Keeping pregnant women and defendants with caring responsibilities out of custody – two recent cases

February 24, 2022

Harriet Lavin

The prison system is no stranger to pregnant women or individuals with caring responsibilities. A recent study by academics at Coventry University and City University of London estimates that 600 pregnant women enter prisons in the UK every year[1].

Women in prison are more likely than men to having caring responsibilities, with 50% of women in prison having children in the community. We do not know exactly how many children are affected by parental imprisonment in England and Wales each year as there is no collection of data. However, it is estimated that upwards of 17,000 children lose their mother to imprisonment each year[2]. 95% of children whose mother is imprisoned will have to move out of their home with only 9% cared for by their fathers[3]. The impact on the child can be devastating, particularly if they are taken into care.

On the whole, the courts regularly treat these defendants as having significant mitigation. But what about trickier cases where the offence is particularly serious or where the defendant has an appalling record? The case of R v Petherick [2013] 1 W.L.R 1102 gave some assistance in confirming, amongst other things, that interference with family life can sometimes mean that a custodial sentence otherwise proportionate may become disproportionate. This article deals with two more recent Court of Appeal cases which delve into this topic further and can assist defence practitioners.

Regina v Claire Charlton [2021] EWCA Crim 2006

This is a judgment of the Court of Appeal from 21st December 2021. The bench included Lord Justice Holroyde – the chairman for the Sentencing Council. The facts can be summarised as follows:

  • The appellant was a 33 year old woman who was convicted after trial of a dwelling burglary.
  • She had an appalling record which included convictions for more than 40 offences, many of them involving theft. Two of those previous convictions were for domestic burglaries which meant she was subject to the ‘third strike’ minimum sentence provisions of section 314 of the Sentencing Code.
  • The offence for which she was convicted after trial was serious. She entered the home of an elderly couple through an unlocked side door. She was confronted by the householders and ran off, stealing jewellery, watches, cash, war medals, a mobile phone and passport. The monetary value was around £9,000. A victim personal statement said that the householders felt vulnerable and had a deep sense of unease.
  • This offence was committed when the appellant was on licence for a previous conviction of domestic burglary.

At the sentencing hearing the recorder was assisted by a pre-sentence report. The contents of which can be summarised as follows:

  • Since the appellant’s recent release from prison the appellant had been complying with the conditions of her licence, attending all appointments and completing negative drug tests.
  • She was now in a stable relationship.
  • She reported she was motivated to remain drug free in order to maintain contact with her 10 year old daughter who was in foster care. She shared parental care with the foster parents and was visiting her daughter twice weekly.
  • She was assessed as posing a high risk of further offending although low risk of causing serious harm.
  • Probation proposed a community order with a number of requirements including a drug rehabilitative requirement for 9 months and a rehabilitation activity requirement for 15 days.

The recorder considered the guidelines for domestic burglary. He concluded that there was greater harm and somewhere between lower and higher culpability. The case was sufficiently serious to go beyond that category range. However, in practical terms this was not important as the recorder was required by section 314 of the Sentencing Code to impose at least 3 years’ imprisonment unless he was of the opinion that there were particular circumstances which related to the offence or to the offender that would make it unjust to do so in all the circumstances. The recorder sentenced the appellant to 3 years’ imprisonment.

Whilst the appellant was in prison and undergoing a routine medical check she learned for the first time she was pregnant with twins. The defence appealed the sentence on two grounds:

  1. It was in all the circumstances unjust to impose the minimum sentence. The recorder failed to give sufficient weight to the mitigating factors, in particular the negative impact of imprisonment on the applicant’s efforts to maintain contact with her daughter and the steps which she was taking to remain drug free.
  2. The appellant through no fault of her own was denied any opportunity to invite the recorder to consider the additional fact of her pregnancy. This adds to the mitigation and cumulatively means that the mitigation was such as to render the sentence unjust and manifestly excessive.

The remarks of the Court of Appeal can be summarised as follows:

  • This was a serious offence where previous convictions and breach of licence were seriously aggravating features which clearly took the case at least to the top of the category 2 range before considering personal mitigation.
  • The mitigation however was substantial and the appellant was showing encouraging progress. The appellant was now making efforts to maintain her relationship with her daughter and had not used illicit drugs in the weeks between her release on licence and the sentencing hearing. She had also been complying with licence.
  • The recorder was entitled to reach the conclusion he did on the basis of the information which was known to him at the time. Therefore the first ground of appeal was unsuccessful.
  • However the additional fact that the appellant was now pregnant had considerable weight.
  • The reasons why the pregnancy should have been given considerable weight was threefold. First, because imprisonment would now be a far heavier punishment for this applicant than for most other prisoners. Second, the pregnancy and births can be expected to increase the appellant’s motivation to remain drug free. Third, it is necessary to have regard to the rights of the children who would be born in prison.
  • The Court of Appeal was satisfied that when the pregnancy was added to the other personal mitigation, there were particular circumstances relating to the offender which made it unjust to impose the minimum prison sentence.

The Court of Appeal quashed the sentence of 3 years’ imprisonment and substituted it for a sentence of 2 years’ imprisonment suspended for 2 years, with the recommended requirements. Therefore, whilst her mitigation without pregnancy was not sufficient to quash the sentence, the pregnancy was enough to persuade the court that immediate imprisonment was disproportionate.

Regina v Rebecca Rescorl [2021] EWCA Crim 2005

This is a judgment of the Court of Appeal from the same date as the previous judgment, 21st December 2021 with the same bench. The facts can be summarised as follows:

  • The appellant had pleaded guilty to an offence of fraud.
  • She was a 40 year old woman with no previous convictions.
  • She had for many years been employed in the accounts department of a small family business. She was responsible for invoicing and had effective control of the accounts.
  • Between May 2015 and August 2019 she fraudulently stole over £50,000 from the business.
  • She went to considerable lengths to ensure her offending was not detected. As a result of her own offending the company became unable to pay her salary and she was made redundant, receiving a redundancy payment of £8,000. Once redundant she operated a rival business which took some of the company’s staff and customers.
  • It was only when financial consultants were engaged by the company that her offending came to light.
  • The psychological effect on the family had been enormous as had the financial consequences of desperately trying to keep the business functioning.
  • The offence was considered a serious example of its kind.

The Judge categorised this as falling within category A “high culpability” because of the appellant’s abuse of her position of trust and responsibility. Harm A fell into category 3 and there was medium impact of harm B. This was considered a correct assessment by the Court of Appeal. This category had a starting point of 2 years 6 months’ custody.

The features of personal mitigation can be summarised as follows:

  • The appellant had no previous convictions.
  • She had a number of positive references which spoke highly of her and referred to her personal difficulties she had suffered during the relevant period.
  • There was evidence from a counselling therapist who assessed the appellant as displaying significant levels of anxiety and depression with symptoms which had a severe impact on her daily living.
  • She expressed genuine remorse and the judge accepted that she now understood the devastation she had caused.
  • She had obtained employment with an employer who was aware of her offending.
  • She was living with her children in privately rented accommodation.
  • She had raised sufficient funds to enable her to meet a compensation order in the sum of £50,000.
  • The appellant was a single mother with two children, a boy aged 12 who was just starting secondary school and a girl aged 8.

The judge was said to have careful regard to the Sentencing Council’s Imposition guideline and concluded that despite the appellant’s mitigation, and specifically the impact on the children, only an immediate custodial sentence could be justified.

The remarks of the Court of Appeal can be summarised as follows:

  • The Court of Appeal is slow to interfere with a decision whether or not to suspend the prison sentence where it is clear that the sentencer has taken into account all relevant circumstances, including reference to the Imposition guideline.
  • They made a general observation about sentencing those who have caring responsibilities. In the Fraud guideline, as in many other guidelines, the Sentencing Council lists “sole or primary carer for dependent relatives” as a mitigating factor. Further details are given in an expanded explanation of that factor in the digital version of the guideline which is linked by a drop-down menu. It includes the following:

“The court should ensure that it has all relevant information about dependent children before deciding on sentence.

When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the National Probation Service to address these issues in a PSR.”

  • The court emphasised the importance of that expanded explanation and the need for advocates to provide clear and sufficient information about the practicability of any care arrangements which it is said will be brought into effect in the event of an immediate custodial sentence.
  • In the present case a statement was available to the judge from the father of the children who is the appellant’s estranged husband. The children regularly stayed with him however he worked long and sometimes unsocial hours whereby he was usually unable to take the children to and from school.
  • The Pre-sentence report (“PSR”) failed to deal with how the children would be cared for if the appellant were in prison. This troubled the court.
  • The sentencing judge gave insufficient weight to the mitigating factors when concluding that “appropriate punishment can only be achieved by immediate custody”.
  • Caring responsibilities are not an automatic passport to a non-custodial sentence or to a suspended sentence. However, in this case the impact of the appellant’s imprisonment on her two children was a very important factor and the repayment of the entire amount stolen was powerful.

The court concluded that it was not necessary to impose immediate custody in order to achieve appropriate punishment.

Lessons to be learnt

Moving forward, there are two authorities which build onR v Petherick [2013] 1 W.L.R 1102. In relation to pregnant women who risk giving birth in custody, the Court of Appeal has made clear this would be far heavier punishment and the rights of the unborn child need to be considered. As for those with children, careful preparation prior to the sentencing hearing needs to take place to ensure that the court is fully informed as to the practicability of any care arrangements. PSRs should be dealing with this issue head on. Finally, judges cannot simply reel off significant mitigation of this sort and then ignore it due to the view that “appropriate punishment can only be achieved by immediate custody”. The impact on the family can be significant mitigation which can properly allow a judge to step back from immediate imprisonment, despite the seriousness of the offending.