On 1 December 2015 campaigner Aisling Hubert made an application for judicial review over the Director of Public Prosecution’s (DPP’s) decision not to prosecute two doctors who were filmed offering to carry out abortions based on the children’s gender.

In February 2012 the two doctors were filmed during an undercover operation by the Daily Telegraph, agreeing to arrange abortions because the foetuses were female.  In 2013, on receipt of the evidence, the Crown Prosecution Service decided that whilst the case met the evidential test, as set out in the Code for Crown Prosecutors, it was not in the public interest to bring charges. Following the decision by the CPS, Ms Hubert commenced a private prosecution against the doctors pursuant to section 6(1) Prosecution of Offences Act. The doctors then asked the DPP to intervene and stop the prosecutions using their powers under section 6(2) of the Act. 

In March 2015 the CPS considered the charges again in light of all evidence, including the original evidence obtained in 2013.  Whilst they felt that the evidential test was ‘just’ met they, once again, did not feel that the public interest test was met. Ms Hubert was ordered to pay £25,000 in costs. The General Medical Council started fitness to practise proceedings against the two doctors. One was suspended for three months in November 2015 and the case against the other was discontinued.

Last year MPs agreed the law on sex-selective abortion needed clarifying after hearing of widespread confusion over the legal position. In November 2014 MPs voted 181 to 1 in favour of the Abortion (Sex-Selection) Bill that would ban abortions on grounds of gender. The government have repeatedly said that sex-selective terminations are illegal in Britain as gender is not specified as a legal ground under the 1967 Abortion Act. Yet the British Pregnancy Advisory Service has contradicted this in the past claiming the law is silent on the issue given the absence of references to gender in the Act. The case of the two doctors has reignited wide spread debate surrounding the question of sex-selective abortion. 

At last week’s hearing, Lord Justice Burnett and Mr Justice Irwin refused Ms Hubert’s application for judicial review and full reasons are to be given at a later date.

Private prosecutions are becoming increasingly common, yet the case of the two doctors is perhaps a cautionary reminder that the DPP and the state are not shy to intervene and stop a case where they do not feel it meets the relevant tests.