ethics Department November 2007