R (Smeaton (on Behalf of The Society for The Protection of Unborn Children)) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judgment Date | 18 April 2002 |
| Neutral Citation | [2002] EWHC 610 (Admin),[2002] EWHC 886 (Admin) |
| Date | 18 April 2002 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Before Mr Justice Munby.
Criminal - offences against the person - use of morning after pill not unlawful - miscarriage defined - Offences Against the Person Act 1861 Sections 58 & 59 - Abortion Act 1967 - Prescription Only Medicines (Human Use) Amendments (No 3) Order (SI 2000 No 3231) -Royal College of Nursing of the UK v Dept of Health & Social Security (1981) AC 800 - R v Ireland [1998] AC 147 -Fitzpatrick v Stirling Housing Association Ltd [2001] 1 AC 27 - Birmingham City Council v Oakley [2001] 1 AC 617
The use of the morning-after pill was not unlawful because it acted only to prevent implantation of the fertilised egg in the uterus and did not therefore cause a "miscarriage" within current medical and lay understanding of that term.
Accordingly, there was nothing in sections 58 and 59 of the Offences against the Person Act 1861 which criminalised, made unlawful or otherwise prohibited the prescription, supply, administration or use of that or any hormonal contraceptive pill or any inter-uterine device.
Mr Justice Munby so held in a reserved judgment in the Queen's Bench Division when dismissing a claim brought by John Smeaton on behalf of the Society for the Protection of Unborn Children in judicial review proceedings against the Secretary of State for Health seeking:
(i) an order to quash as ultra vires the Prescription Only Medicines (Human Use) Amendment (No 3) Order (SI 2000 No 3231), the effect of which was to reclassify Levonelle, an emergency contraceptive product distributed by Schering Health Care Ltd and commonly known as the morning-after pill, so as to permit pharmacists to dispense it without the need for a prescription, and (ii) declarations that the prescription or supply of Levonelle was a criminal offence under sections 58 and/or 59 of the 1861 Act.
By consent orders made on June 8, 2001 and July 17, 2001, respectively, Schering Health Care Ltd and the Family Planning Association were granted permission to intervene as interested parties.
Mr Richard Gordon, QC, Mr James Bogle and Mr Martin Chamberlain for the claimant; Mr Kenneth Parker, QC, Mr James Eadie and Mr Simon Hattan for the secretary of state; Mr David Anderson, QC and Miss Jemima Stratford for Schering Health Care; Miss Nathalie Lieven for the Family Planning Association.
MR JUSTICE MUNBY said that the question on which the...
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