Abortion Situation In The UK

[El Pollo Diablo]

The police guidance is here. Note that the guidance applies to stillbirth, rather than miscarriage - the difference being the possible viability of the infant in the former, which is not the case in the latter. The following is provided as information rather than commentary.

Some snippets include these:

5.2.5 Stillbirth
A baby is considered stillborn if born ‘…after the twenty -fourth week of pregnancy and… did not at any time after being completely expelled from its mother breathe or show any other signs of life’. Where a pregnancy ends without signs of life before 24 weeks this is described as a miscarriage or late foetal loss. In England, a joint agency response is required in the case of a stillbirth where no healthcare professional was in attendance15. In cases of stillbirth the relevant child death review processes in England and Scotland are not required (see 13 Child Death Review processes).

In England and Wales, where there has not been an independent life, there has not legally been a death. Therefore, coroners in England and Wales do not have jurisdiction to conduct an investigation concerning a stillborn child or foetus16. Following a 2013 decision of the Court of Appeal in Northern
Ireland, the coroner in Northern Ireland does have jurisdiction in relation to a deceased unborn child that had been capable of being born alive.

Where it is not clear whether a baby was stillborn or had lived independently from the mother, an investigation should proceed to determine whether the baby was born alive. This will ensure that vital information is not lost if the baby was not stillborn, and their death was not the result of natural causes. The existence of independent life or otherwise would usually be established by a pathologist. Where incidents of unattended stillbirth with concerns relating to termination of pregnancy are reported to the police see 10.4 Termination of pregnancy for further guidance.

The document makes it clear that all sudden deaths of children, including stillborn children, where there isn't an obvious cause of death will be investigated by police to explain what happened. This includes securing the scene of the death, and the child's bedroom; seizing the child's medical health record and taking along a medical consultant to the home, along with the parents, to explain what happened prior to the death. Section 7.13, "Seizing items from the home", states the following:

The roles, responsibilities and deployment criteria for forensic examination specialists differs between forces and lead investigators should familiarise themselves with local force policies and procedures. Where deployed, the CSI/CSM attending the home address and/or scene of death can advise on what items should typically be seized from the scene.

The Personal Child Health Record (commonly known as the ‘red book’) should always be seized. Investigators should take advice from the CSI/CSM and lead health professional to avoid seizing items which may have no investigative value and may cause unnecessary distress to the family.

It is recommended that the scene be photographed before any items are removed as this may help prove or disprove a parent’s account of events. Scene photography should be undertaken in line with local force policy. A record should be made of any items removed, and the parents should be notified of this list as soon as possible.

In cases involving stillbirths, or a death immediately after birth, search objectives should include the presence of drugs that can terminate pregnancy such as misoprostol and mifepristone (see 10.4 Termination of pregnancy). Evidence that the drugs are present or have been used should be brought to the attention of the lead investigator immediately.

Section 10.4 then goes into the legal factors around termination. It firstly acknowledges the differences in law across the UK, and the sensitivity of the topic. 10.4.1 explains the national variations in abortion legislation, which includes the fact that in E,S&W the 1861 act still applies, exempted only by the 1967 act in certain circumstances. NI is now obviously different. 10.4.2 explains the medical types of abortion - surgical vs medical, and how the process has changed since Covid-19. 10.4.3 explains the basis for investigation, which is worth quoting in full:

10.4.3 The basis for investigation

Potential offences relating to the termination of pregnancy outside of the legally permitted circumstances are reported to police in a variety of circumstances. Lead investigators may be presented with reports of unattended stillbirths in the community about which concerns have been raised, a live birth following an attempted termination of pregnancy, or an unattended live birth where the baby survived only a short period. The need for an investigation in these circumstances arises from several sources.

In England, the HM Government (2018) Child Death Review Statutory and Operational Guidance (England) and HM Government (2023) Working Together to Safeguard Children documents state that a joint agency response is required in the case of a stillbirth where no healthcare professional was in attendance. In Wales PRUDiC includes stillbirths where there are signs of life. In England and Wales where there is doubt about whether a child was born alive or stillborn, a coroner can either make preliminary inquiries to try to establish the position or can begin an investigation. In Northern Ireland the coroner has jurisdiction in relation to a deceased unborn child that had been capable of being born alive. It should also be noted that a lawful termination of pregnancy can still trigger a coroner’s duty to investigate in circumstances where a termination of pregnancy causes a child to be born alive and then death is caused by prematurity, as the baby will have died an unnatural death. In Scotland sudden, unexpected and unexplained perinatal deaths must be reported to the Crown Office and Procurator Fiscal Service (COPFS) for investigation. Police investigative support may be required in all of these circumstances.

There are also criminal offences relating to termination of pregnancy in certain circumstances. These offences differ across the nations of the UK (see 2 Relevant Offences) and where it is suspected that offences have been committed a police investigation will be required.

Section 10.4.4, "Investigative considerations" is long. Initially it discusses the extreme trauma involved in the topic, and the fact that whilst stillbirths are rare, the proportion of them which are unlawfully terminated are still "extremely small". First, the section covers the source of cause for concern, which is often either healthcare professionals or relatives & friends. Second, "clarity of purpose", which is determining whether a person has committed an offence or not - the prosecution services take the decision over whether prosecuting any offence is in the public interest. The section goes on - knowledge and intention, use of abortifacients and medical records are discussed, particularly with light to the knowledge the woman had of how long she had been pregnant, and whether any deception may have been involved.

The next part, on "Search strategy", discusses what to do where there is a suspicion of medical abortion outside of the law. It describes the available medicines and their availability online. Within this context, it then says the following:

Evidence of knowledge and intention in relation to the pregnancy may be demonstrated through digital evidence. The seizure and examination of digital devices used by the woman during her pregnancy should be considered. Internet search history, digital communications with third parties, and health apps such as menstrual cycle and fertility trackers may all provide information to help investigators establish a woman’s knowledge and intention in relation to the pregnancy.

Many people are reliant on their digital devices to contact family and friends, and access other sources of information and support. Consideration must be given to the impact of seizing digital devices from a woman under investigation in these very difficult circumstances. Where it is necessary to seize digital devices lead investigators should consider providing the woman with a replacement device if the seizure of devices would inhibit access to family, friends or sources of support during the investigation, and there are no other means of communication available to the woman.

The section then discusses the potential vulnerability of those who have ended a pregnancy and their need for support. This might include any kind of disability or mental ill health, lack of knowledge, external pressure, and coercive control. Finally, the section discusses the woman's needs in the context of being interviewed, under caution or arrest, stating that her medical needs take priority over investigative needs.

There are quite a few more sections, but those are probably the pertinent ones in relation to the Observer article.

[El Pollo Diablo]

In terms of my own commentary on the advice, having had a look, I'm obviously not sure what would have changed if the police had consulted with the bodies mentioned in the Observer first, so perhaps there would be some differences. But the document makes a strong effort to be compassionate and mindful of the trauma involved in child death, whilst making it clear that the police have a duty to investigate in all cases. That investigation may be a quick and simple one, due to known medical conditions, in hospital, with a clear and known reason for death. In the absence of that, the reasons for the death need to be established and the police carry that responsibility. That seems reasonable to me.

What also comes through is that cases of child death are and should always be treated as serious, so the police don't have the leeway to fail to investigate properly - that their job is to gather evidence and lay out a case, and the prosecution services take the decision on whether that case should be taken to court or not. So it's here that we get into the realm of the law being an ass - the law clearly needs revision so the police can act in a more modern, compassionate way. As it stands, they are forced through public expectation to investigate in accord with Victorian morals.

How should the law change? Well, for starters, the 1861 act and the 1967 act would to me seem to need repealing in favour of an act which is probably more like the Northern Irish act, so there isn't a presumption of criminality. I think the legal borderline of viability is in about the right place too, so the question is then about what to do with medically-induced stillbirths past the point of viability. For those, I think there does still need to be some ability to prosecute in clear cut cases. But with cases of protection of the mother's health, or mental ill-health, or lack of knowledge of the gestation, etc., then clearly there are reasons for not doing that. And from that perspective, I can't see that the police guidance is too far from where we would get to under replacement legislation.

[Grumble]

Let’s not forget that there is a need to protect even new-born babies, because sometimes murder and manslaughter due to diminished responsibility do happen, so it is right that an investigation needs to take place. Even when the worst cases happen - and infanticide has been around forever - compassion is required.