JR 76's Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 16 December 2019 |
| Neutral Citation | [2019] NIQB 103 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 16 December 2019 |
1
Neutral Citation No: [2019] NIQB 103
Ref:
MOR11136
Judgment: approved by the Court for handing down
Delivered:
16/12/2019
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
______
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
_______
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY JR76
AND IN THE MATTER OF A CONTINUING DECISION BY THE DIRECTOR
OF PUBLIC PROSECUTIONS TO PROESECUTE THE FIRST APPLICANT
________
Before: Morgan LCJ, Sir John Gillen and Sir Ronnie Weatherup
_________
MORGAN LCJ (delivering the judgment of the court)
[1] The applicants are mother and daughter. The mother was prosecuted for
counts of unlawfully procuring and unlawfully subscribing a poison or other
noxious thing (mifepristone and misoprostol), knowing the same was intended to be
unlawfully used with intent to procure the miscarriage of her daughter contrary to
section 59 of the Offences Against the Person Act 1861 (“OAPA”).
[2] The challenge is to the decision of the PPS to prosecute. The relief sought
includes a requirement that the prosecution is discontinued, a declaration that the
decision amounted to a breach of the Article 8 rights of the mother and the Article 8
and Article 3 rights of the daughter and an award of damages in respect of those
breaches. Nothing should be published which would directly or indirectly identify
either applicant.
[3] Ms Quinlivan QC appeared with Mr Devine for the applicant, Dr Mc Gleenan
QC appeared with Mr Henry and Ms Curran for the PPS and the Attorney General
appeared with Ms McIlveen. Mr Robinson appeared for the PSNI to deal with an
allegation that the arrest of the mother was based on illegally obtained evidence. We
also received helpful written submissions from Amnesty International, the Royal
College of Midwives, a group of service providers and Humanists UK. We are
grateful to all counsel for their helpful written and oral submissions.
2
Background
[4] In or about June/July 2013 the second applicant took a home pregnancy test
which was positive. She was 15 years old at the time. She had been in a relationship
with a neighbour who was approximately a year older than her. Given her age at the
time she was not legally in a position to give consent to sexual intercourse. She had
been involved in this relationship for about a year and during the course of the
relationship her boyfriend had been abusive to her both verbally and physically.
These incidents continued after she had advised him that she believed that she was
pregnant and included threats to kick the baby out of her and to stab the baby if it
was born.
[5] She discussed with her mother, the first applicant, what she wanted to do
about her pregnancy. Her mother reassured her daughter that she would be
supported in whatever decision she made. She took time to think about the matter
and then discussed with her mother and grandmother her options. It appears that
prior to this discussion taking place, a friend of the mother had made her aware of
the existence of online medical assistance in the form of tablets which could cause a
miscarriage in very early pregnancy as an alternative to travelling to England for a
termination. The mother also understood from her sister that a friend of hers had
taken these tablets without complication. This led her to believe that they were safe
and widely used. She also, in trying to obtain information to assist her daughter,
read about the use of the pills on the British Pregnancy Advisory Service website.
[6] The mother’s case is that when she was advised about obtaining ‘abortion
pills’ on the internet she was not made aware that it was illegal to obtain them and
the information she was given suggested that this was a safe and reliable method of
procuring a miscarriage. The applicants discussed all options open to the daughter,
including: continuing with the pregnancy and keeping the baby; giving the child up
for adoption; and terminating the pregnancy, either by taking pills or travelling to
England. They also discussed going to the doctor, however, it is the evidence of both
applicants that the daughter adamantly refused to attend a GP at this time.
[7] The mother obtained the pills through a website entitled Women on the Web
(“WoW”). That is a charity which enables the provision of mifepristone and
misoprostol to women under 10 weeks pregnant in countries where abortion is
illegal. Before providing the medication women complete an online questionnaire
which asks questions about their pregnancy and health and the website indicates
that the information is provided to medically trained doctors who will prescribe the
pills if there is no contraindication.
[8] The second applicant has explained why she did not want to go through with
the pregnancy in the following terms:
“I was only 15 years old and I was frightened by the
prospect of being a mother. I was still a child myself
and I was not sure that I would be able to cope. I was
still at School and was in my first year of the GCSE
cycle. I had always planned to do A levels and I
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B's Application for leave to apply for Judicial Review
...in SXH renders the applicant’s claim for breach of Article 8 untenable. This reasoning was applied by the Divisional Court in Re JR76 [2019] NIQB 103 – see para [50]-[54]. The latter case involved an unsuccessful challenge to the decision of the PPS to prosecute a mother and daughter for un......