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R v Catt: The (Slightly Strange) Judge’s Remarks

17 Sep, 12 | by Iain Brassington

Earlier today, Sarah Catt was jailed for 8 years for inducing the termination of her own pregnancy at 39 weeks’ gestation.  The transcript of the comments of Mr Justice Cooke, sentencing, is available here.

I don’t want for this to get bogged down in questions of the moral rights and wrongs of abortion, at whatever stage during the pregnancy it takes place, or with what the law should permit.  Rather, I just thought that I’d highlight a couple of aspects of Cooke’s comments.

12. You could well have been charged under Section 1 of the Infant Life (Preservation) Act 1929 for destruction of a child capable of being born alive. Section 1(2) of that Act provides a presumption in law that if a woman is pregnant for 28 weeks, the child en ventre sa mere is capable of being born alive.

[...]

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.

The idea that the Abortion Act has been systematically misapplied is not a new one – it’s a fairly standard line from people like Peter Saunders.  And, conversely, I know from conversations with them that there’s no shortage of medical lawyers who deny that there has been any such misapplication – I won’t name them here because the ones I have in mind don’t (as far as I know) have blogs; but if they want to identify themselves in the comments, that’d be great.  Still, I’m curious about two things here.  The first is that it seems odd for Cooke to have mentioned the Abortion Act at all, except as a way to crowbar in his point about how it’s being applied.

The second relates to the standard by which the epithet “wrongly” is to be measured: what is it?  Inasmuch as that English law has a big role for precedents, doesn’t that suggest that, in at least some sense, the law is as the law does?  That’s compatible with saying that the law is as the law does not, of course – which is why laws can remain valid despite it being decades since the last prosecution.  But given the number of terminations, and the fact that the law is remarkably disinclined to prosecute, there seems to me to be a plausible argument that it’d be unjust to start prosecuting cases now – and that, de facto if not de iure, it’s therefore hard to make the claims about misapplication stick. 

Still: not being a lawyer, I wouldn’t want to bet my life on that.  Comments would be welcome.

Para 16 continues:

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.

17. In English Law, none of those offences could be committed in respect of an unborn child, but the gravamen of this offence is that, at whatever stage life can be said to begin, the child in the womb here was so near to birth that in my judgement all right thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.

I don’t know whether I’d be able to articulate it particularly well, but there’s something just a bit weird about that, especially when read alongside the first bit of para 16 above.  First, he introduces the canard about the point at which life begins.  This is not important.  Even in respect of a termination at, say, 10 weeks, there is no question but that the foetus is alive, that it has been alive since the moment of fusion, and that the gametes that fused were alive even before then.  What matters is, if you’re an ethicist, the point at which that life becomes morally weighty (and weighty in comparison to the rights and preferences of the woman gestating it), and, if you’re a lawyer, the point at which that life demands the protection of the law.  In respect of the legal question, the answer - which is, after all, what the judge is paid to apply – is birth.

More importantly, though – and this is the really weird bit – is the statement about how right-thinking people would regard the offence being tried as more serious than manslaughter.  Maybe they would (although he does not cite any evidence for this, which opens the door to a claim that he’s commiting the no-true-scotsman fallacy); but since the law does not think this way, that could well be irrelevant.  The most likely way that it would not be irrelevant would be to say that the letter of the law can, is, and should be modified by extra-legal considerations such as the social context in which it is to be applied.  But… but then you have to let go of the idea that the Abortion Act is wrongly applied, because even if we agree (arguendo) that practice diverts from the letter of that law, it’d turn out that the letter of the law isn’t sacred.

And – to go back to the point about when the law starts to care about children – why make such play of laws that wouldn’t apply anyway?

 

Oh – one other thing.  It may or may not be of note that Cooke became vice-president of the Lawyers’ Christian Fellowship in 2003.  In its own words, the LCF seeks “to impact both individual lives and the wider legal landscape through an uncompromising commitment to the Bible‘s teaching”, and says that part of its vision involves “applying God’s justice on the ground”.

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  • http://www.facebook.com/fwmyork Frank Mason

    I’ve just read about the case, and despite my opposition to abortion, my sympathy is with the woman. Had she taken legal advice, she could no doubt have come up with a legally acceptable reason for an abortion on the NHS. The outcome for the unborn child would have been the same, and neither she nor the doctor performing the abortion would have committed an offense. Sometimes, even when we agree with the law. we have to recognise that the law can be an ass.

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    It’s a weird, weird, weird case. The more I think about it, the more puzzled I get about why it was brought.

  • http://twitter.com/christianmunthe Christian Munthe

    I’m not well versed in UK law – or law, for that matter – as a professional in the field would be, but isn’t it strange that the crime she is convicted for is not specified clearly in relation to a specific statute? Para 12 mentions one possibility, but the judge seems to dismiss that idea. In para 17, other possible statutes considered in para 16 are declared inapplicable, but he then concludes that the defendant has committed an “offence more serious than manslaughter or any offence on the calendar other than murder”. Isn’t this simply self-contradictory, since the arguments given seem to establish that there is no crime for which the defendant has been charged that she can be guilty of, even in theory. Isn’t he effectively saying that he is inventing a completely new offence on the spot without support in any statute?. Doesn’t this violate rule of law?

  • http://twitter.com/nilshoppe Nils Hoppe

    It seems to be section 58 OAPA 1861: “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”. Nonetheless I agree that the sentencing remarks are a bit odd to say the least. Given that section 58 provides for the maximum penalty, why on earth go on about different offences.

  • http://twitter.com/nilshoppe Nils Hoppe

    Cooke doesn’t articulate it very well but I would guess that he is deliberating the other offences to identify where on the spectrum of terribleness this particular offence lies – in order to appropriately justify the extent of the reduction on tariff he imposes in the end. After all, she doesn’t get the full life sentence.

  • http://twitter.com/northernheckler nilsinela boray

    I’m not sure how you think anyone could get an abortion at 39 weeks. This is a full term pregnancy. Puzzled about why the case was brought ? Well because you could murder the mother and the baby would still survive – this really isn’t anything to do with abortion laws

  • Tom

    I don’t see why anyone is making a fuss about this comment. It seems perfectly reasonable (and necessary) to point out that the provision in English/Welsh law to kill a foetus under 24 weeks doesn’t mitigate offences against the foetus after that date. Plus, it may well have been pushed as an argument by counsel for Ms Catt. So other than spurious attempts to discredit the judge (http://www.guardian.co.uk/law/2012/sep/21/judge-jailed-abortion-woman-christian), what’s the problem?

  • Droid

    In law, a life is morally weighty – although not as weighty as the life of the mother etc. – from the point of implantation. If it were not there could not be an abortion act.

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Not really. It could be that an act outlawing abortion gets onto the books for other reasons. For example: we could imagine that a government forbids abortion as a means of ensuring that there’ll be enough fit young men in the next generation to provide a standing army to fight the French. Tortured as that reasoning might be, it could still provide something like a reason to forbid abortion without having to think much at all of the foetus’ moral status.

  • Droid

    Good point. The weighty restrictions of the abortion act could be in place for entirely spurious reasons.

    The law stands as it is so the morals behind the law are not part of the law. In that sense the law does not consider any life morally weighty. But looking at the law we can however imperfectly trace the morals that lie behind it. Assuming hopefully that the weighty restrictions of the abortion act are not made for spurious reasons in my judgement it is difficult to argue that there is no moral weight being attributed to life after implantation. The far more weighty restrictions after 24 weeks only seem to make this argument more problematic. Rather it seems that the law is trying to display what it perceives as an increasing continuum of moral weight from implantation through 24 weeks to birth.

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