Wednesday 19 September 2012

Abortion ~ R v Sarah Louise Catt

Procuring miscarriage is a criminal offence which carries a maximum punishment of life imprisonment.  The Offences against the Person Act 1861 section 58:

Administering drugs or using instruments to procure abortion. 

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . .[to imprisonment for life].

At the Crown Court sitting at Leeds, Sarah Louise Catt pleaded guilty to this offence and was sentenced to 8 years imprisonment.  Apart from her guilty plea, the sentence would have been 12 years.  Cooke J sentenced her and he "generously" (his word) gave her the full 1/3 credit although she had maintained her innocence during police interviews but entered a plea at a relatively early point following charge.

The Sentencing Remarks are here and merit full reading.

On the face of it, this was a case which merited a substantial period of imprisonment.  Her pregnancy was almost at full term when the baby was aborted.  The facts show clearly that she had made a deliberate choice.  She also sought to conceal the facts from others and, although she told the authorities that the body had been buried, she would not say where (see para. 5 of the sentencing remarks).

Some of the life-story of Sarah Louise Catt is revealed in the judge's sentencing remarks.  When at University she had a baby which she placed for adoption at birth.  In 2000 a baby was aborted.  In 2002 she sought a further termination but did not proceed and the baby was born.  In 2004 she had a further child.  In 2010 the offence occurred for which she was sentenced.  It appears that she was having an extra-marital affair and thought that this man was the father and she concealed the pregnancy from her husband.

The sentencing remarks inform us that there was a psychiatric report which indicated that she did not suffer from any mental disorder.  The judge did not see a need for a report from a psychologist but he does not explain why.

There is no doubting the seriousness of all of this.  The Abortion Act 1967 offered her no defence.  However, I cannot help but feel somewhat disturbed at the length of the sentence.  Was the 8 years (12 year starting point) merited entirely or is Sarah Louise Catt a woman who is more in need of help as is argued by Simon Jenkins writing in The Guardian 18th September - It's judicial machismo that jails women like Sarah Catt.

In paragraph 17 of the sentencing remarks, the judge refers to the absence of "real mitigation" and lack of remorse.  He then said - "As a matter of public policy and bearing in mind the need for deterrence, a long determinative sentence is required."  Hence, deterrence (presumably of others?) seems to have been very much in the judge's mind.

It is certainly beyond doubt that the offence was "so serious that neither a fine alone nor a community sentence could be justified" - (to use the words in the statutory sentencing framework) -  so what alternative did the judge have apart from maybe a shorter sentence of imprisonment? For example, could the sentence of imprisonment have been suspended?   The answer is not unless the imprisonment was for a term of 12 months or less - (this will become 2 years when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 68 is implemented).  Such a short sentence would be unlikely to be viewed as commensurate with the seriousness of the offence of taking a life which might well have had its own independent existence within a matter of, at most, a few weeks.

Hence, in the absence of Catt suffering a mental illness, the learned judge appears to have been constrained by the statutory sentencing framework to a substantial sentence of imprisonment certainly in excess of 12 months.  Whether a starting point of 12 years is right is, of course, another matter. and may yet fall to be addressed in the Court of Appeal.

A further interesting comment in the sentencing remarks relates to the Abortion Act 1976.  At para. 15 Cooke J said - "There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners."

It is questionable whether the learned judge needed to say this.  The Abortion Act 1976 simply offered Catt no defence since the permitted grounds in section 1 of the Act did not apply at the time of the abortion.  Abortion is a very emotive subject with polarised opinion.  The 1967 Act (which was later amended by the Human Fertilisation and Embryology Act 1990) is Parliament's attempt to establish a balance between those who argue that abortion is (almost always) wrong and those who argue for women to have absolute freedom of choice.  The learned judge did not offer any supporting evidence for his comment about the Act being liberally construed in practice though there are certainly those who think that it is - see, for example, the article of 23rd February - "Clinics granting sex-selection abortions to be investigated by health officials."

One good thing though.  How much better it is that sentencing remarks like this are being published.  Far better than the "old days" when sentence was simply passed and the defendant taken to the cells.  At least we now have some opportunity to discover the matters which influenced the sentence.

Some excellent articles on this vexed topic are:

Daniel Sokol -  Why the Abortion Act deserves to live

Sally Sheldon - The Abortion Act's paternalism belongs to the 1960s

Mr Justice Cooke has delivered a number of speeches and talks - see Lawyers' Christian Fellowship - here and here

Addendum 20th September:

Amanda Bancroft - The Guardian - Does God fit in to the punishment of Sarah Cutt?

21st September:

Sarah Catt, abortion and the legal rights of pregnant women - Elizabeth Prochaska - The Guardian

22nd September:

Criminal Law and Justice Weekly - John Cooper QC - Sarah Catt: An anti-abortion judgment?

Judge in late abortion case linked to conservative Christian charity - Ben Quinn and Owen Bowcott - The Guardian

 BMJ Group Blogs - Journal of Medical Ethics blog - R v Catt: The (slightly Strange) Judge's remarks

Probation blog - Psychiatrist or Psychologist - considers the difference and the importance of getting the right sort of report


  1. I followed this story today and indeed, it's a very complicated area. This might be a bit beside the point but all I could think of was what would happen in the USA (where I live) had this been a case before a religiously-minded judge. Right now we have Roe v. Wade threatened, and Mitt Romney has vowed to reverse it should he be elected President. I could easily see this verdict and sentence being applied to any mother deemed "careless" in pregnancy and who could possibly be seen to have brought about a miscarriage. Hope no one over here finds out about this....

    1. Interesting what you say re Mr Romney. I have not been following his campaign. USA law is very different though to the situation in England. The offence with which Catt was charged requires proof of INTENT to procure the miscarriage. As it happens, Catt pleaded guilty and thereby attracted the usual discount on sentencing allowed in English law for early guilty plea.

  2. I wonder if you could expand upon the difference a psychologist's report might have made to the finding of the judge as to Ms Catt's state of mind at the time she committed the offence.

  3. The above blogpost merely noted that the judge said he did not require a psychologist's report and HE did not explain why. The psychiatrist is concerned with mental disorders - their diagnosis and management etc. The psychologist is concerned with how people behave and the possible reasons for this. The life story of Sarah Cutt would appear that some analysis of her thought processes was needed. Beyond that, I don't think that I can take this line any further. The Amanda Bancroft article touches upon this same point.

  4. Thank you, but a final question, if I may. In deciding infanticide against a different homicide offence, irrespective of which side advances the argument, would the decision be based on a psychiatrist's report, a psychologist's report or both?

  5. Infanticide could not have been charged here since it requires the child to have been born (and under 12 months in age) - Infanticide Act 1938. At the time of deciding charges, reports would not be available.

    Later - after conviction - the judge has to sentence. Normally a pre-sentence report would be prepared by the Probation Service. In many cases that suffices. However, the sentencing judge may call for other reports which he considers will assist him in reaching a proper sentence.

  6. Criminal Procedure Rules - 42.8 - are relevant to requesting medical reports. HERE

  7. Thank you again. I asked because of the remark setting the seriousness of the offence between manslaughter and murder. The 'irrespective' phrase was inserted because I understood that if the Crown charges infanticide it bears the burden of proving the accused's mind was disturbed.

  8. Given the absence of sentencing guidance, Cooke J was trying to find a suitable place on the scale of offences to place Catt's offence. This is really the only reason why other offences were mentioned.

    Infanticide is an offence in its own right but can also be raised by way of defence to a murder charge. All of this was carefully considered by the Law Commission report published in 2006.

  9. Very good post at Probation blog on reports - psychiatric and psychological. Difference important - both expensive to obtain. Very hard to get reports POST sentence.

  10. I was drawn to the fact that no mention was made of the dose or route of administration of the drug involved. This drug - misoprostol - has medical indications other than inducing labour. I wondered if, in the absence of the guilty plea and admission of intent, would a charge even have been considered by the CPS?
    It is used to prevent NSAID induced gastric ulcers, and importantly, not only as an abortifacient, but also to treat what is termed a 'missed miscarriage' - ie to expel an already dead baby from the mother's uterus. For the latter, Canadian hospitals use a low dose to start, followed by a doubling of the dose - no dosage information appears to have been put before the court. Was there any evidence at all to prove that the baby/foetus in question was still alive when this drug was self administered? Having been pregnant 4 times previously, I wonder if the defendant in this case would have been in a better position than an unmarried male judge to assess whether the baby was alive or dead? Perhaps the case should be referred to as 'Shroedinger's Foetus' ?

    1. It is always possible the the pre-sentence report (not publicly available) gave more information as to the provenance of the misoprostol. All we know (from the judge's remarks) is that Catt order it on 10th April 2010 and it was delivered to her on 10th May 2010.

      By definition, the guilty plea accepts all elements of the offence including intent. Whether the CPS would have charged her without an admission is a good question but we cannot know the answer. It would depend if they could prove the intent in some other way. Note, for example, the evidence of ordering the drug, research on the internet etc.

      I do not think it relevant that the judge is "unmarried." (In fact, I did not know that). He would work on the available evidence. We know that she claimed that the baby was stillborn but also she would not reveal the whereabouts of the body. We do not know why she would not do this and the judge (quite properly) did not speculate. There are several possibilities but the law requires evidence.

    2. The police did in fact charge without her admission. I understand she denied the offence to the police, the guilty plea came only post-charge.

      I believe that the prosecution case was founded on the fact that Ms Catt had a scan at around 30 weeks and the baby was healthy. Ms Catt made no subsequent visits to her doctor, although she did make enquiries about getting an abortion even at that late stage. So, the prosecution would argue that the baby was still alive at the time she placed the order for the drug. She also made enquiries on the internet as to the correct dosage to bring about a miscarriage!

      Had the child been born - as was possible at virtually any moment - then nobody would object to 8 years had Ms Catt put a pillow over the baby's face and held it there. As it is, she admits killing her unborn child. She subsequently buried the body in an unmarked grave in an attempt to hide her actions.

    3. Thank you to The Defence Brief + quite right! The judge's remarks state (para 1) - You are entitled to credit for that plea and generously, I give you the full 1/3 credit although you maintained your innocence during police interviews, since you entered a plea at a relatively early point following charge.

      Thus, it was charge first and then admission.

  11. ..All is to say, if the baby inside you is dead - are you 'with child' in the eyes of the law? Can you murder a corpse?

    1. NO. Also, murder only applies to those who have separate existence from the mother.

  12. I believe that it is a woman's right to choose up to viability - which is a date which might or might not make perfect sense in the individual case, like the age of consent - but after that, the child's life is a human life and must be protected. A sad case, but the judge was right and indeed merciful. And his marital status is utterly irrelevant.