There was a lot of press coverage earlier this year after the Court of Appeal freed a prisoner due to her being pregnant. She had previously received a mandatory five-year minimum term for a firearms offence, so the revelation that the sentence was reduced to two years imprisonment and suspended sparked some surprise.

Unknown to anyone at the original sentencing hearing, including the appellant herself, she was then pregnant. The fresh evidence showed that the appellant learned of her pregnancy only when she underwent routine testing upon her admission to prison after she had been sentenced. Her pregnancy was therefore a fact existing at the time of the sentencing hearing, and one which would undoubtedly have been an important factor in the recorder’s decision if it had then been known.

That factor in itself is somewhat unremarkable, and it is important to note that there were particular circumstances relating to this lady that the Court of Appeal focussed on.

The circumstances of the pregnancy

•  A family history of premature labour suggesting familial predisposition and therefore enhanced risk for the appellant during this pregnancy.
• Incarceration therefore created for the appellant a real and present danger to safe delivery and proper neonatal development for her baby.
• A personal history of a very traumatic previous pregnancy loss
• Incarceration whilst pregnant for this appellant, therefore, has been and would be frightening, disorientating and traumatic in a way that was far beyond any unavoidable norm
• The recent development of pre-eclampsia, a condition which was diagnosed in the days before the hearing and which requires a level of monitoring and a reliable means of rapid specialist intervention.

There was strong personal mitigation in this case apart from the various ways, not limited to its particular, much heightened health risks, why this pregnancy made imprisonment an unusually onerous punishment for this appellant.

The Court concluded:

“…we are satisfied that when the appellant’s pregnancy and its specific attendant consequences and risks, for the appellant and her unborn baby, are added to the other personal mitigation available to the appellant, there are exceptional circumstances relating to the appellant and her particular offence that, taken together, render it unjust to impose a custodial term of at least 5 years. The experience of custody was going to be, and has proved, traumatic and dangerous for this appellant beyond any kind of norm. By the date of the appeal hearing, she had in fact served the equivalent of a 14-month sentence, but the weight of punishment that has constituted for her will have been qualitatively equivalent to a much stiffer sentence.

In all those circumstances, and on balance, we concluded that it was in the interests of justice to take the very exceptional course, for an offence of possessing the weapon involved in this case, of suspending the appellant’s sentence.”

It can be seen from the factual analysis of this case that pregnancy does not mean immunity from a custodial sentence. However, in all cases, it will be an influential mitigating factor to be taken into account, which is why, in all such cases, our experienced lawyers are equipped to present a compelling case to any sentencing court.

Sentencing Guideline change

The sentencing guidelines will change as from 1 April 2024, and include a new, dedicated mitigating factor: ‘Pregnancy, childbirth and post-natal care’, in the majority of offence specific sentencing guidelines, providing guidance for courts on sentencing pregnant offenders and new mothers.

Consideration of pregnancy in sentencing was previously part of the ‘Sole or primary carer’ mitigating factor, which set out that, when sentencing a pregnant offender, relevant considerations may include any effect of the sentence on the health of the offender and on the unborn child.

The new mitigating factor sets out what, when sentencing a pregnant or post-natal woman (someone who has given birth in the previous 12 months), the court may take into consideration, for example:

• the medical needs of the offender including her mental health needs
• any effect of the sentence on the physical and mental health of the offender
• any effect of the sentence on the child

You can see the full details of the change on the Sentencing Guidelines site..

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