R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg

B e f o r e :

THE HONOURABLE MR JUSTICE MUNBY ____________________

____________________

(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Mr Richard Gordon QC, Mr James Bogle and Mr Martin Chamberlain (instructed by Coningsbys) for the Claimant Mr Kenneth Parker QC, Mr James Eadie and Mr Simon Hattan (instructed by the Office of the Solicitor to the Department) for the Secretary of State Mr David Anderson QC and Miss Jemima Stratford (instructed by CMS Cameron McKenna) for Schering Health Care Limited Ms Nathalie Lieven (instructed by Leigh Day & Co) for Family Planning Association ____________________

HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________

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Mr Justice Munby:

This case raises medical and legal questions of great complexity, difficulty and interest. It raises also moral and ethical questions of great importance. But it is no exaggeration to say that the outcome of this case may potentially affect the everyday lives of hundreds of thousands, indeed millions, of ordinary men and women in this country.

This judgment is necessarily very long. I have had to summarise and analyse a large mass of medical and legal material, much of it of consuming interest. But it is, I believe, vitally important that the law should be accessible to all and that those who wish to understand my decision should be able to do so without having to read the full judgment. Accordingly I begin this judgment with an overview which summarises the issues and my decision. I have used what I hope is plain and straightforward language, avoiding as much as possible in this part of my judgment all technical medical and legal language.

This case concerns the legality of the prescription, supply and use of the morning-after pill.

The claimant, John Smeaton, who acts on behalf of the Society for the Protection of Unborn Children (“SPUC”), says that such prescription or supply amounts in principle to a criminal offence under sections 58 and/or 59 of the Offences against the Person Act 1861 (“the 1861 Act”).

In reality the allegations which SPUC makes extend to this: that a woman who takes the morning-after pill is herself potentially committing a criminal offence under the 1861 Act.

Furthermore, and whatever SPUC may say, these allegations of serious criminality which it makes extend to cover any form of birth control which may have the effect of discouraging a fertilised egg from implanting in the lining of the womb – that is to say, not merely the morning-after pill but also IUDs, the mini-pill, and even the pill itself.

Put shortly, the effect of sections 58 and 59 of the 1861 Act, taken together with the relevant parts of the Abortion Act 1967, is that abortifacient substances – substances which cause miscarriage or abortion – may be administered only if two doctors certify that the conditions set out in the 1967 Act are satisfied. Otherwise, the use of such substances is in principle criminal.

SPUC’s case is that, whatever it may be called, the morning-after pill is not in fact a contraceptive. It is, says SPUC, an abortifacient, in other words it causes miscarriages. Accordingly, says SPUC, unless the procedures laid down by the 1967 Act are complied with the supply and use the morning-after pill may involve the commission of criminal offences.

Compliance with the procedures laid down by the 1967 Act requires, as I have said, the involvement of two doctors. So if SPUC is right the use of the morning-after pill will in effect be lawful only if it has been prescribed by two doctors.

In order to understand SPUC’s argument I need to explain the relevant medical facts. Put very simply, there are two key stages in the biological process following sexual intercourse:

i) The first is fertilisation. This takes place after the man’s sperm and the woman’s egg have met in the fallopian tube. It is a process which commences hours, or even days, after sexual intercourse. The process itself takes many hours.

ii) The other key stage is implantation. This takes place after the fertilised egg has moved into the womb. It involves a process by which the fertilised egg physically attaches itself to the wall of the womb. The process does not start until, at the earliest, some four days after the commencement of fertilisation. The process of implantation itself takes some days.

Put in its simplest terms, SPUC’s case is that any interference with a fertilised egg, if it leads to the loss of the egg, involves the procuring of a “miscarriage” within the meaning of the 1861 Act, even – and this is the important point – if the interference takes place before the egg has implanted in the wall of the womb. So, says SPUC, any so-called contraceptive which can in fact operate to prevent a fertilised egg implanting itself in the wall of the womb is not in fact a contraceptive. It is, says SPUC, an abortifacient.

The precise ways in which the pill, the mini-pill and the morning-after pill operate are still not fully understood. It is known, however, that the pill, the mini-pill and the morning-after pill are all capable of operating either to prevent fertilisation and/or to prevent implantation. So, according to SPUC, the morning-after pill is an abortifacient. And that is why, if SPUC’s case is correct in relation to the morning-after pill, then the same legal consequences must follow also in the case of the pill and the mini-pill.

What is also clear, however, is that:

i) The morning-after pill (like the pill and the mini-pill) cannot cause a fertilised egg which is implanted to de-implant – that is, it cannot work after the process of implantation is complete.

ii) The morning after-pill, if it is to be effective, has in any event to be taken at a time – no later than 72 hours after intercourse – when implantation will not have begun.

So much for the biology.

Reduced to essentials SPUC’s legal argument comes down to this:

i) The word “miscarriage” was generally understood by medical opinion in 1861 as including the failure or prevention of implantation.

ii) Parliament’s intention in 1861 was to give effect to that contemporary medical understanding. In other words, Parliament’s intention in 1861 was to prohibit all attempts to procure abortion from the stage of fertilisation onwards.

In my judgment SPUC’s legal argument is erroneous. SPUC’s application must be dismissed.

In essence this is because:

i) As a matter of law my decision must ultimately turn not on what the word “miscarriage” was understood to mean in 1861 but rather on what it means today.

ii) Whatever it may or may not have meant in 1861 the word “miscarriage” today means the termination of an established pregnancy, and there is no established pregnancy prior to implantation. There is no miscarriage if a fertilised egg is lost prior to implantation. Current medical understanding of what is meant by “miscarriage” excludes results brought about by the pill, the mini-pill or the morning-after pill. That is also, I should add, the current understanding of the word “miscarriage” when used by lay people in its popular sense.

It follows that since the morning-after pill is used before the process of implantation has even begun, and because it cannot make an implanted egg de-implant, the morning-after pill cannot as a matter of law bring about a “miscarriage”.

I should add that I do not in any event accept SPUC’s case as to the meaning of the word “miscarriage” in 1861. Some of the leading and most authoritative medical works of the time strongly supported the idea that miscarriage becomes possible only after implantation.

These are judicial review proceedings commenced on 8 March 2001 by John Smeaton on behalf of SPUC seeking to challenge the making by the Secretary of State for Health on 8 December 2000 of The Prescription Only Medicines (Human Use) Amendment (No 3) Order 2000 , SI 2000/3231 (“the 2000 Order”). The 2000 Order was laid before Parliament on 12 December 2000 and came into force on 1 January 2001. There were debates on the 2000 Order in the House of Commons Standing Committee on Delegated Legislation on 24 January 2001 and in the House of Lords on 29 January 2001.

The 2000 Order is part of the statutory regime regulating the sale and supply of medicinal products which is governed by the Medicines Act 1968 (“the 1968 Act”) and associated subordinate legislation. The ability to place a medicinal product on the market is regulated by the Medicines for Human Use (Marketing Authorisations etc) Regulations 1994 , SI 1994/3144. Nothing turns on the precise provisions of those Regulations so I say no more about them.

The 1968 Act distinguishes between three different classes of medicinal products: (i) those which are on the so called ‘general sale list’ and may therefore be supplied by persons other than registered pharmacists (section 51), (ii) those which are not on the ‘general sale list’ and which (subject to exception in the case of supply direct by medical practitioners) may only be supplied by or under the supervision of a registered pharmacist (section 52) and (iii) those available only on prescription from a medical practitioner (section 58) – so called prescription only medicines. The Prescription Only Medicines (Human Use) Order 1997 , SI 1997/1830 (“the 1997 Order”) specifies those medicines which, for the purposes of section 58 of the 1968 Act, are to be prescription only medicines.

There are two bodies, established under the 1968 Act, which I should mention: the Medicines Commission, which is the United Kingdom’s highest scientific advisory body in this field, established under section 2, and the Committee on the Safety of Medicines, established under section 4 to give advice to Ministers in relation to the safety, quality and efficacy of medicines for human use. Section 58(6) of the 1968 Act requires the appropriate Ministers to consult the Committee on the Safety of Medicines before exempting a medicinal product from prescription only medicines status.

In considering whether a medicinal product can safely be supplied under the supervision of a registered pharmacist, but without prescription by a medical practitioner, the Committee on the Safety of Medicines takes account of the criteria for classifying medicinal products as prescription only which are set out in section 58(A) of the 1968 Act. Section 58(A)(2) provides that prescription control shall be applied to any product which:

The effect of the 2000 Order was to amend the 1997 Order so as to exempt from the restrictions imposed by section 58(2) of the 1968 Act products containing up to 0.75mg of a substance – a progesterone – known as Levonorgestrel. The exemption was confined to the supply of such products “for use as an emergency contraceptive in women aged 16 years and over”.

The particular product with which I am concerned is called Levonelle. Its only purpose is for use as what the 2000 Order calls “an emergency contraceptive”, in common parlance as a morning-after pill. It is distributed in the United Kingdom by the first interested party, Schering Health Care Limited (“Schering”).

The morning-after pill has been authorised in the United Kingdom as a prescription only medicine since the first one, PC4, a combined pill containing oestrogens and progestogens, was licensed in 1984. PC4 was available from that time on the prescription of a single medical practitioner until it was withdrawn from the market in October 2001. On the coming into force of the 1997 Order, Levonorgestrel was included in such a way as to denote that products containing Levonorgestrel would likewise be available only on prescription. Levonelle-2, a pill containing only Levonorgestrel, was launched in February 2000 as a prescription only medicine.

During 2000, there was extensive consultation, involving amongst others SPUC, as to whether the morning-after pill should be reclassified from a prescription only medicine so as to be available from pharmacies for women of 16 years and over. There was an intensive review by expert bodies, the Committee on the Safety of Medicines and the Medicines Commission, of the safety of the morning-after pill. Those bodies both considered that it would be safe to permit its sale to the public by pharmacies. The Secretary of State for Health considered that it would be desirable to do so. The 2000 Order effected that reclassification.

Levonelle was launched as a pharmacy only medicine in February 2001. Levonelle-2 continues to be available as a prescription only medicine.

Thus, putting the point very shortly, prior to the 2000 Order both the substance Levonorgestrel and the commercial product Levonelle (in the form of Levonelle-2) were available only on prescription from a medical practitioner. The practical effect of the 2000 Order was to reclassify Levonorgestrel so as to permit pharmacists to dispense Levonelle (as opposed to Levonelle-2) without the need for a prescription.

Permission to apply for judicial review was refused on the papers by Collins J on 21 March 2001. That refusal was on three main grounds: first, that there had been significant delay for which there was no acceptable excuse; second, that there would be detriment to good administration in permitting the claim to proceed; and, third, that the claim was not arguable on the merits. On a renewed oral application for permission on 2 May 2001 Scott Baker J granted permission: [2001] EWHC Admin 372. By a consent order made by Master Foster on 8 June 2001 Schering was granted permission to intervene. By a consent order made by Silber J on 17 July 2001 the second interested party, the Family Planning Association (“fpa”) was granted permission to intervene. For convenience I shall, where appropriate, refer to the Secretary of State and the interested parties collectively as “the defendants”, for they all make common cause against SPUC.

The substantive hearing came on before me on 12 February 2002. It lasted three days. SPUC was represented by Mr Richard Gordon QC, Mr James Bogle and Mr Martin Chamberlain. The Secretary of State was represented by Mr Kenneth Parker QC, Mr James Eadie and Mr Simon Hattan, Schering by Mr David Anderson QC and Miss Jemima Stratford and fpa by Ms Nathalie Lieven. I am very grateful to all of them for their assistance. Their submissions, both written and oral, were uniformly of the very highest quality. I reserved judgment on 14 February 2002. I now (18 April 2002) hand down my judgment.

Put very shortly the issue is whether the supply of Levonelle in accordance with the 2000 Order may involve or facilitate the commission of criminal offences under sections 58 and 59 of the 1861 Act in those cases – which is, in truth, in every case – where its subsequent administration is otherwise than in accordance with the requirements of the Abortion Act 1967 (“the 1967 Act”).

Put shortly, and at the risk of over-simplification, the effect of the 1967 Act and sections 58 and 59 of the 1861 Act, taken together, is that abortifacient substances (ie, those which cause miscarriage or abortion) may be administered only if two medical practitioners acting in good faith certify that the conditions set out in the 1967 Act are satisfied. Otherwise, the use of such substances is in principle criminal.

Specifically, unless the conditions set out in the 1967 Act are satisfied it is a criminal offence under section 59 of the 1861 Act to

Likewise, unless the conditions set out in the 1967 Act are satisfied it is an offence under section 58 of the 1861 Act to “administer” any “poison or other noxious thing” “with intent to procure” a “miscarriage”.

SPUC’s case is that, whatever it may be called, Levonelle is not in fact a contraceptive but an abortifacient, in other words that it causes miscarriages. Accordingly, says SPUC, unless the procedures laid down by the 1967 Act are complied with – that is, absent the involvement of two doctors – the supply and use of Levonelle involves or may involve the commission of criminal offences under sections 58 and 59 of the 1861 Act.

Correctly analysed SPUC’s case appears to rest on the propositions that, once fertilisation of the ovum has commenced (alternatively, has been completed – it is not altogether clear whether SPUC contends that a miscarriage is capable of being induced from the start or only after the end of the fertilisation process), and whether that fact is reliably detectable or not,

i) the woman can properly be said to be “with child”;

ii) the use of any chemical or device which may adversely affect the subsequent natural process is properly to be characterised as inducing “miscarriage”; and

iii) a person (the woman or a third party) has the requisite intent if one of the possible methods of operation of the chemical or device might involve discouragement of implantation of the fertilised ovum – even though it is likely to be impossible to prove whether that was the cause of the fact that the fertilisation of the ovum did not lead to established pregnancy.

There may of course be room for argument in any criminal case as to whether there is the necessary intention for the purposes of sections 58 or 59. However all parties have sensibly accepted the relevance of the question identified by SPUC and the importance of the court resolving the matter. It is plainly undesirable that there should be any risk whatever of a prosecution being brought against a person supplying or administering Levonelle if in fact SPUC’s contentions are, as all the other parties contend, groundless.

I shall in due course have to elaborate the way in which SPUC puts its case. Here I merely observe that it is based in significant measure upon an analysis by the eminent academic lawyer, Dr John Keown, in an article, ‘“Miscarriage”: A Medico-Legal Analysis’ , published in [1984] Crim LR 604. Dr Keown’s conclusion was that the “post-coital” pill causes miscarriage within the statutory meaning of the word and that accordingly (see p 614) its use, procurement and supply are prohibited by sections 58 and 59 of the 1861 Act. Similar views had previously been expressed by Victor Tunkel, Senior Lecturer in Law at Queen Mary College, London, in an article, ‘Modern Anti-Pregnancy Techniques and the Criminal Law’ , in [1974] Crim LR 461.

Dr Keown’s article appeared shortly after a written answer given in the House of Commons on 10 May 1983 by the Attorney-General, Sir Michael Havers QC, who expressed the view that the use of the morning-after pill does not constitute a criminal offence within either sections 58 or 59. This view, that the morning-after pill is not an abortifacient, has subsequently been repeated in the House of Commons by government ministers on various occasions: by the Parliamentary Under Secretary of State for Public Health at the Department of Health (the Minister for Public Health), Ms Tessa Jowell MP, on 2 July 1998 and by her successor, the Minister for Public Health, Ms Yvette Cooper MP, on 19 July 2000 and again on 24 January 2001.

Put in the starkest terms the legal issue is whether the views expressed by Dr Keown and Mr Tunkel or those expressed by the Attorney-General and successive Ministers for Public Health are correct.

SPUC seeks relief under two heads. First, it seeks an order quashing the 2000 Order. Secondly, it seeks a declaration that:

i) the 2000 Order is ultra vires the Secretary of State;

ii) a person who administers Levonelle to a woman with the intention of causing any embryo which exists to be expelled commits an offence under section 58 of the 1861 Act;

iii) a person who supplies Levonelle intending that the patient use it for a like purpose commits an offence under section 59 of the 1861 Act.

Now that relief is framed in such a way as to accord with the language of the 1861 Act. But the practical effect of the grant of such relief would be to make it impossible for anyone to sell or use Levonelle without risk of breaking the criminal law. The practical effect of granting such relief would, in other words, be to criminalise the sale and use of Levonelle. In fact the implications go even wider than that as I will shortly mention.

Before moving to the heart of the case I should first make absolutely clear what this case is not about.

Law and morals

I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and, to some, transcending – importance. But I must emphasise that, so far as the court is concerned, this case has nothing to do with either morality or religious belief. The issue which I have to decide is not whether the sale and use of the morning-after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.

Cases such as this, and others in the field of medicine (one thinks of cases such as Airedale NHS Trust v Bland [1993] AC 789 and Re A (Conjoined Twins: Medical Treatment) [2001] Fam 147 ), raise moral, religious and ethical issues on which, as Lord Browne-Wilkinson pointed out in Bland at pp 879E, 880A, “society is not all of one mind” and on which indeed “society as a whole is substantially divided”. Our society, including the most thoughtful and concerned sections of our society, are deeply troubled by, and indeed deeply divided over, such issues. These are topics on which men and woman of different faiths, or indeed of no faith at all, may and do hold, passionately and with the utmost sincerity, starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them.

The days are past when the business of the judges was the enforcement of morals or religious belief. That was a battle fought out in the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen (Stephen J) and in the middle of the last century between Professor Herbert Hart and Sir Patrick Devlin (Devlin J). The philosophers had the better of the argument, and rightly so. The Court of King’s Bench, or its modern incarnation the Administrative Court, is no longer custos morum of the people. Bland and the earlier decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 recognise what in the latter case Lord Goff of Chieveley referred to (at p 73C) as “the libertarian principle of self-determination”. And as I said in Harris v Harris, Attorney-General v Harris [2001] 2 FLR 895 at p 944 (para [387]):

As Professor Hart pointed out (see The Morality of the Criminal Law (1964) pp 39-41), both Sir James Stephen and Sir Patrick Devlin assumed a society marked by a very high degree of homogeneity in moral outlook and where the content of this homogeneous social morality could be easily known. He suggested that neither of them had envisaged the possibility that society is, and on one view had already by the 1960s become, morally a plural structure.

Be that as it may, it can hardly be disputed that the last few years have marked the disappearance in an increasingly secular and pluralistic society of what until comparatively recently was in large measure a commonly accepted package of moral, ethical and religious values. This means that on many of the medical, religious and ethical issues which the courts increasingly have to grapple with there is simply no longer any generally accepted common view. One of the paradoxes of our lives is that we live in a society which is at one and the same time becoming both increasingly secular but also increasingly diverse in religious affiliation. As I said in Sulaiman v Juffali [2002] 1 FLR 479 at p 490 (para [47]):

The truth is that these are decisions which, as Lord Browne-Wilkinson (at p 878B) and Lord Mustill (at p 890H) recognised in Bland , ultimately involve matters of principle which ought properly to be decided by citizens through their democratically elected representatives in Parliament.

In this case I am spared embarrassment because Parliament has spoken. My duty is simply to construe sections 58 and 59 of the 1861 Act. Moreover, and precisely because Parliament has spoken, Mr Gordon was entirely right to press me with what Lord Diplock said in Duport Steels Ltd v Sirs [1980] 1 WLR 142 at p 157B:

This is a topic to which I shall have to return when I consider the principles that determine how I should construe the 1861 Act.

Life

There is another important matter that I should make clear at this stage. It is no part of my function as I conceive it to determine the point at which life begins. In the view I have taken of the 1861 Act there is no need for me to do so. It is, as it seems to me, undesirable that I should do so. Even were I to attempt to do so, the effect of my decision would be limited. In the nature of things all I could do would be to determine as a matter of law an issue which has much wider ramifications and which in other contexts may well have to be determined by reference to quite different criteria.

At times Mr Gordon’s argument came close to suggesting that since, as is common ground, one of the purposes of the 1861 Act is to protect the life of the unborn, and since, as SPUC would have it, life for this purpose begins at conception, therefore the sale and use of Levonelle involves the commission of offences under the 1861 Act. As I shall demonstrate in due course the argument in my judgment involves a mis-reading of the 1861 Act and it is in any event fallacious.

As in the case of death so in the case of life (and indeed so also in the case of motherhood) the concept may mean one thing to a medical man or biologist, another thing to a theologian or ethicist, another thing to a philosopher and yet another thing to a lawyer. I am competent only to rule on matters of law. But what, to make a rather obvious point, is meant in law by death? The answer is that it all depends – on time and context. In the final analysis, life, death and parenthood are, for legal purposes, merely legal constructs which may or may not correspond with biological facts and which, indeed, will not necessarily be applied consistently for all legal purposes.

Once upon a time the law, following medical science, treated death as marked by the cessation of breathing or of heartbeat. At present the law treats death as meaning brain stem death: Re A [1992] 3 Med LR 303, Airedale NHS Trust v Bland [1993] AC 789 . But there may be contexts in which the law treats death as occurring at some other time. In certain circumstances the court may presume death if someone has not been heard of for at least seven years: Chard v Chard [1956] P 259. Section 184 of the Law of Property Act 1925 creates for certain purposes a statutory presumption as to when death occurs when two or more persons have died in circumstances rendering it uncertain which of them survived the other or others. No doubt there are other examples of the point.

In the same way the law may treat parenthood as attaching at different times. Thus in the case of adoption parenthood ends and begins with the making of an adoption order: see section 12 of the Adoption Act 1976. And, as we shall see, sections 2(3) and 27 of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) contain special rules for the attribution of motherhood in the case of those embryos to which that Act applies.

So also, in my judgment, in the case of life.

In the case of life – or, to be more precise, the beginning of life, whatever that may mean – there is this further difficulty. As I explain below, current medical and biological understanding is that the beginning of life is not an event but a process which itself lasts an appreciable time. Even biology and medicine therefore cannot tell us precisely when it is that “life” in fact “starts”.

Human Rights

No one has addressed me on any aspect of either the Human Rights Act 1998 or the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus Mr Gordon has not sought to argue that the fertilised ovum has a right to life under Article 2: cf Paton v United Kingdom (1981) 3 EHRR 408, H v Norway (1992) 73 DR 155, Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244. Nor, on the other hand did Mr Parker or any of the others seek to argue that the right to respect for private and family life protected by Article 8 extends to confer the kind of privacy interest protected right to distribute and use contraceptives which has been recognised by the Supreme Court of the United States of America in cases such as Griswold v Connecticut (1965) 381 US 479, Eisenstadt v Baird (1972) 405 US 438 and Carey v Population Services International (1977) 431 US 678. No one has suggested that the 1861 Act is incompatible with the Convention or that its proper construction requires reference either to the Convention or to Strasbourg jurisprudence.

Safety

I wish to emphasise that, despite what is hinted at in some of SPUC’s evidence, this case has nothing whatever to do with the safety of Levonelle as a medicinal product. The evidence before me shows that Levonorgestrel has an excellent safety profile with unusually few side effects. It has been authorised by the Medicines Control Agency on the basis of its safety, quality and efficacy. And, as I have already mentioned, prior to its re-classification to permit pharmacy dispensing in certain conditions, there was detailed consideration of the safety of this type of supply not only by the Committee on the Safety of Medicines but also by the Medicines Commission. All advised that Levonelle can be supplied safely under the supervision of a pharmacist for emergency contraception. The Committee on Safety of Medicines considered with care the safety implications of the move from prescription only medicine to pharmacy only classification and concluded that “all the steps required safely to supply emergency contraception could be successfully completed in a pharmacy.” The Royal Pharmaceutical Society has issued guidance on the supply of Levonelle.

The evidence shows that, although in a small number of cases there may be some minor side effects (eg nausea), the morning-after pill is safe whether as a prescription only or as a pharmacy only medicine. Medical evidence tendered by Schering’s Medical Director, Dr Longthorne, is to the effect that the morning-after pill in each of its forms (PC4, Levonelle-2 and Levonelle) is “much safer than any form of medical termination.” The evidence put forward by fpa is to similar effect. According to its Chief Executive, Anne Weyman: “Emergency contraception is safe, simple and effective. Abortion is both medically and psychologically invasive.”

Common ground

I should also indicate certain matters that are common ground between the parties.

Delay

As I have mentioned one of the reasons why Collins J refused SPUC permission to proceed with this application was because there had been significant delay. On one view of the matter the delay has been very great indeed, because, as we shall see, the essential legal issue which underlies this litigation had certainly been identified as long ago as 1962. That said, Scott Baker J was persuaded that permission should be granted. Before me no one has sought to rely upon delay as a reason why I should not decide the real underlying issue. I say no more about the point. It follows that I do not need to consider the various authorities on this aspect of the matter which Mr Gordon would otherwise have wished to deploy: R v Secretary of State for the Home Department ex p Ruddock [1987] 1 WLR 1482, R v Commissioner for Local Administration ex p Croydon LBC [1989] 1 All ER 1033, R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386 and R v Criminal Injuries Compensation Board [1999] 2 AC 330 .

Vires and the 2000 Order

It is not disputed by SPUC that, the 1861 Act apart, there is no possible basis for challenging the vires of the 2000 Order. I do not therefore need to consider further the provisions of either the 1968 Act or the 1997 Order.

It is not disputed, either by the Secretary of State or by Schering and fpa, that if Levonelle is indeed, as SPUC asserts, an abortifacient (so that its supply and administration with the appropriate intention constitute offences) the 2000 Order will be ultra vires. The 2000 Order purports to permit Levonelle to be supplied by pharmacists and will thus, if SPUC is correct, tend to facilitate the commission of those offences. Parliament is assumed not to have intended that statutory powers should be used to facilitate the commission of criminal offences: see de Smith, Woolf and Jowell, Judicial Review of Administrative Action , ed 5, para 5-071, R v Registrar General ex p Smith [1991] 2 QB 393.

Nor is it disputed, either by the Secretary of State or by Schering and fpa, that I have jurisdiction to declare whether the 2000 Order is ultra vires and, if it is, to quash it: R v Her Majesty’s Treasury ex p Smedley [1985] QB 657 , R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg [1994] QB 552 . See also Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 .

It is thus common ground that the central issue, and the question upon which SPUC’s claim turns, is whether Levonelle operates in such a way as to cause a “miscarriage” within the meaning of sections 58 and 59 of the 1861 Act.

It will be appreciated that in these circumstances the 2000 Order is completely irrelevant. It is merely a convenient peg upon which SPUC seeks to hangs its claim, a claim that could have been brought at any time after the first introduction of the morning-after pill as long ago as 1984. SPUC’s claim in truth has absolutely nothing to do with whether Levonelle is available without prescription or only on prescription. If SPUC is correct the supply and use of Levonelle is equally criminal whether it is supplied on prescription or not. For if SPUC is correct its use is and always has been permissible only if certified by two doctors in accordance with the requirements of the 1967 Act.

I have made it clear that the court cannot concern itself with moral or religious issues. But that does not mean that I can blind myself to the social realities, which underlie this case, nor to the social implications were I to find in favour of SPUC. I shall have to consider in due course the extent to which, if at all, I am permitted to have regard to such matters in construing the 1861 Act. I shall also in due course have to consider in more detail what I might call the ‘social’ case presented by fpa in answer to SPUC. Here I merely outline two of the salient features of this aspect of the case.

The first is this. Although SPUC is somewhat reluctant to go this far, it is apparent that if its arguments are correct in relation to Levonelle the consequences extend far beyond the morning-after pill. The stark fact is that, although presented as a challenge to the 2000 Order, this case calls into question the lawfulness not only of the morning-after pill but also of all hormonal contraception. Indeed the case calls into question the lawfulness of all those forms of so-called contraception which are capable of inhibiting the implantation of a fertilised egg, notably intra-uterine devices (“IUDs”), progestogen only pills (the mini-pill) and even the ordinary combined pill (the pill). Indeed there are only two methods of contraception – barrier methods and periodic abstinence – which never act in the way in which Levonelle acts, that is by preventing implantation.

On the logic of its own case SPUC’s challenge, and the allegations of serious criminality inter alia by the woman concerned, are not simply to the morning-after pill. They extend to any chemical or device which operates, or may operate, by impeding, discouraging or preventing the natural process at any time after fertilisation has started, alternatively has completed. They extend to any drug or device which may operate in that way, even if it may also operate in a way which impedes, discourages or prevents the process of fertilisation. The medical profession and female members of the public have for years been operating on the basis that the use, prescription and supply of such chemicals and devices is legal and involves no potential criminality. The pill has been available since the 1960s and the morning-after pill since the early 1980s. That position has remained unchallenged until sought to be reopened in these proceedings.

The other is this. Making Levonelle available from pharmacists without a prescription means that it can be obtained more quickly following intercourse when a woman knows or suspects that her regular method of contraception has failed, particularly during weekends and public holidays. If SPUC were to succeed in this challenge, the result would be, as I have said, that Levonelle could be prescribed only by doctors who had complied with the requirements of the Abortion Act 1967. This in turn would mean that:

i) Levonelle would tend to be administered either not at all or at a later stage, when the expert evidence is that it is less effective and more likely to operate post-fertilisation.

ii) There would inevitably be an increase in the number of abortions as conventionally understood, a result which, Schering suggests, SPUC would presumably not welcome.

In this context I repeat a point I have already made. The evidence put forward by fpa is that “Emergency contraception is safe, simple and effective. Abortion is both medically and psychologically invasive.”

The Secretary of State stresses that there is what he calls a powerful social case for the morning-after pill both being available and being available as a pharmacy only medicine. He asserts that fpa with their extensive experience on the ground are uniquely well placed to speak to this aspect. He points to fpa’s evidence which, he says, clearly sets out the benefits, concluding as Ms Weyman does, that “there are overwhelmingly strong reasons why it is better to provide emergency contraception than to put more women in the position where they may need to seek an abortion.”

I was taken through a large mass of written evidence and other written materials. I shall have to analyse much of it in due course. Most of this material was of consuming interest. At this stage it is convenient to indicate that apart from the purely legal it fell into six broad categories:

i) First, there was evidence from a number of eminent doctors explaining in very considerable detail the processes of conception and pregnancy as those processes are currently understood by medical science.

ii) Secondly, there was evidence as to current medical terminology, including extracts from a number of current medical dictionaries.

iii) Thirdly, there was evidence exhibiting and explaining a large mass of early nineteenth century medical texts.

iv) Fourthly, there was evidence as to the history and development of contraception in this country.

v) Fifthly, there was evidence from a number of eminent doctors describing what might be called modern contraceptive technology and explaining the methods of operation of the various forms of contraception so far as currently understood by medical science.

vi) Finally, there was evidence as to various current social issues relevant to modern contraceptive usage.

Until 1803 the only law relating to abortion was the common law. Since 1803 the law has been entirely statutory.

Abortion – the common law

I start in the thirteenth century with Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England). In the course of discussing the pleas of the Crown, he said at f 121 (Woodbine & Thorne edition, 1968, Vol II at p 341):

In the seventeenth century Coke in the Third Part of his Institutes of the Laws of England said at p 50 that:

Having then cited Bracton and Fleta, Coke continues: “And herein the law is grounded upon the law of God.” There follows a reference to the book of Genesis.

Blackstone said much the same thing in the eighteenth century in his Commentaries on the Laws of England , Vol 1 at p 125:

Thus the law at the beginning of the nineteenth century. Four features of the common law may be noted: first, that the common law envisaged the commission of offences by both the woman carrying the “child” and others who took action resulting in its death; secondly, that those offences (constituting only “misprision” or “misdemesnor” and not felony) were not capital; thirdly, that no offence could be committed unless and until there was a “child”; and, fourthly, that for this purpose there had to be “quickening”.

One other feature of the common law is to be noted. Chitty’s Criminal Law of 1816 provided (Vol 3 at p 800) a precedent for an indictment at common law. Based on a case in Michaelmas 42 Geo 3 (1802) it charged that the defendant:

So the concept of “miscarriage” was part of the common law offence.

Abortion – the statute law before 1861

Lord Ellenborough’s Act of 1803, 43 Geo 3, c 58, created two statutory criminal offences. Section I made it a felony punishable by death:

Section II made abortion before quickening a crime for the first time. It provided for a felony punishable by fine, imprisonment, the Pillory, whipping or transportation for up to fourteen years:

As Mr Parker points out there were conflicting authorities as to whether proof that a woman had not conceived could afford a defence to the offence under section II. In R v Phillips (1811) 3 Camp 73 it was held to be no defence; in R v Scudder (1828) 1 Mood CC 216 it was held to be a defence.

Lord Lansdowne’s Act of 1828, the Offences against the Person Act 1828, repealed the 1803 Act. Section XIII created two offences. The first, a felony punishable by death, was committed:

The second, a felony punishable by transportation for not more than fourteen years, imprisonment or whipping, was committed:

The 1828 Act was replaced in relevant part by the Offences against the Person Act 1837. The 1837 Act provided in section VI for a single offence punishable by transportation for life or imprisonment for:

The death penalty in cases in which the woman was quick with child was abolished in accordance with the recommendations in their Report dated 19 January 1837 of the Commissioners Appointed to Inquire Into the State of the Criminal Law. The Commissioners added this observation:

Two features of this statutory development may be noted, in addition to the fact that the Acts of 1803 and 1828 made capital certain offences which at common law had not been capital. The first is that the Act of 1803 (the Act of 1828 made no material change to the position) introduced for the first time an offence which did not depend upon proof that the woman was “quick with child”. The second is that the Act of 1837 created a single offence which did not depend on proof that the woman was “quick with child” or, indeed, even that she was (to use the terminology of the 1861 Act) “with child”.

As Dr Keown points out in his book, Abortion, doctors and the law: Some aspects of the legal regulation of abortion in England from 1803 to 1982 (1988), at pp 30-31, the 1837 Act as enacted omitted the word “pregnant” with which the Commissioners in their draft Bill (no doubt with R v Scudder in mind) had qualified the word “woman” in the phrase “Miscarriage of any woman”. Not surprisingly, therefore, in R v Goodhall (1846) 1 Den CC 187 it was held that proof of pregnancy was unnecessary.

The reform of 1837 may have removed anomaly from the law of abortion but, as was pointed out soon after, only at the price of creating greater anomaly in the law generally. W Tyler Smith in Parturition and the Principles and Practice of Obstetrics (1849) at p 105 did not mince his words:

Abortion – the 1861 Act

Section 58 of the 1861 Act provides as follows:

Section 59 is in the following terms:

It will be noticed that in place of the phrase “quick with child”, which had been used at common law and in the Acts of 1803 and 1828, the 1861 Act uses the phrase “with child”.

It will be appreciated that between them sections 58 and 59 create three offences. The first, created by the first limb of section 58, can be committed only by the woman concerned and only if she is “with child”:

The second, created by the second limb of section 58, can be committed by anyone and whether or not the woman is “with child” – thus carrying forward explicitly the principle in R v Goodhall that pregnancy is not a necessary element of the offence:

The third, created by section 59, can again be committed by anyone and whether or not the woman is “with child”:

It will be noticed that the 1861 Act does not make abortion as such a criminal offence. Each of the three offences consists, in essence, of two ingredients:

i) the doing of certain acts (either “administering” or “using” or “supplying or procuring” certain things)

ii) with a certain knowledge or intent.

In the case of the first offence there is, of course, a further ingredient: it must be proved that the woman is “with child”.

Common to all three offences is the need to prove either an “intent to procure … miscarriage” or, in the case of the offence under section 59, knowledge of another’s “intent to procure … miscarriage”. That was in terms the nature of the intent required under the common law prior to 1803 (according to the precedent cited in paragraph [84] above) and under every version of the offences created in each of the Acts of 1803, 1828, and 1837.

Given the issue in the present case the last point requires emphasis. The essence of the offence, both at common law and in every version of the statutory regime since 1803, has always been the procuring of “miscarriage”. Putting the same point rather differently, “miscarriage” is not a term of art introduced into the law in 1861. It is the word which Parliament and the lawyers have been using in this context for some two hundred years.

Common also to all three offences is the need to prove that the relevant act is “unlawful”. The requirement of unlawfulness was considered in R v Bourne [1939] 1 KB 687. Nothing turns for present purposes on Macnaghten J’s celebrated direction to the jury in that case and I need say no more about it. Unlawfulness is now determined by reference to section 1 of the 1967 Act, for section 5(2) of that Act, as amended by the 1990 Act, provides that:

Section 5(2) as originally enacted provided that:

It can thus be seen that the concept of the “foetus” was first introduced into this area of the law by the 1990 Act.

Section 6 of the 1967 Act defines “the law relating to abortion” as meaning for this purpose:

Abortion – the 1967 Act

Section 1(1) of the 1967 Act as originally enacted provided that:

As amended by the 1990 Act section 1(1) of the 1967 Act now provides that:

Other legislation

I was referred to three other statutes. The first is the Infant Life (Preservation) Act 1929, section 1(1) of which makes it a criminal offence for:

Section 5(1) of the 1967 Act, as amended by the 1990 Act, provides that no offence under the 1929 Act is committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of the 1967 Act. Nothing turns on the 1929 Act and I say nothing more about it.

I was also referred to the Surrogacy Arrangements Act 1985. As amended by the Children Act 1989 and the 1990 Act this makes all surrogacy arrangements unenforceable (section 1A) and criminalises certain commercial surrogacy arrangements and certain advertisements about surrogacy (sections 2 and 3). For present purposes what are important are the definitions to be found in section 1 of the Act. Section 1(2) defines a “surrogate mother” as meaning:

Section 1(3) provides that:

Section 1(6) provides that:

Finally I was referred to certain other provisions of the 1990 Act. This sets up a regime under which, subject to stringent licensing arrangements (sections 3, 4 and 11), embryos may be created, kept and used, including in particular in treatment for infertility and in research. The Act requires embryos to be destroyed, if outside the body, 14 days after the mixing of the gametes (the sperm and the egg) in vitro : sections 3(3)(a) and 3(4).

The basic prohibitions on the use of human embryos are contained in section 3(1) which provides that:

Section 3(3)(a) provides that:

That is defined in section 3(4):

Section 1(1) of the 1990 Act provides as follows:

Section 1(2) provides that:

Section 2(3) provides that:

Section 27(1) provides that:

Section 27(2) provides that:

Section 11 sets out the classes of activity for which licenses may be granted. These include the use of embryos in the course of providing treatment services and for the purposes of research. The specific activities themselves are set out in Schedule 2 and include bringing about the creation of embryos in vitro and keeping or using embryos in the course of providing treatment services (Schedule 2, paragraph 1) and in the course of a project of research (Schedule 2, paragraph 3). Provision is also made for the storage of embryos (Schedule 2, paragraph 2).

Section 14(1)(a) contemplates that a licence may be granted authorising the storage of “an embryo taken from a woman”. This needs to be read in conjunction with Schedule 3, paragraph 7, headed “Embryos obtained by lavage, etc.” Paragraph 7(1) provides that:

Paragraph 7(2) provides that:

I must return in due course to consider some of the less obvious implications of the legislation.

As we have seen the legislation which I have just mentioned refers to a number of different expressions: in the 1861 Act, “being with child” and “miscarriage”; in the 1967 Act, “pregnancy”; in the 1985 Act, “to carry a child”, “the time of … insemination” and “egg in the process of fertilisation”; in the 1990 Act, “the primitive streak”, “fertilisation is complete”, “egg in the process of fertilisation”, “two cell zygote”, “embryo has become implanted” and “carrying … a child”. With a view to understanding such expressions I have been taken to a large mass of material bearing on the relevant medical science (a) as understood today and (b) as understood in the nineteenth century.

Medical science – the processes of pregnancy as understood today

On this topic I had evidence from a number of very eminent medical experts: Professor Peter Braude, Professor of Obstetrics and Gynaecology and Head of the Division of Women’s and Children’s Health at Guy’s, King’s and St Thomas’ School of Medicine (statement dated 10 July 2001); Professor Nigel Andrew Brown, Professor of Developmental Biology, and Chairman of the Department of Anatomy and Developmental Biology, at St George’s Hospital Medical School, University of London (statement dated 3 August 2001); Dr John McLean, Associate Specialist in Genitourinary Medicine in the Manchester Centre for Sexual Health in the Manchester Royal Infirmary (statements dated 22 October 2001 and 4 February 2002); and Professor Chris Barratt, Professor and Head of the Reproductive Biology and Genetics Research Unit at the University of Birmingham and Scientific Director of the Assisted Conception Unit at the Birmingham Women’s Hospital (statement dated 22 October 2001).

In essence they were all agreed as to the basic physiology. So far as is necessary for present purposes, and presented in very simplified terms (for which I trust these distinguished experts will forgive me), the position can be summarised as follows:

i) Ovulation involves the release of a mature egg (an ovum) from the ovary, usually, but not invariably, into the fallopian tube. Release of the ovum occurs at a variable time towards the mid point of the menstrual cycle.

ii) Following coitus, the sperm penetrates the cervical mucus and, after varying periods of time (anything from a few hours to as much as six days), reaches the fallopian tube. During this time the sperm is undergoing a process of maturation called capacitation without which it is incapable of fertilising an ovum.

iii) The ovum and capacitated sperm meet in the fallopian tube. This can be described as Time 0. The ovum is fertilised by a capacitated sperm in the fallopian tube. Fertilisation is a process, not an event that occurs at a single point in time.

iv) It can take between a few minutes and several hours for the sperm to enter the ovum. The first evidence that fertilisation has been successful is the presence of two pronuclei, one containing the maternal and the other the paternal chromosomal material. This usually occurs about 14 hours after Time 0. The paternal and maternal genetic material comes together – in effect fusing – during a process of syngamy which takes place between 24 and 30 hours after Time 0.

v) Syngamy immediately precedes the division of the ovum into two cells, called the two cell zygote. This is the start of the cleavage stage. The next divisions are into four cells, approximately 48 hours after Time 0, and into a ball of eight cells, the morula, which resembles a mulberry, approximately 60 hours after Time 0. The sixteen cell stage is reached about 72 hours after Time 0 – some four or more days after coitus.

vi) Cleavage continues at regular intervals until the blastocyst stage is reached between five and six days after Time 0. At this point the fertilised egg resembles a hollow football with cells plastered around the outside. Throughout this time it is contained within the eggshell, the zona pellucida.

vii) Up until the attachment stage the embryo is not attached in any way to the woman herself. All the stages thus far described happen in a free-floating environment, initially within the fallopian tube and then within the uterus, which the cleaving embryo is believed to enter, during the transition from morula to blastocyst, somewhere between four and six days after Time 0 – a week or more after coitus.

viii) In the uterus the zona pellucida splits and the blastocyst is released from the shell. The blastocyst then begins to attach to the uterine epithelium, the surface layer of the uterine endometrium (wall). The very earliest that this can happen is some four to five days after Time 0, though it is usually about six days after Time 0. The outer trophoblast cells of the released blastocyst begin to invade the epithelium, burrowing into the underlying endometrial stroma. About eight days after Time 0, by which time the blastocyst is partially embedded in the endometrial stroma, the trophoblast layer differentiates into two layers. It continues to implant. By ten to eleven days after Time 0 the blastocyst has sunk right into the stroma and the epithelium is growing over the surface defect. The embryo only begins to form the early tissue layers by about 14 days after Time 0, in a process called gastrulation which takes place through a structure called the primitive streak which is the first sign of the head to toe axis of the embryo.

ix) The hormone human chorionic gonadotrophin (hCG) begins to be produced and to circulate in the mother’s bloodstream from the commencement or close to the commencement of the implantation process, that is about six or so days after Time 0. This is the chemical detected in a pregnancy test. It is uniquely associated with pregnancy. It can now be detected in smaller quantities than before. A predictor test is sensitive to quantities of the chemical which enable identification of the implantation process at the earliest from about seven days after Time 0. The test for hCG represents the first reliable opportunity to identify the existence of an embryo.

Reduced to essentials there are thus three relevant stages in the process: coitus, fertilisation and implantation. Fertilisation, a process which itself takes many hours, commences hours or even days after coitus. Implantation, a process which itself take some days, starts at the earliest some four to five, though usually some six or seven, days after the commencement of fertilisation. The earliest method of detecting pregnancy, by testing for hCG, enables the existence of an embryo to be identified from about seven days after the commencement of fertilisation, that is only after commencement of the implantation process.

It will be appreciated from this that at the time of ingestion of the morning-after pill – within 72 hours of coitus – (a) implantation will not have begun and (b) there is no method by which it can even be determined whether fertilisation has occurred.

There is one other aspect of this medical evidence which perhaps requires emphasis. This is summarised by Professor Braude in the proposition that “Fertilisation does not usually result in the development of an embryo” and by Professor Brown in the statement “It is striking that the usual fate of the fertilized human egg is to die.” According to Professor Braude not much more than 25% of successfully fertilised eggs reach the blastocyst stage of development and “Even once implanted the failure rate is prodigious”, for fewer than 15% of fertilised eggs will result in a birth.

Medical science – current terminology

In relation to modern medical terminology I had evidence from Professor James Owen Drife, Professor of Obstetrics and Gynaecology at the University of Leeds, Honorary Consultant Obstetrician and Gynaecologist to the General Infirmary at Leeds, a Vice-President of the Royal College of Obstetricians and Gynaecologists, and an elected member of the General Medical Council (statement dated 3 August 2001). He qualified in 1971.

I think it best if I set out some of his evidence verbatim. He says that he was:

So far as concerned the meaning of the word “pregnancy” his evidence was as follows:

He adds:

Miscarriage he defines as follows:

He adds this illuminating observation:

I should add that no gynaecologist, obstetrician or family planning practitioner whose views are in evidence before this court expresses disagreement with Professor Drife’s proposition (that is, that “I do not know of any gynaecologist who feels that these contraceptive methods are procuring abortions. Indeed, colleagues who oppose abortion are – like me – keen to prescribe these contraceptives in order to reduce the need for abortion.”) Those who express a view agree. And as we shall see in due course (see paragraph [245] below), both the consultant gynaecologists who gave evidence to the court in R v Dhingra agreed (Transcript p 2G) that:

Finally Professor Drife said this:

Medical science – current medical dictionaries

A number of medical dictionaries and other reference works were produced by various witnesses: by Mr Smeaton, the National Director of SPUC (statement dated 19 October 2001); by Dr Jacqueline Claire Bore, who is not merely the solicitor having the conduct of this case on behalf of Schering, but who is also a registered medical practitioner and a member of the Royal College of General Practitioners and who holds the Diploma of the Royal College of Obstetricians and Gynaecologists and the Certificate in Family Planning issued by the Faculty of Family Planning of that Royal College (statement dated 21 January 2002); and by Paul Conrathe, who is the solicitor having the conduct of this case on behalf of SPUC (statement dated 4 February 2002).

I shall take these works in turn, referring in each case to the most recent edition to which my attention was directed.

Taylor’s Principles and Practice of Medical Jurisprudence (ed 13, 1984): At p 322 it is said that:

The International Dictionary of Medicine & Biology (1986): This contains the following relevant definitions:

Churchill’s Medical Dictionary (1989): This contains definitions of miscarriage, abort, abortion, conception and pregnancy which are virtually identical to those in the International Dictionary .

Butterworth’s Medical Dictionary (ed 2, 1978, repr 1990): This contains the following relevant definitions:

Reiss’s Reproductive Medicine: From A to Z (1998): This contains the following relevant definitions:

Stedman’s Medical Dictionary (ed 27, 1999): This contains the following definitions:

Melloni’s Illustrated Dictionary of Obstetrics and Gynaecology (2000): This contains the following relevant definitions:

Dorlands’s Illustrated Medical Dictionary (ed 29, 2000): Said by Dr Bore to be “regarded by many as the world’s finest medical dictionary”, this contains the following relevant definitions:

Now some of these definitions (see The International Dictionary and Churchill ) are really too general to be of any very great assistance. But, putting the matter generally, it can be seen that current medical definitions given in medical dictionaries support the view that pregnancy begins once the blastocyst has implanted in the endometrium and, more particularly, that miscarriage is the termination of such a post-implantation pregnancy. See in particular the definitions in Reiss , Stedman and Dorland which seem to me to be unambiguously supportive of the defendants’ case. Butterworth’s and Melloni , although not quite so clear, also seem to me to support the defendants’ rather than SPUC’s case. With the sole exception of Taylor none of the dictionaries is unambiguously helpful to SPUC’s case.

Medical science – nineteenth century science and terminology

Evidence in relation to nineteenth century medicine was given by Joan Lynn Walsh, a Researcher at the Clinical Effectiveness Unit at the Faculty of Family Planning and Reproductive Health Care of the Royal College of Obstetricians and Gynaecologists (statements dated 11 July 2001 and 26 January 2002) and by Dr Keown, who is Senior Lecturer in the Law and Ethics of Medicine in the University of Cambridge and Senior Research Fellow of Churchill College Cambridge (statements dated 19 October 2001 and 14 December 2001).

Dr Keown in his article and his book (see esp at pp 23, 38-39) and both Dr Keown and Ms Walsh in their evidence referred to a number of eighteenth and nineteenth century medical texts. The following were produced in evidence (I list them in chronological order of publication):

Thomas Denman An Introduction to the Practice of Midwifery (1794) Vol 1 pp 222-224.

William Cruikshank Experiments to discover the Ova of Rabbits (1797), Philosophical Transactions of the Royal Society of London, Vol 87 (1797) pp 197-214.

John Burns The Anatomy of the Gravid Uterus with Practical Inferences relative to Pregnancy and Labour (1799) p 150.

John Burns The Principles of Midwifery including the Diseases of Women and Children (ed 3 1814) pp 192-195.

John Mason Good The Study of Medicine (ed 1 1822) Vol IV p 177, (ed 2 1825) Vol IV pp 23-27, 177-178, (ed 3 1829) Vol XX pp 21, 174-175.

W Montgomery An Exposition of the Signs and Symptoms of Pregnancy (1837) pp 230-231.

Michael Ryan A Manual of Midwifery and Diseases of Women and Children (ed 4 1841) pp 110-111, 146-147, 162-163.

John Ramsbotham Practical Observations in Midwifery with Cases in Illustration (ed 2 1842) pp 15-16, 376.

John Burns The Principles of Midwifery including the Diseases of Women and Children (ed 10 1843) pp 200-201, 304-305

Alfred S Taylor A Manual of Medical Jurisprudence (1844) pp 596-597.

James Whitehead On the Causes and Treatment of Abortion and Sterility (1847) pp viii, 181-182, 197, 355.

W Tyler Smith Parturition and the Principles and Practice of Obstetrics (1849) pp 52-53, 104-105, 136-141.

Francis H Ramsbotham The Principles and Practice of Obstetric Medicine & Surgery in reference to The Process of Parturition (ed 4 1856) pp 52-53, 683-684.

R Philp The Dictionary of Medical and Surgical Knowledge (1864) pp 458-459.

William Leishman A System of Midwifery including the Diseases of Pregnancy and the Puerperal State (ed 2 1876) pp 412-415.

Robert and Fancourt Barnes A System of Obstetric Medicine and Surgery (1884) Vol 1 pp 488-489.

William Thompson Lusk The Science and Art of Midwifery (ed 3 1885) pp 114-115, 305.

Arthur P Luff Text-book of Forensic Medicine and Toxicology (1895) Vol 2 pp 178-179.

The thesis underlying Dr Keown’s analysis is most clearly summarised in his first witness statement. Referring to the research he undertook for his book he says:

Now this material, much of which has been subjected to a minute and, if I may say so, very illuminating textual analysis by Dr Keown and Ms Walsh, is, I do not doubt, of very great interest. I do not, however, have to examine it in exhaustive detail. In the first place, and as will become apparent in due course, my decision must as a matter of law ultimately turn not on what the word “miscarriage” was understood to mean in 1861 but rather on what it means today. Secondly, the whole of Dr Keown’s argument – at least in the form in which he puts it forward – depends, as it seems to me, on the factual assertion that, as he himself puts it, the relevant texts are “unanimous” in either supporting or not contradicting his conclusion. With very great respect to Dr Keown, and fully acknowledging that the scholar has more time than the busy judge to analyse matters of this sort, I nonetheless have to say that the texts, as it seems to me, are very far from unanimous. Some, as I read them, on their face contradict Dr Keown’s reading. I can, accordingly, deal with them comparatively briefly.

The most important of the texts are those of Good, John Ramsbotham, Burns, Whitehead, Tyler Smith, Francis Ramsbotham and Leishman. I shall take them in turn.

As a preliminary comment I observe that nineteenth century medicine appears to have recognised – correctly in the light of modern understanding – that:

i) What we would call fertilisation (then often referred to as impregnation) takes place in the fallopian tube and before the fertilised ovum passes into the uterus – thus Burns as early as 1799 refers (at p 150) to the state of the uterus “Before the embryo passes down through the Fallopian tube into the uterus” and Ryan in 1841 recognises the fact when (at p 111) he asks “But how can we explain the fact, that but one tube only is concerned in conception?”

ii) After its arrival in the uterus the fertilised ovum becomes attached to the uterine wall – thus in 1829 Good can refer (at p 175) to “the separation of the ovum from the fundus of the womb” and in 1842 John Ramsbotham describes (at p 16) how “when the impregnated Ovum is received into the uterine cavity, it becomes attached to some one point”.

Good in 1829 says this (at pp 174-175):

John Ramsbotham in 1842 (at p 376) describes abortion as follows:

Writing in 1843, Burns – who, as we have seen, was well aware that fertilisation takes place in the fallopian tube – says this (at pp 304-305):

Whitehead in 1847 writes (at p 182) that:

Earlier (at p 181) he had referred to the period of utero-gestation as running “from the moment of impregnation, when the ovum … receives the fertilising stimulus”.

Tyler Smith writing in 1849 saw abortion as being (p 105) the destruction of the ovum “at any time” or (p 136) “between conception and natural parturition”.

Francis Ramsbotham in 1856 defined abortion as follows (pp 683-684):

He was, of course, well aware (see at p 52) that conception took place in the fallopian tube and before the impregnated ovum reaches the uterus.

Leishman in 1876, treating abortion as synonymous with miscarriage, says (pp 413-414) that:

I need go no further: we are by now well past 1861.

Now I can entirely accept, even if Ms Walsh does not, that Good, Tyler Smith and Leishman support Dr Keown’s position. On a benevolent reading Whitehead might perhaps be thought to be ambiguous. But John Ramsbotham, Burns and Francis Ramsbotham provide Dr Keown with no such support. Indeed, on the face of it they contradict him. Both Ramsbothams define abortion and miscarriage – terms which they explicitly use interchangeably – by reference to the expulsion of the contents of the uterus ; both Burns and Francis Ramsbotham by reference to the “detachment” or “separation” of the ovum – in other words by reference to the state of the ovum after implantation.

The simple fact is that the texts are not unanimous. Analysis of the medical sources cited by Dr Keown in his article and witness statements reveals a much more complex and contradictory picture than the one which he seeks to present, and one which, in my judgment, wholly undermines the conclusion at p 613 of his article that “the lack of judicial authority to support a restricted construction of “miscarriage”” – a matter I consider below – “is matched only by an equal lack of medico-legal authority”.

In his second witness statement Dr Keown says that:

Now matters of this sort are not, of course, to be resolved merely by a counting of heads, and I have not been taken by anyone – not even by Dr Keown – to the whole of the literature which he has read. He might be correct were he to say that a considerable body of nineteenth century medical opinion supports his conclusions. But I have to admit to more than passing doubts as to whether he is justified in saying that this reflects what was “generally understood”. After all, John Ramsbotham was an expert called in aid by Dr Keown himself in his article and Francis Ramsbotham was, according to Ms Walsh (and not challenged on this point by Dr Keown), “widely regarded as the pre-eminent authority in the field”.

The fact is that some of the leading and most authoritative medical works of the time available to Parliament in 1861 – I have in mind John Ramsbotham, Burns and, in particular, Francis Ramsbotham – are strongly supportive of the idea that miscarriage becomes possible only after implantation. That fact – and fact it is – seems to me to be wholly destructive of Dr Keown’s thesis and, in very large measure, also of SPUC’s case.

There are various aspects of contraception which need to be considered, some legal, some social and some medical.

Contraception – legal and social developments

The history of contraception so far as it is relevant to inquire into it for present purposes is described by Ms Walsh in her evidence (statement dated 11 July 2001). Supplemented in certain particulars by the accounts given by Professor Glanville Williams in The Sanctity of Life and the Criminal Law (1958) pp 43-51 and by Dr Norman St John-Stevas in Life, Death and the Law (1961) pp 50-59 and in The Agonising Choice: Birth Control, Religion and the Law (1971) pp 14-44, it can be summarised as follows.

The condom appears to have first been described, if indeed not invented, by Fallopio in the sixteenth century. It was in use in this country by the eighteenth century though according to St John-Stevas by the end of that century its use was still associated with immorality and vice.

The nineteenth century birth control movement found its origins in the pessimistic theories of Thomas Malthus in his Essay on the Principle of Population (1798) and its first clear exposition by Francis Place who, in his Illustrations and Proofs of the Principle of Population (1822), suggested that in the use of artificial contraception lay the answer to population problems.

Nonetheless, as Ms Walsh points out, while condoms became increasingly available during the nineteenth century, they were not widely used, being expensive and still having associations with disease and prostitution which made them unacceptable for use by married couples. And as late as the mid to late nineteenth century there were no widely available effective methods of contraception. Indeed, there was very little general awareness of the possibility of contraception prior to the decisive event of 1877 – what Sir Alexander Cockburn CJ called the ill-advised and injudicious prosecution of Charles Bradlaugh and Mrs Annie Besant for publishing a treatise on contraceptive methods entitled the Fruits of Philosophy which had originally been published in the United States of America in 1832. At the end of a sensational trial (the details of which can be found described in St John-Stevas’s Obscenity and the Law (1956) pp 70-74) both defendants were convicted of publishing an obscene libel. The basis of their conviction was described thus by Viscount Finlay in Sutherland v Stopes [1925] AC 47 at p 67:

Their conviction was eventually overturned on a technicality: Bradlaugh v The Queen (1878) 3 QBD 607 reversing (1877) 2 QBD 569. Contemporary views of the matter are evident, however, from the subsequent proceedings in Chancery where it was held that the publication of the book was in itself sufficient grounds for removing Mrs Besant’s seven year old daughter from her mother’s custody: In re Besant (1878) 11 ChD 508.

Sitting at first instance Sir George Jessel MR said this at p 514:

Mrs Besant’s appeal was dismissed. Giving the judgment of the Court of Appeal at p 521 James LJ said:

Whatever the views of the judges, the effects of the Bradlaugh-Besant prosecution were startling. As Ms Walsh points out, the proceedings had the effect of publicising the possibility of using artificial means to control fertility. According to St John-Stevas the trial made contraception a subject debated throughout the country and among all classes. Before 1876 the circulation of Fruits of Philosophy had been only 1,000 per year; by August 1881 no less than 185,000 copies had been sold. The Malthusian League was founded in 1878 with Mrs Besant as its first secretary. In 1879 Mrs Besant published The Law of Population which had sold 175,000 copies by 1891. According to Glanville Williams, although a variety of other social developments of the time played an important part, this birth control propaganda, and the Bradlaugh-Besant trial in particular, accelerated and extended the practice of family limitation, at any rate among what he called – this in 1958 – the lower middle-class and the skilled artisans.

Significant also was the introduction in the 1880s of the condom, diaphragm and cap in their modern form, a development only made possible by the discovery in 1843-4 of the process of vulcanising rubber and subsequent advances in rubber technology. But, as Ms Walsh remarks, these methods were still too expensive to be widely accessible.

Nonetheless, what Glanville Williams called “the crusade for sexual enlightenment in England”, did not proceed entirely without difficulties. Prosecutions for selling birth control literature continued into the twentieth century and as late as 1887 a doctor was struck off the medical register by the General Medical Council for publishing a popular work on birth control. By 1913, however, the Malthusian League was able to publish a practical handbook on birth control, Hygienic Methods of Family Limitation , apparently without legal incident. And in 1922 the Home Secretary announced in the House of Commons that:

The extent to which legal views had changed by the 1920s can perhaps be gauged from Sutherland v Stopes [1925] AC 47, where Dr Marie Stopes failed in her attempt to reverse the verdict against her in libel proceedings she had brought in relation to a book which criticised what it called her “monstrous campaign of birth control” and opined, looking back to the events of 1877, that Bradlaugh had been “condemned to jail for a less serious crime” than that which she had allegedly committed.

Viscount Cave LC (at p 55) and Lord Shaw of Dunfermline (at p 73) carefully avoided expressing any views on the subject. Lord Wrenbury, who dissented, gave (at pp 85-87) a historically most interesting account of the recent development of thinking on the question of birth control and (at pp 91-93) a summary of the medical and other evidence in the case – accounts which Lord Carson (at p 100) with evident distaste correctly read as being sympathetic to Dr Stopes. Viscount Finlay (at pp 66-71) gave vent to his views in a long passage which the curious might wish to read in extenso. I forebear to quote extensively. For immediate purposes two passages on p 68 suffice. The first:

The second:

It may be that, as St John-Stevas tells us, by the 1930s the birth controllers had effectively carried the day – though only, of course, in relation to the married – but as late as 1941 a judge of what is now the Family Division could refuse to accept as common knowledge the use of contraceptives. In Firth v Firth (1941) June 25, unreported (but see [1948] AC 278), Langton J said:

But by 1947 acknowledgement of social realities was forthcoming at the highest level. In Baxter v Baxter [1948] AC 274 the House of Lords had to consider whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a) of the Matrimonial Causes Act 1937. The House held that she was not, for a marriage may be consummated although artificial methods of contraception are used. Pressed with Langton J’s comments, Viscount Jowitt LC at p 290 said:

In 1949 the Royal Commission on Population, Cmd 7695, said at para 427:

The Royal Commission added (paras 434 and 657) that “public policy should assume, and seek to encourage, the spread of voluntary parenthood.” It recommended (paras 536 and 667) that all restrictions on giving contraceptive advice to married women under public health services should be removed. The Commission did not suggest giving advice to unmarried women.

The National Health Service (Family Planning) Act 1967 was enacted on 28 June 1967, some four months, it may be noted, before the Abortion Act, enacted on 27 October 1967. This Act (later amended by the National Health Service (Family Planning) Amendment Act 1972), and the Ministerial directions made under it, swept away the remaining institutional restraints on the provision of contraception for social rather than purely medical reasons and any remaining distinction between the provision under the National Health Service of contraceptives to the married and the unmarried.

We are at last in the modern world.

So much for the legal and social history of contraception. I must briefly outline what one might call the technical or technological history.

Contraception – modern contraceptive technology

On this topic also I had evidence from a number of very eminent medical experts: Dr Connie Smith, Director at the Clinical Effectiveness Unit at the Faculty of Family Planning and Reproductive Health Care of the Royal College of Obstetricians and Gynaecologists (statement dated 12 July 2001); Dr Peter Norman Longthorne, Medical Director of Schering Health Care Limited (statements dated 3 August 2001 and 21 January 2002); Professor Steven Smith, Professor of Obstetrics and Gynaecology and Head of Department in the Department of Obstetrics and Gynaecology at the University of Cambridge (statements dated 19 October 2001 and 6 February 2002); and Professor Chris Barratt, Professor and Head of the Reproductive Biology and Genetics Research Unit at the University of Birmingham and Scientific Director of the Assisted Conception Unit at the Birmingham Women’s Hospital (statement dated 22 October 2001).

Again these experts were at one on all matters of importance. So far as it is necessary for present purposes the position can be summarised (again in very simplified terms) as follows.

The condom in its modern form dates back, as I have said, to the 1880s. Down to the late 1950s for all practical purposes, apart from periodic abstinence, only the so-called “barrier” methods of contraception were in use: that is, the condom and the pessary or diaphragm. Since then there has been a revolution not merely in attitudes to contraception but also in contraceptive techniques.

I should briefly describe six different forms of what might, more or less accurately, be called modern contraceptive techniques:

i) Intra-uterine devices (IUDs, coils) – Non-chemical coils were first developed in the early years of the twentieth century but it was only in 1959 that their use in this country became popular. They are now in common use and can be inserted either before or after coitus. They are fitted by a doctor.

ii) Combined oral contraceptives (the pill) – These contain a combination of synthetic oestrogen and a progestogen. The initial research was undertaken in the 1940s (hence, no doubt, the reference in Baxter at pp 277 and 289 to “a drug taken orally by a woman before intercourse to procure temporary sterility”). Development and testing of a practicable pill followed during the 1950s. The first commercial pill was introduced in Britain in 1961. It is commonly taken as a contraceptive by millions of women. It is taken daily for three weeks out of the four weeks of a woman’s menstrual cycle.

iii) Progestogen-only oral contraceptives (the mini-pill) – These contain a small dose of a progestogen and are taken daily and continuously. They were developed during the 1970s.

iv) Intra-uterine progestogens (IUS) – These are coils which include a chemical. The chemical is the same as that used in the combined pill and the morning-after pill: progestogen. Like other IUDs they are fitted by a doctor and can be inserted either before or after coitus.

v) Intra-muscular progestogens and sub-dermal progestogens – These are progestogens delivered either by injection every three months or by a sub-dermal implant for up to three years use.

vi) Emergency hormonal contraceptives (the morning-after pill) – These fall into two categories: (i) combined emergency hormonal contraceptives containing a combination of oestrogens and progestogen (Levonorgestrel) and (ii) progestogen only emergency contraceptives containing only Levonorgestrel. The first morning-after pill was available in experimental form in the early 1970s. As I have said, it has been available to the public in the United Kingdom since 1984, when Schering PC 4 was launched as a prescription only medicine. This was a combined pill containing oestrogens and progestogens. It was followed by Levonelle-2, a pill containing only Levonorgestrel which was launched as a prescription only medicine in February 2000. Levonelle was launched as a pharmacy only medicine, following the coming into force of the 2000 Order, in February 2001. Levonelle is taken in two doses. The second must be taken 12 hours after the first. Both must be taken within 72 hours of potentially fertile intercourse.

The “barrier” methods of contraception – condoms, pessaries and diaphragms – act, as their generic description would suggest, in such a way as to prevent the meeting of ovum and sperm. They therefore act to prevent conception; they are incapable of preventing ovulation or affecting implantation.

The precise way or ways in which the other contraceptive pills and devices operate are still not fully understood. What is known, however, and this for present purposes is the vital point is that they all – IUDs, the pill, the mini-pill, the morning-after pill and the others – can operate either to prevent conception and/or to prevent implantation.

The various ways in which such pills and devices may work are summarised by Dr Connie Smith:

She adds:

The various modes of operation of these non-barrier methods can be summarised in simple terms as follows:

i) Non-chemical IUDs – These do not affect ovulation. They provoke a local inflammatory effect in the upper genital tract, disrupting both fertilisation and implantation. Dr Connie Smith makes the point that in everyday practice it is not possible to determine which method of operation is involved.

ii) The pill – Although its primary effect in most women is to prevent ovulation, the pill can operate in any of three ways: to prevent ovulation, to prevent the sperm from reaching the ovum by reducing sperm penetration into the uterine cavity (and hence to prevent conception) and to prevent the process of implantation by alteration of endometrial receptiveness. It is well known that the pill has a significant effect on the endometrium because it has a significant effect on menstrual flow; in this connection it is to be remembered that the pill contains (albeit in lower quantities) the same active ingredient – progestogen – as the morning-after pill. Dr Connie Smith makes the important point that in everyday practice it is not possible to determine whether in a particular woman the pill is operating to prevent ovulation, conception or implantation.

iii) The mini-pill – This has its main effects on the cervix (preventing sperm penetration) and on the endometrium (disrupting implantation). In some women it will disrupt ovulation. Again Dr Connie Smith makes the point that in everyday practice it is not possible to determine whether the mini-pill is operating to prevent ovulation, conception or implantation.

iv) IUSs – These also operate in the same three ways. Again it is not possible to tell how in the case of any particular woman.

v) Intra-muscular progestogens and sub-dermal progestogens – These operate primarily to prevent ovulation but if the primary mode of action fails will also operate to prevent either conception or implantation. Again, in everyday practice it is not possible to tell in which way they are acting on a particular woman.

vi) The morning-after pill – Although there remains some doubt about how precisely it operates, and whilst there is an important difference of opinion as to which is the primary mechanism, it is common ground that, so far as currently understood, the morning-after pill can operate in principle to prevent ovulation, to prevent fertilisation or to prevent implantation. The medical evidence was divided as to where the most common focus of contraceptive effect is to be found: Dr Longthorne believes that the predominant mechanism of action of Levonorgestrel exerts its effect prior to fertilisation; Professor Steven Smith that its principal effect is upon implantation (“there is little effect on sperm penetration” and “a low chance of affecting ovulation”); Professor Barratt that its effect on sperm transport is likely to be negligible. Dr Connie Smith was unwilling to identify the predominant mechanism. I do not think it matters for present purposes. Two things are clear. Once the embryo has implanted the morning-after pill cannot act to cause it to de-implant. Moreover, as Dr Longthorne put it, there is nothing which would enable a woman, her doctor or pharmacists to determine which mechanism or combination of mechanisms operates on any individual occasion when the morning-after pill is taken.

Dr Connie Smith helpfully tabulates this information in a chart which can be summarised as follows:

i) Barrier methods operate only to prevent fertilisation: they cannot prevent either ovulation or implantation.

ii) IUDs operate either to prevent fertilisation or to prevent implantation: they cannot prevent ovulation.

iii) The pill, the mini-pill, IUSs, intra-muscular and sub-dermal progestogens and the morning-after pill all operate either to prevent ovulation or to prevent fertilisation or to prevent implantation. The differences between them come down to this, that whereas with the pill the most common focus of contraceptive effect is the prevention of ovulation, the most common focus of contraceptive effect with the mini-pill, IUSs and sub-dermal progestogens is the prevention of either fertilisation or implantation. In relation to the morning-after pill views on the point are, as I have said, divided.

Although, perhaps understandably, SPUC was reluctant to acknowledge the full implications of all this evidence, its importance is obvious. If SPUC’s case is correct in relation to the morning-after pill, then the same legal consequences for which it contends must also follow in the case of IUDs, the pill and the mini-pill.

Contraception – the legal implications of modern contraceptive technology

That certain forms of so-called contraception (IUDs in particular) might possibly present objections along the lines of those now taken to Levonelle by SPUC is no recent realisation. In fact the problem has been recognised for a long time.

I note in passing that the medical evidence in Sutherland v Stopes appears to have been unanimous that one of the two methods of contraceptive birth control advocated by Dr Stopes – what Viscount Cave LC (at p 57) referred to as “an apparatus called the “gold pin””; I assume it to have been an early version of the coil – was in fact an abortifacient, inasmuch as it was “calculated to produce abortion” (see at p 57) or, as Viscount Finlay put it (at p 67), “promotes conception but causes early abortion”.

Be that as it may, as long ago as 1962 the Report of the British Council of Churches Working Party on Human Reproduction recognised (at pp 20-22) that there was a difficult question as to whether contraceptive techniques which involve interference in one way or another with the fertilised ovum in law constitute abortion. Referring to section 58 of the 1861 Act the Working Party observed at p 22:

The same point was raised by Glanville Williams in an address entitled The Legalization of Medical Abortion given to the Annual General Meeting of the Abortion Law Reform Association in October 1963 and printed in the Eugenics Review for 1964 at p 19. At p 21 he said this:

And in 1971 St John-Stevas in The Agonising Choice commented at pp 37-39 that it was not then known with any certainty exactly how IUDs, the mini-pill and the morning-after pill (the latter two at that time still at an experimental stage) worked. Of IUDs he said:

Of the morning-after pill he said:

I return below to consider the more recent commentators.

Contraception – terminology

In modern times much of the debate with which I am concerned has been carried on in terms of the asserted contrast between contraception and abortion, between contraceptives and abortifacients. Often the issue is formulated in terms of the question: Is the morning-after pill a contraceptive or an abortifacient? As Professor Grubb has pointed out, this simple contrast may be too simplistic. There are in fact at least three different situations to be considered. In Kennedy & Grubb (eds) Principles of Medical Law (1998) he comments at para 11.10:

The social case for the morning-after pill, and for its availability as a pharmacy only, as opposed to a prescription only, medicine, is at the forefront of fpa’s case. Evidence on behalf of fpa was given by its Chief Executive, Anne Weyman (statement dated 3 August 2001). fpa’s case was elaborated in a most helpful skeleton prepared by its counsel, Ms Nathalie Lieven.

fpa’s case is important. I should deal with it in some detail because it sets out what for most people, other than lawyers, this case is really about.

fpa is well known. It was founded in 1930 as a provider of contraceptive advice and information. It is very widely involved in working with the public and professionals to provide information and services to those who need them in this field. The material deployed by Ms Weyman plainly makes good her claims that “fpa is the UK’s leading generalist sexual health charity” and that its “unique expertise in the area of contraception” puts fpa “in a particularly good position to comment upon the importance of emergency contraception, and the needs of those who may wish to take it.” As Ms Lieven submits, fpa has a unique position as a national voice on sexual health issues.

Ms Weyman makes no bones about fpa’s standpoint. She tells us that fpa campaigned for contraception to be made available through the NHS and says:

Ms Lieven submits that in these circumstances fpa is uniquely well placed to inform the court as to the wider implications of this case and the current reality of the arguments being put forward by SPUC. The Secretary of State agrees. So do I.

Ms Weyman’s evidence was startling in its implications. Using the words “pregnancy” and “abortion”, as she puts it, “in the way that they are generally understood”, she says:

The statistical significance of all this is borne out by the following comments:

She adds:

Ms Weyman continues:

As she points out, emergency contraception is safe, simple and effective. Abortion, although in this country safe and effective, is both medically and psychologically invasive and usually involves procedures which have the possibility of greater and potentially more serious side effects than emergency contraception. As she also observes:

Her conclusions are clear and emphatic:

Ms Lieven’s submissions on behalf of fpa focussed on what she called the extraordinary importance of this application and the consequences of the court making the order sought.

Focussing on the heart of fpa’s concerns she made two submissions to both of which there is, so far as I can see, simply no answer:

i) Although SPUC seeks only a declaration that a person administering Levonelle to a woman in certain circumstances commits an offence under section 58 of the 1861 Act, and that a person supplying Levonelle in certain circumstances commits an offence under section 59, it must follow from Mr Gordon’s argument, if it is correct, that a woman who takes Levonelle and who is in fact “with child” would also in certain circumstances commit an offence. Thus, says Ms Lieven, the effect of SPUC’s argument would be to criminalise a very large, although indeterminate, number of women. She comments, as it seems to me with justification, and as some might think with moderation, that it is not clear whether SPUC has simply not considered the logic of its argument, or whether it merely wants to avoid highlighting this startling consequence.

ii) It is clear from the medical evidence, which SPUC does not seek to dispute, that the effect of its argument is that the alleged criminal consequences of taking, administering or supplying Levonelle, would also apply to the majority of other contraceptive methods, including the use of IUDs and all hormonal contraceptive methods. The social consequences of such a decision can fairly, and without exaggeration, she says, be described as catastrophic, yet SPUC has sought to entirely ignore these consequences of its argument.

I agree.

On this last point Ms Weyman’s evidence is sobering:

As Ms Lieven says, if the implications of SPUC’s arguments for other forms of contraception are taken into account, which, she says and I agree, they should be, then about 4.5 million women would potentially become guilty of criminal offences.

The Secretary of State supports the social case put forward by fpa. As I have already said, he stresses that there is what he calls a powerful social case for the morning-after pill both being available and being available as a pharmacy only medicine.

I have been taken to a number of judicial decisions from the common-law world, to a large mass of academic writing on the topic, to relevant materials (including some judicial decisions) from various foreign legal systems and, finally, to certain non-medical dictionaries. I shall deal with these in turn.

Judicial decisions

Surprisingly few authorities are relied on by any of the parties as throwing any light on the problem I have to decide. I have been referred only to six. They come from far and wide. It is convenient if I take them chronologically.

The first is Queen-Empress v Ademma (1886) ILR 9 Mad 369, a decision of Muttusami Ayyar and Brandt JJ in the Appellate Criminal Court of Madras. In that case a prosecution had been brought under section 312 of the Indian Penal Code, which made it an offence “voluntarily [to] cause a woman with child to miscarry”. The trial judge held that the defendant, who had only been pregnant for one month, could not be said to have been “with child”, for “according to the evidence, what came away was only a mass of blood” and “there was nothing which could be called even a rudimentary foetus or child”. Setting aside the acquittal, and directing a re-trial, the appellate court said this:

The next is R v Trim [1943] VR 109, a decision of the Full Court (Macfarlan, Martin and O’Bryan JJ) of the Supreme Court of Victoria. In that case the court had to consider section 62 of the Crimes Act 1928, which made it an offence to do certain acts “with intent to procure the miscarriage of any woman”, specifically in the context of an argument (rejected by the court) that it was a defence if the defendant believed that the child in the womb was already dead. Martin J, with whom O’Bryan J agreed (Macfarlan J dissented), treated “miscarriage” as synonymous with “abortion” and as referring to what he variously described (at p 116) as the expulsion or removal of “the contents of a gravid uterus”, the “untimely emptying of a uterus which contains the products of a conception” and “the emptying of the contents of the womb”. It was accordingly neither here nor there that the child was already dead.

The third is Munah Binti Ali v Public Prosecutor (1958) 24 MLJ 159, a decision of the Court of Appeal of Malaya (Thomson CJ, Whyatt CJ(S) and Good J). In that case section 312 of the Penal Code was in the same terms as that considered in Ademma . At p 160 Thomson CJ said:

Thus far the authorities throw little light on the matter. So far as I can see they provide no support either for Dr Keown’s thesis or for SPUC’s case. If one can safely read anything into them at all – and I have to say I am sceptical – their uniform references to miscarriage as involving the loss of the contents of the uterus would tend to support the defendants’ case

The next case is R v Price (Herbert) [1969] 1 QB 541, a decision of the Court of Appeal, Criminal Division (Sachs LJ, Fenton Atkinson and Cusack JJ). In that case a woman went to consult the defendant, a doctor, as she thought she was pregnant and did not wish to have the child. It was common ground that she told the defendant she thought she was some three months pregnant, that she desired not to have the child and that there was talk of going to Harley Street if there was any question of terminating any pregnancy. Although she exhibited most of the classic symptoms of being pregnant the defendant apparently told her that he did not think she was. The defendant suggested that she should be fitted with a Gynekoil, an IUD, according to the defendant, because she was frightened of becoming pregnant, and according to the woman, to procure an abortion. Two days later, the coil was inserted. The following day the woman went to a police surgeon who concluded she was pregnant and would shortly miscarry which she did on the following day, the foetus being some ten weeks old. The defendant was convicted by the jury of using an instrument – the Gynekoil – with intent to procure a miscarriage, contrary to section 58 of the 1861 Act.

The case actually went to the Court of Appeal on a wholly different point from that which I am considering, namely the complaint (in the event upheld by the Court of Appeal) that the trial judge had misdirected the jury in failing to warn them of the dangers of convicting the defendant on the uncorroborated evidence of the woman – she being in law an accomplice. However, in the course of explaining how that issue arose Sachs LJ, having set out the facts as I have summarised them, said (at p 544E):

Now it is apparent that the defendant must have known that the woman might be pregnant – he must have been aware of the possibility of there being a pregnancy. After all, he presumably knew that she had had unprotected sexual intercourse, given her statement to him that she thought she was pregnant. So when Sachs LJ said that the question was did the defendant “know or believe that [the woman] was pregnant” he must have meant did he know or believe that she was actually pregnant. Thus, while an actual pregnancy need not be proved – for except where the woman herself is charged the offence is committed whether or not the woman is “with child” – the Crown has always to prove that the accused believed that a pregnancy did in fact exist. Suspicion of pregnancy does not amount to knowledge or belief. As Norrie puts it (K Norrie Post coital Anti-pregnancy techniques and the law in Templeton & Cusine (eds) Reproductive Medicine and the Law (1990) 11 at p 14), what has to be proved is knowledge or belief in the actuality of pregnancy.

So far so good. But valiant attempts have been made by the commentators to read into this case support for the proposition being propounded before me by the Secretary of State, Schering and the FPA. Thus Kennedy & Grubb assert ( Medical Law p 1412) that:

I can only say that it is very far from clear to me that the Lord Justice had any such concept in mind: the distinction between fertilisation and implantation was plainly irrelevant in a case where the woman, if she was pregnant at all, was on any view many weeks pregnant.

Crystal-Kirk (David Crystal-Kirk Embryo Arrest: The “No-Man’s-Land” between Contraception and Abortion (1989) 57 Medico-Legal Journal 111 at pp 113-114) says this:

He adds: “the very concept of embryo arrest seems to have been overlooked, except (impliedly) by the Court of Appeal in Price .” The argument is clever and ingenious but, with respect, seems to me to depend too much on attributing a certain level of understanding to the court on medical matters which there is no reason to believe had ever been explored in evidence and in relation to an issue which, for good or ill, neither the Crown nor the defence had seen fit to raise.

I find it difficult to read into, let alone derive from, R v Price any clear support for the proposition which some would seek to find in it. The most one could derive from the case is that necessarily, so it might be thought, one cannot know or believe (as opposed to suspect) that a woman is pregnant until the time has been reached at which – whether by identification of the symptoms of pregnancy, medical examination or some form of ‘pregnancy test’ – the fact of pregnancy can be objectively determined; and, in the current state of medical knowledge and medical technology, that time cannot be earlier than the stage of implantation. But even that, as it seems to me, is probably to read too much into the decision.

The highest the point can be put, as it seems to me, is that there is nothing in the decision which stands in the way of the Secretary of State’s argument. Whilst there may be nothing in it to support his case there is equally nothing in it to support SPUC’s case. And I note that Dr Keown does not refer to it in his article as throwing any light on the problem with which I am concerned.

The fifth case is The Attorney General (ex rel The Society for the Protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd and Dublin Wellwoman Centre Ltd [1988] IR 592, a decision of Hamilton P in the High Court in Ireland which led eventually to the proceedings in the European Court of Human Rights to which I have already referred in paragraph [61] above. Referring to sections 58 and 59 of the 1861 Act (which continue to apply in Ireland unaffected by any legislation corresponding to the 1967 Act) he said (at p 598):

It may be observed that the point with which I am concerned did not arise for decision in that case. Moreover, unless he was using the word “conception” in the sense of the medical definitions given by Reiss and Stedman (in which case the passage is of no conceivable help to Mr Gordon) the learned judge’s comments would seem to display some internal inconsistency since he refers to statutory protection as being both to “the foetus in the womb” and as existing from “the date of … conception”. It is common ground that there is nothing in the subsequent proceedings in the Irish Supreme Court which throws any light on the point.

The last case, and as it happens the authority most clearly in point – indeed, the only authority directly in point – is R v Dhingra (1991), an unreported decision of Wright J in the Crown Court at Birmingham. Because the case is for some reason unreported, and because it is so directly in point, I propose to set out the relevant parts of the judgment at some length.

In that case a doctor who had fitted a patient, Miss Fortey, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case from the jury. I need not set out the medical evidence. Suffice it to say that, as summarised by Wright J in his ruling (Transcript pp 2C-3C), the evidence in that case (by which I mean both the evidence relating to the processes of conception and pregnancy and the evidence as to the operation of IUDs, the pill and the morning-after pill) was in all material respects to the same effect as the evidence I have heard in the present case.

There is one part of the medical evidence, however, which requires emphasis. As Wright J explained (Transcript p 2G):

He added (Transcript p 3C):

Referring to R v Price , Wright J identified the key issue as follows (Transcript p 1F):

He summarised the factual position in the case as follows (Transcript p 5G):

Wright J’s ruling is then set out in a long passage (Transcript p 6C) which I propose to set out in full:

Wright J then turned to consider (Transcript p 9G) questions relating to the defendant’s state of knowledge and mens rea before concluding (Transcript p 11A) that there was no case to go to the jury. With those aspects of the case I am not concerned and I accordingly say no more about them: they raise difficult issues in relation to intention which Professor Grubb has considered in Kennedy & Grubb (eds) Principles of Medical Law (1998) at para 11.15 and again in Kennedy & Grubb Medical Law (ed 3, 2000) at p 1413.

I was also referred by Mr Gordon to Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 and, in particular, to the speech of Lord Hope of Craighead, who (at p 267F) referred to the fact that:

With that I have absolutely no quarrel but (said as it was in wholly different context and addressing quite different issues) it seems to me to throw no useful light on anything I have to decide. I repeat: I am not here concerned to decide the moment at which life begins or, I might add, the moment at which an embryo can be said to come into existence as an organism. Lord Hope’s words do not seem to me to assist in understanding what the 1861 Act means when it refers to “miscarriage” and I cannot help thinking that Lord Hope himself would be surprised to hear it suggested they do.

The fact is that the only case to have addressed the issue which is currently before me is R v Dhingra . Mr Anderson submits that, as a fully-reasoned decision of a High Court judge, reached after full argument, it is subject to the modern practice that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. That may be, though I confess to a very great reluctance indeed to decide a point as important as this on such a narrow basis. But the fact is that, far from being convinced that Wright J’s decision was wrong I am convinced that it was, if I may say so with respect to my brother, entirely and obviously right.

True it is that in R v Dhingra the consultant gynaecologists retained by the prosecution and by the defence agreed that so far as the current thinking of the medical profession was concerned, a miscarriage could occur only after implantation. But that agreement in no sense diminishes the authority of the court’s ruling, which was reached after full consideration of the competing arguments of construction – based also upon dictionary definitions, the 1990 Act, the Royal College of Nursing case, legal commentaries, the principle of doubtful penalisation and the presumption against a construction “so startling, so much in variance with what is ordinarily understood to be the purpose of section 58”. Wright J made it explicitly clear that he was not treating himself as in any way bound by the Crown’s concession but on the contrary felt it was incumbent on him to make up his own mind about the matter.

I suspect that I have had considerably fuller argument, and been referred to very much more material, than Wright J was in R v Dhingra but the simple fact is that I have come to the same conclusion as he did and for much the same reasons.

The commentators

As I have already observed, the legal problem with which I am concerned was identified as long ago as 1962. Since then it has generated much discussion by legal commentators. What follows is far from being an exhaustive survey of what I do not doubt is by now a very extensive literature. But I was referred to a number of writings, and have consulted others in the course of preparing this judgment, and it is convenient to examine some of this literature.

The starting point in this area of the law is, of course, the late Professor Glanville Williams. As Wright J pointed out in R v Dhingra , he first dealt with the topic in 1958 in The Sanctity of Life and the Criminal Law when asserting (at p 141):

That was, of course, before the introduction in this country of either the IUD or the pill, let alone of the mini-pill or the morning-after pill. By 1963, as we have seen, and faced with the IUD, Glanville Williams was expressing a rather different view. I have already set out the relevant passage (see paragraph [205] above) and will not repeat it. His final position is to be found, as Wright J mentioned, in his Textbook of Criminal Law (ed 2, 1983) at p 294 where he writes:

Having referred to IUDs, the pill and the morning-after pill he continued:

I turn to Professor (now Sir) Ian Kennedy. In his paper The Legal and Ethical Implications of Postcoital Birth Control , first read at a symposium held by the Pregnancy Advisory Service in 1982, then published in Postcoital Contraception: methods, services and prospects (PAS, 1983, pp 62-70) and re-printed in Treat Me Right (1988 pp 32-41), he gave two reasons as justifying his view that postcoital birth control methods operating prior to implantation are lawful. The first is linguistic:

The second argument is perhaps more pragmatic:

Similar views (by now supported by the decisions in R v Price and R v Dhingra and by arguments based on the 1990 Act) are to be found expressed by Professor Kennedy in Kennedy & Grubb Medical Law (ed 3, 2000) at pp 1410-1414, 1436.

Mr (now Professor) Andrew Grubb takes the same view as Professor Kennedy: see his Abortion Law in England: The Medicalization of a Crime (1990) 18 Law, Medicine & Health Care 146 at p 156, The New Law of Abortion: clarification or ambiguity? [1991] Crim LR 659 at p 666, and Kennedy & Grubb (eds) Principles of Medical Law (1998) paras 11.10-11.15. In the last of these he writes as follows:

That is, as a footnote makes clear, a reference to Dr Keown’s article. Grubb continues:

Professor J K Mason takes the same view as both Professor Kennedy and Professor Grubb, and for much the same reasons: see his Medico-Legal Aspects of Reproduction and Parenthood (1990) pp 54-56 and Mason, McCall Smith & Laurie Law and Medical Ethics (ed 5, 1999) pp 111-112, 129-130. He adds ( Medico-Legal Aspects at p 54) an interesting argument as to why preventing implantation is not procuring a miscarriage:

A number of other commentators, albeit with differing degrees of confidence, take essentially the same position: David Crystal-Kirk Embryo Arrest: The “No-Man’s-Land” between Contraception and Abortion (1989) 57 Medico-Legal Journal 111, K Norrie Post coital Anti-pregnancy techniques and the law in Templeton & Cusine (eds) Reproductive Medicine and the Law (1990) pp 11-17, Gillian Douglas Law, Fertility and Reproduction (1991) pp 31-32, 48, 95-96 and Margaret Brazier Medicine, Patients and the Law (1992) pp 293-295.

Norrie puts the argument very clearly:

Thus I agree entirely with Grubb’s assertion that “The weight of legal writing supports the view that ‘carriage’ requires the developing embryo to have implanted.” Indeed, apart from the articles by Tunkel and Keown to which I must now turn, the only contrary voice appears to be that of Smith & Hogan’s Criminal Law (ed 9, 1999) where at p 390 it is said, with a reference to Tunkel, that:

Interestingly the authors do not refer to either R v Price or R v Dhingra .

The heart of Tunkel’s argument is in the following passage [1974] Crim LR 461 at p 465. Responding to the argument that “miscarriage” presupposes implantation he says:

The first argument seems to me, with all respect to Tunkel, to be entirely circular. The question is what is meant by “miscarriage”. One does not answer this by pointing out that the statutory offence is not causing a miscarriage but doing certain things with intent to cause a miscarriage. The second, as Mr Parker pointed out, might be thought to overlook sections 23 and 24 of the 1861 Act, which make it an offence unlawfully and maliciously to administer “any poison or other destructive or noxious thing” in the one case so as thereby to endanger life or inflict grievous bodily harm or, in the other case, with intent to injure, aggrieve or annoy”. More generally I agree with Kennedy & Grubb when they comment ( Medical Law at p 1412) that:

Dr Keown’s article, if I may say so, correctly and helpfully identifies the issue (at p 604):

In addressing that question Dr Keown refers first to nineteenth century medical usage of the words “miscarriage” and “abortion” and then, by reference to (i) the statutory provisions, (ii) judicial authority, (iii) medico-legal authorities and (iv) the policy of the law, to the legal usage of those terms. His conclusion (pp 613-614) is that:

Now without any disrespect to Dr Keown I do not propose to dissect his article in detail. It would serve no useful purpose. I concentrate on a few key points.

Significant portions of his article appear principally directed towards establishing that by 1861 it was recognised that miscarriage could occur before as well as after “quickening” (not a disputed issue in these proceedings) and to establishing that in this context the terms miscarriage and abortion are, and were in 1861, synonymous (again, not disputed by anyone in these proceedings).

So far as concerns the remainder of the article – and without pretending that this is in any way an exhaustive refutation of Dr Keown’s argument – I would make only the following points:

i) As I have already observed, analysis of the medical sources cited by Dr Keown in his article reveals a much more complex and contradictory picture than the one which he seeks to present, and one which, in my judgment, wholly undermines the conclusion at p 613 of his article that “the lack of judicial authority to support a restricted construction of “miscarriage” is matched only by an equal lack of medico-legal authority”.

ii) The judicial authorities to which he refers – this of course before the decision in R v Dhingra – do not in my judgment support his thesis.

iii) Much of his analysis is rooted in nineteenth century medical or medico-legal texts. His reference to twentieth century academic writing is fairly limited and, writing in 1984, he does not of course grapple with the mass of more recent material, including importantly the modern medical dictionaries, to which I have been referred. Nor, of course, does he consider the modern principles of statutory construction elucidated by the House of Lords in a number of more recent authorities to which I must come in due course.

Finally I note the curiosity that Archbold Criminal Pleading, Evidence and Practice (2002) is entirely silent on the question whilst Blackstone’s Criminal Practice (2002) at para B1.66 describes the question as being “a matter of some controversy”. Neither, incidentally, refers to either R v Price or R v Dhingra .

Foreign legal systems

In response to a question from the Bench I was provided with information as to the legal position in relation to the morning-after pill in a number of foreign countries. That information comes from three sources.

The first is an article by Cook & Dickens, International Developments in Abortion Laws: 1977-88 (1988) 78 American Journal of Public Health 1305. They state (at p 1308) that Austria, West Germany, Liberia, The Netherlands and New Zealand have “expressly decriminalised medical interventions for the period between fertilisation and completion of implantation of the fertilized ovum” with the consequence that in these countries “the use of contraceptive methods during this time period does not need to meet the requirements of abortion law.”

I was in fact shown the relevant New Zealand legislation. Sections 183 and 186 of the Crimes Act 1961, closely reflecting sections 58 and 59 of the 1861 Act, make it an offence to do certain acts intending or knowing that someone intends “to procure miscarriage”. Section 182A, inserted by the Crimes Amendment Act 1977, provides that for this purpose “miscarriage” means:

The second is a witness statement dated 13 February 2002 by Martin Bagwell who was the Senior Policy Manager at the Medicines Control Agency responsible for the consultation exercise in relation to Levonorgestrel. He contacted the agencies responsible for medicines control of all the European Economic Area member states and asked them: (i) whether the legal view in their country is that hormonal emergency contraception is an abortifacient or a contraceptive and (ii) whether they were aware of any legal judgment in their country on the point. He produced the responses he had received from Belgium, Denmark, Finland, France, Iceland, Italy, The Netherlands, Norway, Portugal and Sweden. With the sole exception of France none of his respondents was aware of any relevant legal judgment. All, without exception, reported that such substances were considered in their countries to be contraceptives and not abortifacients.

The third source is SPUC itself, which was able to provide information in relation to Ireland and The Philippines and copies of legal judgments in Argentina and Chile.

In The Philippines Levonorgestrel is considered as having an abortifacient effect and accordingly its sale and use is prohibited by a Circular of the Department of Health, Philippines Bureau of Food and Drugs dated 7 December 2001.

In Ireland the proposed twenty-fifth amendment of the Constitution, which was voted on in a referendum in March 2002, would have had the effect of repealing sections 58 and 59 of the 1861 Act and replacing them with new legislation – the Protection of Human Life in Pregnancy Act 2002 – defining abortion as “the intentional destruction by any means of unborn human life after implantation in the womb of a woman”. As is well known the Irish people voted to reject the proposed amendment, so the position in Ireland remains governed by sections 58 and 59 of the 1861 Act.

The three foreign judicial authorities to which I have been referred are decisions of the Section de contentieux (Judicial Section) of France’s Conseil d’Etat on 25 April 2001, of the Constitutional Chamber of the Supreme Court of Chile on 30 August 2001 and of Argentina’s Supreme Court of Justice of the Nation on 5 March 2002.

The Conseil d’Etat dismissed complaints by the ‘Association choisir la Vie – Association pour l’objection de conscience a l’avortement’ against the authorisation by the French l’agence du medicament of the marketing of two morning-after pills containing Levonorgestrel – one called Norlevo (complaint no 216521), the other Tetragynon (complaint no 211638). The Conseil d’Etat held in each case that the product was a hormonal contraceptive and not an abortifacient (“un contraceptif hormonal … et non un produit abortif”). It further held that there was no breach of Article 2 of the Convention (nor, I note, of either Article 6 of the International Covenant on Civil and Political Rights or Article 6 of the Convention on the Rights of the Child).

The Supreme Court of Chile by a majority declared null and void the decision of the Institute of Public Health (Instituto de Salud Publica) on 21 March 2001 registering a morning-after pill containing Levonorgestrel called Postinal. The basis of the decision (see paragraphs 14, 18-20) was that human life as protected by the Chilean Constitution and Civil Code starts at fertilisation (“la fertilizacion”) or conception (“la concepcion”) and not at implantation (“la implantacion en el utero”). The authorisation of Postinal was illegal because the effect of the morning-after pill was “synonymous with abortion which is penalised as a crime in the Criminal Code and prohibited in the Health Code, even as a therapeutic measure” (“sinonimo de aborto penalizado como delito en el Codigo Penal y prohibido aun como terapeutico, en al Codigo Sanitario”).

The Supreme Court of Argentina, by a majority, annulled the previous authorisation and prohibited the manufacture, distribution and marketing of a morning-after pill called Imediat. The basis of the decision was that Imediat has abortifacient effects in preventing the implantation of the embryo in the endometrium (paragraphs 3-10) and that the right to life guaranteed by the Constitution was recognised (paragraphs 12 and 14) both by prior Argentine judicial decision and by the Argentine Civil Code and by Article 4.1 of the American Convention on Human Rights (the Pact of San Jose, Costa Rica) as commencing not at the stage of implantation but rather at the moment of conception. It may be noted that the Court, differing in this respect from the French Conseil d’Etat, also derived this conclusion from Article 6 of the Convention on the Rights of the Child.

Non-medical dictionaries

The ordinary dictionaries throw little useful light on anything I have to decide. As Mr Anderson commented, they are too general to be of real assistance on the point in issue. Todd’s 1827 edition of Johnson’s Dictionary defines miscarriage as meaning “Abortion; act of bringing forth before the time” and abortion as meaning “The act of bringing forth untimely.” Latham’s Dictionary of 1866 defines both words in precisely the same terms. In the first edition of the Oxford English Dictionary miscarriage was defined as meaning “Untimely delivery (of a woman): usually taken as synonymous with abortion = expulsion of the foetus before the twenty-eighth week of pregnancy”. Pregnancy was defined as meaning “The condition of being pregnant, or with child or young” and pregnant as meaning “That has conceived in the womb; with child or with young; gravid.” Those definitions are carried forward unchanged into the second edition.

A number of principles of statutory construction have been pressed on me.

The principle against doubtful penalisation

One is the principle against doubtful penalisation: see Bennion Statutory Interpretation (ed 3, 1997) at pp 637-638. That, as we have seen, was relied on by Wright J in R v Dhingra . Mr Anderson and Ms Lieven submit that were there any doubt as to the applicability of sections 58 and 59 to the action of Levonorgestrel, this principle would militate against its criminalisation.

Ms Lieven suggests that the principle applies in two ways. One of the offences under section 58 requires that the woman be “with child”, yet it is apparent from the evidence that at the date when emergency contraception is taken it would not be possible on SPUC’s construction of the phrase for the woman to know whether she was “with child” or for the Crown to prove that she was. The court should presume that the legislature did not intend the offence to extend to such a situation. Further, says Ms Lieven, the very ambiguity of the situation, whether viewed on the medical evidence in 1861 or today, should lead the court to a construction which does not give rise to potential criminalisation, particularly given the very serious criminal offence which is here in issue.

Mr Anderson submits (referring to Bennion at pp 689-691) that where the legal meaning of a word or phrase is doubtful, and the mischief against which an enactment was originally directed has changed, the court will give much weight to the principle against doubtful penalisation.

He suggests that there has indeed been such a change in the mischief against which the 1861 Act was originally directed:

i) An important purpose of sections 58 and 59 when enacted in 1861 was the protection of women from the dangers of illegal abortion, which, on the evidence I have heard, included frequent deaths from infection and from the administration of poison intended for the foetus. He refers to R v Trim where Martin J (at p 115) said that “one, and perhaps the chief, evil which the Legislature wished to prevent was the possibility of harm being done to the woman.” Following advances in healthcare, and the passage of the 1967 Act (which made back-street abortions unnecessary), abortions no longer constitute a major threat to women’s health and Levonorgestrel – unlike the methods used to procure miscarriage in 1861 – has an excellent safety profile. Although the 1861 Act may well have been intended in part to protect women, the safety concerns that are relied upon to support a broad construction of “miscarriage” no longer exist, particularly in relation to Levonorgestrel.

ii) Inhibiting implantation through the use of emergency hormonal contraceptives was not envisaged in 1861 and was certainly not a mischief against which the 1861 Act could be said to have been directed.

iii) To the extent that the 1861 Act was designed to protect the foetus, it is also relevant to take into account changes in social attitudes as exemplified by the passage and retention in force of the 1967 Act, which legalises even late-term abortion on specified grounds.

I have to confess to being reluctant to resort, unless compulsively driven to it, to so pessimistic a principle as that which is here in question. In fact there is no need for me to do so, for applying other and more directly applicable principles of construction the meaning of sections 58 and 59 is, in my judgment, clear.

Moreover, whilst I have no particular difficulty with the way in which the principle was used by Wright J and is sought to be relied upon by Ms Lieven, those parts of Mr Anderson’s argument which focus upon changes in social values or attitudes seem to me on reflection to be misconceived. I put it that way because I have to confess that in putting this argument Mr Anderson was simply picking up on certain comments I had made during the course of argument.

This is a matter to which I must return below but on this point, as it seems to me, Mr Gordon is correct. As he observes, where the word or phrase which must be construed is itself, in context, one whose meaning to some extent depends on what is, and what is not, regarded as morally or socially acceptable, it may well be necessary to import into the meaning of the word changes in social values. ( Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 to which I refer below is, as he points out, a perfect example of this.) But, he says – and I entirely agree – the crucial word “miscarriage” with which we are dealing in the present case does not have a meaning which is in any respect dependent on social mores. Opinions may differ as to whether it is acceptable to procure a miscarriage at this or that stage. But that can have no bearing whatsoever on whether what is procured is, in fact, a miscarriage. In short, the word “miscarriage” as used in the 1861 Act is not ‘value sensitive.’ It may be – indeed in my judgment it plainly is – ‘medical knowledge sensitive’. But that is, as Mr Gordon submits, a very different matter.

The presumption in favour of long-held interpretation

Another principle to which I was referred is the presumption in favour of long-held interpretations: see Bennion at pp 704-705. In this connection I was referred to Thompson v Nixon [1966] 1 QB 103, where the Divisional Court treated the point at issue – the meaning of the word “bailee” in section 1(1) of the Larceny Act 1916 – as concluded by the decision of Court of Crown Cases Reserved in Reg v Matthews (1873) 12 Cox CC 489, whilst making it quite clear that, absent this authority, it would have come to precisely the opposite conclusion.

Sachs J (with whom Lord Parker CJ and Browne J both agreed) said at p 109B:

Mr Anderson submits that, as the views expressed by the Attorney-General and others in Parliament show, all concerned have operated since emergency hormonal contraception was introduced on the understanding that its supply and administration is lawful, and not contrary to sections 58 or 59 of the 1861 Act. That may be so, but it does not, as it seems to me, meet the criteria indicated by Thompson v Nixon .

As I have already observed, the only judicial decision in point – R v Dhingra – is as recent as 1991, is unreported and hardly features in the leading practitioners’ textbooks. As the wealth of discussion by the commentators shows, the matter is certainly not free from controversy. Nor must it be forgotten that the Attorney-General’s statement preceded, and indeed in part precipitated, Dr Keown’s article (see at pp 604-605). Moreover, one leading work – Smith & Hogan, referring to Tunkel’s article – actually suggests that the law is as contended for here by SPUC.

There is, in my judgment, no settled or long-held legal interpretation of the word “miscarriage” in this context.

The principle of updating construction

In my judgment the true answer to the problem with which I am presented is to be found in one particular application of the principle of updating construction, that part of the law relating to statutory construction on which I heard the most detailed and the most interesting arguments.

It is convenient to take the authorities in chronological sequence. The first is Attorney-General v The Edison Telegraph Company of London Limited (1880) 6 QBD 244 . The Telegraph Act of 1869 gave the Postmaster-General a monopoly of transmitting telegrams. Telegrams were defined as messages transmitted by telegraph. A telegraph was defined to include ‘any apparatus for transmitting messages or other communications by means of electric signals’. When the Act was introduced the only such means of communication functioned by interrupting and re-establishing electric current, thereby causing a series of clicks which conveyed information by morse code. Then Bell and Edison invented the telephone which conveyed the human voice by wire by means of an entirely novel process. It was argued that because this process was unknown when the Act was passed, the Act could not apply to it. The Court rejected this submission.

Giving the judgment of the Exchequer Division, Stephen J said at p 254:

In Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 the question was whether the termination of pregnancy by medical induction using the extra-amniotic method was “by a registered medical practitioner” within the meaning of section 1(1) of the 1967 Act when, although the termination was decided on and initiated by a medical practitioner who remained throughout responsible for its overall conduct and control, certain specific acts were done by nursing or midwifery staff acting on his specific instructions but not in his presence. Reversing the unanimous decision of the Court of Appeal, the House of Lords by a bare majority held that such a termination was carried out “by” a registered medical practitioner because Parliament had contemplated that the termination of a pregnancy made lawful by the 1967 Act should be a team effort.

Lord Wilberforce, who was one of the dissentients, set the scene at p 821G:

He then set out at p 822B principles which, although he was one of the dissentients, have subsequently been treated as authoritative:

He then added this comment, on which Mr Gordon placed some reliance:

The next case is R v Ireland [1998] AC 147 where the question was whether, for the purposes of sections 20 and 47 of the 1861 Act (which make it respectively an offence to inflict “grievous bodily harm” and an offence to occasion “actual bodily harm”) recognisable psychiatric illness brought about by repeated harassing telephone calls fell within the statutory phrase “bodily harm”, notwithstanding that, as Lord Steyn recognised at p 158G, psychiatry was in its infancy in 1861. The House of Lords held unanimously that it did.

The main speech was given by Lord Steyn, who at p 158C said this:

Lord Hope of Craighead at p 166B considered whether the making of a series of silent telephone calls can amount in law to an assault. Holding that it can he commented:

In other words, those who inflict psychiatric injury by use of the telephone can commit offences under the 1861 Act notwithstanding that the telephone had not then been invented and that such psychiatric injury would not then have been recognised.

The next case is Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 where the question was whether the deceased tenant’s homosexual partner was either his “spouse” and/or a member of his “family” within the meaning of the Rent Act 1977 – a provision originally to be found in the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. The House of Lords, by a bare majority, reversed the Court of Appeal, which had itself been divided, and held that although he was not a spouse he was a member of the deceased’s “family”.

At p 33E Lord Slynn of Hadley said this:

He added at p 35A:

Having considered the authorities which bore out that last proposition he continued at p 38B:

Lord Nicholls of Birkenhead posed the question at p 45E:

A little later at p 46C he said this:

Lord Hobhouse of Woodborough was one of those who dissented. He put the point very clearly at p 68D:

Next is Birmingham City Council v Oakley [2001] 1 AC 617 where the question was whether the absence of a wash-hand basin in a water closet adjacent to a kitchen meant that the premises were in such a state as to be prejudicial to health within the meaning of section 79(1)(a) of the Environmental Protection Act 1990. The House of Lords, yet again by a bare majority, reversed the Divisional Court of the Queen’s Bench Division, holding that they were not.

The case is important because of what Lord Hoffmann said. At p 628E he put the case in context:

At p 631E he said this:

As Mr Parker pointed out, Lord Hoffmann’s use here of the word “concept” and his observation that “the content may change but the concept remains the same”, reflect Professor Ronald Dworkin’s distinction between “concept” and “conception”: see Taking Rights Seriously (1977) pp 134-136 (where the discussion is by reference to the concept of ‘fairness’) and Law’s Empire (1986) pp 70-72 (where the discussion is by reference to the concept of ‘courtesy’). The essential point is brought out when Dworkin, giving an example in the first work at p 134, says:

In the later book he epitomises the distinction with his reference (at p 71) to:

The final case is even more recent: R (Quintavalle) v Secretary of State for Health [2002] EWCA Civ 29, [2002] 2 WLR 550. The interest of the case lies in the willingness of the Court of Appeal, in a field – embryology – not very far removed from this, to adopt what it recognised to be a “strained” construction of a statute where (i) the construction was “viable” as opposed to straining the language to breaking point and (ii) it was “plainly necessary” to do so in order to “give effect to Parliamentary intention” and prevent the “clear purpose of the legislation” being defeated: see per Lord Phillips of Worth Matravers MR at paras [20], [22], [27], [38] and [42].

Before leaving these authorities there is one final point, particularly apposite in the present case, which I ought to emphasise. As Lord Steyn has said on a number of recent occasions “courts of law must act on the best medical insight of the day”: R v Ireland [1998] AC 147 at p 156D, Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at p 492B, Morris v KLM Royal Dutch Airlines [2002] 2 WLR 578 at p 591D (para [25]). In the latter case, Lord Hope of Craighead at p 605A (para [82]) said that statutes of the ‘always speaking’ type:

Now as to some medical matters the court has judicial knowledge: see for example Preston-Jones v Preston-Jones [1951] AC 391 at p 401D (the normal period of human gestation). But the court is not condemned to act only on the basis of that which falls within its judicial knowledge. It can and must hear expert medical evidence.

Updating construction in the present context

Lord Hoffmann in Oakley referred, as we have seen, to “advancing knowledge, technology or social standards”. The cases in fact suggest that there are at least four different types of change in what Lord Wilberforce in the Royal College of Nursing case called “the state of affairs existing, and known by Parliament to be existing, at the time” and which the doctrine of the “always speaking” statute may have to accommodate when an elderly statute is to be applied in modern conditions: first, changes in our understanding of the natural world (for example, the developments in psychiatry considered in Ireland , Frost and Morris ); secondly, technological changes (the invention of the telephone considered in Edison and Ireland or of the new types of vehicle referred to by Lord Hoffmann in Oakley ; the changes and advances in medical technology considered in the Royal College of Nursing case and in Quintavalle ); thirdly, changes in social standards (the improving standards of hygiene considered in Oakley ); and, fourthly, changes in social attitudes (the attitudes to homosexuality considered in Fitzpatrick and to punishment referred to by Lord Hoffmann in Oakley ).

Superficially it might be thought that the present case involves – and in the most acute form – at least three of these categories of change: changes in our understanding of medical science, in particular of the processes of pregnancy; astonishing changes and advances in medical technology, in particular in the technology of contraception; and equally dramatic changes in social attitudes towards both contraception and abortion. That, no doubt, is so as a matter of fact. It is not so, however, as a matter of law.

The search for the true solution has, in my judgment, to proceed on a much narrower front and, moreover, not on the basis upon which much of the current debate is conducted. For it is important to realise that the terms in which the current debate is often carried on are utterly anachronistic. Let me explain why and also explain why it is important to appreciate the significance of the observation.

The world of 1803 or even of 1861 was very different from our own. A society which could believe that the pillory and the gallows were appropriate punishments for abortion is so utterly alien to our own as to make it almost impossible to bridge the gulf of incomprehension. Even in 1861 our society was only on the brink of the beginnings of the modern world. What, not least in this context, were probably two of the most important of all the books written in that remarkable century – John Stuart Mill’s ‘On Liberty’ and Charles Darwin’s ‘On the Origin of Species’ – had only just been published, both, as it happens, in 1859. Bishop Samuel Wilberforce’s famous confrontation with T H Huxley at the meeting of the British Association for the Advancement of Science at Oxford had taken place as recently as June 1860. One has only to look at the Bradlaugh-Besant litigation in the 1870s to see a society which in matters sexual was almost unimaginably different from ours. Not for nothing did Mill when writing in 1869 on ‘The Subjection of Women’ suggest that

A poet famously suggested that “Sexual intercourse began / In nineteen sixty-three”. That caustic comment, which Larkin mordantly related to what he called “the end of the Chatterley ban”, conceals an important truth. The simple fact is that, as in so many other matters sexual, so far as concerns contraception, in both its technological and its social aspects, the modern world – our world – is a world which has come into being during the lifetime of many of us alive today. It is a development of the 1960s – whether 1963, the poet’s Annus Mirabilis, or 1967, Parliament’s year of activity, matters not for present purposes.

But that does not mean that a judge can simply re-write the 1861 Act in the light of all these medical, social and cultural changes. On the contrary, the very fact that the world of 1861 is almost irrecoverable to us – “there lies a gulf of mystery which the prose of the historian will never adequately bridge. They cannot come to us, and our imagination can but feebly penetrate to them” – makes it all the more important, as it seems to me, to resolve the issue at hand not by conducting the debate either on some assumption, almost certainly erroneous, as to how the wider debate was being conducted in 1861, or in the modern terms in which it is currently so often pursued, but rather, strictly and faithfully, within the narrow parameters of the debate which is enjoined on us by the language in which in 1861 Parliament chose to legislate. That, after all, as I read such cases as Ireland , Fitzpatrick and Oakley , is the judicial duty mandated by our system of Parliamentary democracy.

The modern debate, as we have seen, is typically conducted by asking such questions as whether the morning after pill is truly a contraceptive or whether it is rather an abortifacient. Now I do not doubt that in the context of the contemporary medical, social, moral and ethical debate, the answers to such questions are very important. But they are, as it seems to me, almost wholly irrelevant to anything I have to decide.

As I have already remarked, the society which legislated on this issue from 1803 to 1861 was very different from our own. The truth is that, at least in relation to such issues as those which I have to grapple with, it is so utterly alien to our own that speculations – and that is all they can be – as to what lay behind the nineteenth-century Parliamentary process would be both inappropriate and dangerous. There are, as it seems to me, two – and only two – things that one can quite clearly and safely derive from the legislative history from 1803 to 1861. But they are enough.

The first is that Parliament never had the question of contraception in mind at all. By this I do not mean merely that Parliament did not have in mind all those contraceptive techniques which, however familiar to us now, in 1861 lay far away in what I strongly suspect would then have been an almost inconceivable future. No, what I really mean is that Parliament in 1861 simply would not have seen the debate in terms of contraception at all. The Bradlaugh-Besant litigation shows clearly enough, as it seems to me – and this is its importance – that even in the late 1870s the issue of contraception was simply beyond the bounds of permissible debate not merely in polite society but also in legal and Parliamentary circles. Indeed, the subsequent history as I have summarised it above shows that in some influential circles such attitudes persisted well into the last century. So the terms of the modern debate are utterly anachronistic. In 1861 – unlike in 1967 – Parliament was not legislating to ban abortion whilst permitting contraception. It was simply legislating to punish abortion – albeit not with the savagery which had characterised the statute book down to 1837. So, if I am to be faithful to Ireland and Oakley what I have to focus on is the law of abortion and that alone.

The other thing is this. As I have already remarked, the one consistent feature of all the legislation from 1803 to 1861 is the criminalisation of abortion by reference to the same fundamental principle: that the gist of the offence lies in the doing of certain acts intending (or knowing that someone else intends) “to procure a miscarriage”. The procuring of a “miscarriage” is thus what Lord Hoffmann (adopting Professor Dworkin’s terminology) would call the “concept” employed by Parliament for this purpose. My task, therefore, is to ascertain what Lord Hoffmann would call the “content” – Professor Dworkin the “conception” – of that concept, always remembering that, as Lord Hoffmann was at pains to point out, I cannot construe the 1861 Act “to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended.” And as I have already observed, the word “miscarriage” as used in the 1861 Act is not ‘value sensitive’. So I cannot, as it seems to me, construe its meaning simply by having regard to the enormous changes and advances in medical and contraceptive technology since 1861 or to the equally dramatic changes in social and sexual attitudes since then. As Mr Gordon points out, the relevant type of up-dating is not that which was in issue in Fitzpatrick .

Both the general contours of SPUC’s case, and much of the detail of it, will by now be apparent. But it is convenient at this point to summarise the way in which Mr Gordon puts it.

He helpfully and correctly identifies the question upon which SPUC’s claim turns as being whether one who causes the expulsion or destruction of an embryo prior to implantation procures a miscarriage within the meaning of sections 58 and 59 of the 1861 Act.

SPUC’s case that this question must be answered in the affirmative was summarised by Mr Gordon in the following propositions:

i) The primary legal question is the meaning of the word “miscarriage” in the 1861 Act. That has to be addressed having regard to the purpose of the 1861 Act and contemporary understanding of the meaning of the word.

ii) The purpose of the 1861 Act was to protect the life of the unborn and also to protect the health of women by criminalising the procuring of miscarriage. The intention of the 1861 Act was to remove the previous temporal limitation on the scope of the offence and to provide that a miscarriage could occur at any time after life had started, or at least at any time after fertilisation.

iii) When the 1861 Act was passed the word “miscarriage” was understood to include the expulsion or destruction of the embryo prior to implantation.

iv) There is now some disagreement on the proper meaning of the word “miscarriage”. However, there is at least a very strong body of medical opinion which understands the term in the same way as in 1861.

v) That being so the principles of statutory up-dating are not engaged.

vi) If, contrary to SPUC’s submission, there has been any relevant change in the use of the word “miscarriage” since 1861, such a change cannot alter the conceptual reach of the 1861 Act. Only legislation could do that.

vii) The twin purposes of the 1861 Act would, in any event, not justify up-dating.

I must explain in a moment why in my judgment SPUC’s case is wrong both in fact and in law. In summary, however, SPUC is wrong in law in seeking to tie the meaning of the word “miscarriage” to the sense in which it was understood in 1861 (whatever that was) and in the limited effect it allows to the principle of updating construction. There is nothing in the 1861 Act to demonstrate a Parliamentary intention to protect “life” from the point of fertilisation. The construction for which the defendants contend does not involve any alteration in the conceptual reach of the 1861 Act. Parliament’s intention in 1861 was to criminalise the procuring of “miscarriages”. The content of that Parliamentary intention has, as a matter of law, to be assessed by reference to current – not nineteenth century – understanding of what the word means.

There are, in my judgment, a number of separate reasons why SPUC is wrong and why, as I have concluded,

i) the word “miscarriage” when used in section s 58 and 59 of the 1861 Act presupposes that the fertilised ovum has become implanted in the endometrium of the uterus; and

ii) accordingly there is nothing in sections 58 and 59 of the Act which in any way criminalises, makes unlawful, or otherwise prohibits or inhibits the prescription, supply, administration or use of the pill, the mini-pill or the morning-after pill (or, so far as the evidence before me bears on this aspect of the case, of IUDs).

In R v Dhingra , as we have seen, Wright J expressed his conclusion in these words:

I entirely agree.

In my judgment the prescription, supply, administration or use of the morning-after pill does not – indeed cannot – involve the commission of any offence under either section 58 or section 59 of the 1861 Act. On the evidence I have heard – corresponding in all material respects, so far as I can see, with the evidence which Wright J heard – neither the 1861 Act nor the 1967 Act has anything whatever to do with the use of the pill, the mini-pill or the morning-after pill.

The meaning of the 1861 Act

The first, and, on its own, determinative, reason for coming to this conclusion is simple and, in my judgment, unanswerable.

SPUC’s entire argument in effect requires one, as Mr Parker put it, to ‘freeze the frame’ in 1861 and to give the word “miscarriage” the meaning it was then understood as having. In effect SPUC’s case is put on the basis that Parliament intended a particular construction in 1861 and that nothing which has happened subsequently has altered or is capable of altering that construction.

Now quite apart from the artificiality of freezing the frame in 1861, when the word had been consistently used in this context ever since the beginning of the century, and the impossibility in fact of ascertaining “the” meaning of the word in 1861, SPUC’s whole approach is, with respect to Mr Gordon, entirely inapt – in fact quite inconsistent with a proper application of the principles of updating construction.

Applying the principles to be found, in particular, in Ireland , Fitzpatrick and Oakley , the correct approach can be set out in the form of four propositions:

i) the 1861 Act is an “always speaking” Act;

ii) the word “miscarriage” is an ordinary English word of flexible meaning which Parliament in 1861 chose to leave undefined;

iii) it should accordingly be interpreted as it would be currently understood;

iv) it should be interpreted in the light of the best current scientific and medical knowledge that is available to the court.

Now whatever Mr Gordon may say, there is in truth no substantial dispute as to the current meaning of the word “miscarriage”. Pregnancy begins once the blastocyst has implanted in the endometrium. More particularly, miscarriage is the termination of such a post-implantation pregnancy. Current medical – and, indeed, I would add, current lay and popular – understanding of what is meant by “miscarriage” plainly excludes results brought about by IUDs, the pill, the mini-pill and the morning-after pill. That, in my judgment, is clear in the light of Professor Drife’s evidence and the various current medical dictionaries to which I have referred – just as it was clear to Wright J in the light of the very similar evidence he heard.

At the end of the day – and despite the length of this judgment – the resolution of this case is as short and simple as that.

I should add that this conclusion accords with the meaning properly attributed to “miscarriage” by linguistic analysis. The word “miscarriage” as a matter of language presupposes some prior carriage. There can be no miscarriage (or what is by common consent its synonym, abortion) in the absence of true carriage. Prior to implantation there is no true carriage. It may be theoretically possible to argue that carriage can occur when the embryo is free floating in the fallopian tube or in the uterus. However, the much the more natural meaning involves not merely presence in the woman’s body and interaction with it, but attachment to it in a real sense such as occurs only with implantation.

A certain amount of play was made by Mr Gordon with what he said was the “purpose” of the 1861 Act. No-one really disputed that two of the purposes of the Act were plainly the protection of women and the protection of the unborn. But the fact that one of the legislative purposes of the 1861 Act was – is – the protection of unborn human life has no direct bearing on the issue before me: How far back does the protection afforded by the Act extend? As Mr Anderson pointed out, the various purposes underlying the Act are all capable of expression in abstract terms (protection of women; protection of the unborn; facilitating proof of an offence): but they can be given effect only to the extent that they are reflected in the words used by Parliament. Nothing that is said about statutory purpose can relieve SPUC from the obligation to show that the words of the 1861 Act (in particular, “miscarriage”) have the meaning claimed for them. And that, in my judgment, SPUC has signally failed to do.

Mr Gordon pressed me with Lord Wilberforce’s analysis of the updating principle in the Royal College of Nursing case as set out in paragraphs [308]-[309] above. As Mr Anderson commented, Lord Wilberforce’s test is perhaps of greatest assistance in a case (such as Quintavalle or, indeed, the Royal College of Nursing case as it was perceived by Lord Wilberforce) in which Parliament’s intention is more clearly expressed in a limited manner and it is sought by purposive construction to extend that intention to an entirely different situation. That is not this case. The word used here by Parliament is, as I have said, an ordinary English word of flexible meaning which Parliament in 1861 chose to leave undefined. In such a case the proper approach, as I see it, is that marked out by Ireland and Oakley . I should add that Mr Gordon’s submissions involved placing on the word “only” in Lord Wilberforce’s phrase “a clear purpose in the legislation which can only be fulfilled if the extension is made” a weight which, if the whole passage is read in context, it simply cannot bear.

I agree with Mr Anderson when he submits that the presence of the words “whether she be or be not with child” in sections 58 and 59 of the 1861 Act cast no light on the point at which Parliament intended that the protection of life should begin. As he observes, from SPUC’s point of view the words prove too much: a criminal offence may be committed even if the woman is not and never has been pregnant.

The 1861 Act considered in the context of the 1967 Act

Further support – though in the view I take of it further support is unnecessary – is afforded for this conclusion when the 1861 Act is considered in the context of the 1967 Act.

Parliament when it originally enacted the 1967 Act did so, as section 6 shows, expressly by reference to sections 58 and 59 of the 1861 Act. Section 5(2) of the 1967 Act, read in conjunction with section 6, provides avowedly for the 1967 Act to define that which is (un)lawful for the purposes of the 1861 Act. The 1861 Act and the 1967 Act operate as a statutory code in relation to the procuring of abortions or miscarriages – the two words being used synonymously – the 1967 Act defining that which is lawful and the 1861 Act that which is criminal.

Bearing in mind that IUDs had been in popular use since 1959 and the pill since 1961, and that the National Health Service (Family Planning) Act 1967 had been enacted only some four months previously, I find it quite inconceivable that Parliament when it enacted the 1967 Act intended to bring the use of IUDs and the pill within the limited confines of the 1967 Act.

As Mr Anderson submits, the 1861 Act and the 1967 Act should be construed so that they can, as Parliament plainly thought they could, sit side by side in a coherent statutory regime.

The point does not end there because, as we have seen, section 5(2) of the 1967 Act was amended by the 1990 Act in such a way as to link the concepts of “miscarriage” and “foetus”. Section 5(2), which itself refers via section 6 to sections 58 and 59 of the 1861 Act, now incorporates the phrase “miscarriage of any foetus”, and the word “foetus” is on any view a reference to the organism at a stage after implantation.

Reading the 1861 Act in the context of and as part of the statutory scheme created by the 1967 Act and modified by the 1990 Act, such things as IUDs, the pill, the mini-pill (developed in the 1970s) and the morning-after pill (available to the public since 1984) were plainly not being treated by Parliament in 1990 as within the scope of the 1861 Act or, indeed, within the scope of what the legislation calls “the law relating to abortion”. In this context it is, I think, permissible to have regard to what Lord Nicholls of Birkenhead said in that part of his speech in Fitzpatrick which I have set out in paragraph [318] above.

I note also in this connection that in 1974 the Report of the Committee on the Working of the Abortion Act chaired by The Hon Mrs Justice Lane DBE, Cmnd 5579, had provided the following definition:

Parliament must have been aware of that in 1990. It did not take the opportunity presented by the passing of the 1990 Act to correct this view.

The 1861 Act considered in the context of the 1990 Act

Section 2(3) of the 1990 Act, as we have seen, provides that:

Now that reference although interesting is, as Mr Gordon correctly submits, nothing more than that. The 1990 Act is not in pari materia with the 1967 Act (even as amended by the 1990 Act) and section 2(3) is in any event carefully qualified by the words “For the purposes of this Act”. Moreover, as we have seen, section 1(6) of the 1985 Act provides a different definition of “carrying”. So it is not as if Parliament has in this branch of the law adopted a uniform terminology.

But Mr Parker has a quite separate, and as it seems to me compelling, point derived from the 1990 Act. Put shortly, he submits that SPUC’s approach to the construction of sections 58 and 59 of the 1861 Act is, in relation to the protection afforded by the law to early embryos, inconsistent with the view taken by Parliament in passing the 1990 Act.

I have already summarised the scheme of the 1990 Act (see paragraphs [113]-[122] above). As Mr Parker correctly observes, the effect of the legislation is that the holder of a licence (whether for research or treatment purposes) can create an embryo in vitro and, if it is no longer required, simply dispose of it at any time up to the earlier of the appearance of the primitive streak or 14 days after creation.

But, and this is the importance of Mr Parker’s submission, the 1990 Act not only sanctions the use and destruction of embryos up to 14 days after creation in vitro , but also makes provision for the taking from a woman of an embryo created in vivo and its subsequent use and disposal – ie, destruction.

The use of such embryos had previously been considered in 1984 in the Report of the Committee of Inquiry into Human Fertilisation and Embryology chaired by Dame Mary Warnock DBE, Cmnd 9314. At paragraph 7.1 of its Report the Committee described the technique of ‘lavage’ in which:

Having considered the arguments both for and against the licensing of this technique, the Committee concluded at paragraph 7.5:

However, the 1987 White Paper which preceded the 1990 Act – Human Fertilisation and Embryology: A Framework for Legislation , Cm 259 – indicated the Government’s intention that the legislation should include provision for licensing the use (and therefore the potential disposal) of embryos obtained by lavage (see paragraph 8). It made clear, however, the intention that licensing would be limited to embryos obtained prior to the start of implantation:

In the event, Parliament chose not to follow the recommendation in paragraph 7.5 of the Warnock Committee Report but rather the White Paper. The 1990 Act allows for the use of embryos obtained by lavage: see Schedule 3, paragraph 7(1), which I have already set out.

In the light of the Warnock Committee Report and White Paper it is clear that Parliament intended the 1990 Act to allow for the taking of a pre-implantation embryo from a woman, the use of that embryo for treatment or research and its subsequent disposal. In any event, as Mr Parker points out, section 1(2)(b) of the 1990 Act itself makes clear that Schedule 3, paragraph 7, refers – and refers only – to embryos fertilised in vivo .

The consequence is, says Mr Parker, and I agree, that an embryo created in vivo may, prior to implantation and with the consent of the woman concerned, be removed from her body, used to provide treatment services or in research and subsequently disposed of up to 14 days after fertilisation.

It is, submits Mr Parker, inconceivable that Parliament would have considered this acceptable whilst at the same time intending the criminalisation of women taking the morning after pill within 72 hours of intercourse, or those administering or supplying it.

This is, as it seems to me, a powerful argument. If SPUC is right, Parliament in 1990 created an anomaly every bit as great as that excoriated in 1849 by Tyler Smith. I cannot believe that it did.

Judicial authority

My conclusion is supported by such judicial authority as there is from the common-law world. None of the authorities to which I was referred provide any support either for Dr Keown’s thesis or for SPUC’s case. The simple fact is that the only authority in point – R v Dhingra – plainly supports the defendants’ case.

As I have said, I am convinced that Wright J’s decision in that case far from being wrong was entirely and obviously right.

The commentators

My conclusion is also supported by the overwhelming weight of legal writing by those commentators who have considered the matter. As Professor Grubb has correctly said, “The weight of legal writing supports the view that ‘carriage’ requires the developing embryo to have implanted.”

I cannot accept the contrary analyses from Mr Tunkel and Dr Keown.

Other countries

My conclusion accords with what appears to be the position in all the Western European and Scandinavian countries of which we have information. It would be concerning if the position in this country were to differ on this point from that which obtains in Austria, Belgium, Denmark, Finland, France, Iceland, Italy, The Netherlands, Norway, Portugal, Sweden and West Germany.

My conclusion, although arrived at by a different line of reasoning, also accords with that of France’s Conseil d’Etat. That is comforting.

I recognise, of course, that my conclusion differs from that arrived at by the courts in Chile and Argentina, but in each case the decision, as I read it, was based on a reading of a written constitution.

Social realities

Finally, it is not irrelevant to note that my decision accords with social realities. I am declaring licit – not criminal – that which has in fact been the daily practice of countless people in this country for many, many years.

On 10 May 1983, as I have already mentioned, the Attorney-General, Sir Michael Havers QC, gave a written answer in the House of Commons. I think I should set out the question and the answer:

It follows from what I have already said that I agree entirely with everything Sir Michael said.

In the course of a debate in the House of Commons on 2 July 1998 the Minister of Public Health, Ms Tessa Jowell MP, said:

On 19 July 2000, as I have said, the matter was again referred to in the House of Commons by the Minister of Public Health, on this occasion Ms Yvette Cooper MP:

On 24 January 2001, in the course of debate on the 2000 Order in the House of Commons Standing Committee on Delegated Legislation, the Minister of Public Health, Ms Cooper, said this:

Again, I agree entirely with everything said by successive Ministers of Public Health.

This application must be dismissed.

In my judgment the prescription, supply, administration or use of the morning-after pill does not – cannot – involve the commission of any offence under either section 58 or section 59 of the 1861 Act.

This is a conclusion which I have arrived at by what is, I believe, nothing more than a strict application of the principles of statutory construction clearly established by cases such as Ireland , Fitzpatrick and Oakley . There has been no need for me in this case, as there was for the Court of Appeal in Quintavalle , to strain the Parliamentary language. Far from my having impermissibly usurped Parliament’s function I have merely performed my judicial duty in striving to give effect to what I believe was Parliament’s clear intention. Nonetheless I have to confess that this is a conclusion which I have come to without any regret. Quite the contrary.

There would in my judgment be something very seriously wrong, indeed grievously wrong with our system – by which I mean not just our legal system but the entire system by which our polity is governed – if a judge in 2002 were to be compelled by a statute 141 years old to hold that what thousands, hundreds of thousands, indeed millions, of ordinary honest, decent, law abiding citizens have been doing day in day out for so many years is and always has been criminal. I am glad to be spared so unattractive a duty. The social case put by fpa, and supported in all particulars by the Secretary of State, remains wholly unanswered by SPUC. Preferring to concentrate, as it is entitled to, upon narrow legal issues, SPUC has not attempted to refute fpa’s case. I strongly suspect that it could not, even if it wished to.

There is another point. I say nothing about abortion, as that word would commonly be understood by the man on the Clapham omnibus or the woman on the Underground, nor about the use of contraceptives by those under the age of discretion. These are matters which raise very different issues – issues which I am not in any way concerned with to-day. But I have to say that I cannot see that it is any part of the responsibilities of public authorities – let alone of the criminal law – to be telling adult people whether they can or cannot use contraceptive devices of the kind which I have been considering.

It is, as it seems to me, for individual men and woman, acting in what they believe to be good conscience, applying those standards which they think appropriate, and in consultation with appropriate professional (and, if they wish, spiritual) advisers, to decide whether or not to use IUDs, the pill, the mini-pill and the morning-after pill. It is no business of government, judges or the law.

Government’s responsibility is to ensure the medical and pharmaceutical safety of products offered in the market place and the appropriate provision of suitable guidance and advice. Beyond that, as it seems to me, in this as in other areas of medical ethics, respect for the personal autonomy which our law has now come to recognise demands that the choice be left to the individual. This is a topic appropriately regulated by the Medicines Act 1968: it is no proper part of what is regulated by the Offences against the Person Act 1861.

Decisions on such intensely private and personal matters as whether or not to use contraceptives, or particular types of contraceptives, are surely matters which ought to be left to the free choice of the individual. And, whilst acknowledging that I have had no argument on the point, I cannot help thinking that personal choice in matters of contraception is part of that “respect for private and family life” protected by Article 8 of the Convention. The reasoning of the Supreme Court of the United States of America in Griswold , Eisenstadt and Carey no doubt reflects a different constitutional background, but are not the underlying principles the same?