06 September 2010

Abortion by Deceit

A depressing tale is found in Ahmed, R v [2010] EWCA Crim 1949.

A woman enters into an arranged marriage; the husband is from Blighty, twenty years her senior, she is from Pakistan, and doesn't speak any English.

The marriage was not a happy one. The woman fell pregnant but by this time the marriage existed in name only.

The husband decided that the wife should have an abortion. He made arrangements and acted as interpretor; the wife was under the impression that she was visiting clinics in order to have a minor operation to cure something wrong with her blood. However, before she went under the knife, the clinic became suspicious as to why a young woman would want an abortion; they found a nurse who could speak her language and the dastardly deed was stopped.

Here's the law part,

"MR JUSTICE MADDISON: On 8th June 2009 at the Crown Court at Birmingham, the appellant, Ajaz Ahmed, was convicted of an offence contrary to section 59 of the Offences Against the Person Act 1861. On 6th July he was sentenced by Mr Recorder Pryce to serve four years' Imprisonment. He appeals against his conviction by leave of the single judge."

The ground of the appeal was that the offence was not known to law. Even though there is a section 59 offence (Procuring drugs, &c. to cause abortion.), it is pointed out that,

"What we cannot disregard is that procuring a miscarriage is not an offence created by section 59. As we have said, the offence created by the section is concerned in short with the procuring or supply of something intended for use in procuring an unlawful miscarriage. This defect may not have been significant had the Particulars of Offence in the indictment reflected the terms of section 59. But they did not. The particulars read as follows:

"Ajaz Ahmed between the 19th day of August 2007 and the 30th day of August 2007 intended unlawfully to bring about the use of medical and/or surgical procedures on Noreen Akhtar thereby to procure the miscarriage of her child, which she was then carrying."

The Particulars of Offence did not allege that the appellant unlawfully supplied or procured anything at all. Thus they did not set out the actus reus of an offence contrary to section 59(1) or indeed of any offence. They alleged only that the applicant intended unlawfully to bring about the use of procedures on the complainant to procure a miscarriage."

A few more errors of law are pointed out and then the court finishes by saying,

"As to whether there was any other offence of which the appellant might properly have been convicted or a conviction for which we could properly substitute, no convincing suggestions have been made to us. For these reasons, therefore, however reluctantly, we allow the appeal against conviction."

I wonder if the appellant boasts about his success?

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