Law Report: No disclosure of records: Director of Public Prosecutions v Morrow and others - Queen's Bench Divisional Court (Lord Justice Farquharson and Mr Justice Wright), 26 March 1993.

Documents in an abortion clinic relating to abortions are protected from disclosure on the ground of public interest immunity. Defendants demonstrating outside the clinic charged with disorderly behaviour were not entitled to the documents as they were not material to the defence that they believed unlawful abortions were being carried out in the clinic.

The Divisional Court dismissed the defendants' appeals against convictions of offences of disorderly behaviour contrary to the Public Order Act 1986.

On 3 January 1990 the defendants and others, a group of about 30 or 40, targeted as part of their campaign against abortion a clinic administered by the British Pregnancy Advisory Service where abortions were carried out. The plan was to prevent patients and staff from entering the clinic. They obstructed entrances and displayed banners. They were arrested and convicted by justices of disorderly behaviour. They appealed to the Crown Court.

Their defence was that their conduct was reasonable and justified, and they also relied on section 3(1) of the Criminal Law Act 1967 which states that a person may use such force as is reasonable in the prevention of crime.

They contended that unlawful abortions were carried out in the clinic. They served a witness summons on an officer of the BPAS to produce documents relating to abortions scheduled for 3 January.

The Crown Court set aside the witness summons and upheld the convictions. The defendants appealed by way of case of stated contending the documents were material and relevant to their defence and should be disclosed and that the defendants' behaviour was justified and reasonable.

G H Wright QC and J Kennedy (Clifford Poole & Co, Salford) for the defendants; A H Gee QC and D S Aubrey (CPS) for the DPP; Roger Ter Haar QC and Michael Kent (Department of Health Solicitor) for the Secretary of State for Health; Keith Goddard QC and Timothy Smith (Rigby & Stringthorpe & Co, Birmingham) for the BPAS.

LORD JUSTICE FARQUHARSON said that the existence of the Abortion Regulations 1968 restricting the disclosure of abortion certificates and notices indicated that Parliament had concluded that there was a strong public interest in maintaining a high degree of confidentiality in respect of documents relating to abortions carried out under the Abortion Act 1967.

The purpose of the statute was to encourage the use of safe, controlled, and legitimate procedures rather than that people should have recourse to illegal abortions and that patients might give information and submit to treatment in reliance on the knowledge that indiscriminate disclosure of such matters was prohibited.

The Secretary of State for Health and the BPAS made out a claim for public interest immunity. It fell on the defendants to demonstrate a counteracting interest calling for disclosure of the documents.

Although there was a strong public interest in allowing a defendant to put forward a tenable case in its best light, these documents were neither relevant nor material to the defences. The relevant question was whether or not a defendant honestly and genuinely believed at the time of doing the acts alleged that a crime was being or was about to be committed.

Even if the documents showed that abortions in the clinic were not in accordance with the 1967 Act and thus criminal, that could not affect the honesty and genuineness of the beliefs held by the defendants. Equally, if the documents showed that none of the operations was unlawful, that would not adversely affect the defendants' claim of an honest and genuinely held belief.

Even if the documents were relevant, balancing the two competing public interests, the public interest in disclosure must give way. The witness summons was rightly set aside.

Turning to whether the disorderly behaviour was justified, it might be that such behaviour would be more readily justified where it was born of a campaign with a strong moral basis. However that would be only one factor. There was ample evidence for the Crown Court to hold that the defendants' conduct was not justified. Even allowing for the sincerity of the defendants' views and the importance of the issue of abortion, their conduct in the organised invasion of the grounds of the clinic, the prevention of entry to patients, staff and police, and the distress thereby caused was sufficient to justify the court's conclusion.

Turning to the defence under section 3 of the Criminal Law Act, the Crown Court was not persuaded that the defendants' actions were directed to the prevention of crime.

The defence under section 3 was not apt to the situation where an aggressive demonstration was being held. It was difficult to consider the behaviour of the defendants as directed to the prevention of crime, particularly when they were preventing others from exercising their lawful rights. The appeal was dismissed.

Mr Justice Wright agreed.

Ying Hui Tan, Barrister