Sentencing Primary Carers: A Practical Guide

Sebastian Winnett provides a practical examination of the relevant factors for advocates preparing for a sentencing hearing involving an offender with a dependant relative, as well as providing a summary of the key authorities.

Introduction

Until the Court of Appeal’s Judgement in Petherick [2012] EWCA Crim 2214 there was precious little authority from which to distil any principles for sentencing offenders with children or dependant relatives. Previous cases had tended to reflect an amorphous benevolence towards such offenders by exceptionally suspending a sentence or ruling out custody via a case-by-case grant of mercy.

The principles identified in Petherick were considered again recently in Rescorl [2021] EWCA Crim 2005[1], and McGrory [2022] EWCA Crim 1361 [2], with the judgments adding clarity to the proper judicial approach.

Advocates practicing in Scotland may also wish to consider the case of Gorrie v PF, Haddington [2014] HCJAC 10.

What is the impact on an Offender’s children if they are imprisoned?

The most obvious and inevitable practical impact is that the parent will be immediately separated from their children (save for children under the age of 18 months who are considered in the next section).

Whilst a Court might be tempted to consider this impact in terms of general distress and unhappiness, research suggests the following specific and profound consequences:

• The stigma of having a parent in prison and the consequent social discrimination and/or bullying by peers which can follow;
• The “corrosive” impact on child bystanders of seeing a care-giver and/or role-model being placed in a custodial setting; and
• Isolation due to the limited available access to a care-giver.

It is difficult to overstate the significance on a child of being denied access to a primary carer and even a relatively short custodial sentence can still have a serious detrimental on the well-being of a dependant. [3]

What is the impact on Pregnant Offenders?

There are a total of 6 prisons which contain Mother and Baby Units (MBUs). These units allow prisoners who have given birth or who have new-born children (those under 18 months) to care for their baby within the prison itself. Those prisons are:

• HMP Bronzefield in Ashford;
• HMP Eastwood Park, between Bristol and Gloucester;
• HMP & YOI Styal in Cheshire;
• HMP New Hall in Wakefield;
• HMP Peterborough; and
• HMP & YOI Askham Grange outside York.

A pregnant prisoner can apply for a space in a mother and baby unit when they enter prison. Their suitability is considered by an admissions board who consider whether it is in the best interests of the child to enter the MBU (this may not always align with the best interests or wishes of the prisoner). Issues such as violent offending or drug addiction are likely to result in an applicant being rejected.

There are a finite number of places on each MBU (at the time of writing the total number of places was around 70). Suitable candidates may be offered a place in a different unit to accommodate them (it is worth noting the distances potentially involved in such a move). If, however, there is no availability then an alternative care arrangement must be made by social services.

Advocates may wish to disabuse sentencing tribunals of the view that a pregnant prisoner will automatically be allowed to keep their baby with them within an MBU. The reality for many prisoners is that places are simply not available, notwithstanding their suitability. The process of applying is of its itself time consuming and even successful applications are likely to result in a not-insignificant period of separation.

Given the pressures placed on the Prison Estate there are legitimate concerns that pregnant prisoners might miss obstetric appointments. This in turn increases the risk that any issues impacting the prisoner’s or baby’s health might be missed. Even if a pregnancy is well managed by HMPS, the mere fact of imprisonment during pregnancy necessarily increases the chances of the birth taking place within the prison. This increases the risk of harm to both prisoner and baby due to the lack of specialist obstetric medical staff.

A prison sentence will be invariably a source of stress to a pregnant prisoner. Research suggests that stress during late pregnancy can negatively impact a baby and potentially leads to developmental delays.[4]

The level of stress should be of particular concern if this would be the first time the offender has been remanded or imprisoned.

Sentencing Guidelines

Being a “sole or primary carer for dependant relatives” is a statutory factor reflecting personal mitigation and the “General Guidelines: Overarching Principles” gives an explanation as to how this mitigating feature should be approached. The following points summarise the explanation:

• This factor is particularly relevant where an offender is on the cusp of custody or when considering a community order;
• If on the cusp of custody, imprisonment should not be imposed where the impact on dependants would make a custodial sentence disproportionate to the statutory aims of sentencing;
• Where custody is unavoidable the impact on dependants may be relevant to the length of the sentence and whether the sentence can be suspended;
• The more serious the offence and lengthy the sentence the less weight this factor has;
• Primary caring responsibilities must be considered when determining community sentence requirements;
• When sentencing a pregnant Defendant consider any impact on the health of the Defendant and any impact on the unborn child;
• The court should ensure that it has all relevant information about dependent children before sentencing; and
• When immediate custody is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and consider adjourning sentence to allow this to be done.

What information does the court need?

As a matter of common sense, a tribunal cannot meaningfully assess the impact of imprisonment on dependants if the information available is insufficiently detailed or is unrealistic.

Whilst one might reasonably expect all the necessary information to be contained within a PSR, as Rescorl makes clear, it is incumbent on Counsel as well as other agencies to ensure that sufficient information is available to the Court. Counsel should consider the following key information:

• Who will take care of the child/children if the Defendant is imprisoned?
• Has this person been asked about taking on the care of the child?
• Have views been sought from any wider family members or the Defendant’s partner?
• Is the property where the child/children will reside appropriate? i.e. is there sufficient space? is the address known to police?
• If there is a change of address, what impact will this have on the child’s/children’s education? i.e. will they have to change school? Will they have a prohibitively long journey to school? Is there provision at a new school for the child’s/children’s particular educational needs?
• Does the proposed care-giver have sufficient means to support the child/children? Consideration should be given to their entitlement to any benefits.
• Will the care arrangement deprive the care-giver of their employment?
• Willl the care arrangements require separating siblings?

Where any concerns are raised about the health of the child/children, the offender’s representatives should ensure that accurate and up-to-date medical information is available.

Summary of Key Cases

R v Petherick

Ms Petherick entered guilty pleas to causing death by dangerous driving and driving with excess alcohol and received a sentence of 4 years, 9 months. At the time of the offence she was a young single mother to a child aged 16 months (2 years old at the time of sentence). She appealed against her sentence.

The Court of Appeal allowed the appeal and reduced the sentence to one of 3 years, 10 months. In doing so the court took the opportunity to review two decisions of the Supreme Court relating to the Article 8 rights of dependent children:

•  [2011] UKSC 4[5] and,
• HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25[6].

In considering both cases (primarily HH), the Court set out a detailed 9 step approach towards sentencing offenders with dependents as follows:

1. The sentencing of a defendant engages their own article 8 rights and those of their family, including dependent children;
2. The right approach in all Article 8 cases is to ask these questions:
   a. Is there an interference with family life?
   b. Is it in accordance with law and in pursuit of a legitimate aim within article 8.2?
   c. Is the interference proportionate given the balance between the various factors? It is this question which requires careful judgment.
3. Sentencing practice has long recognised that where there are dependent children that is a relevant factor to sentencing and the sentencing court has a continuing responsibility to consider the interests of children of a defendant. This is a distinct consideration to which full weight must be given (Solliman [2011] EWCA Crime 2871[1]). This is reflected consistently throughout all sentencing guidelines.
4. The court should be informed about the circumstances of the defendant and if the family life of others, especially children, is affected, the court will take this into consideration. The Court should ask whether the sentence is a proportionate way of balancing its impact with the aims that sentencing serves.
5. The legitimate aims of sentencing to be balanced against this impact include:
   a. The need of society to punish serious crime;
   b. The interest of victims that punishment should constitute just desserts;
   c. The needs of society for appropriate deterrence; and
   d. The requirement that there ought not to be unjustified disparity between different defendants convicted of similar crimes.
6. Where the case stands on the cusp of custody the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.
7. Whether a sentence might be disproportionate is progressively reduced by the gravity of the offence.
8. Where custody cannot be avoided, the effect on children or other family members may or may not afford grounds for reducing the length of the sentence. This is a matter for judicial experience.
9. These principles reflect the approach of the courts prior to the adoption of the language of Article 8. The principles are unaffected by whether article 3 of the United Nation’s Convention on the Rights of Children and article 24.2 of the European Union Charter of Fundamental Rights apply to the sentencing of adults.

[1] https://www.bailii.org/ew/cases/EWCA/Crim/2011/2871.html

R v Rescorl

In Rescorl, the Appellant was a woman of previous good character who pleaded to a fraud offence committed against her employer. The total value of the fraud was £50,000 over several years. She received an immediate sentence of imprisonment of 15 months. One of the issues raised in mitigation was the fact that Ms Resorl was a single mother to two children aged 8 and 12.

Ms Rescorl appealed against her sentence, submitting that the sentence should have been suspended. No criticism was made on her behalf regarding the length of the sentence or the reduction for guilty plea.

It was submitted that the decision not to suspend was wrong and resulted in a disproportionate sentence. The Court of Appeal were invited to consider the principles identified in Petherick, all of which were submitted to have been present in the Appellant’s case.

The Court of Appeal in reaching its decision to suspend the sentence chose to emphasise the importance of the expanded guidance within the overarching sentencing guidelines as well as “…the need for advocates to provide, and for sentencers to be satisfied that they have, 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.”

The Court made it clear that a Defendant cannot hold the court hostage by failing to make adequate alternative care arrangements (or impliedly to fail to provide instructions/information regarding the same), but that fact-specific issues may render an otherwise fair sentence of imprisonment disproportionate.

In Rescorl the PSR itself was the target of criticism by the Court of Appeal. The information provided by the Probation service lacked clear information regarding the practicalities of the children’s care. The Court expressed in clear terms that all parties had a part to play in obtaining information and that it is incumbent on Counsel as well as the Court to ensure that a sensible and detailed examination of the care arrangements could be made.

R v McGrory

Heather McGrory received a five-year sentence of imprisonment in relation to a conspiracy to supply Class A drugs. She received a concurrent term of three years imprisonment in relation to a conspiracy to supply Class B drugs. She sought to appeal the overall sentence with the leave of the single judge.

The conspiracies themselves were of a large-scale and involved quantities of drugs which placed the offences in the highest category within the relevant sentencing guidelines. Ms McGrory’s role within the conspiracies was to act as a delivery driver – a lesser role for which she received relatively little financial reward.  The Defendant pleaded guilty on the first day of her trial and was aged 24 at the time of the offences and had no previous convictions.

The following factors relating to the offence were advanced on her behalf:

• Her limited role as driver should be reflected in the sentence categorisation;
• There was evidence which suggested a degree of naivety;
• There was evidence that she was worried about withdrawing from the conspiracy; and
• Her limited understanding of the scale of the operation.

In terms of personal mitigation, the following was advanced:

• Ms McGrory had a positive employment reference and would again lose her job (unemployment having driven her to offend);
• Ms McGrory had a daughter for whom she was the sole carer; and
• Ms McGrory was pregnant.

No further evidence relating to the care arrangements for her children were before the sentencing judge, as required by R v Rescorl.

Following the imposition of her prison sentence the Defendant gave birth to her second child in prison. The Defendant was fortunate enough to secure a place on an MBU.

The practicalities of Ms McGrory’s child-care arrangements were that her baby was born during her sentence of imprisonment (and was 6-months old at the time of the Appeal) and had been placed in respite care with the baby’s father who was also caring for Ms McGrory’s 3-year old. There were concerns about the father’s ability to cope with looking after both children. The arrangements were being supervised by social services but it remained Ms McGrory’s wish to care for her youngest child herself within a custodial setting.

Ms McGrory appealed her 5-year sentence on two grounds:

• A downwards adjustment within the sentencing guidelines should have been made; and
• Insufficient regard had been given to her personal mitigation, including the impact that an immediate sentence of imprisonment would have had on her two young children following Petherick.

The Court of Appeal took no real issue with the placement of the offence within the guidelines, or the general approach of the Judge but focussed on the information available to the Judge. Paragraph 18-19 of the judgment read as follows:

“The central concern, however, which we have in relation to the sentence which was imposed was that the judge was not equipped, as he should have been in light of the authority of Rescorl (cited above), with all of the necessary information about the impact of the sentencing exercise not only on the appellant, but also upon her children who on any view were innocent parties in relation to the appellant’s offending. Clearly in light of the decision of this court in Petherick , the question of the impact upon the appellant’s children, including the child who was expected at the time of sentencing but who has now been born and has been present with her in prison, should have been central to the assessment of her personal mitigation.

We are not satisfied from the sentencing remarks that either the judge afforded appropriate significance to this issue, or that he was fully and properly informed of the position, or finally that he had the regard he should have done to the impact upon the appellant’s children and their family life.”

The Court of Appeal accepted the relevant starting point selected by the Judge (6.5 years) but applied a greater reduction to reflect personal mitigation, reducing the overall sentence by 1 year.

[1] https://www.bailii.org/ew/cases/EWCA/Crim/2021/2005.html

[2] https://www.judiciary.uk/wp-content/uploads/2022/11/R-v-McGRORY-Heather-2022-EWCA-Crim-1361.pdf

[3] (Minson, Shona, Briefing Paper: The Impact of Maternal Imprisonment upon a Child’s Wellbeing and Their Relationship with Their Mother: Findings from ‘Who Cares? Analysing the Place of Children in Maternal Sentencing Decisions in England and Wales’, Minson, S (2017), University of Oxford (November 8, 2017))

[4] (Coussons-Read, Effects of prenatal stress on pregnancy and human development: mechanisms and pathways. 2013)

[5] https://www.bailii.org/uk/cases/UKSC/2011/4.html

[6] https://www.bailii.org/uk/cases/UKSC/2012/25.html

[7] https://www.bailii.org/ew/cases/EWCA/Crim/2011/2871.html