Ahmed, R v

An indictment under section 59 of the Offences Against the Person Act 1861 must allege the statutory act of supplying or procuring an item, knowing that it is intended to be unlawfully used to procure a miscarriage. An allegation only of an intention to bring about a surgical termination does not disclose that offence and cannot support a conviction.

In section 59, a thing means an article or object, not a medical or surgical procedure. Further, to procure an instrument means to obtain possession of it from another; it does not include arranging for a clinician to use an instrument. A third party's deception does not necessarily prevent doctors from forming the requisite medical opinion in good faith.

The appellant was convicted at Birmingham Crown Court of an offence said to be contrary to section 59 of the Offences Against the Person Act 1861 and was sentenced to four years' imprisonment.

The prosecution alleged that he arranged for his pregnant wife to undergo a termination by deceiving her about the proposed treatment and misrepresenting her wishes to medical staff. The defence disputed that account. On appeal, the central issue was whether the indictment and the facts disclosed an offence under section 59.

1. Appeal allowed and conviction quashed. The indictment did not charge an offence under section 59 of the Offences Against the Person Act 1861. The statutory offence concerns supplying or procuring an item with the requisite knowledge of its intended unlawful use. It is not the offence of procuring a miscarriage. The particulars alleged only an intention to bring about medical or surgical procedures and omitted the statutory actus reus. The Recorder's directions also did not leave a section 59 offence to the jury.
2. Even if the indictment had been properly framed, the evidence could not establish section 59. Read with section 58, the word thing in section 59 denotes an article or object. It does not extend to an anticipated medical or surgical procedure.
3. The alternative contention concerning surgical instruments also failed. Applying Mills 47 Cr.App.R 49, to procure an item is to obtain possession of something from another person which the defendant did not already possess. Arranging circumstances in which a doctor or nurse might use an instrument is not procurement by the defendant.
4. The appellant's alleged deception would not necessarily have prevented the doctors from forming, in good faith, the opinions required by sections 1(1) or 1(4) of the Abortion Act 1967. The prosecution therefore could not establish that any instrument was intended to be unlawfully used to procure a miscarriage.
5. No suitable alternative offence was identified for substitution. The court also refused the appellant's application for costs from central funds because, on the facts necessarily accepted by the jury, he had brought the proceedings upon himself.

• Court of Appeal (Criminal Division)—allowed the appeal and quashed the conviction: [2010] EWCA Crim 1949.
• Crown Court at Birmingham—the appellant was convicted of an alleged offence under section 59 of the Offences Against the Person Act 1861 and sentenced to four years' imprisonment.