Part 2: Where experts differ, judges shouldn't decide

The Weekend Post

This week's Post continues the analysis of the High Court judgment in R v. R

Part 2: Where scientific experts differ, it’s not for a judge to decide between them

The High Court judgment given by Mr Justice McGovern

The judgment of Mr Justice Brian McGovern in the High Court in R v. R was delivered on 15th November 2006. The ‘principal’ issue to be considered, he says, is ‘whether the frozen embryos are “unborn” for the purposes of Article 40.3.3 of the Constitution’.

Significant differences between expert witnesses on when life begins

A central issue in the case is the fact that different witnesses gave opposed or irreconcilable views on when the life of a human individual begins, which puts the Court in the position of having to take sides on an issue in which it has no specialist expertise or mandate to decide, in this case, whether human embryos which are not implanted in a woman are human beings, when they began to be human beings and how may one decide these two questions.

Mr Justice McGovern notes that witnesses gave different answers to the question when life begins.

Expert witnesses for the wife ‘argued that from the moment of fertilisation of the ovum by the sperm a new human life begins.’

Others ‘postulated that it was only when the embryo became implanted in the uterus that the potential to be born existed and that human life began at that point.’

Yet others argued that human life began ‘at the formation of the primitive streak’ and others again ‘offered the view that it was impossible to say when human life begins.’

Where scientific experts differ, it’s not for a judge to decide between them

Mr Justice McGovern concludes from this difference of opinion that it is outside the proper competence of the Court to decide among these views because more than scientific and medical expertise is involved in saying that what is in front of them is or is not a living human being:

'It is possible for Scientists and Embryologists to describe in detail the process of development from the ovum to the embryo and on the stage when it becomes a foetus after implantation of the embryo in the wall of the uterus, but in my opinion, it is not possible for this Court to state when human life begins.'


Where individuals and groups in society differ about what constitutes a human being or when human life begins, and when it should be protected, it’s not for a judge to decide between them

Mr Justice McGovern rightly makes two further observations and draws a further conclusion from them. He notes

‘The point at which people use the term “human being” or ascribe human characteristics to such genetic material depends on issues other than science and medicine.’

And these other issues often include ethical and religious views and values about which there are significant deep-rooted and strongly held feelings:

For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a “human being”.

So again he draws a conclusion about the limits of competence and authority of courts.

But it is not the function of the courts to choose between competing religious and moral beliefs.

He supports his conclusion by citing remarks to the same effect made by Munby J. in The Queen on the application of Smeaton v. Secretary of State for Health [2002] 2 FLR 146. The question before the court in that case was whether the supply, administration and use of the morning-after pill was a criminal offence under Sections 58 and 59 of the Offences against the Person Act, 1861 as it is used with intent to procure a miscarriage:

‘I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and to some, transcending importance. But I must emphasis (sic) that so far as the Court is concerned, this case has nothing to do with either morality or religious belief.

‘The issue I have to decide is not whether the same and use of the morning after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable.

What I have to decide is whether it may constitute an offence under the 1861 Act.’

Munby J. continues by quoting supporting remarks made in another case which makes the same point,

‘Cases such as this, and others in the field of medicine … raise moral, religious and ethical issues on which, as Lord Browne-Wilkinson pointed out in Airedale NHS Trust v. Bland [1993] A.C. 789, [1993] 1 FLR 1026, at 879 E, 880 A and 1050 F and 1051B respectively, “society is not all of one mind” and on which indeed “society as a whole is substantially divided”.’

Munby J. continues,

‘Our society including the most thoughtful and concerned sections of our society, are deeply troubled and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold passionately and with the utmost sincerity, starkly differing views.’

and concludes,

‘All of those views are entitled to the greatest respect but it is not for a judge to choose between them.’

Mr Justice McGovern adopts this analysis as applicable to R v. R:

'I adopt those words as being relevant and applicable to the facts and issues in this case.'

So where technical experts differ it is outside the competence and the remit of judges in courts of law to settle such disputed matters by coming down on one side or another.

And where individuals and groups in society differ about the most fundamental ethical and religious matters, such as what constitutes a human being, when human life begins and what protection ought to be given to human life in certain circumstances, these issues also fall outside the competence or remit of judges in courts of law, and they should not act so as to settle them by coming down on one side or another.

In a democracy, then, judges in courts of law should refer such issues back to the legislature which should enact laws in relation to disputed issues. Then judges in courts of law should decide disputed questions by applying these laws.

Such judicial self-restraint is right in principle and would be admirable if carried through in practice.


Next week Part 3: The Doctrine of Prevailing Ideas