Sentencing Pregnant and Post-Natal Defendants – R v Bassaragh (Maya Tiger) 2024 2 Cr App R s 2021

On 15^th June 2023, the Appellant was sentenced to the statutory minimum sentence of 5 years’ imprisonment following her guilty plea to possession of a prohibited firearm.  Following routine testing during her admission to prison, she learned that she was pregnant.

It was not submitted that pregnancy alone would amount to exceptional circumstances. Rather, it was submitted, and the Court agreed, that:

1. the court must ask whether the circumstances are truly exceptional to ensure the deterrent purpose of minimum sentences is not too readily undermined;
2. the existence, or totting up, of multiple mitigating factors is not enough;
3. there is a single ultimate test whether the imposition of the statutory minimum sentence would, in all the circumstances of the individual case, result in an arbitrary and disproportionate sentence;
4. medical unfitness to serve a custodial sentence, or significant physical and/or mental health risks particular to the individual offender that would be caused by imposing the statutory minimum sentence, would be an aspect of the circumstances of the offender that fell to be taken into account (assuming the matters relied on were properly evidenced).

The Court reiterated the importance of evidence focusing on the individual circumstances of an Appellant when judging the question of exceptional circumstances. In examining the particular circumstances of this Appellant, the Court took into account:

1. the Appellant was being advised not to carry beyond 37 weeks. By then, she would have served 7½ months in prison.
2. the uncertainty as to whether the Appellant would be able to remain on the Mother and Baby unit beyond the 18 month standard stay could exacerbate her anxiety during the early months of her new baby’s life;
3. the separation of a baby from its mother at 18 months, is significant (although this factor alone would not justify a finding of exceptional circumstances);
4. the Appellant had a family history of premature labour and repeated episodes of antepartum bleeding which were clinically significant indicators of heightened likelihoods of serious complications. Incarceration, therefore, created a real and present danger to safe delivery and proper neonatal development for her and her baby;
5. the Appellant had suffered the previous traumas of pregnancy loss and domestic abuse, and had a history of anxiety and depression, which intensified her vulnerability to mental health deterioration.
6. a recent development of pre-eclampsia (which required monitoring and a reliable means of rapid specialist intervention) added to the Appellant’s fears for her own health and for her unborn child.

The Appellant also had significant personal mitigation including positive good character, stable employment, youth/naivety, low risk of re-offending and a very strong prospect of rehabilitation which would be enhanced by her impending motherhood.

In granting the appeal on the basis of the existence of fresh evidence (i.e. the pregnancy was not known at the time of sentence and the additional evidence with regards to the risks to mother/baby), the Court was of the opinion that the Appellant’s “quite singular case” did present exceptional circumstances that justified a departure from the minimum sentence. The Court reduced her sentence to 2 years (after credit) and took the “very exceptional course” of suspending the custodial term for 2 years.

Pregnancy, Childbirth and Post Natal-Care as a Dedicated Mitigating Factor

On 1^st April 2024, the Sentencing Council published guidance on the new, dedicated mitigating factor of “pregnancy, childbirth and post-natal care” which now appears in the majority of offence specific guidelines. Consideration of pregnancy during sentencing previously fell under the ‘sole or primary carer’ mitigating factor.

The updated guidance is substantially more detailed than its predecessor.

First, it makes clear that a pre-sentence report should be obtained when sentencing a pregnant or post-natal offender and if one is not available the case should be adjourned.

Second, it sets out the following relevant considerations when sentencing a pregnant or post-natal defendant:

1. the medical needs of the offender including her mental health needs
2. any effect of the sentence on the physical and mental health of the offender
3. any effect of the sentence on the child

Third, the guidance provides, in a clear and structured manner, several additional factors of general application which the Court ought to have regard to. These include:

1. The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and child including by separation, especially in the first two years of life.
2. Access to a place in a prison Mother & Baby Unit is not automatic and, when available, the court may wish to enquire for how long the place will be available.
3. Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and child. The NHS classifies all pregnancies in prison as high risk.
4. There may be difficulties accessing medical assistance or specialist maternity services in custody. This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.
5. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
6. Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.

Comment

Although Bassaragh involved consideration of a pregnant defendant in the context of a mandatory minimum sentence, the factors which the Court of Appeal considered of relevance to her appeal have been broadly reflected in the general guidance associated with the dedicated mitigating factor for pregnant and post-natal defendants.

The fact a defendant is pregnant or post-natal at the time of sentence does not automatically mean the Court will show leniency. As in Bassaragh, the threshold for exceptional circumstances, and then the decision to suspend the sentence, was not lowered simply because the Appellant was pregnant. It was the fresh evidence, including expert evidence, with regards to her specific circumstances as opposed to broad brushed submissions on the challenges/risks of pregnancy and imprisonment which effectively enabled her to meet the threshold. Submissions will, therefore, carry more weight if they are tailored and evidence based. Expert evidence is not a pre-requisite but may assist the Court to understand the medical evidence and/or any precise risks faced by a defendant.

The benefit achieved by including a dedicated mitigating factor with associated guidance across the majority of offence specific guidelines is that the challenges, risks and competing interests which have long existed when sentencing a pregnant/post-natal defendant are now explicitly articulated in a structured and coherent manner. The Sentencing Council’s decision to include a standalone mitigating factor for pregnant/post-natal defendants and to consolidate the guidance is undoubtedly a welcome step in providing advocates and sentencing judges with a degree of consistency, clarity and confidence in navigating this often challenging and sensitive issue.

Sophia Dower