Laura Perrins is a former barrister and part-time Teaching Fellow in criminal law at University College London. You can follow her on Twitter @LPerrins.
The Crown Prosecution Service has decided not to prosecute ‘doctors who agreed to arrange illegal abortions based on the sex of the unborn baby’ (as reported in the Telegraph). The CPS said it was not in the ‘public interest’ to do so even though there was an offence in law committed and there was enough evidence to proceed. This is a shocking decision made on no reasonable basis whatsoever. It must be challenged.
When faced with a possible prosecution the CPS must first decide if there was an offence in law committed. If an offence was committed they apply a test set down in law to decide if there should be a charge. The first part asks "is there sufficient evidence that there will be a ‘reasonable prospect of conviction.’" If there is sufficient evidence the CPS then asks is it in the ‘public interest’ to prosecute.
The CPS said that there was an offence committed in this case, one of ‘attempt’ (to procure a miscarriage, I assume). They also said that there was sufficient evidence to convict. However the CPS said that it was not in the public interest to prosecute.
It is rare for the CPS to decide that despite there being sufficient evidence to prosecute it is not in the public interest to proceed. It is sometimes used if there are State secrets or intelligence the CPS does not want to reveal, or the prosecution would be simply pointless such as prosecuting a terminally ill person for a minor offence. This was not the case here. When applying its discretion however, the CPS cannot decide on a whim who to prosecute. It must be a reason based decision and not arbitrary. The reasons given were set out be Jenny Hopkins the Deputy Chief Crown Prosecutor for London. She said:
“On considering the public interest factors, as set out in the Code for Crown prosecutors, one highly relevant factor in this regard is that the responsible professional body, in this case the General Medical Council, is already involved and has the power to remove doctors from the medical register. Taking into account the need for professional judgement which deals firmly with wrongdoing, while not deterring other doctors from carrying out legitimate and medically justified abortions, we have concluded that these specific cases would be better dealt with by the GMC rather than by prosecution.”
There are two reasons given for not prosecuting. The first is that the GMC could deal with any wrongdoing, the second is that prosecuting could have a chilling effect on doctors carrying out lawful terminations. Both reasons are spurious, and so intellectually dishonest they amount to a gross breach of the rule of law, an abuse of prosecutorial discretion and drive a coach and horses though the provisions of Abortion Act 1967.
The fact that a regulatory body could discipline its members should never be a reason not to prosecute. It might a reason for a reduction in sentence, but never a reason not to prosecute. If a solicitor spent client funds in a fraud the CPS would never say it was not in the public interest to prosecute, as the Law Society will strike them off. Likewise if a medical profession committed a sexual offence on a patient, the CPS would never say it was not in the public interest not to prosecute as they may be disciplined by their regulatory body. I have never seen such a reason given before for not prosecuting – in other words it is arbitrary.
The second point upon close analyses does not stand up to examination and is utter non-sense (hyphen intended). The CPS said it was not in the public interest to prosecute for fear of “not deterring other doctors from carrying out legitimate and medically justified abortions”. Let’s take a step back. An abortion by pretty much any means (procuring a miscarriage, administering a noxious substance) is illegal under the Offences Against the Person Act 1861. So abortions are prima facie illegal. The Abortion Act 1967 makes abortions lawful in some circumstances (although everyone accepts now, it is very wide, much wider than anyone could foresee). When the CPS speaks of ‘legitimate and medically justified abortions’, they mean lawful abortions. So the CPS have said they will not prosecute an unlawful act for fear it will stop lawful acts. This is literally nonsense, in fact "nonsense upon stilts", that could lead to the total unraveling of the criminal justice system. It is like saying we will not prosecute people who use grossly excessive force in self-defence for fear it would stop others acting in lawful self-defence. Or we will not prosecute rape offences (unlawful) for fear it will deter lawful sexual intercourse. This is a desperate attempt to legitimise the absurd.
The intellectual fraud continues when they state: “The evidence in this case was finely balanced and the law gives quite a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists.” Yes, but they have already decided that on balance this was an unlawful act, so why go back to discussing how it was finely balanced?
Finally they say “In coming to this conclusion, we have also taken into account the level of harm to the victim in the case, and the fact that in these cases no abortion took place or would have taken place.” Well, of course no abortion took place, that is why you are considering the inchoate offence of an ‘attempt’.
We should be under no illusions that this decision is a grave breach of the rule of law. It is not for the CPS to pick and choose which laws they wish to enforce and the use of prosecutorial discretion with the public interest test and consequent intellectual acrobatics they attempted to form are desperate attempts to act within their powers. The CPS has usurped not only Parliament, that has laid down the law in the 1967 Act, but the role of the jury also. It may well be that this case was ‘finely balanced’ but once the CPS decided there was an offence in law committed and there was sufficient evidence to charge, they should have charged. It is then for a jury to decide if a conviction is appropriate in this case.
I sincerely hope this decision is subject to judicial review. The reasons given not to prosecute do not stand up to even the most basic scrutiny and are so unreasonable no decision maker could make the same decision. The CPS have essentially said that they will not prosecute anything other than a back street abortion, which is not what the Abortion Act 1967 lays out. This decision sends the message that anything goes under the Act, essentially driving a coach and horses through the already limited safeguards in the Act. The CPS should be brought to heel.