No: 2009/4503/B4 
Neutral Citation Number: [2010] EWCA Crim 1949
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 29 July 2010
 
B e f o r e:
 
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)

MRS JUSTICE RAFFERTY DBE 

MR JUSTICE MADDISON  
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R E G I N A 

v 

AJAZ AHMED
 
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Miss S Bailey appeared on behalf of the Appellant
Mr S Phillips appeared on behalf of the Crown
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J U D G M E N T
1.	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 issue that arises in the appeal is such that the relevant facts can be dealt with comparatively shortly.
2.	The appellant married the complainant, Noreen Akhtar in Pakistan in August 2006.  It was an arranged marriage.  The complainant returned to England with the appellant in April 2007.  She went to live with him and his parents, his brother and his sister.  The complainant could not speak English and came from a rural community in Pakistan.  She was some 20 years younger than her husband and the marriage was not a happy one.
3.	In May 2007 the complainant, now 21 years of age, fell pregnant and so by August 2007 she was some 16 to 17 weeks pregnant.  By that time, however, the marriage was coming to an end.
4.	On 17th August 2007 the appellant's family's general practitioner received a telephone call from the appellant's sister stating that the complainant was pregnant and wanted to have a termination.  An appointment was arranged with the general practitioner for 20th August.  On that date the appellant attended with the complainant and he acted as an interpreter.  The complainant was referred to St Patrick's Family Clinic for a termination and the appellant contacted the clinic on that same day to make an appointment.  However, he was informed that it was the policy of that clinic that an Urdu speaking interpreter had to be present at the appointment or it would not go ahead.  The appellant subsequently cancelled that appointment.
5.	On 22nd August he took the complainant to another clinic, the Calthorpe Clinic.  He filled in the relevant forms, acted as an interpreter and paid a fee of £690 for the complainant to have a termination.  On 29th August the appellant himself brought the complainant back to the Calthorpe Clinic for the termination to be carried out.  However, before the operation took place concerns were raised by the general manager about the fact that a young woman was having a termination at such a late stage and an Urdu speaking nurse was asked to speak to the complainant.  The complainant became very upset when she was told that she was in an abortion clinic and about to have an abortion.  She said that she believed she was having a minor operation to cure something that was wrong with her blood.  The complainant asked for help and said that she did not want to terminate the pregnancy and that her family did not know about it.  She said that she spent most of her days confined to her room and was not allowed outside without her husband.  The staff at the clinic tried to help the complainant.  They told the appellant that there was a medical reason why the termination could not go ahead.  The appellant was very annoyed.  The complainant was taken home.  She eventually managed to escape to members of her family in Bristol.  She had no further contact with the appellant.  In January 2008 she gave birth to a baby boy.  She subsequently applied for leave to remain in the United Kingdom.
6.	Thus it was the prosecution's case that the appellant unlawfully intended to bring about a surgical abortion by lying to the complainant about what would happen to her at the clinic and by misrepresenting her wishes to all of the medical professionals concerned.  It was the complainant's evidence at the trial that the appellant had told her that she was going to have a small operation to remove blisters from her ovaries which were endangering the baby which she was carrying.  The defence case on the other hand was that the complainant had initially wanted or at least agreed to have an abortion and in the initial consultations the appellant had interpreted everything fairly, accurately and honestly for her.  Because she could not speak English the necessary appointments had to be organised by him and members of his family.  However, the complainant had then presented herself wrongly as a victim for the purposes of staying in the United Kingdom following the breakdown of their marriage.  Her motive for wanting to stay in the United Kingdom was said by the appellant to be shame that she would bring upon herself and her family by returning to Pakistan alone and with a child.
7.	The single ground of appeal is that the appellant was convicted of an offence not known to the law.  It is therefore necessary first to consider the terms of section 59 of the 1861 Act to which the indictment referred.  Section 59 provides, so far as it is relevant: 
"Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman...shall be guilty of a misdemeanour...".
It is clear that central to this offence is the provision of something knowing of its intended use to procure an unlawful miscarriage.
8.	On behalf of the respondent, Mr Phillips submits that what the appellant did fell within the ambit of section 59.  The appellant, it is said, unlawfully procured a "thing", namely a surgical procedure at the Calthorpe Clinic knowing that this procedure was intended to be used unlawfully to procure the complainant's miscarriage.  Alternatively, it is submitted that if the word "thing" is apt only to describe an object or article, rather than a procedure, then the appellant must have procured the surgical instruments that must have been available to carry out the procedure had it gone ahead.  In either event, it is submitted, the appellant knew that the "thing" was intended to be unlawfully used to procure the miscarriage.  Although sections 1(1) of 1(4) of the Abortion Act 1967 render the termination of a pregnancy lawful if certain requirements are met, those requirements include the formation in good faith of one or more of the medical opinions specified in those subsections.  Any medical opinion in this case, it is submitted, could not have been performed in good faith because the good faith would have been vitiated by the appellant's deception of the doctors.
9.	In our judgment, however, these submissions are not sustainable and the appellant's conviction can not stand for a number of different reasons which have been set out with admirable clarity both in writing and today orally by Sharon Bailey who appears on behalf of the appellant.
10.	We begin with the indictment itself.  The Statement of Offence in the single count before the jury read: 
"Procurring a miscarriage contrary to section 59(1) of the Offences Against the Person Act 1861."
We are prepared to disregard the fact that 'procuring' has been wrongly spelt.  We are also prepared to disregard the fact that section 59(1) of the 1861 Act does not exist, section 59 being a single undivided provision.  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.
11.	To add to the confusion, just as the Particulars of Offence did not reflect section 59 of the 1861 Act, neither did the Recorder's directions to the jury about what the prosecution had to prove coincide with the Particulars of Offence.  The Recorder directed the jury in the following terms: 
"So, to start then, what do the prosecution set out to prove? Well, the defendant in this case would be guilty of the offence, if you are sure that he intended to bring about a termination of the pregnancy by surgery and he kept his wife unaware of the nature of the medical treatment, and he misrepresented her wishes to the professionals.  So, he intended there would be an abortion, he did not tell his wife what was going on and he certainly did not tell the professionals what his wife wished to do, that is what the prosecution has to prove." 
Later in his summing up the Recorder added this: 
"Well, that is the evidence, you have to retire and you have to filter through all of that and you are going to ask yourself, 'Are we satisfied the prosecution have proved the case that the defendant intended to bring about a termination of this pregnancy by surgery, that he deceived his wife and he deceived the professionals?'"
The references to keeping his wife unaware of what was happening when misrepresenting her wishes to the professionals were additions to the allegations made in the particulars of offence, even if they represented the general thrust of the prosecution's case.  
12.	The end result is that an offence contrary to section 59 was never left to the jury for their consideration and for this reason alone the conviction cannot stand.  
13.	Even if the indictment had been correctly drawn, it is our view that no offence contrary to section 59 would have been made out on the facts of this case.  The appellant clearly did not supply or procure any poison, any other noxious thing or any instrument.  Recognising that, the respondent is impelled to argue that the appellant supplied or procured a "thing" within the meaning of that word where it appears for the second time in section 59, the "thing" being the anticipated medical or surgical procedure.  In our judgment, however, the juxtaposition of the word "thing" with the word "instrument" which almost immediately precedes it, indicates that the "thing" must be some sort of article or object rather than something such as a medical procedure which has no physical existence.  We are fortified in this conclusion by comparing section 59 with section 58 of the 1861 Act.  The latter section makes it an offence, amongst other things, for any person with intent to procure a miscarriage of a woman unlawfully to "use any instrument or other means whatsoever".  The use of the word "means" almost immediately after the word "instrument" in section 58 is to be compared and contrasted with the use of the word "thing" almost immediately after the word "instrument" in section 59.  The word "means" may well have been apt to encompass a surgical procedure or efforts made to procure one, though it does not follow that section 58 would have been apt to meet the circumstances of this particular case.
14.	We therefore turn to the alternative argument that the appellant procured the surgical instruments which must have been available to carry out the intended abortion.  We begin by noting that the indictment, defective as it was, referred only to medical or surgical procedures and not to instruments.  A further problem is that there was no evidence that any particular instruments had been selected for use at or brought to the place at which the operation would take place.  Even if they had, we do not consider that the appellant could be said to have "procured" those instruments.  In the case of Mills 47 Cr.App.R 49 this court held that the word "procure" in section 59 meant "to get possession from another person of something which the defendant had not already got".  Thus the word "procure" is not apt to describe a case in which the defendant brings about a situation in which a third person, here a nurse or doctor, will take possession of or use an instrument of some kind.
15.	There is yet another difficulty with the alternative argument advanced on behalf of the respondent.  In our judgment the defendant's deceptions would not necessarily have prevented the doctors concerned from forming the medical opinions referred to in section 1(1) or 1(4) of the Abortion Act 1967 in good faith.  Were it otherwise a doctor carrying out an abortion, having been genuinely swayed by a plausible third party, would necessarily be guilty of a serious criminal offence.  Thus in our view, it would have been difficult if not impossible for the prosecution to establish that the appellant knew that any instrument was intended to be unlawfully used to procure a miscarriage.  
16.	We therefore allow this appeal and quash the conviction.  It gives us no pleasure to do so.  On any view the appellant's behaviour was appalling, but for the reasons we have explained he was not charged with an offence known to law and would not have been guilty of an offence contrary to section 59 had such an offence been properly indicted.
17.	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.
18.	MISS BAILEY:  My Lord, I do have a further application.  As your Lordships and my Lady are aware, I did not act for Mr Ahmed in the initial trial.  We were instructed privately until a representation order was granted on 26th May.  I therefore make an application under the Prosecution of Offences Act 1985, section 16 for the defendant's costs.  
19.	THE VICE PRESIDENT:  Out of central funds, is that?
20.	MISS BAILEY:  Yes.
21.	THE VICE PRESIDENT:  Or against the Crown? 
22.	MISS BAILEY:  Out of central funds.  
23.	THE VICE PRESIDENT:  Might it possibly be said he brought the proceedings on himself?
24.	MISS BAILEY:  Yes, I anticipated that the court may well take that view.
25.	THE VICE PRESIDENT:  You have to make the application Miss Bailey but I just want to know what the answer to the question is. 
26.	MISS BAILEY:  The answer is although we are not concerned with the facts and what Mr Ahmed says here, Mr Ahmed of course does not accept the Crown's versions at all.  He contested the case, saying that his wife had made up allegations about him because the marriage had broken up.  I think that the further aspect of that is this.  If a young lady comes or this young lady came from Pakistan, if the marriage does not last a certain amount of time she could not be granted a residence.
27.	THE VICE PRESIDENT:  There is an immigration dimension or might be.  All that was ventilated in front of the jury. 
28.	MISS BAILEY:  Yes, she had a motive to lie about it and that was his case.  Now that the conviction has been overturned, of course, there is the presumption of innocence.  That would be the point I would make.
29.	THE VICE PRESIDENT:  I see.  Thank you very much indeed. 
(Pause) 
30.	THE VICE PRESIDENT:  On the facts as the jury must have accepted after a substantial trial this defendant brought these proceedings on himself.  We absolutely refuse to make any orders for costs from central funds.  Mr Phillips whether there is any other offence or not we have no idea, it is not, I am afraid, within our remit to investigate it.  We confine ourselves to saying that it is not what was charged and we are unable to substitute anything else.
31.	MR PHILLIPS:  I understand entirely.
32.	THE VICE PRESIDENT:  Thank you.