Carla Foster v R

Where no offence-specific sentencing guideline exists, appellate decisions provide useful guidance, but sentencing must remain individual and non-mechanistic. In section 58 cases, substantial personal mitigation may make immediate custody unjust even where the custody threshold is crossed. Unreasonable delay not attributable to the offender may reduce sentence where it has caused detrimental effect. Sentencers must obtain adequate information about dependants and assess the proportionality of imprisonment under article 8. The impact of female imprisonment, including distance from home and prison conditions, may also be relevant. Where rehabilitation is achieved and there is no realistic risk of repetition, a suspended sentence with rehabilitative requirements may be appropriate.

Carla Foster pleaded guilty at the Crown Court sitting at Stoke-on-Trent to administering poison with intent to procure her own miscarriage, contrary to section 58 of the Offences against the Person Act 1861. She had also faced a child-destruction charge under the Infant Life (Preservation) Act 1929, but no evidence was offered on that count and a not-guilty verdict was entered.

The Crown Court sentenced her to 28 months’ imprisonment and later refused to reconsider the sentence. The Court of Appeal granted leave to appeal against sentence. The central issues were the application of sentencing guidance in a sensitive offence without offence-specific guidelines, the significance of delay and mental-health evidence, and the effect of imprisonment on the appellant and her dependent family members.

1. Disposition. The appeal was allowed. The sentence of 28 months’ imprisonment was quashed and replaced with 14 months’ imprisonment, suspended for 18 months, together with a rehabilitation activity requirement of up to 50 days. The appellant was released immediately.
2. Sentencing approach. Where no offence-specific guideline exists, the court must consider the statutory maximum, relevant appellate sentencing decisions and any definitive guidelines for analogous offences. R v Catt [2013] EWCA Crim 1187 provided useful guidance on harm and culpability, but earlier cases should not be applied mechanically. In particular, an obstetric history does not aggravate section 58 offending without more. Features such as disposal of a body must also be assessed in their factual and emotional context.
3. Mitigation and delay. The offence was serious and crossed the custody threshold, but there was exceptionally strong mitigation, including good character, emotional turmoil during the first Covid-19 lockdown, trauma, remorse, mental-health difficulties, primary caring responsibilities and unreasonable delay. Following R v Beattie-Milligan [2019] EWCA 2367, delay not attributable to the offender may reduce sentence where it has caused additional strain or injustice. The delay had not been given real weight by the sentencing judge.
4. Family life and dependants. Sentencing engages the article 8 rights of the defendant and affected family members. The approach in R v Rosie Lee Petherick [2012] EWCA Crim 2214 requires the court to identify any interference with family life, its legal basis and legitimate aim, and whether it is proportionate. Courts must obtain sufficient information about dependent children and other carers’ responsibilities. Where a case is on the cusp of custody, the impact on innocent dependants may make imprisonment disproportionate. If custody remains necessary, the effect on family members may reduce the sentence, but there is no standard percentage reduction.
5. Application. The appellant’s rehabilitation had already been achieved, she presented no risk to her family or the public, and there was no realistic prospect of repetition. Applying the purposes of sentencing, detention would serve no useful purpose. A suspended sentence with rehabilitative intervention was therefore the just outcome.
6. Doctors’ letter. The court endorsed the sentencing judge’s view that special pleading by professional or campaigning groups was inappropriate. The independent judiciary must sentence according to law and the facts of the individual case, without being swayed by special-interest views, however eminent or well intentioned.

1. Court of Appeal (Criminal Division): Leave to appeal was granted. The sentence was quashed and replaced with 14 months’ imprisonment suspended for 18 months, with a rehabilitation activity requirement of up to 50 days: [2023] EWCA Crim 1196.
2. Crown Court sitting at Stoke-on-Trent: The appellant was sentenced to 28 months’ imprisonment for the section 58 offence. An application to vary or rescind the sentence was refused.