High Court reverses police decision not to prosecute over abortionBMJ 2003; 327 doi: https://doi.org/10.1136/bmj.327.7427.1307-a (Published 04 December 2003) Cite this as: BMJ 2003;327:1307
The High Court has given the go-ahead for a legal challenge to a decision by the police not to prosecute doctors involved in a late abortion carried out on a woman whose fetus had a cleft palate.
Reverend Joanna Jepson was given permission to launch a judicial review of the decision by West Mercia Police in a legal action that could lead to a tightening up of the abortion law and to a clearer definition of what constitutes a serious handicap.
The 27 year old curate's original application for a judicial review was rejected by the courts, but two High Court judges have now reversed that decision.
“I am persuaded that this case does raise serious issues of law and issues of public importance which cannot be properly or fully argued in the context of a permission application,” said Mr Justice Jackson after the hearing.
But the judges warned Ms Jepson, who herself has had a series of operations for a congenital jaw abnormality, that she had substantial legal and evidential hurdles to overcome in the next stage of her action.
The case centres on an abortion done two years ago on a Herefordshire woman, who was more than 24 weeks into a pregnancy, after a scan detected a cleft palate in the fetus. Abortions can be done after 24 weeks only if the mother's health is at risk or the baby is at risk of being born seriously handicapped. At the heart of the case is whether not a cleft palate is a serious handicap.
Ms Jepson, a curate in Chester, said after the hearing that the law needed to define what constituted a serious handicap. She argues that if cleft palate is not a serious handicap under the Abortion Act, then police should have brought a prosecution when the termination took place after 24 weeks.
She became aware of the case after looking at national statistics on abortion that showed that nine fetuses had been aborted for cleft palate at under 24 weeks, and one after.
Her barrister, Richard Gordon QC, told the court that a cleft palate was not a serious handicap within the meaning of the Abortion Act and that West Mercia's decision was wrong.
After the hearing, West Mercia Police said they fully understood the concerns that had been raised but added, “When the matter was referred to West Mercia Constabulary for investigation we sought the best possible medical and legal advice and acted in accordance with that advice.”
Hereford Hospitals NHS Trust has maintained that its staff had followed the right procedures: “The trust is satisfied that the correct procedures were followed by our staff. It is inappropriate to comment in view of the ongoing legal proceedings.”