Heidi Crowter v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Thirlwall LJ,Peter Jackson LJ |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1559 |
| Docket Number | Case No: CA-2021-000314 |
| Court | Court of Appeal (Civil Division) |
The King, on the application of:
[2022] EWCA Civ 1559
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Thirlwall
and
Lord Justice Peter Jackson
Case No: CA-2021-000314
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Singh and Mrs Justice Lieven
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel KC and Bruno Quintavalle (instructed by Sinclairs Law) for the Appellants
Julia Smyth and Yaaser Vanderman (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 13 July 2022
Approved Judgment
This judgment was handed down remotely at 10.30 a.m. on 25 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal is about the law applying to the abortion of a foetus which may be born with serious disabilities. Section 1 (1) of the Abortion Act 1967, in its current form, reads:
“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.”
The remaining subsections are not relevant for our purposes. I will refer to subsection (1) as conferring a “right” to an abortion where one of conditions (a)-(d) is satisfied, though it would be strictly more accurate to say that its effect is to provide defences to what would otherwise be criminal conduct.
It will be seen that condition (d) of section 1 (1) does not require either, like condition (a), that the pregnancy has not exceeded 24 weeks, or, like conditions (a)-(c), that there be any risk to the health of the mother or (in the case of (a)) her other children. The effect is that it is lawful for a foetus to be aborted at any stage of the pregnancy if there is a substantial risk that if the child were born she or he would be seriously handicapped 1. The right under section 1 (1) (d) can in that sense be described as unrestricted, although of course it is subject to the good faith opinion of two doctors that there is a risk of serious handicap.
The Appellants have Down's syndrome 2. Their case on this appeal is that legislation which permits the abortion, without any restriction, of a foetus which is liable to be born seriously handicapped “perpetuates and reinforces” negative cultural stereotypes about people with handicaps by sending a message that their lives are less valuable; that it thereby breaches their rights under articles 8 and 14 of the European Convention on Human Rights (“the Convention”); and that the Court should accordingly make a declaration of incompatibility under section 4 of the Human Rights Act 1998. Although the Appellants' focus is on the impact of that message on people with Down's syndrome, their argument applies in principle to others born with serious handicaps.
The present proceedings for judicial review were commenced in June 2020. The Appellants were the First and Third Claimants, Heidi Crowter and Aidan Lea-Wilson 3. Ms Crowter is now married and in accordance with her preference I will in the rest of this judgment refer to her by her married name, Mrs Carter. Aidan is a minor and brings the claim by his mother, Maire Lea-Wilson, acting as his litigation friend. Ms Lea-Wilson originally advanced a claim in her own right and was the Second Claimant. The Defendant, the Respondent before us, is the Secretary of State for Health and Social Care.
So far as relevant to this appeal, the relief claimed at para. 70 of the Claimants' Statement of Facts and Grounds was
“a declaration, pursuant to s. 4 [of the 1998 Act] that s. 1 (1) (d) of the Abortion Act 1967 is incompatible with Articles 2, 3, 8 and 14 [of the Convention]”.
There was originally an alternative claim for a declaration that section 1 (1) (d) could be read down, in accordance with section 3 of the Act, so as “not [to] permit abortion on the basis that an unborn child has been diagnosed with a non-fatal fetal disability such as Down's Syndrome”; but that was not pursued.
The claim was heard by a Divisional Court comprising Singh LJ and Lieven J on 6 and 7 July 2021. By a judgment handed down on 23 September it was dismissed. This is an appeal against that decision, with the permission of Peter Jackson and Nicola Davies LJJ given at an oral hearing on 11 March 2022. It is important to note that, for reasons which I explain below, permission was not granted on the grounds relating to articles 2 and 3 but only on those relating to articles 8 and 14, and that it was only granted to Mrs Carter and Aidan and not to Ms Lea-Wilson in her own right.
The Appellants were represented before us by Mr Jason Coppel KC and Mr Bruno Quintavalle and the Respondent by Ms Julia Smyth and Mr Yaaser Vanderman. I am grateful for their clear and well-focused submissions. For convenience, and without disrespect to their juniors, I will refer to the skeleton arguments as Mr Coppel's and Ms Smyth's respectively (and I should record that the Secretary of State's skeleton is signed also by Sir James Eadie KC).
I should say something about terminology. The language of “handicap” is viewed by many people with disabilities as demeaning and is not now generally used. I will have to use it sometimes in this judgment because it is the language of the statute; but where possible I will use the paraphrase “serious disability”. (As appears at para. 54 below, there are other respects in which the language of section 1 (1) (d) may be regarded as outdated.)
THE LEGISLATION AND THE LEGISLATIVE HISTORY
I have already set out section 1 (1) of the 1967 Act as it now stands, but it is necessary to refer to the legislative scheme as a whole and explain the history.
Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence in England and Wales to administer drugs or use instruments to procure an abortion, and section 59 makes it a criminal offence to supply or procure drugs or any instrument for the purpose of procuring an abortion. Both offences carry a maximum sentence of life imprisonment. Those provisions are supplemented by section 1 of the Infant Life (Preservation Act) 1929, which provides:
“(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.”
The effect of the 1967 Act was to decriminalise abortion to the extent specified in section 1. However, as originally enacted it was in different terms from the current version. In particular, section 1 (1) of the 1967 Act provided as follows:
“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 continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or
(b) 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. …”
Section 1 (1) (b) is thus in substantially similar terms to the current section 1 (1) (d). But there is nevertheless an important difference. Although section 1 (1) itself provided for no time limit for abortions, section 5 (1) provided that nothing in the Act should affect the provisions of the 1929 Act, with the effect that abortion remained illegal in the case of “a child capable of being born alive”, presumed to be the case after the 28 th week of pregnancy.
Section 1 (1) of the 1967 Act in its current form is the result of amendments introduced by section 37 of the Human Fertilisation and Embryology Act 1990. So far as relevant for our purposes, Parliament decided to lower the limit within which abortion generally was permitted from 28 weeks to 24 weeks but to...
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