R v Hayley Douglas

Sentencing a pregnant defendant or mother requires a proportionate balance between custody and interference with family life, including the impact on dependent children. Pregnancy is strong personal mitigation and may improve rehabilitation, but it does not create an automatic entitlement to a suspended sentence. Immediate custody may remain necessary where offending is serious, public protection requires it, or no adequate alternative exists. In finely balanced cases, the effects on innocent children and the increased risks of custody during pregnancy require particular scrutiny. Those considerations must not be applied automatically in a way that creates an incentive to use pregnant partners or carers to convey drugs into prison.

The applicant pleaded guilty to two counts of conveying cocaine and Ketamine into or out of prison and received 12 months’ immediate custody at the Crown Court at Maidstone. She applied for leave to appeal against sentence on the ground that the sentencing judge had wrongly refused to suspend the sentence. The case concerned the effect of pregnancy, caring responsibilities, personal mitigation, coercion, rehabilitation prospects and the impact of imprisonment on dependent children. The central issue was whether the sentencing judge’s conclusion that immediate custody was required was legally wrong.

The appeal was dismissed. Leave to appeal was granted, but the court concluded that the sentencing judge had not erred in refusing to suspend the sentence.

1. Sentencing a pregnant defendant or mother inevitably engages the defendant’s and her family’s European Convention rights to family life, including the rights of dependent children. The court must balance the interference caused by imprisonment against the legitimate aim pursued by custody and ask whether that interference is proportionate. Where a case stands on the cusp of custody, the balance may be particularly fine: R v Petherick [2012] EWCA Crim 2214; HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.
2. Pregnancy is strong personal mitigation and may improve the prospect of rehabilitation. It does not, however, give pregnant offenders an automatic expectation of avoiding imprisonment. An offender who presents a risk or danger to the public, or whose offence is so serious that no alternative is adequate, may require immediate custody. In other cases, proper application of the imposition guideline will often justify suspending a short sentence: R v Stubbs [2022] EWCA Crim 1907.
3. The risks and burdens of custody during pregnancy require careful scrutiny. The court considered the guidance in R v Bassaragh [2024] EWCA Crim 20, including the recognised health risks associated with prison pregnancies and the possible difficulties in accessing specialist maternity care.
4. The sentencing judge had properly considered the guidelines, the realistic prospect of rehabilitation, strong personal mitigation and the effect on the children. Her conclusion that the seriousness of introducing drugs into prison required immediate custody was plainly open to her. The fact that the applicant would not give birth in prison and that a family support network was caring for the children were relevant considerations. The principle recognised in R v Reynolds [2016] EWCA Crim 2217 did not require a different result.
5. By way of further observation, the court warned that treating pregnancy or caring responsibilities as inevitably outweighing the seriousness of prison drug offences could create a perverse incentive to use such women as the route for conveying drugs into prison.

• Court of Appeal (Criminal Division): Leave to appeal was granted and the appeal against sentence was dismissed under [2024] EWCA Crim 1632.
• Crown Court at Maidstone: The applicant pleaded guilty and was sentenced to 12 months’ immediate custody.