AG for Northern Ireland and the Department of Justice v The Northern Ireland Human Rights Commission
 NICA 42
The Court of Appeal dealt with an appeal from the High Court by the Attorney General and Department of Justice against an Order made by Horner J on 16 December 2015 when he declared that sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (Northern Ireland) 1945 were incompatible with Article 8 of the European Convention on Human Rights (“ECHR”) insofar as it is an offence:
(i) to procure a miscarriage at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality;
(ii) to procure a miscarriage up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest.
The proceedings followed the submission by the Northern Ireland Human Rights Commission (‘the Commission’) to the Minister of Justice, of advices which suggested that the law in the aforementioned provisions might be contrary to Articles 3, 8 and 14 of the ECHR. The Commission recommended that the law in Northern Ireland should be amended to provide for termination of pregnancy on grounds of rape, sexual abuse (incest) and in cases of serious malformation of the foetus.
In August 2014 the Minister of Justice wrote to the Commission stating that he intended to present a consultation paper to alter the law on abortion so that women might choose to terminate their pregnancy in circumstances where a lethal abnormality of the foetus had been diagnosed. The consultation would also seek views on how to address the issue of legalising abortion for pregnancies resulting from sexual crime. On 20 October 2014, the consultation document was issued. Shortly thereafter, on 7 November 2014, the Commission sent a pre-action letter to the Department of Justice. It stated that unless the Department brought forward legislation to allow for unlawful termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest, it would commence proceedings. The Department responded on 1 December 2014 indicating that in light of the ongoing consultation process any proceedings were premature and ill-founded.
The Commission issued its judicial review on 11 December 2014. It sought the following relief:
(a) A declaration pursuant to section 6 and section 4 of the Human Rights Act 1998, that sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945 are incompatible with Articles 3, 8 and 14 of the ECHR as they relate to access to termination of pregnancy services for women in cases of serious malformation of the foetus or pregnancy as a result of rape or incest;
(b) A declaration that, notwithstanding the provisions of sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest;
(c) Further and in the alternative, a declaration that the rights of women in Northern Ireland, with a diagnosis of serious malformation of the foetus or who are pregnant as a result of rape or incest, under Articles 3, 8 and 14 ECHR are breached by sections 58 and 59 of the Offences Against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945.
Upon appeal from the order of Horner J, the Attorney General and the Department Justice took a preliminary point that the Commission had no standing to pursue the application. The Court unanimously rejected that argument and held that the Commission did have the requisite standing [see paras. 7 to 46].
In reaching its decision, the Court carried out an extensive review of the domestic and Strasbourg jurisprudence. The Court also received evidence from various sources as to the adverse effects on women of the operation of the current legal framework. It unanimously agreed that it must allow the appeal in relation to the relevant findings of Horner J in that:
(i) the failure to provide exceptions to the law prohibiting abortion in respect of lethal foetal abnormalities at any time and pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother was not contrary to Article 8 of the Convention; and,
(ii) Sections 58 and 59 of the Offences Against the Person Act 1861 and Section 25 of the Criminal Justice Act (NI) 1945 are not incompatible with Article 8 of the Convention.
Indeed, giving the leading judgment of the Court, Morgan LCJ said :
“In light of the wide margin of appreciation recognised by the European jurisprudence and the decisive vote within the Assembly I do not consider that it is open to the courts to derive a right to abortion from the Convention. I would not, therefore, make a declaration of incompatibility and would allow the appeal on that issue”.
There was some disagreement, however, on the interpretation to be accorded to the meaning of ‘unlawful’ when procuring a miscarriage in sections 58 and 59 of the 1861 Act. It was agreed that the ratio of Bourne  1 KB 687 continued to define that term for the purposes of the proceedings. In that case, the jury was directed that the burden rested on the Crown to satisfy them beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. They were further directed that the words "for the purpose of preserving the life of the mother" had to be understood in a reasonable sense so that if the doctor was of the opinion on reasonable grounds with adequate knowledge that the probable consequence of the continuation of the pregnancy would be to make the woman a physical or mental wreck, the jury were quite entitled to take the view that the doctor operated for the purpose of preserving the life of the mother. Morgan LCJ said that it was necessary for the term ‘physical or mental wreck’ to be considered in a more contemporary context. He observed:
 The position of women in our society some 80 years after Bourne has altered beyond all recognition. It was as a result of judicial intervention that women were protected from sexual abuse within marriage (R v R  1 AC 599). Discrimination in employment and the provision of services required substantial legislative intervention. The place of women within the professions and other areas of public life has changed enormously and is still evolving. That is evident in both the judiciary and politics. All of these matters have accordingly altered the scope of the right to personal autonomy and development of women in this jurisdiction.
 I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase "for the purpose of preserving the life of the mother" cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck. I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT. Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in paragraphs -. The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus”.
Gillen LJ and Weatherup J disagreed with that approach. Gillen LJ said :
“In summary, my view is that it is institutionally inappropriate and a reach too far for this court to change the effect of the relevant legislation and its interpretation in R v Bourne 1 KB 687, which has stood the test of time in this jurisdiction, without legislative intervention. If the law on abortion is to be changed, we should follow the precedent set by England when the position as interpreted in Bourne was altered by the 1967 Abortion Act as later amended by the Human Fertilisation and Embryology Act 1990. In terms the permissive provisions of the 1967 legislation protected against an offence under Sections 58 and 59 of the 1861 Act by affording a circumscribed basis for termination after careful consideration by the legislature. Such a change is not a task that should be taken up by this court.”
And, Weatherup J stated :
“I am unable to agree with Morgan LCJ that the legislation may be interpreted in a manner that admits of additional grounds for termination of pregnancy by redefining the meaning of “unlawful” in the Offences against the Person Act 1861”
The Commission submitted that if the Court was not to uphold the declaration of incompatibility, it should make a declaration that an abortion is lawful in particular circumstances. The Court rejected that submission. The Lord Chief Justice recognized that a legislative solution might see a right to abortion available in many cases of sex crime or where there is no likelihood of foetal survival. But he took the view that the legislative process would require consultation and engagement in particular with medical practitioners and the police in cases involving distressed victims of rape. He considered that the making of a declaration in the terms sought by the Commission would effectively amount to judicial legislation. Instead, he would prefer to see this matter determined by Government. But he sounded something of a warning shot in saying that if there is no provision made for a practical and effective method of securing rights for those entitled to them, the court may still have a role.
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