The Women’s Health Clinic had been operating for a number of years. Police suspected that illegal abortions were being performed.

The Women’s Health Clinic had been operating for a number of years. Police suspected that illegal abortions were being performed. They obtained a warrant to search the clinic for evidence of abortion offences. The search was conducted and boxes of medical records were seized. 

Doctor Chloe, who was identified in the records as having performed pregnancy terminations, was charged with performing an abortion on a woman identified as Jane X. At the trial, counsel for the defendant argued that she was entitled to a defence on the ground that the termination was performed to preserve the physical and mental health of the woman concerned. The judge accepted this argument and acquitted the defendant. 

Three years later, a new Public Prosecutor was appointed. He was an evangelical Christian. Shortly after his appointment, he announced that he would be strictly enforcing the law on abortion as a religious obligation. At his request, the medical records seized in the search were re-analysed. They had been stored at the police station. 

As a result of the re-analysis of the medical records, a new charge was laid against Dr Chloe respecting another woman on whom an abortion had been performed: Susan Y. The evidence against Chloe was drawn from the same batch of records seized in the search of the clinic and used by the prosecution at the previous trial. 

Also charged were two other people. Mary had been Dr Chloe’s receptionist and had filed the medical records. Yola was a medical student who was on practical placement at the clinic as part of her training and was present throughout the termination procedure, observing how it was conducted. 

If Dr Chloe committed an offence, can Mary and Yola be charged with and convicted of this offence? 

Chloe wishes to argue that the termination was performed to preserve the physical and mental health of the woman. What defence, if any, might be available to her? 

Are there any procedural bars to the prosecution of the defendants?