The Unborn Child and its Legal Rights

In my Blog posting on 11 November I mentioned the case before the Court of Appeal concerning a child (CP) born with Fetal Alcohol Syndrome who is in local authority care. This is not directly a Religion Law case but since Abortion and the rights of the Unborn Child are of  concern to many religious believers it is appropriate to cover it here.

In the case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 the Local Authority brought the claim on behalf of CP in order to claim claim Criminal Injuries Compensation for her.  To succeed they first had to establish that CP's mother had committed a criminal offence contrary to s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty

There did not have to be a Criminal prosecution of the mother in order for there to be a Criminal Injuries Compensation claim but in order for an award to be made the Criminal Injuries Compensation Authority (CICA) had to be satisfied that a crime had been committed

The claim for Criminal Injuries Compensation had been dismissed by the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC) and was also dismissed by the Court of Appeal.  The core question for the Court was whether CP was in law "any other person" at the time the "poison or other destructive or noxious thing" ie was "administered" to her.  It was agreed that CP's  mother had drunk a grossly excessive amount of Alcohol during her pregnancy and it was this alcohol that had caused CP's disabilities however was CP a "person" before she was born. Sadly but perhaps predictably the Court of Appeal said No. 

Counsel for CP relied heavily on the House of Lords case of Attorney General's Reference (No 3 of 1994) [1998] A.C. 245  which involved a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, who survived for only 121 days.  The House of Lords held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother and therefore there could not be a conviction for murder however there was sufficient for a conviction for manslaughter.

It was argued on behalf of CP that since the House of Lords had decided that the foetus becomes a person when it is born and had decided that manslaughter was a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.

For the CICA it was argued that the Upper Tribunal had reached the right decision in para 16 of its decision where it said:

16: If CP was not a person whilst her mother was engaging in the relevant actions, then she was not another person for the purposes of s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child.

The Court of Appeal took the same approach  

40:Thus in the case of a foetus, it was legitimate to find a chain of causation extending from the initial insult to the foetus which triggered its premature birth through to the point of death some time after birth, by which stage the child had undoubtedly achieved legal personality. A close examination of the language used by Lords Mustill and Hope shows clearly firstly that it has to be seen in the context of homicide, and secondly that it was used in the context of a foetus which suffered injury and which subsequently died after birth. It was common ground that violence done to a foetus resulting in a still birth could not found criminal liability. In cases where the child is born alive, the actus reus cannot crystallise until the time of death.

41: I consider that the situation is rather different in relation to the s23 offence. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime.

The Court also took into account the fact that in section 1 of the Congenital Disabilities (Civil Liability) Act 1976 Parliament had specifically legislated that a Mother could not be sued for damage caused to her child by actions of the Mother during pregnancy and concluded  

66: The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.

On the basis of the law as it stands I can understand the decision and I respect the fact that the Court of Appeal made it clear that it was open to Parliament to legislate for the unborn child to have legal rights in this situation but it was not the task of the Courts to do so.

As someone who was involved as an Intervenor in this case solely in response to the the, completely unnecessary, decision by BPAS to become an Intervenor I am sorry to read that BPAS are trumpeting the decision as some sort of victory for Womens Autonomy.  At the end of the day we have a Child severely injured by the actions of her mother and a child who will probably require care and help for the rest of her life.  There is no victory in this case and there are no winners  

Freedom of Speech and Oxford University Students

Back in 2012 I wrote a blog about Students at University College London trying to dictate how the subject of Abortion should be handled in University debates and trying in effect to prevent pro-life groups having any platform.

 Sadly the same intolerant views have surfaced in Oxford University where Christ Church College has caved into intimidation and have cancelled a debate on "Abortion Culture" organised by Oxford Students for Life who had arranged for there to be 2 speakers 1 for and 1 against but even that degree of balance was not enough for the pro-abortion crowd who were pretty blatant about the intimidation and disruption they planned

“We thought we should go and say hi! Bring your friends, and if you want take along some non-destructive but oh so disruptive instruments to help demonstrate to the anti-choicers just what we think of their ‘debate’.”

This particular Face Book page has now, for some reason, been removed but I saw it myself before it was removed and can testify to the words used.  It was headed with the words "What the f*** is an abortion culture ?" using the full "F" word.  Frankly I have represented crack head yobs who could express themselves more elegantly than those "students" at what is supposed to be one of the leading Universities in the world

Anyway the actions of the members of the threatening disruptive group could constitute a criminal offence of Harassment under s1A Protection from Harassment Act 1997 as applied by s7(3A) of the same Act.  In addition the College, and Oxford University as a whole, has a legal duty under s43 Education (No 2) Act 1986 to 

"“ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”

and both the college and the University appear to have failed in their legal as well as their moral responsibilities.  Freedom of speech is precious and without freedom of speech no other freedoms are safe.  It should never be forgotten that in Nazi Germany it was idealistic students who were the first ones to throw books into the flames.  Those students who succeeded in stopping this debate probably consider themselves to be radical left wingers but the reality is that they are fascists who need to be faced up to and defeated.  

UPDATE  19 November 

In researching this subject and trying to make sense of some of the jargon on the oppositions Facebook page I discovered that I am a "Cisgendered Binary person without a Uterus" otherwise known as a Male (and they say Lawyers overcomplicate !)

An "Interesting" in the sense of "Completely Self Centred arrogant" article in The Independent  by one of the protesters who got the talk cancelled 

However not all is Doom and Gloom the Twitter Feed of a certain Will Neaverson (who seems to be an Officer at Christ Church) states (Nov 16)  "I'm proposing a motion to request my college not grant permission for Oxford Students for Life to host a 'debate' on abortion. Updates soon." which would normally have upset me until I noticed that he describes his current status as "Researching for North Korea thesis".  

which made me laugh out loud. An Oxford student studying North Korea who wants to close down democratic debate in Oxford, you simply couldn't make it up.  He is obviously a very good student of his subject. 

Abortion Back in the Legal Spotlight

Abortion is back in Court in 2 cases at present.

The Supreme Court is hearing an Appeal by Glasgow NHS against the decision of the Court of Session recognising the right to conscientious objection of Midwives laid down in  Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  

I discussed this case in this Blog at

Call the Midwife - I want an Abortion !        7  MARCH 2012
and

Call the Midwife I want an Abortion ! - 2    24  APRIL 2013

so I shall await the Supreme Court decision with interest and in the hope that it will confirm the clear and well reasoned decision of the Court of Session in April 2013

At the other end of the Courts structure a Doctor has been summonsed to appear at Manchester Magistrates Court in response to a private prosecution relating to alleged Abortions offered because of the Gender of the Unborn Child.  It is argued by the prosecutor that Gender Selection Abortion is illegal under the terms of the Abortion Act 1967

I covered this issue in my Blog post "Is Sex Selective Abortion Illegal ?  8 September 2013" when I came to the reluctant conclusion that Sex Selective Abortion, though morally repugnant, was not illegal.  I therefore do not expect the private prosecution to succeed however I wish the prosecutors well and will be delighted if I am proved wrong and the Abortionist in question is convicted.

Finally on a Non Abortion , but linked, issue the Court of Appeal are currently considering whether Fetal Alcohol Syndrome in a child caused by the grossly excessive drinking of his mother during her pregnancy could be a crime under s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty 

The issue in the case does not involve an actual prosecution but relates to an attempt to obtain some financial compensation for the severely injured child involved.  Since the Mother has no money the claim was pursued under the Criminal Injuries Compensation scheme which is why it was necessary to argue that the conduct was a crime.  As a practicing criminal lawyer, I do not believe that this case will lead to pregnant women being prosecuted over their drinking or other habits it will I think be seen by the Court of Appeal that the criminal law is being used as a "peg" for a civil claim. 

That said though I am very sympathetic to the Child in the case I think there may be real problems in establishing that the mother, however excessive her drinking, was acting either unlawfully or maliciously and that problem was what caused the case to be lost in the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC).  We shall just have to wait and see what the Court of Appeal decides.

Incidentally I was slightly involved in the case wearing my Thomas More Legal Centre hat.  The Abortion provider BPAS and the organisation Birthrights applied to become Intervenors in the case in order to argue for the complete bodily autonomy of the woman so I became involved acting for the Pro-Life Alliance in arguing as Intervenor for the equal rights and dignity of the unborn child

It may well be that the Court of Appeal will ignore both interventions and concentrate instead on the wording of the 1861 Act and the details of the Criminal Injuries scheme but I am glad to have had some small part in ensuring that the arguments of BPAS were countered and the Court was reminded that unborn children are human and entitled to respect and dignity

Allah For Muslims Only ?

The Federal Court of Malaysia, which is the highest Court in the Country, has issued a judgment supporting a ban by the a state Government on the Catholic Herald of Malaysia preventing it from using the word "Allah" as a title for "God" and ending a years-long legal battle that has caused religious tensions in that Muslim-majority country.

The Catholic Church had been seeking to reverse the government ban preventing it referring to God by the Arabic word “Allah” in the local Malay-language edition of the Herald newspaper but a seven-judge panel in the administrative capital Putrajaya has supported an earlier ruling in the Court of Appeal that only Muslim publications could use the word "Allah".  The Court of Appeal Judgment was the case of  Negeri and Ors v Roman Catholic Archbishop of Kuala Lumpur No:. W-01-1-2010 14 October 2013 also Here & Here with official Press Summary.

The Federal Court Judgment will be added to this site once it becomes publicly available:  NOW AVAILABLE Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors, Civil Application No.: 08-690-11/2013

The dispute began in 2007 when the Home Ministry threatened to revoke the publishing permit of the Herald for using the Arabic word in its Malay-language edition. The church launched a court case to challenge the directive, arguing “Allah” had been used for centuries in Malay-language Bibles and other literature to refer to “God” outside of Islam but the authorities said that using “Allah” in non-Muslim literature could confuse Muslims and entice them to convert which is a crime in Malaysia. This is in accordance with the Constitution of Malaysia clauses 3 & 11

3(1) islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation
11(4) State law and in respect of the Federal territories of Kuala Lumpur, Labuan and putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of islam

An example of the enforcement of Article 11(4) is is the Selangor Non-Islamic Religions (control of propagation amongst Muslims) Enactment 1988  which states

4(1) A person commits an offence if he persuades, influences or incites a Muslim---

(a) to be inclined towards any non-Islamic religion, or 

(b) to become a follower or member of a non-Islamic religion; or 

(c) to forsake or disfavour the religion of Islam.

(2) A person who commits an offence under subsection (1) shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding ten thousand ringgit or to both.

(3) It shall not be a defence to a charge under subsection (1) that the Muslim was not affected by anything said or done by the accused to him.

9(1) A person commits an offence if he-

(a) in any published writing; or

(b) in any public speech or statement; or 

(c) in any speech or statement addressed to any gathering of persons; or

(d) in any speech or statement which is published or broadcast and which at the time of its making he knew or ought reasonably to have known would be published of broadcast,uses any of the words listed in Part I of the Schedule, or any of its derivatives or variations, to express or describe any fact, belief, idea, concept, act, activity, matter, or thing of or pertaining to any non-Islamic religion.

One of the "words listed in Part 1 of the Schedule" is "Allah"

In December of 2009, the High Court of Malaysia decided that the use of the word "Allah" by the Catholic (and other Christian Churches) was constitutional which led to incidents of violence against Christian Churches.  In October of 2013, the Court of Appeals overturned the 2009 decision stating 
"the usage of the name 'Allah' is not an integral part of the faith and practice of Christianity."
and that is clearly also the opinion of the Federal Court of Malaysia

An interesting question is whether this case could have implications for Christians, and other Non-Muslims in other Muslim Majority Countries.  "Allah" is the common name for "God" in Arabic and has been used by Arab Christians since the Muslim Conquests of the Middle East.  The Christian and Muslim concepts of what "God" or "Allah" is or how he manifests himself to mankind differs but the same word is used. It is not inconceivable however that Non Muslims in Arab and other countries could now find that their right to use the word "Allah" is increasingly called into question

A helpful summary of the history of the case was displayed in the Malay Mail Online which I reproduce below (c) Malay Mail 

Prosecution in Australia of Unregistered Muslim Marriage

The issue of unregistered Muslim Marriages is something I have Blogged on in the past see http://religionlaw.blogspot.co.uk/2010/02/muslim-marriages-4.html where I give links to my other Blogs on this subject.

I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.

There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.  

In Australia it has been reported  that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.

It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our  Marriage Act in the same way as the Australian Police are enforcing theirs

Ecclesiastical Bouncers

 This is a copy of an Article I had published in the January 10th 2014 issue of The Catholic Herald

The recent incident in which a naked woman from the protest group Femen interrupted Midnight Mass in Cologne Cathedral, by rushing on to the Altar with the words “I am God” written across her torso, is only the most recent example of an increasing tendency for “protesters” of various types to use churches as the setting for their provocations. 

Femen have been involved in a number of protests in churches in Europe and on their website they have threatened retaliation the Catholic Church if the “protester” is prosecuted under the German criminal code, which makes it a criminal offence to disrupt a religious service.

The “protester” in Cologne was, quite rightly, arrested and is facing prosecution. This highlights the double standards of many in western Europe who criticised the prison sentences passed on the Russian Pussy Riot group while ignoring the fact that the group’s actions would have been illegal in any civilised country. 

So far no Catholic church in Britain has experienced a Femen or Pussy Riot style disruption but reality would suggest that such an incident is only a matter of time. When same-sex marriage is legalised later this year it is likely that some gay rights activists will decide to organise a protest against the fact that such marriages will not be taking place in Catholic Churches. Disruption of a marriage
service in a church is a distinct possibility. 

Besides protesters, churches may have to deal with other types of disruption. A little-reported incident took place in September 2013 when St Elizabeth and St Helens church in Coventry was invaded by a group which demanded that the worshippers leave because the church was being closed down under a court order. The “court” in question is the so-called “International Tribunal for Crimes of Church and State” which has absolutely no legal standing either nationally or internationally and which is the creation of a former United Church of Canada minister Kevin Annett. 

Despite having no legal status the tribunal has solemnly sentenced Benedict XVI to 25 years imprisonment and ordered the closure and sequestration of the Catholic Church internationally.  It has also “sentenced” Queen Elizabeth II and the Canadian prime minister to imprisonment and announced the dissolution of the government of Canada. Even though this “tribunal” is clearly operating at the furthest limits of lunacy some people were sufficiently influenced by it to cause disruption to the worshippers in St Elizabeth church, resulting in the police being called to deal with a group claiming to be international law enforcement officers executing a court order.

These and similar incidents are likely to increase in the future and it would be sensible if dioceses and individual parishes started thinking now how they would deal with such situations. The first point is to be quite clear that disruption of church services is a criminal offence under Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. In addition, it is likely to constitute a religiously aggravated public order offence. Any incidents should be reported to the police with a view to prosecutions being brought. People who disrupt churches are trespassers who can be physically removed from church buildings using reasonable force.   

That said, churches need to think about the practical way such situations are dealt with and to have some form of contingency plan that avoids an undignified and possibly dangerous struggle on the altar between a priest and an enraged  protester shouting at the top of their lungs and possibly willing to accuse anyone who touches them of indecent assault.  

It may be sensible for local priests to speak to their local police commanders or community officers to discuss the possibility of such situations arising and to get their advice. Many parishes will have parishioners who have had experience in the Armed Forces or police who might be willing to be the “designated person” to remove disrupters in the most efficient manner should that ever become necessary. Female parishioners who have Forces or police experience could be particularly useful “ecclesiastical bouncers” to deal with disruptive females.

After all, Christ did use physical force to drive out those who were disrupting the holiness of the Temple in Jerusalem and perhaps we could do with a restoration of the idea of muscular Christianity as an antidote to the notion of “gentle Jesus meek and mild” which has so emasculated Christians in the last few decades.  

In any event, dioceses should start thinking about the possibility of disruptions now cathedrals are particularly liable to be the targets for protests because of their public and media profile, and it makes no sense for a bishop or priest to wait until a naked protester is hurtling across the altar before thinking: “How should I deal with this situation?”

Polygamy, Cohabitation And Sodomy Laws interact

Back in August I digressed to look at the history of Mormon Polygamy and its implications for the historic legal definition of marriage as being between a man and a woman.  

In the case of  Brown et al v. Herbert et al 2:11-cv-00652 a US District Court Judge has also had to consider the history of Anti Mormon Polygamy Laws in Utah.  In a complicated decision the Court struck down elements of a Utah Law which prohibited multiple, ie polyamorous, cohabitation and which also prohibited entering into a second or more "marriage" ceremony even if the second or other marriages were never legally registered.  The purpose of the Statute as was accepted was to prevent members of minor, Mormon, Polygamous groups conducting religious, but not legally valid, plural marriages.

The Judge struck down the law using a famous US Supreme Court decision Lawrence v. Texas - 539 U.S. 558 (2003) where the US Supreme Court had struck down a Texas Anti-Sodomy statute which had criminalised consensual homosexual conduct.  The Supreme Court had held that such a statute interfered with a right to privacy and the Utah Court held that the same principle applied to consensual polyamory

Is Sex Selective Abortion Illegal ?

The Crown Prosecution Service has issued a Statement on Abortion Related Case which has aroused considerable controversy.  In simple terms it concerns a expose investigation by the Daily Telegraph Newspaper which demonstrated that some Doctors would perform Abortions where the only reason was because of the sex of the Unborn Child.  The usual assumption is that the unborn child is female and that is the reason for the Abortion, sadly such Gendercide is now common in some parts of the world where it is causing dangerously unbalanced Male-Female ratios.

The facts were reported to the CPS which in its unconvincing statement says that 
 "The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to  bring prosecutions in this case.  That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.


I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal.  In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.

I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve  the cold blooding killing of an innocent unborn child.  However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.  


The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain 

1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons.  It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and  does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work.  I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.  

All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ?  After all ethical guidance from the British Medical Association states that a Doctor (my emphasis) 
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?

The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)

1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.

The issue therefore is accepted as not clear from doubt.  Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.

I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.

My point is not to defend them but rather to explain why they were not prosecuted.  The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest.  The CPS  should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction".  According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.  

UPDATE  10 SEPTEMBER 2013 

 My attention was drawn to an excellent legal commentary on the CPS decision by legal blogger, Greg Callus, who argues that the CPS' decision not to prosecute is defensible on the facts. He is approaching it from a slightly different angle to me but I do not disagree with what he has said. Unfortunately I do not know Gregs contact details and so I have not been able to ask whether he has any objections to me linking to him. If you want to get in contact Greg I would be delighted to hear from you

I also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website

Doe v Holy See - Oregon Decision

Back in July 2010 I  blogged on the case of Doe v Holy See   which was an attempt in the US to sue the Holy See (AKA:  the Papacy, the Vatican) over the alleged abuse of the Plaintiff by a Catholic Priest.  As I indicated in that Blog and I noted in a  follow up Blog in August 2010  this was going to be hard to do. 

According to reports in other Blogs such as  Vatican Insider   and  Life Site News  the cases against the Holy See have now been thrown out by the Judge.  I have tried to obtain copies of the Judgment but have been told by the Court that because there are other claims still continuing and it is only an interim judgment on an aspect of the overall claim there is no definitive judgment I can refer to to check the reports.

With that "Health Warning" having been given the decision appears to be based on the, not surprising finding by the Judge that

“There are no facts to create a true employment relationship between Ronan [the former priest] and the Holy See,”

Catholic Bishops and Vicarious Liability for Priests - 2

The case of JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) is a follow on from the same case in the High Court JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011)  which I blogged about last year


The issue in the case is whether the Portsmouth Diocese could be held Vicariously Liable for alleged Child Abuse occurring 40 years before (I'll return to that point later).  The Claimant alleges she was raped when she was 6 by a Priest of the Diocese.  The Catholic Church does not regard Priests as being its employees but rather as being "Office Holders" and usually in law there is no liability attaching to the acts of a Office Holder, this was for example the legal position as regards Police Constables and it was not until the Police Act 1964 (now s88 the Police Act 1996  )that Chief Constables were made vicariously liable for the wrongful acts of Police Constables under their command. However this act did not change the general legal point that office holders are regarded in law as not being employees and hence as not having an employer who can be held vicariously liable for their acts.


In many other cases involving allegations of sexual abuse by Catholic Clergy the relevant Diocese have not argued the vicarious liability point but agreed that the Court could approach the issue "as if" the Priest in question was an Employee; in this case however the Diocese decided to argue the issue as to whether the Diocese was legally liable and it was argued as a preliminary issue. The Court of Appeal obviously had reservations about this approach as Lord Justice Ward said in para 6
I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. 

The Court was also aware that on the facts alleged the Diocese itself was not at fault and did express and indeed Lord Justice Davis noted in para 133 that the entire principle of Vicarious Liability raised questions about
the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another.


However the Court did decide that even though a Catholic Priest was not an Employee of his Diocese or his Bishop nevertheless the Diocese was vicariously liable for the alleged acts of the Priest and it did accept that in this decision it was extending the legal concept of Vicarious liability.  The ruling has implications for all forms of voluntary organisations since it opens them to the possibility of being sued for the actions of non employees such as volunteers, school governors etc.


More worrying for me is the fact that in this case the Defendant is having to defend itself against allegations of abuse occurring 40 years ago at the hands of someone who is dead.  The allegations are entirely based on the evidence of the Claimant and the accused Priest was dead before the allegations were made. This  puts an impossible burden on any organisation to defend itself.


The Limitation Act 1980  is supposed to prevent claims being brought after six years but the Courts have interpreted it in such a way as to allow sex abuse claims to be brought decades after the alleged events and this makes having a fair trial impossible and circumvents the intention of Parliament when it passed the Limitation Act.  It opens Churches, the Boy Scouts, Barnardos and State Care Homes to the danger of unjustified legal claims in which the only evidence is unsupported allegations made against persons who are dead and unable to defend themselves or their reputation


It is ironic that this decision was made just a week before the High Court begins to hear a case against the UK Government for alleged misconduct in the Mau Mau uprising more than 50 years ago.  By allowing that case and the Portsmouth case to proceed the Courts have subverted the Limitation Act.  Parliament does need to have another look at the entire issue of limitation; surely there has to be a point where allegations are so old that it is simply wrong to allow them to proceed to trial.

Put the Pope in the Dock - 2

A case has apparently been filed at the International Criminal Court alleging that the Pope and several Senior Cardinals are guilty of "Crimes Against Humanity"

As far as I can see this is simply a meaningless publicity stunt which frankly does nothing more than to drag the concept of "crimes against humanity" into disrepute. However for those who might want to explore the legalities I blogged about the subject last year as follows

Monday, 26 July 2010 A World-wide Criminal Conspiracy ?

Friday, 9 April 2010 Put the pope in the dock ?

Monday, 5 July 2010 Doe v Holy See - Not as Important as it appears

No doubt it can, and will, be said that in considering this subject I "parse and analyze it with the gimlet eye of a canon lawyer." to quote Irish Taoiseach Enda Kenny however those who invoke the law in making allegations can hardly object if their allegations are refuted by reference to the law.

As I said last year

Q; Is the Church, the Vatican or the Pope above the law ?

A; No All three are answerable to National or International law. However just as they are not above the Law they should not be treated as below the law or not deserving of the normal rules and protections of the law. Therefore critics who accuse the Church, the Pope or the Vatican of crimes should have to justify their criticisms by applying normal legal rules

Arbitration and Mediation Services (Equality) Bill

Baroness Caroline Cox a member of the House of Lords has introduced into Parliament the Arbitration and Mediation Services (Equality) Bill (HL Bill 72) which is an attempt to deal with some of the perceived problems involving Shariah Tribunals which I have blogged about before and which were covered in a report by the Think Tank Civitas for which I wrote the introduction. However the Bill itself never once mentions Shariah and the changes it proposes would apply to all forms of Arbitration. Because it is a Private Members Bill rather than a Government Bill it probably has little chance of becoming law but it has certainly reignited the debate on Shariah Tribunals in Britain

The Bill on first sight appears to be a well thought out attempt to deal with the problems in a a targeted way and it proposes amendments to the Equality Act 2010, Arbitration Act 1996, Family Law Act 1996, Criminal Justice and Public Order Act 1994 and the Courts and Legal Services Act 1990.

The main proposal is in s4 of the Bill which states in unequivocal terms that Arbitration cannot deal with Criminal and Family law matters. That is in fact a statement of the existing case law which has not previously been set out in statute.

Section 5 of the Bill similarly seeks to deal with the situation where Shariah Rulings have been enforced by the Civil Courts in the pretence that they reflect mediated agreements rather than acquiescence in directed judgments and it requires Family Courts to satisfy themselves properly that a mediation agreement is indeed made by both parties freely and with full knowledge of their specific legal rights. The misuse of Mediation agreements as a backdoor way to introduce Shariah into UK Family Law is again a problem I have Blogged about previously.

The amendments to the Equality Act complement the amendments to the Arbitration Act by making discrimination on grounds of sex unlawful in Arbitration in particular by making it unlawful to treat the evidence of a woman as automatically of less value than the evidence of a man or vice versa and also making it unlawful to Arbitrate in inheritance disputes on a basis that presupposes that women should automatically inherit less than men or vice versa. These changes are clearly specifically aimed at Shariah Tribunals because of the historic Shariah law principles that the evidence of a woman is worth only half that of a man. Once again though this proposal is clearly aimed at Shariah Tribunals the word Shariah is never mentioned and the basic principle of equality is difficult to argue against.

Particularly interesting and imaginative however is the proposal in s1(4) of the Bill which would amend the so called "public sector equality duty" in s149 of the Equality Act which gives public authorities a specific duty to take steps to minimise inequality. The Bill proposes that public authorities should be under a legal duty to take steps to prevent polygamous marriages and to inform parties in unregistered religious marriages that they have few legal rights compared to a spouse in a registered marriage. I wonder if this might even lead Police and other authorities to start implimenting s75 Marriage Act 1949 which makes it illegal to perform unregistered marriage ceremonies. In a conference I attended recently I was surprised when one of the Muslim delegates delegates quite openly stated that the reason Muslim Marriages were not being registered was in order to permit Polygamy.

I have somewhat more concerns over sections 6 and 7 which deal with proposed changes to the criminal law. I frankly cannot see the point of the proposal in s6 since s51 Criminal Justice and Public Order Act 1994 already deals with the intimidation of witnesses in cases of domestic violence and I have never seen any suggestion to the contrary. I also have problems with s7 which proposes to make it a criminal offence where anyone

(a) falsely purports to be exercising a judicial function or to be able to make legally binding rulings, or

(b) otherwise falsely purports to adjudicate on any matter which that person knows or ought to know is within the jurisdiction of the criminal or family courts.

I don't have any major problems with (a) though if any person was falsely claiming to be exercising a judicial function and receives payment for it that would already be an offence of obtaining by false pretences. I do however have real problems with (b) since it could make it very difficult for religious courts such as Jewish Beth Dinn or Catholic Marriage Tribunals both of which deal with purely religious Divorces (Jewish) or Annulments (Catholic) and do so only after the Civil Courts have dissolved the marriage. There is also the possibility that a strict definition of the proposed offence could even prevent employers holding internal disciplinary hearing dealing with alleged criminal acts by employees such as theft at work. On balance I think (b) goes too far but I am prepared to accept (a)

The major question is I suppose whether Caroline Cox is in fact interfering in Freedom of Choice ie the principle that people should have the freedom to choose private adjudication of their disputes without the law interfering. That is certainly what the opponents of her Bill will say and was in fact a major point that we discussed at a conference on Shariah I attended earlier in the year. The consensus we arrived at was that if the adjudication, whether Arbitration or Mediation, is ultimately going to be registered with the Civil Courts and enforced by them then the Civil Law does have a right to become involved and to say what legal rules or principles should apply to the making of a decision which the State is being asked to enforce.

Whether its Murder or Your Right to Choose depends of when you do it

A tragic case reported from Scotland

http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-13694156

http://www.scotland-judiciary.org.uk/8/767/HMA-V-INETA-DZINGUVIENE

where a new born baby boy was killed by his mother one day after birth. The mother got 15 years imprisonment and the judge described what she had done as "wicked" and "dreadful" (which of course it was). He also said

"Your victim was an innocent child, your own baby, who was no more than a few hours old when you ended his life by smothering him with clingfilm. As a newborn baby he was wholly defenceless and extremely vulnerable. He should have been protected and nurtured by you. Instead, you killed him and the jury determined, correctly, that this was murder."

The irony is that had she gone for an Abortion 3 months earlier then killing the baby would have been perfectly legal. You only need to modify the words of the judge very slightly to make them apply to every baby killed through Abortion

"Your victim was an innocent child, your own baby, when you ended his life. As an unborn baby he was wholly defenceless and extremely vulnerable. He should have been protected and nurtured by you. Instead, you killed him"

As a lawyer I understand the legal difference but as a human being I find it impossible to find any moral difference between what this woman did and what 250,000 women do in Britain every year. There is something sick and sad about a society where the difference between something being the crime of murder and being perfectly legal depends on whether the killing is done after birth or before it.

Burning the Koran

It seems that there is an epidemic of Koran burnings around at present and in Wales a charge has just been dropped against Sion Owens who is alleged to have burnt a Koran in his garage. This of course follows the more widely publicised burning of a copy of the Koran in Florida by "pastor" Terry Jones.

It is clear that Terry Jones will not be prosecuted in the US because of the protection offered by the 1st Amendment so what about the legal position in Britain ?

According to the news reports the wording of the charge against Owens was that he was in possession of
"a record of visual images or sounds showing you burning a copy of the Koran whilst saying 'I am burning the Holy Koran and I hope that you Muslims are watching."

None of the news reports have specified what particular offence Owens is alleged to have committed other than some press reports referring to s 29 of the Public Order Act 1986 which cannot be correct since s29 is simply an interpretation section. I suspect it is a charge of Incitement to Religious Hatred which was introduced by the Racial and Religious Hatred Act 2006 which added a new set of sections to the Public Order Act ss 29A to 29N. The charge was probably contrary to either s29E or s29G

s29A Meaning of “religious hatred”
In this Part “religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief.

It is important to note that there is nothing in the Act which prevents hatred of a religion, ie Islam, as opposed to hatred of a group of religious believers ie Muslims

29E Distributing, showing or playing a recording
(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if he intends thereby to stir up religious hatred.
(2) In this Part “recording” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.
(3) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be included in a programme service.

s29G Possession of inflammatory material
(1) A person who has in his possession written material which is threatening, or a recording of visual images or sounds which are threatening, with a view to—
(a) in the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or
(b) in the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another,
is guilty of an offence if he intends religious hatred to be stirred up thereby.
(2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, or inclusion in a programme service as he has, or it may be reasonably be inferred that he has, in view.

There is also a specific free speech defence built into the Act

s29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The question is whether the burning of a Koran is itself "threatening" and I frankly doubt that it is ON ITS OWN. In certain circumstances the burning of any book (Koran, Bible, Satanic Verses) could be deemed to be threatening but usually because of some other factor present alongside the burning. For example a large mob surrounding a Mosque and burning a Koran in full view of the congregation could indeed be seen as threatening but if it is simply done in someones own backyard I do not see how that could qualify as threatening. Offensive yes, insulting yes but, and it is a big but, that is not the same as being threatening and unless it is threatening the case does not get off the ground. In addition burning of a Koran can easily be described as an "expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents"

In some of the newspaper reports about the Owens case there have been suggestions that the CPS dropped the case because the consent of the Attorney General had not been obtained. Certainly a prosecution for Incitement to Religious Hatred requires the consent of the Attorney General but this does not prevent a suspect being charged and remanded in custody whilst the consent of the AG is formally sought; see R v Whale and Lockton [1991] Crim LR 692. If the charge against Owens was dropped by the CPS it was not because the AG had not been involved before the decision was made to charge him.

Moving beyond the Incitement to Religious Hatred offences there is the possibility of a prosecution under the Religiously Aggravated provisions of s4A or s5 of the Public Order Act

An offence is Religiously Aggravated when
"(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
"Religious Group" means "a group of persons defined by reference to religious belief or lack of religious belief."

To commit an offence under s4A or 5 an offender needs to use "threatening, abusive or insulting words or behaviour" and I can see that the burning of a Koran falls under the "insulting" provision. However for s4A there must be an "intent" to cause "harassment, alarm or distress" so once again context is crucial; burning a Koran in front of a group of Muslims would certainly show an intent to cause distress but a private burning I think not. As for s5 whilst intent is not necessary the
"threatening, abusive or insulting words or behaviour, or disorderly behaviour" must be used "within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby" which once again presupposes a public event with Muslims present.

So on balance I cannot see that any offence could have been committed by Mr Owens or any similar Koran burner in Britain because the simple fact of burning the Koran is not in itself a crime.

There is however a real question about the overreaction of the Police in this case which rather parallels their overreaction in arresting a street preacher last year over his comments on homosexuality. Why was it necessary to arrest Mr Owens at night and why was it necessary to hold him in custody. He had not after all been accused of a crime of violence so why was he not bailed to go to Court as would happen in most "normal" cases. The Police really do need reminding of the fact that people do have a right to express opinions that ACPO disagree with

There is also the question of Police, CPS and Home Office inconsistency in the way in which they deal with the destruction of a Koran as opposed to insults to symbols of other religions. Last year a Bible was defaced in Scotland as part of an "Arts" exhibition but no official action was taken nor was there any official criticism. in 2008 a Statue of Christ with an erect penis was displayed in an Art Gallery in Gateshead and a private prosecution was stopped by the CPS on the grounds, inter alia, of freedom of expression. If the Police and CPS are inconsistent and unfair in their application of the law that is more harmful to community relations than anything done by an individual as a personal protest.

Finally can I just make it clear that I don't support or defend the burning of the Koran or the Bible or indeed any other book it is an unpleasant and pointless thing to do but that doesn't mean it is or should be illegal. Also I know that the 'in people' spell it Q'ran not Koran in order to show how with it they are but I prefer to stick to the traditional English spelling. I also write Boadicea rather than Boudica, it is my choice which after all is what freedom should be all about.