R. vs Catt – is eight years too harsh?

On Monday, as has been widely reported, a 35 year old woman from North Yorkshire, Sarah Louise Catt, was sentenced to eight years imprisonment after pleading guilty to a, thankfully, extremely rare offence under s58 of the Offences Against the Person Act 1861.

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 be kept in penal servitude for life.

The material facts of the case seem relatively straightforward.

Catt obtained an abortifactant drug, Mifepristone, from a Mumbai-based online pharmacy. Mifepristone, which still commonly referred to as RU486, although this was only its designation clinical trials, is commonly used to carry out early medical abortions, at no later than nine weeks gestation in the UK and yet Catt’s pregnancy, when she administered the drug to herself, had reached fully 39 weeks gestation.

An issue that hasn’t been touched upon in any of the media reporting or commentary to date, largely one suspects for lack of material evidence at trial, is the drug’s mode of action. Mifepristone, in clinical terms, causes causes endometrial decidual degeneration, cervical softening and dilatation, together with the release of endogenous prostaglandins and an increase in the sensitivity of the myometrium to the contractile effects of prostaglandins. In layman’s terms, it induces labour, terminating the pregnancy, when used legally, long before the foetus has any prospective of survival outside the womb.  It does not, so far as I can ascertain, have any direct effect on the foetus itself and it is, therefore, entirely possible, that Catt’s foetus could have survived the induced labour, however briefly, although whether it did or not is something we’ll probably never know as Catt would appear to have concealed the birth/miscarriage and disposed of the body in such a way as to prevent any determination of whether the foetus may have survived it’s induced delivery, ruling out any prospect of bringing charges against Catt under the Infanticide Act 1938 or, indeed, a charge of murder.

[Correction: It would appear that the drug that Catt obtained was Misoprostol and not Mifepristone. Misoprostol, although used as both an abortifactant early in pregnancy, in some cases in conjunction with Mifepristone, is also commonly used to induce labour and to prevent non-steroidal anti-inflammatory drug induced gastric ulcers, which means that it is much easier to obtain, online, than Mifepristone.

The general point about Catt using a drug that acted to induce labour but which, otherwise, has no direct effect on the foetus remains entirely valid.]

Two things about this case have attracted particular interest and comment.

One, naturally enough, is Mr Justice Cooke’s comments on the generality of abortion law at paragraph 16 of his sentencing remarks:

16. 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. What you have done is to rob an apparently healthy child en ventre sa mere, vulnerable and defenceless, of the life which he was about to commence. You are not charged with murder and I would be wrong to treat it as such as matter of law. Equally this is not manslaughter nor akin to it where the intention is not to cause death. Nor is it on a par with causing death by dangerous driving either, with its maximum sentence of 14 years, bearing in mind the calculated intentionality here. [My emphasis – U.]

As I’ve dealt with the precise reasons why Cooke’s view is wrong on at least two previous occasions, I don’t propose to revisit that ground yet again, and in any case Iain Brassington has already covered this issue pretty well at the Journal of Medical Ethics blog.

Rge other issue that’s attracted comment. not least from Simon Jenkins. is the length of the sentence handled down by Mr Justice Cooke and its relative severity in comparison to a 2007 case of a woman, Maisha Mohammed, who underwent a backstreet abortion while seven and half months pregnant, for which she received only a one-year suspended sentence. That particular case was tried under the provisions of the Infant Life (Preservation) Act 1929 and is reportedly the first instance of an expectant mother being convicted under that Act. This particular case was brought to the attention of Mr Justice Cooke, who flatly rejected any suggestion that it should be regarded as any kind of precedent for sentencing in this case:

18. I have had regard to the authority cited to me, namely the decision of Mr Justice McKinnon in 2007 in relation to the termination of a pregnancy at 7 ½ months. It is not comparable and I take a different view of the criminality involved here. I have had regard to Appleby and sentencing decisions in relation to manslaughter of a child but, as I have said, I see no analogous offence and must proceed on the basis of the seriousness of the offence as I see it in terms of culpability and consequences.

Exactly how Mr Justice Cooke arrived at the view that these two cases were not comparable is not made entirely explicit in his sentencing remarks, although its noticeable that he appear to place a considerable degree of emphasis on evidence of Catt’s intelligence and prior experience of abortion, adoption and child birth:-

7. You are a woman who obtained sufficient A Levels to attend Newcastle University although you gave up your course in Mathematics there in your second year. You have experience of childbirth and of abortion and must have full knowledge of the developmental stages of the child in the womb as well as the lawful limits on abortion of which you were expressly told. You do not suffer from any mental disorder of any kind, as appears from the 27 page psychiatric report that I have read. I see no need for a report from a psychologist. This was a cold calculated decision that you took for your own convenience and in your own self interest alone.

8. In the past, when at University, you became pregnant but concealed this from your parents until delivery, after you had given up your university course. You attended hospital without receiving any antenatal care and gave up your daughter for adoption immediately on birth.

9. You entered into a relationship with your current husband, whom you married after 10 years in May 2009. In 2000, pregnant by him you had the pregnancy terminated, with his agreement, at about the legal limit. In 2002 you again sought a termination but you were told the pregnancy was too far advanced and you were duly delivered of a child on the 1 July 2002. In 2004 you attended hospital for delivery of a child, having concealed that pregnancy from your husband as he now is. That child was born in April of that year. You therefore are no stranger to the issues which surround childbirth, abortion and adoption.

By way of contrast, Maisha Mohammed, a 22 year old Somali national at the time of her conviction, was reported to have had a ‘difficult upbringing’ and to have been illiterate and innumerate, having been married off at the age of 14 to a man eight years her senior such that, by the age of eighteen, she already had two children, aged six and four – at least this is what the Daily Telegraph reported, although the ages of her two eldest children is not reported in any of the local press reports of this case.

Both cases are nevertheless rather similar inasmuch as both women fell pregnant as a result of having affair, both had previously given birth – although Mohammed’s husband was not living in the UK at the time as he had yet to receive a visa to enter the UK – and both underwent an illegal abortion well after the 24 week upper limit for legal elective abortions in the absence of serious foetal disability or serious risk to the life of the pregnant woman. Both also concealed both the birth, itself, and, of course, the body of deceased foetus/neonate and, indeed, both initially lied to the police to cover up their actions. In fact, according to the South Manchester Reporter, Mohammed had even had a legal abortion, herself, in 2005, prompting the prosecution to note that she ‘obviously knew how to get a legal abortion’.

Mohammed was, reportedly, at least 30 weeks pregnant at the time of her illegal termination, while Catt was fully 39 weeks pregnant, so there is some difference in the likely viability of the foetus at the point it the pregnancy was terminated but, having looked at the statistics, not as much of a difference as some people might suppose. The current survival rate for a premature neonate born at 30 weeks+ is in excess of 95%; at 39 weeks gestation it’s approximately 98.7%, taking into account both stillbirths and perinatal deaths, falling to 98.4% if you include neonatal mortality as well.

So, it would appear. on the face of it, that a decent education and a 2% or so absolute increase in the survival prospects to the foetus at the time of the termination is worth an additional seven years jail time (ignoring remission) despite the fact that there is nothing in any of the reports of Mohammed case to indicate that she had a psychiatric disorder or that her illiteracy and innumeracy were the product of anything other than a lack of basic education.

On the facts, it would appear that these cases are not quite so different as Mr Justice Cooke suggest, which matters because, in rejecting the view that the sentence in the Mohammed case should be taken as a precedent, Cooke effectively wrote himself a blank cheque when it came to handed down his sentence – the maximum sentence for both ‘child destruction’, of which Mohammed was convicted, and for the offence of administering drugs or using instruments to procure abortion is life imprisonment. so the offences are comparable, in law, in both their construction and maximum sentence.

Ultimately, we have two obvious options here – either Mr Justice McKinnon was unduly lenient in handing down only a one year suspended sentence in the case of R vs Maisha Mohammed, or Mr Justice Cooke has been excessively harsh in sentencing Sarah Catt to an eight-year prison term, although it is. of course, possible to take the view that that both were wrong and that a more appropriate sentence in both cases lies somewhere in between these two ‘extremes’. That said, if suspicions have been raised that that Mr Justice Cooke has acted too harshly then, I’m afraid that he has no one to blame for that but himself and his own rather injudicious remarks on the generality of abortion law which rather suggest that his personal religious beliefs have materially influenced his judgement in determining Catt’s sentence.

While Cooke is correct in his assertion that the Abortion Act offers no mitigation in this case, or indeed in the earlier case of Maisha Mohammed, that assertion could quite easily and reasonably have been made, to the same effect. without adding any further comment on the generality of abortion law, least of all comment that smacks of personal bias. That, in itself, may well be sufficient to suggest that appeal against the severity of the sentence may be appropriate in this particular case, however, I think the greater justification for such a move may well lie in Cooke’s assertion that the Mohammed case is ‘not comparable’, an assertion that, on the facts of both cases – in so far as these can be ascertained from available sources – seems more than a little dubious.

Whether such an appeal has any realistic prospect of success is, at this stage. anyone’s guess. Catt’s sentence is, technically, within the acceptable range of sentences for this particular offence, given that the maximum sentence is life, which might ordinarily prompt the Court of Appeal to decline the opportunity of reviewing the case. However, the fact that there are no current sentencing guidelines for this offence, due to its rarity, coupled with the suggestion of religious bias on the part of Mr Justice Cooke. could be sufficient to persuade the Court of Appeal to take a look at the case even if this is only in the interests of setting a precedent to inform future sentencing decisions should any similar cases arise in future.