It is often helpful to look at unlikely hypotheticals in order to elucidate a legal principle. I was simply trying to clarify one bit of the law where the discussion seemed to be going around in circles. But now I've gone and stuck my big foot in it, I should try to tidy things up to the best of my understanding before going to bed.
When people talk about an "illegal abortion", they mean the crime under s58 of the Offences Against the Person Act, which carries a maximum life sentence.
So, to expand on my earlier example. Say we have the situation where two doctors independently reach the opinion that the grounds for abortion are made out. They both make comprehensive notes, recording their opinions, and that they have made these opinions in good faith. A third doctor, who is due to carry out the abortion, reads these notes. But only one of the doctors has completed and signed the HSA1. For some reason, the third doctor doesn't notice and goes ahead with the abortion anyway.
Now that is extraordinarily careless. But has that doctor actually carried out an illegal abortion under s58 of the Offences Against the Person Act?
S1 of the Abortion Act says:
The third doctor is aware that the other two doctors have reached an opinion, made in good faith, that the grounds are made out, because he has read the comprehensive notes. Therefore, it seems clear to me that he has not carried out an illegal abortion under s58 of the Offences Against the Person Act.
S2 of the Abortion Act is the one that deals with the requirement to complete and sign forms. It does not state anywhere in S2 that failure to complete the forms makes the abortion illegal under s58 of the Offences Against the Person Act. It does, however, state that if the forms are
wilfully not completed, then that is a separate, albeit more minor offence.
Level 5 is a high level fine, in fact I think it is unlimited. But it is obviously not as serious as facing life in prison.
So where does that leave the three doctors?
The doctor who carried out the abortion does not seem to have committed any criminal offence, but he might get struck off for negligence.
The doctor who completed and signed the HSA1 has done nothing wrong.
The doctor who didn't complete the HSA1 may be guilty of a crime under S2 of the Abortion Act, if he failed to complete it on purpose. If he has just been careless then there has been no crime. But he might be disciplined.
One final thing. An "illegal abortion" is a well understood term which covers an offence under s58 of the Offences Against the Person Act. It is different from an otherwise legal abortion where an additional requirement, such as completing a form, has not been met.
Anyway, that is my best attempt to explain this. I welcome any discussion!
An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners.
www.legislation.gov.uk