15. Abortion

Section 58

Two ways of committing it: A woman who is with child, and who with intent to procure her own miscarriage unlawfully administers poison or a noxious thing, or uses an instrument or any other means, commits the felony. Any other person who, with that intent, does the same to any woman, whether or not she is with child, also commits it. The maximum in the Act is imprisonment for life.

The woman and anyone else: The woman herself is guilty only if she is in fact pregnant. Belief that she is pregnant is not enough if she is not. Another person can be guilty whether or not she is pregnant, if the intent to procure a miscarriage is proved. Causing her to take the thing is enough. She need not administer it herself.

No result is required: The offence is complete without a miscarriage. Trying and failing is enough, if the intent and the unlawful means are there.

Poison, noxious thing, other means: A recognised poison counts even in a small quantity, on the lecture's distinction. A noxious thing is harmful in the dose used, though harmless in a smaller dose. "Other means" is wide enough for an instrument and for other physical interference. Do not cite "Spicer v Marlow". The lecture's name is not a report you can rely on. The statutory words are enough.

Section 59

Supply: It is a misdemeanour to supply or procure poison, a noxious thing, or an instrument, knowing it is intended to be used to procure the miscarriage of any woman. The lecture still speaks of penal servitude. That is the 1861 language. It is not a current sentence. Do not write it as the punishment a court imposes now.

Bourne

R v Bourne [1939] 1 KB 687: A surgeon ended the pregnancy of a girl of fourteen who had been raped, because he believed the continuance of the pregnancy would leave her a physical or mental wreck. Macnaghten J directed that the use of an instrument was not "unlawful" within section 58 if it was done in good faith to preserve the life of the mother, and that life for this purpose covers a serious danger to physical or mental health. The surgeon was acquitted.

The limit: Bourne is not the Abortion Act 1967, and that Act is not law in Sierra Leone. A later English reform does not amend section 58 here. Bourne is an interpretation of the word "unlawfully" in the 1861 Act. It is not a permission to perform an abortion whenever a doctor thinks it preferable. The lecture is right that section 58 does not itself set out modern clinical practice. It is wrong if it is read as leaving the section unused except where the mother dies. Death is not an element.