Background

In 2012, the Daily Telegraph organized an undercover operation into gender-specific (sex-selective) abortion at various abortion clinics in England and in February that year passed evidence concerning Doctors Palaniappan Rajmohan and Prabha Sivaraman to the Crown Prosecution Service and the police. The CPS concluded that in each case there was sufficient evidence of an abortion offence, although this was a finely balanced decision; however, it was not in the public interest to prosecute and the CPS published two statements regarding its decision on 5 September 2013 and 7 October 2013.

We covered these developments in: Gender-specific abortion: statistics, (12 September); Gender-specific abortion: law and ethics, (18 September); and in Gender-specific abortion: the CPS Statement, (9 October)); and reported on the Westminster Hall debate in Gender-specific abortion: the Attorney-General’s view, (10 October).

Having reviewed the issues of “law and guidance” addressed in the CPS’s latter statement, we concluded that a major problem with its decision not to prosecute appeared to be the unclear presentation of its September statement, rather than the substance of the decision itself. The facts subsequently available provided stronger support for the action taken by the CPS; in line with its Code, the CPS analyzed the evidence of the two doctors, considered it in relation to the relevant legislation, how their accounts might be challenged in court, and weighed up the public interest of a prosecution.

We noted that the Christian Legal Centre was considering a private prosecution of the two doctors and/or seeking judicial review; and e commented that regardless of any legal action that might be pursued, there was a pressing need to address two issues: the “far from clear” guidance issued by the BMA in 2012 and the apparent widespread practice of the pre-signature of form HSA/1 relating to an abortion.

Private prosecution

On 5 December 2014, Christian Concern announced:

“What is believed to be the UK’s first ‘gender-abortion’ prosecution is to proceed to the Crown Court, following a hearing at Manchester and Salford Magistrates’ Court. A preliminary hearing in the Crown Court is expected to take place on Friday 6th February 2015 … Dr Prabha Silvaraman is accused of conspiracy to procure an illegal abortion,”

and on 27 January 2015 it stated:

“Dr Palaniappan Rajmohan is to face the criminal charge, after Birmingham Magistrates’ Court yesterday (26 Jan) granted a summons and ordered him to appear before the Crown Court on 21st May 2015.”

The right to bring private prosecutions in England and Wales (they are almost unheard of in Scotland) is preserved by section 6(1) Prosecution of Offences Act 1985, although the Director of Public Prosecutions (DPP) has power under section 6(2) of to take over private prosecutions; and in some cases the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings. CPS Guidelines state that a private prosecution should be taken over and stopped by the CPS if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

In these two cases, each defendant asked the CPS to intervene and stop the prosecutions under section 6(2) of the 1985 Act, following which the CPS was required to consider them according to the test set out in the Code for Crown Prosecutors; if, as was the case, the test was not met, the CPS had no choice but to stop the case.

CPS Decision

Whilst welcomed by the British Pregnancy Advisory Service (Bpas), the UK’s biggest abortion provider, there was strong criticism from pro-life campaigners and the Christian Legal Centre, here, here, and elsewhere. However, a more nuanced account of the evidential issues is evident from the CPS Official blog. This states:

“The evidence relied on by the private prosecutor in each case consists of a single unsigned and undated witness statement from Aisling Hubert, [a member of the campaign group Abort67]. It seeks to produce other evidence in the case as exhibits, including extracts of the covert footage taken during each consultation and medical reports from three expert witnesses. It does not include any of the witness statements obtained during the original investigation, most notably those of the undercover journalist and the pregnant woman, known as E, who were present at the consultations.

Ms Hubert appears to have no personal knowledge of the events in question and so gives no admissible evidence about them. 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 in the footage forms part of the private prosecutor’s case, witnesses who could perhaps be asked questions to put these extracts in their proper context during any trial. In these circumstances a 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.

Therefore, no admissible evidence has been served to support any offence and, applying our legal guidance, there is insufficient evidence put forward by the private prosecutor. Their case has no realistic prospect of conviction and these prosecutions should be taken over and stopped.”

Despite this lack of admissible evidence, “in order to give this case the fairest possible consideration”, the CPS decided to consider the charge selected by the private prosecutor against all available evidence known to exist, including: all the original case papers considered by the CPS in 2013; the full versions of the covert footage; and the extra information Ms Hubert supplied. It continues:

“Section 59 of the 1861 Act … essentially criminalises the obtaining or supplying of a tool [here, as alleged, poison] which is intended for use to carry out a miscarriage unlawfully. This is not supported by the evidence. The evidence does not show that they supplied or procured poison, nor that they conspired with any other person to do so or even attempted to do so.

However, we widened our consideration and looked to see if there could be a prosecution for any abortion offence on the evidence known to exist. Having done so, we have come to the same conclusion as was met in 2013. As far as section 58 of the 1861 Act is concerned … there is just sufficient evidence to provide a realistic prospect of conviction but the public interest factors against a prosecution outweigh those in favour for the reasons previously given.”

The CPS concluded, [our emphasis]:

• In relation to the private prosecutions, they should be taken over by the CPS and stopped. On the current evidence before the court, there was in its judgment, insufficient evidence to form a realistic prospect of conviction.
• Taking into account all the other evidence of which the CPS was aware of, whilst there is sufficient evidence for a realistic prospect of conviction, 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, here.

Footnote

In May 2014, the Department of Health issued new Guidance in Relation to Requirements of the Abortion Act 1967 which was addressed to “all those responsible for commissioning, providing and managing service provision.” Section 25, Abortion on the ground of gender, states:

“Abortion on the grounds of gender alone is illegal. Gender is not itself a lawful ground under the Abortion Act (see Annex A for the lawful grounds under Section 1(1)). However, it is lawful to abort a fetus where two RMPs are of the opinion, formed in good faith, “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”, and some serious conditions are known to be gender-related.”

In relation to signing of Forms HSA 1, section 17 states:

“The pre-signing of HSA1 forms calls into question whether a doctor could turn his or her mind to a specific woman’s circumstances and form a good faith opinion about which, if any, of the lawful grounds under the Abortion Act might apply (see Annex A) … [The Department of Health] considers pre-signing of forms (without subsequent consideration of any information relating to the woman) to be incompatible with the requirements of the Abortion Act,”

and on the signing HSA1 forms based on the decisions of another doctor,

“… Treating certification by one or either doctor as a ‘rubber stamp’ exercise is therefore contrary to the spirit of the Act and calls into question whether that doctor is in fact providing an opinion that they have formed themselves in good faith rather than relying solely on a colleague’s opinion, however trusted that colleague’s judgment may be. [The Department of Health] considers the signing of forms without consideration of any information relating to the woman to be incompatible with the requirements of the Abortion Act.”

On 23 February 2015, the Commons rejected a cross-party bid to clarify in law that abortion on the grounds of gender alone is illegal in the UK. An amendment by Fiona Bruce, co-chair of the All-Party Parliamentary Pro-Life Group, to the Serious Crime Bill to that effect [new clause 1] was defeated by 292 to 201; but an amendment to provide for a review of the extent of gender selection abortion in England, Wales and Northern Ireland [new clause 25] was agreed to by 491 to 2, here.