Prosecutors have been urged to heed a judge’s call for “compassion, not punishment” after the court of appeal halved a woman’s sentence for terminating her pregnancy beyond the legal time limit.
Carla Foster, 45, was sentenced to more than two years in prison after she admitted illegally procuring her own abortion when she was between seven and eight months pregnant.
She was jailed last month but will now be reunited with her children after the court of appeal reduced the 28-month sentence, half of which was due to be served on release, to 14 months suspended.
On Tuesday at the court of appeal, Dame Victoria Sharp, sitting with Lord Justice Holroyde and Mrs Justice Lambert, said: “This is a very sad case … It is a case that calls for compassion, not punishment.”
The court heard that during her 35-day incarceration Foster, who appeared at the hearing via a video link from Foston Hall prison, had not been allowed to have any communication with her children, one of whom is autistic.
Sharp told the court there was “no useful purpose” in keeping Foster in prison and said her case had “exceptionally strong mitigation”. As well as the suspended 14-month sentence she will have to complete up to 50 days of rehabilitation activity.
Robert Price, from the Crown Prosecution Service, said the original sentence was not “manifestly excessive” and the judge had “correctly made allowances for mitigating factors in this unusually sensitive case”.
In the initial hearing the court heard that Foster received the medication under the “pills by post” scheme, which was introduced during the Covid pandemic for unwanted pregnancies up to 10 weeks, after a remote consultation.
Prosecutors said Foster had knowingly misled the British Pregnancy Advisory Service (BPAS) by saying she was below the 10-week cutoff point, when she believed she was about 28 weeks pregnant.
Doctors later concluded the foetus was between 32 and 34 weeks’ gestation at the time of termination. In England, Scotland and Wales, abortion is generally legal up to 24 weeks but is carried out in a hospital or clinic after 10 weeks.
Campaigners said the reduction of the original sentence was a clear indication that major legislative change was needed, and the sentencing guidelines around procuring abortion past the legal limit urgently needed to be reviewed.
Senior Labour MP Harriet Harman said she had written to the sentencing council, which produces guidelines for judges, calling on the body to produce sentencing guidelines for the offence, which do not currently exist.
In the letter she argued that a custodial sentence “does not make society safer or fairer” and that imprisoning women “cannot possibly be in the public interest”.
Harman said she was also writing to Max Hill, the director of public prosecutions, to issue guidance to prosecutors which state that it should be “very, very rare, if ever, that it’s in the public interest to prosecute a woman for her own termination”.
She added: “I think the law should be changed because I don’t think the criminal justice system is the right way to treat breaches of abortion regulations. But until we can get that change we must do what we can to stop women being prosecuted or sent to prison.”
Jemima Olchawski, the chief executive of the Fawcett Society, called for abortion to be decriminalised, which she said would not mean that abortions after 24 weeks’ gestation would be legalised. But rather, for the very small number of abortions (0.05% of total abortions in England) that fall into this category, the woman would not be subject to potential prosecution.
“Women seeking healthcare must not be criminalised,” she said. “We need to see changes to our laws but of course this takes time, and so to protect women from an outdated system sentencing guidance must be issued to stop this ever happening again.”
Clare Murphy, the chief executive of BPAS, said it was time for a change to the law. “The court of appeal has today recognised that this cruel, antiquated law does not reflect the values of society today,” she said. “Now is the time to reform abortion law so that no more women are unjustly criminalised for taking desperate actions at a desperate time in their lives.”
Murphy added that two other women accused of illegally ending their own pregnancies were awaiting trial. “We urge parliament to take action and decriminalise abortion as a matter of urgency so that no more women have to endure the threat of prosecution and imprisonment,” she said.
The anti-abortion charity Right to Life UK urged the government to reject legislation changes and called for a “full inquiry” into how BPAS had issued abortion pills to Foster.
