| Rex v Bourne | |
|---|---|
.svg) | |
| Court | Old Bailey |
| Decided | 19 July 1938 |
| Citation | [1939] 1 KB 687 |
| Court membership | |
| Judge sitting | Sir Malcolm Macnaghten |
Rex v Bourne, The King v Aleck Bourne, or the Bourne Judgment, was a British landmark court case in 1938 relating to an abortion performed by obstetric surgeon Aleck Bourne on a 14-year-old girl who had become pregnant as a result of being raped. The judge directed the jury towards the concept that situations arise where abortion might protect the health of the mother. Bourne was found not guilty of performing the procedure unlawfully and the judgment set the precedence for several subsequent abortion cases and the Abortion Act 1967 (UK).
Seeking a termination of her pregnancy in May 1938, the girl came to the attention of Bourne, who had been awaiting such a case to test in the courts. He admitted her to St Mary's Hospital in June, informed authorities of his intention to perform the operation, carried it out, and then asked to be arrested.
Charged under section 58 of the Offences Against the Person Act 1861 for procuring an abortion, it was decided that the case should go to trial at the Old Bailey before a judge and jury. With the term "unlawful" added to the charge, the trial took place on 18 and 19 July 1938. The prosecution was led by Donald Sumervell, while Bourne was defended by Mr G. A. Thesiger and Roland Oliver. In his direction, the judge Sir Malcolm Macnaghten, asked the jury to answer not the question of whether Bourne performed the operation in good faith to preserve the girl's life, but whether Bourne's actions were "not done in good faith for the purpose only of preserving the life of the girl."[1][2] It took the jury 40 minutes to come to the verdict that Bourne was not guilty.
The trial received widespread interest from the public, medical professionals and legal establishments.