Late Abortion Cases: Unveiling the Sometimes Controversial Sentencing Rationale

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20 October, 2023

Craig MacKenzie

In July 2023, the Court of Appeal quashed a sentence of 28 months imprisonment and substituted a sentence of 14 months imprisonment, suspended for two years.

The case concerned an offence of administering poison with intent to procure miscarriage, with respect to a pregnancy in the range of 32 to 34 weeks (so a "late abortion").

This week, the Court published its full judgment, allowing us to explore the reasoning. Earlier case law from the Court of Appeal, in particular, R v Catt [2013] EWCA Crim 1187, suggested that the original sentence was very much to be expected.

The Court held:

'...we consider that in cases of this nature, there will often be substantial personal mitigation to balance against the seriousness of the charge; and that an immediate custodial sentence in such cases is unlikely to provide a just outcome. And this was precisely the case here.

When considering what is a just outcome, the Court always has to consider which of the five purposes of sentencing it is seeking to achieve through the sentence (the punishment of offenders, the reduction of crime (including by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to persons affected by the offence: see the Sentencing Act 2020, section 57(2) and the overarching guideline).

Though the offence itself was a serious one, and crossed the custody threshold, this was, as we said at the hearing of this appeal, a very sad case that called for compassion, not punishment.'

Comments of this nature are intended not only to reflect the unique features of the case before the Court on the day but also to send a broader message about sentencing policy for this type of case.

The Court also made some comments of a broader application to the imprisonment of female offenders:

'We would add two further points about the imprisonment of female offenders. First, because there are comparatively few female prisons, women held in custody may often be a long distance from their families, which may add to the adverse consequences for them and for the children deprived of their care. Secondly, in accordance with long established principles, the conditions in which prisoners are confined can properly be taken into account in sentencing, including in deciding whether to suspend a sentence. Judges can and in our judgment should therefore keep in mind that the impact of a custodial sentence is likely to be heavier during the present circumstances of overcrowding in the female estate than it would otherwise be: see R v Manning [2020] EWCA Crim, 592 dealing with a different but analogous issue and R v Ali (Are) [2023] EWCA Crim 232.'

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