Such a case is that of 44 year old a mother, Carla Foster, who was sentenced to 28 months imprisonment for administering poison with intent to procure a miscarriage. The offence was committed during the Covid-19 “lockdown” period in 2020.
The sentence is controversial and has received considerable comment on Twitter. Some see the 28 months as correct and others argue that some way ought to have been found to impose a suspended sentence order.
According to the judge (Mr Justice Pepperall), Carla Foster is a ‘good mother’ to three children one of whom has ‘special needs’ and is ‘particularly reliant on’ Carla ‘for love and support.’ She had no previous convictions.
Here are the sentencing remarks - R -v- Foster - Courts and Tribunals Judiciary
The baby whose life was terminated was,
according to post-mortem examination, 32 to 34 weeks gestation - that is, 8 to 10 weeks past the usual 24 week period applicable to abortion.Foster obtained the necessary drugs via the inter-medicine scheme introduced by the government during the Covid-19 pandemic. The scheme, intended only for early abortions, was brought to an end on 29 August 2022 - England to return to pre-pandemic system for early abortions - GOV.UK.
To obtain the dugs, Foster gave false answers to the telemedical service provided by the British Pregnancy Advisory Service. She indicated that the pregnancy was 7 weeks and 4 days. The relevant drugs were then posted to her.
At the time, Foster had moved back in with her long-term but estranged partner while carrying another man’s child. The judge accepted that she was in emotional turmoil as she sought to hide the pregnancy.
Psychiatric reports were available to the judge showing that she was not suffering from any serious mental illness but there was evidence of ‘ emotionally unstable personality traits.’
Further, the judge accepted that she felt ‘very deep and genuine remorse’, that she had ‘a very deep emotional attachment to’ the unborn child and that she was ‘plagued by nightmares and flashbacks to seeing’ her dead child’s face.
The offence:
The offences itself is defined in the 162 year-old Offences Against the Person Act 1861 at section 58. The Abortion Act 1967 provides for medical termination of pregnancy and section 1 states the grounds on which an abortion may be lawful. Foster’s abortion, after 24 weeks, was plainly unlawful.
A letter:
The judge received a letter from several notable bodies including the President of the Royal College of Obstetricians and Gynaecologists. The letter urged a non-custodial sentence arguing that imprisonment might deter other women from accessing telemedical abortion services and other late-gestation women from seeking medical care or from being open and honest with medical professionals.
The judge considered that the letter provided useful information but it would not have been appropriate to allow any of the authors to address the court. He said, ‘Indeed, I consider that it would have been better if the letter had not been written at all.’
A previous case:
There were no Sentencing Council guidelines for sentencing this (rare) offence. The judge turned to a previous case - R v Catt [2013] EWCA Crim 1187. The sentencing remarks show how Pepperall J used it as authoritative guidance.
Sentencing law:
The Sentencing Act 2020 (legislation.gov.uk) provides that a court must not pass a custodial sentence unless it is the opinion that - (a) the offence, or (b) the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence - Sentencing Act 2020 section 230 (legislation.gov.uk).
It cannot be doubted that Foster's offence reached this ‘so serious’ custody threshold BUT the law permits Suspended Sentence Orders (SSO) - Sentencing Act 2020 section 277 (legislation.gov.uk). Crucially, sentences OVER 2 years cannot be suspended.
Since the judge had reached a sentence of 28 months it could not be suspended BUT the judge suggested that it might have been possible had Carla pleaded guilty sooner.
This is what he said -
No reason is given for why she pleaded not guilty to “child destruction” but that charge was not pursued and she was eventually charged under section 58 to which she pleaded guilty. Entering a plea in the Magistrates' Court to a serious offence triable only in the Crown Court can be difficult unless, at the time, all information has been made available to the defence so that they can properly advise the defendant.
The judge took into account the aggravating and mitigating features in the case and came to a 3 year sentence from which a discount for a guilty plea was applied. The judge set this at 20% (rounded to 8 months) and thus got to the 28 month prison sentence.
To have reached 24 months would have required a discount of one-third which is the discount normally offered for the very earliest guilty plea. Had the sentence been 24 months it could have been a suspended sentence order.
One certainty is that this ‘good mother’ of three other children, who are ‘particularly reliant’ on her, will now be in prison and separated from those children. 30 months imprisonment less 20% discount for guilty plea would have reached a final sentence of 24 months. A suspended sentence order could have provided some help and assistance to Carla. Whatever the reasons behind this serious offence, one tragedy need not always be met with another.
Another view - Understanding abortion law | Tony Dowson | The Critic Magazine
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