R v TIR

Pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999, we grant anonymity to the two children of the applicant (ages 12 and 14), who have provided evidence in these and the Crown Court proceedings, and who are entitled to anonymity until they reach the age of 18. No information may be published that would identify either child of the applicant, and, to prevent "jigsaw" identification, the applicant is to be referred to by the cipher "TIR" in any publication of these proceedings and in this judgment.

The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar. The applicant seeks leave to appeal against a sentence of 37 months' imprisonment imposed in respect of one offence of blackmail. Pursuant to a representation order granted by the Registrar, Mr D’Aguilar appears for the applicant before us, having also appeared below at the hearing when the applicant's guilty plea was entered, although he did not appear at the sentence hearing; the prosecution is represented by Mr Bird, who appeared at all relevant stages in the proceedings before the Crown Court. We are grateful to them both for their assistance.

The applicant and the complainant ("C"), were in a relationship for about 11 years; that relationship came to an end when C left in 2019. They had two boys together who are now aged 14 and 12. The boys were aged 8 and 6 when C reported the applicant's offending to the police, and he has not seen them since.

There had been contested and lengthy Family Court proceedings. C described the relationship with the applicant as an unhappy one. He first tried to separate from her in 2012, but she threatened to take their sons to Spain if he did, and so he remained with her. C recalled that over time his friends were pushed away by the nature of the relationship he was in, and the way in which the applicant would treat his friends. This reached a culmination when, in around 2015, C attempted suicide. The police attended and succeeded in preventing this. When the applicant was called to the scene, as C's partner, she told him "I knew you wouldn't do it". C was able successfully to separate from the applicant in 2019, but the applicant did not accept the break-up and made things very difficult for C, including over contact arrangements with the boys. It was the prosecution case that the applicant's behaviour was multi-faceted and extreme, and this provided the background for why C sought to break up from the applicant and why it was difficult for him to do so.

As part of the reaction to the break-up, and in order to try to force the relationship to continue, the applicant threatened C by saying that she would send an email to his employer making a number of wild and unsubstantiated allegations about him, including claiming that he would attend work under the influence of drugs and alcohol, that he extorted women for money through prostitution, and that he had failed to disclosure a positive Covid 19 test to his employer during the pandemic that was ongoing at the time. The threats began in March 2020 and were repeated in April 2020. When the applicant did not get her own way, at some point in July 2020, she followed through with that threat and sent an email to C's employer. The applicant's allegations were wholly unfounded, and they had a devastating impact upon C. He was called into work by the HR department and subjected to random drugs and alcohol tests, which proved negative; in the longer term, his reputation was damaged in a way that could not be calculated, as was the reputation of his employer - C believed that they lost significant local authority contracts because of the applicant's allegations.

The greatest impact of the applicant's behaviour on C was, however, the loss of all contact with his children. The applicant had asserted a history of domestic violence perpetrated by C, as well as more serious allegations, including an allegation of serious sexual abuse by him against one of his own sons. The prosecution's position in so far as those allegations are concerned was that they were disputed, they were not live, and they were all part of a false narrative that the applicant had created in order to justify seeing herself as the victim to try to justify her own behaviour. Certainly, we are unaware of any objective evidence to corroborate the applicant's allegations, and the Final Order in the Family Court proceedings makes clear that no fact finding hearing has taken place and no judicial findings have been made.

After C had reported the emails to the police, the applicant was arrested and interviewed. She essentially accepted having sent the emails, but maintained that what she had said was true and that she had been justified in drawing that to the attention of C's employer. Notwithstanding the fact that there was never any evidence to support the applicant's assertions, that was something the applicant then repeated in her defence statement after she was charged.

When she first appeared at the Crown Court at the Plea and Trial Preparation Hearing ("PTPH") in 2021, the applicant pleaded not guilty. She maintained that position until 22 April 2026, which is when – after numerous delays – the trial of this matter had finally been due to commence. Although the applicant's plea of guilty was then entered only after the jury had been sworn, the Judge accepted that it was only at that stage that the applicant had had a proper opportunity to discuss the case with Mr D’Aguilar, who had taken on the representation for the trial, and afforded her ten per cent credit for the guilty plea, rather than the five per cent that she might otherwise have done. A separate charge of stalking was not pursued and was left to lie on the file on the usual terms.

Having adjourned the case for sentence, the Judge made clear that she wanted to know what would happen to the children if, as was likely, a custodial sentence was imposed.

The sentence hearing took place on 19 May 2026. Having an updated victim statement from C, the Judge recorded that he had not seen his children since July 2020 and considered that the applicant had strung out the proceedings as a tactic to keep him apart from his sons; as C had pointed out, the applicant's guilty plea was entered only after the Family Court proceedings had concluded. C further attested to the impact that the applicant's behaviour had had on his work, saying it had damaged his career. He described having made significant changes to his home and to his lifestyle, saying he felt as if he had been looking over his shoulder for the past six years, and he asked for a restraining order to be made. Although he spoke of grieving the loss of his children, C did not, however, feel that he would be in a position to take on care for his sons; he explained that he would like to rebuild a relationship with them but that would not be able to be immediate or full time.

Turning to the sentencing guidelines, it was common ground between counsel that this was a medium culpability case; the Judge agreed: it was conduct that was repeated and prolonged, but over a matter of months rather than a very substantial period of time. Satisfied that there was very serious distress caused to C, the victim of the blackmail, the Judge concluded that this was category 1 harm offending. That gave a starting point of four years' custody, with a range of between two and eight years.

The Judge considered that there were aggravating features. She noted that the applicant had three previous convictions for 12 offences, including a conviction in April 1999 for unlawful wounding (albeit she noted that that was a long time ago) and numerous convictions for fraud in March and November 2012. She found that it was a further aggravation that the applicant had intended to strike at C's source of income and his ability to live apart from her, wanting to manipulate him into returning, and thereby maximising his distress.

As for mitigation, the Judge referred to the personal references submitted on the applicant's behalf (from her mother, her partner of four years, and from a lecturer from a local college), all of whom spoke to positive aspects of the applicant's character. She also took account of other material that the applicant had provided relating to her circumstances and to issues relating to her health. In relation to the applicant's mental health, the Judge had been provided with a psychiatric assessment from 2024, described as a "preliminary assessment". There was also information regarding her physical health, the applicant having attended the sentence hearing in a wheelchair (although two months’ previously she had been using crutches). The Judge recorded that the applicant had had some surgery on her knee, and there was evidence of appointments with occupational therapy, an orthopaedic appointment, and an MRI scan which was apparently in relation to a fast track referral for a suspected brain tumour after the applicant, in March 2026, had complained of dizziness, weakness of grip, tingling and numbness in the morning, but a CT scan had showed nothing.

Having had the benefit of a pre-sentence report (“PSR”), the Judge noted that, although the applicant had pleaded guilty, the author of the PSR considered that there were elements of rationalisation and justification for her behaviour and that her acceptance was only partial: she continued to blame C and the police, and there was no real acknowledgement of the serious offence that she had committed. The author expressed the view that the applicant's surface level accountability could be a tactic to avoid further blame and assessed her offending as reflecting a combination of emotional dysregulation, a need to regain control in her relationship, and what was described as "maladaptive coping strategies". In relation to future risk, it was considered that the applicant posed a medium risk of re-offending, with that risk being increased when stressed or in conflict within relationships or feeling a loss of control.

The Judge also set out the information with which she had been provided with regarding the applicant's two children. Other than a letter from the eldest child's school from January 2025, saying that he was on the waiting list for an autism or ADHD assessment (something she was told was still on-going), no other information had been provided. There was, however, reference within the PSR to the applicant's caring responsibilities for the two children, as follows:

The Judge recorded that counsel for the applicant had urged that she should pass a sentence that could be suspended, and should then suspend that sentence. In particular, emphasis had been placed on the applicant's caring responsibilities for her children. On that point, the Judge reflected as follows:

Returning to her categorisation of the offence, the aggravating features she had identified and allowing for what she was prepared to allow was "substantial personal mitigation in relation to your physical and psychiatric health as well as ... those personal characteristics which are spoken to by those who know you well", the Judge concluded that, if convicted after a trial the appropriate sentence would have been three and a half years' custody (42 months). Allowing a ten per cent credit for the guilty plea, that provided a reduction of five months, resulting in a sentence of 37 months (three years and one month). Such a term was not capable of suspension.

In the Advice on Appeal, it is acknowledged that the Judge had carefully considered all of the offending and applied an entirely fair discount for the guilty plea. It concludes:

Nevertheless, counsel for the applicant has observed that it had been "within the judge's discretion and gift" to impose a sentence of 36 months' imprisonment, which could then have been suspended. It is suggested in this regard that further weight could have been afforded to the applicant's personal mitigation, including her childcare responsibilities for her two teenage sons, and her physical and mental health issues. Before us today, Mr D'Aguilar informed the court that the applicant had told him that she had attended the sentence hearing having been advised by her solicitors that she was unlikely to face an immediate custodial sentence; that, however, is not something that has been corroborated by the applicant's solicitors and, given the very clear indication given by the Judge at the earlier hearing (which, in fairness, Mr D'Aguilar has acknowledged), we find it very hard to accept that this was something that the applicant seriously believed. In any event, however, it is argued that had the relevant information been provided to the Judge at the sentence hearing (as it now has been to us), that would have weighed very heavily in favour of reducing the sentence to a term that could be suspended and to that sentence being suspended. Seeking to address our concerns regarding the narrative that the applicant continues to relate (repeating various allegation against C) - in respect of which there has been no judicial finding and we have seen no independent corroboration - Mr D'Aguilar has acknowledged the difficulty that this presents on the question of rehabilitation (although he says that it represents what the applicant believes), but he submits that the applicant's experience of custody will have made plain to her the repercussions of continuing to behave in a way analogous to the conduct that formed the basis of the offence in these proceedings.

For the prosecution, however, it is emphasised that the sentence imposed had fallen firmly within the guideline range for a B1 offence (or even a B2 offence, as was submitted on the applicant's behalf below) and that, as counsel for the applicant had accepted, it was not manifestly excessive. It is pointed out that no grounds of appeal have been identified and, although the Registrar had referred the application to the full court on the basis that the applicant is the primary carer to two teenage children, the prosecution says that the Judge below had all the relevant information when considering sentence, such that there would be no proper basis on which this court could interfere with the term imposed. This, it is said, was also true of the mitigating features relied on by the applicant – her childcare responsibilities and her physical and mental health issues – each of which had been considered by the Judge and featured, with detailed reasons, in her sentencing remarks, and there was no basis to think that these aspects were given insufficient weight. More specifically, Mr Bird observes that, given the apparent absence of any arrangements put in place for the care of the two children, the Judge must have proceeded on the basis that Children's Services were likely to be involved but had nevertheless concluded that this was not a case where the sentence should be reduced to a term that could be suspended, and then should be suspended.

In preparation for this hearing, a pre-appeal progress report (dated 21 July 2026) has been obtained from probation (albeit not the same probation officer who was was the author of the PSR). The author of the pre-appeal report not only interviewed the applicant by video-link on 8 July 2026, she also liaised with the children's social worker, the senior team manager for the applicant's supported accommodation, the "move-on" housing officer for Cornwall Council, and the applicant's sister, who was (at least at the date of the report) the main carer for the two boys. Before addressing the detail of the pre-appeal report, we highlight our concern that parts of the narrative included within the report seem to adopt an account of the history of the applicant's relationship with C that has never been the subject of any independent adjudication. In this regard, we do not criticise the author, who sought to obtain corroboration from the housing association supporting the applicant (which, of course, would itself have relied on the reports from the applicant), but we have nevertheless kept this in mind when considering the information provided.

With this caveat, we record that the pre-appeal report explains that, since the applicant began her prison sentence on 19 May 2026, the two children have remained in the home they shared with the applicant, under the care of family members (albeit those relatives have described themselves as barely knowing the boys prior to this). It is said, however, that this has proved unstable and that Children's Services are now looking to remove the boys into foster care, with the inevitable uncertainty that this will entail. The author of the report records that the applicant's sister has described the two boys as struggling to adjust to the sudden disappearance of their mother from their lives – likening it to a grieving process – and of being extremely frightened at the prospect of losing their home, as this will also mean they lose their family pets (a cat and a dog) from which they derive a high level of comfort. It is further said that the children are terrified of being separated and that any move to a different area would be likely to mean a change in school placement, which will also be extremely disruptive and detrimental on their mental well-being; it is observed that the children have always resided with their mother and that any move into the care system is likely to be traumatic and have long lasting effects on their life outcomes. In an update by email yesterday, we have been told that the applicant's sister has had to return to London and so the children are currently being cared for by her cousin, as a temporary measure.

An email has also been provided to us, dated 27 July 2026, stating that confirmation has been received from Children's Services that they are looking to place the children into foster care in Devon. In addition, an email said to be written by the applicant's older child on behalf of both her sons has been forwarded to us; it sets out what are said to be the children's concerns.

The author of the pre-appeal report also advises that Cornwall Council have instigated eviction proceedings due to the length of the applicant's sentence, and the fact that her property was classed as "temporary accommodation". The author explains that, with the potential loss of the family home, the applicant would no longer have an eligible address for any home detention curfew application, and, on release, will also find it more difficult to secure accommodation for herself and her children, as they will not be in her care, so she will not be eligible for housing to include them (resulting in the paradoxical situation where Children's Services are not able to return the children to the care of the mother because they are not in suitable housing, and the mother cannot access suitable family housing because she does not have full time care of the children). Although we are told that a request has been made to Cornwall Council that eviction proceedings be postponed to allow for the outcome of this proposed appeal, no response had been received and the eviction date was said to be set for 10 August 2026. On this point, an update was again provided to us yesterday, explaining that "eviction proceedings have been instigated for 10/08/2026"; we note that does not seem to be the same as saying that the eviction has been set for that date and we are also bound to observe that we have not seen any of the documentation relating to these housing issues.

The author of the pre-appeal report further addresses the applicant's experience of custody, saying that she has found this "terrifying". It is said that, given the short time involved, no work has yet commenced on the applicant's sentence plan, but that she has been working as a hairdresser and the author is not aware of any negative adjudications. We have also received a report from the prison, which records interactions with the applicant during her time in custody. It would in fact seem that she is now more relaxed and settled (possibly due to a move to a different wing and to assistance having been provided for her to have contact with her family (including her children)). It is, however, a matter of some concern that the applicant is still reported as repeating allegations against C that she will know have not been the subject of any independent adjudication.

In determining the appropriate course to adopt in this matter, we have to start by saying that we are unable to see any error on the part of the Judge at the time of passing sentence in this case. As the Advice on Appeal acknowledges, the categorisation of, and approach to, the applicant's offending cannot be faulted, and, on the information available at that stage, the Judge arrived at a sentence that could not have been characterised as manifestly excessive. On one view, as the prosecution has urged, there is simply no basis on which this court could properly interfere with the sentence passed in this matter.

That said, the information available relevant to mitigation has changed. Although the Judge had sought to ensure that she was fully informed as to the applicant's domestic circumstances – in particular, in relation to the impact of a custodial sentence on her two children – she did not have as full a picture as we now have. In large part that was due to the applicant's own failure to provide the court with the relevant information. We have already set out the observations on this issue made by the Judge at the sentencing hearing, and we can only express our shared bewilderment at the applicant's failure to prioritise the needs of her children and to assist the court in this regard. Given the applicant's apparent disregard for the Judge's clear direction that she would want to know what was going to happen to the children, the only information available was that contained within the PSR, which, tempered by the "limited evidence" provided, could only speculate as to the possibility of the involvement of Children's Services. Thus, although we acknowledge the points made by Mr Bird before us today, it is by no means clear to us that the Judge assumed that Children's Services would inevitably be involved (not least as she was plainly, and wholly understandably, sceptical of the information that the applicant had provided to her).

At the instigation of the Registrar, the information that has been provided to us has, as we have said, enabled a much clearer picture to be formed. We now know that members of the applicant's family have taken it in turns to take care of the two boys, who have otherwise remained in their home, with their pets. That, however, has only provided a superficial level of stability, as some of the relatives involved in caring for the children have volunteered that they hardly knew the boys before, and it is apparent that there has been a degree of turnover, as the individuals concerned have had to return to their own responsibilities. It is, no doubt, as a consequence of such seemingly ad hoc care arrangements - which firmly fall on the shoulders of the applicant - that Children's Services have intervened and the prospect of the children going into foster care (which will remove them from their home and their pets, and might well involve their separation if they cannot be accommodated together) has now become something rather more than informed speculation. We might deprecate the applicant's apparent wilful disregard of the necessity of putting more stable arrangements in place before she was due to be sentenced for her offending, but we cannot simply ignore the evidence before us of the impact that this will have on the two children.

More than this, however, we now also have clearer information regarding the applicant's accommodation and what we are told is a very real risk of eviction if she remains in custody. As the author of the pre-appeal report explains, if the applicant loses her home, this will not simply impact upon her, and her ability to apply for home detention curfew, but will have repercussions for her children, as she will face the Catch-22 situation of not being able to demonstrate that she has accommodation so that they can return to live with her, but also of not being able to apply for suitable accommodation as the primary carer for her children.

This more detailed information would have been relevant to the Judge's approach to mitigation in this case. Having already acknowledged that there was "substantial" personal mitigation relating to the applicant's mental and physical health, and as evidenced by the character references provided, the Judge would have had the information necessary to form an assessment of the applicant's caring responsibilities, which is identified as a potentially mitigating factor under the guideline, and which can be relevant to the length of the sentence imposed, as well as to the question of suspension. Thus, while we do not criticise the Judge – who had sought to ensure that she had all the information she needed for her task and was largely thwarted by the applicant's incomprehensible failure to assist – the fact is that she did not have the full picture relevant to this aspect of mitigation and this ultimately led to the imposition of a term that we are satisfied was manifestly excessive in the circumstances of this case.

Had the Judge had the information that has been made available to us, we are satisfied that the appropriate term before credit for the guilty plea would have been one of 40 months' imprisonment; with the ten per cent reduction that the Judge had allowed, that would result in a sentence of 36 months' imprisonment (three years).

As the applicant had been convicted after 22 March 2026, that was a sentence that was capable of being suspended. We have therefore carefully considered the factors identified under the imposition guideline to see if that is a course that should be adopted here.

We are not specifically aware that the applicant has demonstrated poor compliance with court orders and we note that she has been assessed as posing a medium – not a high – risk of reoffending, albeit that is likely to be increased when she is stressed or is in conflict in relationships. We further note that although there might be a particular risk of the applicant re-offending in relation to C that is mitigated by the fact that a restraining order is in place.

We have been troubled by the question whether there is a realistic prospect of rehabilitation in the community in this case, in particular, we note the way in which the applicant continues to relate a history of domestic abuse involving C, and to make other allegations, for which there is no independent corroboration. Although we acknowledge that the probation officer has obtained further information regarding the applicant's housing (which would support a suggestion that the applicant is considered vulnerable), we note that that information will not itself have been the result of any court or independent adjudication in relation to those allegations, but will have been dependent on the applicant's own narrative of the history. This, we observe, is a continuing pattern, which has infected the applicant's interactions with those who are seeking to assist her rehabilitation in prison and through the Probation Service; it suggests that she is, as the prosecution submits, seeking to manipulate the system to her own advantage. This has inevitably caused us considerable concern. That said, we have had the benefit, during the course of this hearing, of being able to speak to the probation officer, Ms Bird, and she has provided us with some reassurance as to the work that will be undertaken with the applicant to address her offending behaviour.

Finally, we have carefully weighed the harmful impact of the applicant's imprisonment on others – specifically her two children – alongside the question whether the seriousness of this offence is such that appropriate punishment can only be achieved by immediate custody. This was undoubtedly very serious offending and, in the normal course, we would take the view that it must be marked by the imposition of an immediate custodial term. Against that, however, we have to balance what we have found to be the impact on the applicant's sons, who are entirely innocent parties but who in fact stand to suffer the most. Of course, we recognise that it is not uncommon for children to be collateral victims in offending by their parents, but, on the information provided to us, the impact in this case is particularly stark. We bear in mind that the applicant has already spent two and a half months in custody, and we further note that the imposition of a suspended sentence remains a punishment.

Thus, having carefully weighed the factors identified, and with the benefit of the assistance provided to us by Mr D’Aguilar (who we commend for his realistic but persuasive advocacy), and by probation, we reach the conclusion that it is appropriate to suspend this sentence for a period of three years (commencing 19 May 2026), subject to the undertaking of a 40-day Rehabilitation Activity Requirement. For completeness, we note that the original recommendation from probation included an accredited programme requirement, but (i) that is no longer recommended, and (ii) allowing for the time the applicant has already spent in custody, we would not consider it necessary to add an additional requirement of this nature. Similarly, although we have considered imposing an unpaid work requirement, we recognise the difficulties in this regard (given the applicant's childcare responsibilities and what we are told about her health conditions) and again acknowledge that she has already served some time in custody.

We therefore quash the sentence of 37 months' immediate imprisonment and substitute a sentence of three years' imprisonment, suspended for a period of three years, commencing 19 May 2026. We make clear to the applicant that should she commit any offence during the three year period of this sentence, whether or not it is of the same type, she will be brought back to court and it is likely that this sentence will be brought into operation, either in full or in part. Also, the applicant will be subject to a 40-day Rehabilitation Activity Requirement, which means that she must meet the officer supervising this requirement as and when required and must attend and co-operate fully with any activities that are arranged; if she does not do so, she will be in breach of this order, and she will be brought back to court when she will be liable to serve the sentence, either in whole or in part. We therefore grant the application for leave and, to the extent we have stated, the appeal is allowed.

Given the need for an accurate history of this matter, we direct that the prosecution should ensure that, should there be any breach proceedings, a copy of this Judgement is placed before the Judge.