Society for the Protection of Unborn Children’s Application
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 2009 |
| Neutral Citation | [2009] NIQB 92 |
| Year | 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 30 November 2009 |
1
Neutral citation No : [2009] NIQB 92 Ref:
GIR7672
Judgment: approved by the Court for handing down Delivered:
30/11/09
(subject to editorial corrections)*
2009 No. 060405-01
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
_______
IN THE MATTER OF AN APPLICATION BY THE SOCIETY FOR THE
PROTECTION OF UNBORN CHILDREN FOR JUDICIAL REVIEW
_______
IN THE MATTER OF A DECISION OF THE DEPARTMENT OF HEALTH,
SOCIAL SERVICES AND PUBLIC SAFETY
________
GIRVAN LJ
Introduction
[1] This is an application for judicial review brought by the Society for the
Protection of Unborn Children (“the Society”). The Society seeks an order of
certiorari to quash the publication on 13 March 2009 by the Department of
Health, Social Services and Public Safety (“the Department”) of a document
entitled “Guidance on the Termination of Pregnancy: The Law and Clinical
Practice in Northern Ireland” (“the Guidance”). It seeks a declaration that the
Department’s decision to publish the Guidance was unlawful and asks the
court to order the Department to publicly rescind the Guidance and remove it
from the Department’s website or alternatively to vary the Guidance in
accordance with the judgment of the court.
The Society
[2] The Society describes itself as a voluntary organisation and pressure
group which aims to uphold the principle of respect for human life, in
particular the life of the unborn child. It aims to defend the existence of life
from the moment of conception and to examine existing and proposed laws,
legislation and regulations relating to abortion and to support or oppose such
as appropriate.
2
The existing law
[3] The question of medically induced miscarriages which terminate a
pregnancy before a child can be born alive is a highly contentious one which
gives rise to profound ethical questions. For many the questions give rise to
religious issues. The circumstances in which such procedures should be
permitted to be carried out must be defined by the law. Before statutory
intervention the procurement of abortion was not unlawful at common law
although it remains unclear whether it was a common law crime to kill a
foetus after the point at which “quickening” occurred. Lord Ellenborough’s
Act in the early 19th century made it a capital offence to kill a foetus after
quickening. The Offences against the Person Act 1861 introduced provisions
to make it a crime to procure a miscarriage. That statutory law applicable to
Northern Ireland is to be found in Sections 58 and 59 of the 1861 Act and
Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The
statutory provisions have been subject to judicial interpretation over the years
the leading case being R v Bourne [1939] 1 KB 687. Macnaughton J’s charge to
the jury in a case involving the prosecution of an alleged offence contrary to
Section 58 became recognised as the seminal authority determining the
circumstances in which an offence under the 1861 Act would be made out. If
the person who procured the abortion acted in good faith for the purpose of
preserving the life of the mother no offence was committed. The words
“preserving the life of the mother” fall to be construed in a reasonable sense
and if a doctor is of the opinion, on reasonable grounds and with adequate
knowledge, that the probable consequences of the continuation of the
pregnancy will be to make the woman a physical or mental wreck the jury are
entitled to take the view that the doctor is preserving the life of the mother.
Those principles continue to apply in Northern Ireland. In a number of
Northern Ireland cases which were analysed in the Family Law Planning
Association of Northern Ireland v Minister of Health, Social Services and
Public Safety [2003] NIQB 48 (“the FPA case”) the courts sought to apply the
principles stated in Macnaughton J. In Great Britain the Abortion Act 1967
changed the law radically.
[4] The legal position in the Republic of Ireland is even more restricted
than in Northern Ireland. In that jurisdiction there is a constitutional
recognition of the right to life of the unborn child. Article 40.3 of the Irish
Constitution (Bunreact na hEireann) as amended requires due regard to be
had to the equal right to life of the mother and the unborn child. Three
applicants comprising two Irish nationals and one female Lithuanian national
resident in the Republic have lodged an application with the European Court
of Human Rights. One complains that the restriction on abortion and the lack
of clear guidelines regarding the circumstances in which a woman may have
an abortion to save her life infringed her right to life under Article 2. All three
complain that the restrictions on abortion stigmatised and humiliated them
and risked damaging their health in breach of Article 3. All three complain
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