Shortly after the Covid lockdown imposed by the government in March 2020, the laws regarding access to abortion pills were relaxed. Prior to lockdown, women would need to attend a clinic for a consultation in order to take mifepristone. They were later entitled to take misoprostol at home. Following lockdown, it was now possible to terminate pregnancies at under 10 weeks without the need to attend a hospital or clinic. Women could procure medication to be taken at home after a consultation by telephone or video call.

The greater ease through which medication could be procured partly explains the Carla Foster case. Foster, a mother of three, had been given an immediate custodial sentence of 28 months’ imprisonment for procuring an abortion contrary to section 58 of the Offences Against the Person Act 1861. (Whilst some maintain that the offence should be murder, the courts do not take the same view.) Some commentary and reporting on the case, especially in the early stages, tended to ignore some of the relevant facts. Stella Creasy MP, tweeting about the case, neglected to mention some key details when she said that the defendant did not “follow correct procedures” and demanded that reform should take place to make safe access a right. Nadia Whittome MP said that “no woman should be in prison for making decisions about her own body” and that “abortion is healthcare”. To Creasy and others, Foster had been treated with excessive harshness, and her case would serve their wider campaign against criminalisation of abortion.

The sentencing remarks from Pepperall J give a fuller account of the details. Foster decided to take advantage of the change of procedure in order to gain access to medication designed for pregnancies under 10 weeks. Foster was 32–34 weeks pregnant when she engaged in a telephone consultation. The facts demonstrated that Foster was fully aware that she was in a later stage of pregnancy. Searches of her phone in February showed that she knew that she was at least 23 weeks pregnant. In late April, Foster searched “I need to have an abortion but I’m past 24 weeks”.

In May, Foster gave answers during a telephone consultation indicating that she was only seven weeks and four days pregnant. She took mifepristone on 9 May. She then took misoprostol on 11 May. Paramedics attended at 4.25pm. Since Foster told them that she was not pregnant, they left the property. They later attended at 7 pm. Foster’s daughter, Lily, had been stillborn. Attempts at resuscitation by paramedics failed.

Some of the commentary on the case glossed over the more awkward facts that Foster had been pregnant since before lockdown, that she was at a late stage of pregnancy, and that she was fully aware that she was at a later stage of pregnancy. If Creasy and others believe that criminalisation is totally unjustified, and if they are to make a convincing case, they should at least deal with the difficulties these facts pose. An abortion below 10 weeks is a very different matter to an abortion over 30 weeks. The foetus will usually be viable at that later stage, and the use of medication as a method to induce abortion is highly inappropriate.

There was not an abundance of case law to take into account

The further objection is with regards to the sentence. It is not unreasonable to raise this issue as there were no specific sentencing guidelines for the section 58 offence, no guidelines which were sufficiently analogous, and there was not an abundance of case law to take into account.

The reasoning of Pepperall J, however, is not clearly in error. Section 58 gives a maximum sentence of life imprisonment. The facts in R v Catt, which was considered by Pepperall J, has some significant similarities, notwithstanding that the case was more serious. The appellant in Catt had pleaded guilty to the section 58 offence, she was already a mother, the use of medication had caused a miscarriage and she was fully aware that she was in the later stages of pregnancy. In Catt, the Court of Appeal determined that the sentence would be five years’ imprisonment. Since Catt involved an abortion at full term, where the body of the child had been hidden, it is no surprise that Pepperall J decided that Foster’s sentence would be lower at three years’ imprisonment (before taking into account credit for the guilty plea). Still, using the approach of the General Guidelines from the Sentencing Council, Foster was highly culpable, and the level of harm that she had caused was very high.

Given that the offence has a maximum sentence of life imprisonment, that the offence remains despite opportunities to have it repealed, that it has been charged in recent years (albeit relatively rarely), and that the Court of Appeal treated section 58 as a serious offence, the sentence does not appear to be illogical. Pepperall J rightly declined to take into account a letter from professional bodies recommending leniency, since it is not the role of the court to respond to such lobbying. Pepperall J went on to say of the letter that:

While it provides me with some useful information about the delivery of telemedicine services, the letter also has the capacity to be seen as special pleading by those who favour wider access to abortions and is, in my judgment, just as inappropriate as it would be for a judge to receive a letter from one of the groups campaigning for more restrictive laws and which might seek to argue that it is important that the law is upheld by passing a deterrent sentence.

The issue of credit raises further controversy. Pepperall J found that Foster was entitled to 20 per cent credit for her guilty plea, and he further rounded the sentence down to 28 months. Foster had been initially charged with child destruction, an offence contrary to section 1 of the Infant Life (Preservation) Act 1929. At a plea and trial preparation hearing on 18 August 2022, there was some discussion of an alternative charge with regards to the section 58 offence. Foster formally indicated a guilty plea to the section 58 offence on 1 February 2023.

Whilst it might be regarded as unfair that Foster was not given greater credit, since she was not charged with the section 58 offence on 18 August 2022, case law suggests that Pepperall J did not take an obviously objectionable approach. In R v Hussain, the appellant had been charged with an offence contrary to section 18 of the Offences Against the Person Act 1861. There was discussion in relation to a section 47 charge as an alternative. Hussain eventually pleaded guilty to a section 20 Offence under the Offences Against the Person Act. He was not entitled to greater credit, according to the Court of Appeal, since he did not “make plain unambiguously and unequivocally what his response to the charge” was at the earlier stage. That followed the approach under R v West.

In respect of the alternative under section 58, the Infant Life (Preservation) Act 1929, section 2 (3), provides that section 58 may be an alternative verdict to a charge of child destruction. A jury could permissibly have convicted the defendant on that statutory alternative, since the facts disclose that an alternative verdict could be reached. As such, the section 58 offence was an alternative to which the defendant could have formally indicated a guilty plea at an early stage.

Pepperall J remarked that it was a tragedy of the case that Foster did not indicate a guilty plea at the earliest possible opportunity. Had she done so, the sentence would have been below two years, and it therefore could have been suspended. Although it might be suggested that Pepperall J could have determined early on that he wanted to suspend the sentence and work back from that starting point, reverse engineering of that type would be wrong in principle.

Foster may well elect to bring an appeal on the sentence and the approach to credit, and she could possibly succeed, but it does not appear to be the case that the appeal has that high likelihood of success on the above issues. Pepperall J was not clearly mistaken in his approach to sentencing when he calibrated Foster’s case against the earlier authority of Catt. Foster may attempt to argue that Pepperall did not give enough weight to the effect on her children. Again, Pepperall J did take that into account, and Catt also involved children. It remains to be seen whether that element of the sentencing was approached properly.

Women are entitled to abortions within the regulations

Commentators have also raised on wider grounds, maintaining that the offence is out of date, that women are being denied rights, and that this is a healthcare matter. First, it should be pointed out that the Offences Against the Person Act 1861 is not rarely used. Grievous bodily harm, malicious wounding and actual bodily harm are all used frequently. Second, the law in relation to abortion has, of course, changed since 1861, allowing for legal abortions. Dame Diana Johnson suggested that the law had not changed in 50 years. In fact, Parliament has dealt with the law surrounding abortion in 1990 and 2008. Third, administering drugs designed for a pregnancy under 10 weeks at over 30 weeks is scarcely healthcare, since the procedure is well outside the regulation of abortion.

As much as campaigners want to change the law, arguing that abortion rights and privacy are affected, women are entitled to abortions within the regulations. The Abortion Act 1967 provides that abortions are legal where: 1) there is a risk to physical or mental health under 24 weeks; 2) termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; 3) there is a risk to life; and 4) there is a substantial risk that if the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped.

There are several routes under which abortions may be lawfully carried out, then. The notion that abortion law is unduly restrictive because of criminalisation of conduct outside the law is not a compelling one. There are opportunities for lawful abortions. This jurisdiction is not developing attitudes similar to the US. The argument that there will be a “chilling effect” (according to Dame Diana Johnson) on medical practitioners and those seeking abortions as a consequence of the Foster case is not a particularly compelling either, given the specific facts of the Foster case and the wide grounds on which medical practitioners can grant abortions on their good faith opinion in respect of the Act. Had Foster attempted to procure an abortion under the Abortion Act grounds, and had she been honest about her stage of pregnancy, she would not have been charged with an offence.

Abortion is a notoriously sensitive area of law — one where it is often suggested that men should not opine at all. In the Foster case, an appeal may well be warranted in order to clarify the law. There is also a rational debate to be had with regards to criminalisation and sentencing policy. That does not mean that men should be prevented from commenting on the proper parameters of the criminal law and the approach to sentencing.