Reforming UK Abortion Laws: Addressing Outdated Sentencing and Legal Ambiguities (27 June 2023)

A recent case involving sentencing a woman to 28 months immediate imprisonment for procuring a miscarriage beyond the legal time limit has ignited a heated debate surrounding abortion laws in England & Wales. A 44-year-old mother of three, including one child with disabilities, will now spend at least a year away from them after being jailed for aborting a foetus at 32-34 weeks. It is a tragic case which has caused anger and divided campaigners and legal experts alike on how it can be prevented from happening again. The recent prosecution is not an anomaly, however, as in the past eight years, police in England and Wales have investigated at least 17 people for procuring an abortion outside the law. The defendant was indicted under Section 58 of the Offences Against the Person Act, a 150-year-old piece of legislation that has long been criticised as antiquated and lacking clarity. This case is a stark reminder of the statute's outdated nature and failure to accommodate modern life's complexities. In this case, Mr. Justice Goss, the presiding judge, faced the challenge of determining an appropriate sentence. However, the absence of comprehensive sentencing guidelines for this offence, and the offence’s rarity in prosecutions further compounded the difficulty. Consequently, the responsibility for ensuring the functioning of this Victorian-era legislation falls on the common law, guidelines from the Crown Prosecution Service, prosecutorial discretion, and the jury system. The overwhelming consensus in favour of reforming the current law has prompted the development of a new criminal code, although its implementation remains outstanding. Abortion is prohibited under the Offences Against the Persons Act of 1861, with exceptions granted only in cases where the procedure is conducted under stringent medical supervision. However, the strict medical control requirement has faced criticism for imposing unnecessary barriers to accessing abortions. Additionally, during the COVID-19 pandemic, the relaxation of guidelines created a situation where an individual could misrepresent the stage of her pregnancy, effectively bypassing the usual 24-week cut-off period. Although there is no specific legislation that explicitly criminalises deceiving a doctor to obtain a prescription, there are several laws that could be utilised to prosecute individuals engaging in such behaviour. Such laws include the Fraud Act 2006, the Misuse of Drugs Act 1971, and the Medicines Act 1968. Given the scarcity of abortion prosecutions, and the presence of current legal provisions, one could argue that the Offences Against the Person Act is effective and uncomplicated in addressing such cases. Instead, the uncertainty surrounding the law stems from lifting restrictions rather than inherent deficiencies within the Act. If you have been affected by any of the issues raised by this article please contact our criminal law team for advice. The Duncan Lewis crime and fraud department is highly regarded by The Legal 500 and is recognised as a ‘top-ranked’ criminal practice in the independent legal directory Chambers & Partners UK. The department has a notable practice defending clients in serious and complex criminal cases, including gang-related serious crime, murder, sexual offences, and drugs importations. The department is also known for handling high-value fraud matters. The dedicated team deals with all criminal offences and is available around the clock, 365 days a year, to provide emergency assistance to individuals in need. About the Author: Roxanna Whittaker-Lewis is a caseworker at Duncan Lewis Solicitors, based in our City of London offices with experience in a wide range of criminal law matters. She works under supervising Crime Director Sunjay Versani. For specialist crime & fraud advice, email sunjayv@duncanlewis.com or telephone 020 7923 8537.