R v Price (Herbert)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 21 March 1968 |
| Judgment citation (vLex) | [1968] EWCA Crim J0321-3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 5654/67 |
| Date | 21 March 1968 |
[1968] EWCA Crim J0321-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Sachs
Mr. Justice Fenton Atkinson
and
Mr. Justice Cusack
No. 5654/67
MR. J. HAZAN appeared as Counsel for the Appellant.
MR. D. DRAYCOTT, Q.C., and MR. M. UNDERHILL appeared as Counsel for the Crown.
At Berkshire Assizes on 13th October of last year the appellant, an experienced medical practitioner, was convicted of using an instrument with intent to procure miscarriage. Upon that conviction he was sentenced to 9 months imprisonment. 'The conviction was at the end of a trial that commenced on 10th October, a Tuesday, and ended on a Friday, 13th October, and it appears from material before this Court that the jury first retired at 3:05 p.m., came back at 5:35 and asked whether there could be some additional evidence; retired at 5:40 and came back at 6:10 p.m., asking for certain further directions as to certain evidence; and finally, having retired at 6:15 p.m., came back at 6:50 p.m. and returned a verdict by a majority of 10-2.
The case was one of no little importance in this respect; first of all, on the one hand, there was an experienced medical practitioner whose reputation was at stake; on the other hand it was what might be called a Gynekoil case and it has become evident at Assizes that the use of a Gynekoil as an instrument has afforded considerable difficulties in the class of case under consideration.
The alleged offence was said to have been committed upon a Mrs. Stainthorpe The appellant admittedly fitted her with this contraceptive Gynekoil device with the aid of an insertion tube and that action did in fact induce, shortly afterwards, a miscarriage. The essential issue for the jury was, did the appellant at the time that he inserted the Gynekoil with the insertion tube know or believe that Mrs. Stainthorpe was pregnant and accordingly introduce the instrument with intent to produce a miscarriage, or did he, as it was his case for the defence, think that she was not pregnant and introduce it for the purpose of allaying anxieties on her behalf as regards the future.
The main dates to be considered are these; 28th March, a Tuesday, when Mrs. Stainthorpe and a Mrs. Barnes visited the appellant for the first time; 30th March, a Thursday, when the coil was inserted; 31st March, when Mrs. Stainthorpe was seen by another doctor who stated in evidence that it was manifestly clear that she was pregnant, and 1st April, when in fact the miscarriage occurred because of the introduction of the Gynekoil and the tube on 30th March.
As regards 28th March, Mrs. Stainthorpe, who was pregnant with a child whom she desired not to have, went with a friend, a Mrs. Barnes, to consult the appellant, who was a stranger to the former. It is common ground that on this first visit the appellant was told by Mrs. Stainthorpe that she thought she was pregnant - indeed she thought she was 3½ months pregnant - andthat she desired not to have the child. It is also common ground that on that occasion there was talk of going to iiarley Street in certain contingencies. Withoug going into further details, it is to be observed that apparently Mrs. Stainthorpe exhibited most of the classic symptoms of being pregnant. It also appears that when she left the appellant's premises she was told, according to what she passed on to her friend, Mrs. Barnes, that the appellant did not think she was pregnant and that she was going to be fitted with this contraceptive device for which she had not asked.
It was in issue as to whether those statements of the doctor were or were not part of...
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