R v Farebrother ([2025] EWCA Crim 672): A New Emphasis on Pregnant Offenders’ Mitigation and the Threshold for Suspending Class-A Drug Sentences

1. Introduction

R v Farebrother is a Court of Appeal (Criminal Division) decision that re-calibrates the way English courts must weigh pregnancy, mental health vulnerabilities, and the welfare of children when sentencing for serious offences—here, involvement in Class-A drug supply in a significant role.

The appellant, Leah Farebrother, a 25-year-old single mother and 35-weeks pregnant at the time of appeal, challenged a 28-month immediate custodial term for being concerned in the supply of cocaine and cannabis. She had already received a suspended sentence for earlier cannabis supply. The Court of Appeal quashed the immediate custody, substituted a 24-month sentence suspended for 18 months, and set detailed community-based requirements.

Key issues addressed:

Whether the sentencing judge over-weighted aggravation and under-weighted mitigation.
The correct application of the Sentencing Council’s 2024 guideline on Pregnant and Postnatal Offenders.
The proper threshold for suspending a sentence that, on guideline analysis, sits at the bottom of the custodial range.

2. Summary of the Judgment

The Court (Cheema-Grubb J) granted leave, allowed the appeal, and held:

The starting point of 42 months was excessive; a provisional term of three years (36 months) was more appropriate.
With one-third credit for an early guilty plea, the operative term became two years.
Given powerful personal mitigation—advanced pregnancy, sole care of two children, CPTSD, prospects of rehabilitation—the two-year sentence could and should be suspended (Imposition Guideline applied).
The Court imposed: 24 months’ custody suspended for 18 months; six-month electronically-monitored curfew; 40-day Rehabilitation Activity Requirement; and continuation of the earlier suspended-sentence order.

3. Analysis

3.1 Precedents Cited and Their Influence

R v Petherick [2012] EWCA Crim 2214 – Established that impact on young dependants is a central consideration; courts must gather and analyse childcare information before imposing custody.
R v Thompson [2024] EWCA Crim 1038 & R v Douglas [2024] EWCA Crim 1632 – Re-affirmed Petherick; balanced seriousness of offence against harm to children, especially toddlers and infants.
Sentencing Council Overarching Principles – Sentencing of Pregnant and Postnatal Women (in force 1 April 2024) – Emphasises: (i) all prison pregnancies are “high risk”; (ii) separation in the first two years of life can be profoundly harmful; (iii) courts must consider alternatives where on the cusp of custody.
Drug Offences Definitive Guideline – Defines culpability categories (leading, significant, lesser role) and harm categories; for Category 3/significant role, the custodial range is 2–9 years, starting at 4½ years.

These authorities guided the Court towards a more nuanced assessment: although Class-A supply remains “serious”, the modern guideline architecture expressly invites mitigation analysis for pregnant offenders. The Court distinguished the appellant from co-defendants Brain, Salmon, and Ashley, noting shorter duration, smaller role, and absence of prior custodial sentences.

3.2 Legal Reasoning

Re-assessing Aggravation – Prior arrest for cannabis supply was relevant but not a “considerable” aggravator because: (a) she had not been convicted at the material time; (b) those earlier facts showed coercion/fear; (c) her involvement again arose from abusive relationships.
Re-balancing Mitigation – Court treated pregnancy, single-parent status, CPTSD, developmental trauma, and availability of Hope Street residential program as powerful mitigating factors demanding explicit weight.
Guideline Flexibility – The Court emphasised that guideline ranges “guide, not bind”. An adjusted provisional term just outside the bottom of the range (36 months vs 42 months) was legitimate to reflect case-specific mitigation.
Suspension Threshold – Because the final term after plea equalled two years (the maximum capable of suspension under s.189 Criminal Justice Act 2003), the Court had to apply the Imposition Guideline. – It found: (i) realistic prospect of rehabilitation; (ii) strong personal mitigation; (iii) significant harmful impact on others if imprisoned. Hence suspension was justified.

3.3 Potential Impact

R v Farebrother does not rewrite drug-supply sentencing but clarifies and prioritises pregnancy-related mitigation within that framework. Anticipated consequences include:

Lower courts must provide reasoned explanations when sentencing pregnant or postnatal offenders, indicating how the guideline factors were applied.
Greater likelihood that borderline Class-A drug offenders who are pregnant—especially with additional vulnerabilities—will receive suspended sentences coupled with intensive community requirements.
Expectation of shorter provisional terms where extensive personal mitigation exists, even for significant-role Category 3 drug offences.
Stimulus for probation and charitable organisations (e.g., Hope Street) to develop structured alternatives, as courts now have clearer appellate backing to use them.

4. Complex Concepts Simplified

Being Concerned in the Supply: Not necessarily handing over drugs personally; involves facilitating, marketing, or otherwise taking part in the supply chain.
Category 3 – Significant Role: Under the Drug Guideline, the offender sells directly to users for profit, but is not organising the operation. Starting point 4½ years; range 2–9 years.
Suspended Sentence Order (SSO): Custodial term imposed but not activated unless the offender commits further offences or breaches SSO requirements within the supervision period.
Home Detention Curfew (HDC): An electronically-monitored tag restricting the offender to a named address during set hours.
CPTSD (Complex Post-Traumatic Stress Disorder): A psychiatric diagnosis arising from prolonged trauma (often childhood abuse) leading to emotional dysregulation, negative self-image, and difficulty in relationships. Considered more disabling than standard PTSD.

5. Conclusion

R v Farebrother crystallises a modern sentencing principle: while Class-A drug supply remains gravely serious, the courts must overtly weigh pregnancy, mental-health vulnerability, and childcare impact before imposing immediate custody. Where mitigation drives the final sentence down to (or near) two years, suspension is not only possible but may be appropriate if rehabilitation prospects are genuine and public protection can be secured with community controls.

The decision serves as authoritative guidance for judges and practitioners: pregnant offenders are “vulnerable” in the sentencing calculus, and detailed reasoning is mandatory. Its broader significance lies in harmonising tough drug-crime deterrence with evolving social, medical, and human-rights considerations surrounding maternal incarceration.