In February 2012 Drs Sivaraman and Rajmohan were the subject of an undercover operation organised by The Daily Telegraph at various abortion clinics in England. The evidence obtained was passed to the police and, after an investigation, considered by the Crown Prosecution Service (CPS). It was concluded that in each case there was sufficient evidence of an abortion offence, although this was a finely balanced decision, but that it was not in the public interest to prosecute. On 5 September 2013 and, in more detail, on 7 October 2013 the CPS issued public statements explaining the decision making in these cases.
A person called Ms Hubert has now commenced private prosecutions against both doctors arising from the same undercover operation. She alleges that each doctor conspired with person(s) unknown to commit an offence contrary to section 59 of Offences Against the Person Act 1861, that is to procure or supply a poison or other noxious thing knowing that it was intended to be unlawfully used with intent to procure a miscarriage. Each defendant has asked the CPS to intervene and stop these prosecutions, as is their right under section 6(2) of the Prosecution of Offences Act 1985. We are bound to consider the case according to the test set out in the Code for Crown Prosecutors, which, if not met, means we have no choice but to stop the case. In each case, in accordance with our legal guidance, the parties, including the private prosecutor have been asked to supply a complete set of papers relied on by them.
The evidence relied on by the private prosecutor in each case consists of a single unsigned and undated witness statement from Aisling Hubert. 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.
However, in order to give this case the fairest possible consideration, we have decided to consider the charge selected by the private prosecutor against all available evidence known to exist. This includes 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.
Section 59 of the 1861 Act makes it an offence unlawfully "to supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman". It 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, “unlawfully using poison, instruments or other means with intent to procure a miscarriage”, 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.
In reaching this decision we have taken into account the three medical reports obtained and exhibited by the private prosecutor since we last considered this matter. These consist of two reports from consultants in Gynaecology and Obstetrics and one from a General Practitioner, who only saw the limited material supplied by the private prosecutor. On a number of important matters there is a divergence of opinion between them. Some of their evidence supports the previous decision, for example:
- The two consultants relied upon both agree that a doctor does not need to see, let alone examine, the pregnant woman before an abortion is authorised by signing form HSA/1. This was an important factor in the consideration of Dr Rajmohan's case which is, again, supported by the expert evidence.
- An important consideration to both stages of the Code test was the fact that there was, at the time, no professional guidance as to how doctors should go about the comparative risk assessments. One consultant agrees with this as a fact but argues it should make no difference to the assessment of the case. Another suggests there was guidance from the Department of Health but only to the effect that "doctors are expected to have enough evidence of the woman's circumstances to justify that they were able to form a good faith opinion that the ground for termination exists" or else they risk committing an offence. The third doctor believed the guidance derived from every doctor's general duty to take a full history from the patient and collect, organise and interpret the data obtained. Such divergence of opinion serves only to highlight the difficulty. In reality, specific guidance was not issued by Department of Health until May 2014.
Conclusion: In relation to the private prosecutions, we have concluded that they should be taken over by the CPS and stopped. On the current evidence before the court, there is in our judgement, insufficient evidence to form a realistic prospect of conviction. Taking into account all the other evidence we are 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.
