The English Legal System
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That dealt with the common law, but the statutory provision remained and was
dealt with as follows:
. . . in the end [it] comes down to consideration of the word ‘unlawful’ in the Act
of 1976 . . . The only realistic explanations seem to us to be that the draftsman
either intended to leave the matter open for the common law to develop in that
way . . . or, perhaps more likely, that no satisfactory meaning at all can be
ascribed to the word and that it is indeed surplusage. In either event, we do not
consider that we are inhibited by the Act of 1976 from declaring that the
husband’s immunity as expounded by Hale no longer exists. We take the view
that the time has now arrived when the law should declare that a rapist remains
a rapist subject to the criminal law, irrespective of his relationship with his
victim.
Such a radical decision could not but go to the House of Lords, which
unanimously followed the decision and reasoning of the Court of Appeal.
Their Lordships agreed that Hale’s pronouncement never was law; it was
always a fiction that had infiltrated the common law. What the present case did
was merely to put the common law back on its correct tracks. As for the
interpretation of the Sexual Offences (Amendment) Act 1976, the appearance of
‘unlawful’ in s 1(1) was mere surplusage.
Subsequently, the word ‘unlawful’ was removed from the definition of rape
under the Criminal Justice and Public Order Act 1994. Thus was the fiction of
marital consent removed forever: reality remains a more intractable matter.
5.5.2. The regulation of abortion
When the Abortion Act 1967 had been introduced, the termination procedure
had been surgical in nature, but in the 1970s, the surgical procedure was
replaced by the chemical induction of labour. This latter process was twofold
in nature: first, a catheter was surgically inserted into the woman and later, a
chemical, prostaglandin, was introduced through it. The prostaglandin
induced premature labour, which occurred some time, certainly a matter of
hours, later. In practice, the first part of the procedure was carried out by
doctors. The second part, the introduction of the prostaglandin, was carried out
by nursing staff.
Section 1(1) of the Abortion Act 1967 provided that: ‘. . . a person shall not
be guilty of an offence under the law relating to abortion when a pregnancy is
terminated by a registered medical practitioner.’
In a letter dated 21 February 1980, sent to regional and area medical officers
and regional, area and district nursing officers, the Department of Health and
Social Security purported to explain the law relating to abortion in connection
with the termination of pregnancy by medical induction. The Department’s
advice was that termination using the prostaglandin method could properly be
said to be termination by a registered medical practitioner, provided that it was
