A BRITISH childminder convicted of shaking a 13-month-old child to death in San Diego won a temporary reprieve from the 25-year mandatory sentence hanging over her yesterday after the judge told the court to consider whether California's child abuse laws constituted cruel or unusual punishment in her case.

With friends and family huddled into the cramped courtroom in support, 44-year-old Manjit Basuta sat ashen-faced and teary-eyed as her defence lawyers begged the court to reconsider the case against her.

Judge William H Kennedy rejected numerous requests for a retrial, growing more sarcastic and impatient with each one, then surprised everyone by asking both sides in the case to present arguments on the merits of sentencing.

Basuta, who lived in Slough before coming to southern California in 1989, was convicted in June after the court heard that she grabbed Oliver Smith to change his nappy and shook him so hard that his eyes rolled back and his body went limp. Subsequent attempts to revive him failed.

The case has aroused high passions reminiscent of the Louise Woodward trial, even if the media has taken less of an interest.

"It is difficult to find some modicum of justice in a situation like this," Judge Kennedy said. "I've had a lot of anxious moments and I've give this an awful lot of thought." Under Californian law, the judge said, his only two options would be to enforce the mandatory sentence - "to some minds too harsh" - or to release Basuta on probation - "to some minds too lenient". There was, however, a constitutional provision enabling him to override sentencing guidelines if the punishment was deemed to be "cruel or unusual".

Judge Kennedy instructed lawyers for both defence and prosecution to prepare arguments on this point and ordered them back into court on 1 October. He said he had never before taken this route in sentencing.

Similar issues of mandatory sentencing plagued the Woodward trial, resulting in the judge in that case finally deciding to release the 19-year-old nanny on probation after time served. It is now increasingly likely that Mrs Basuta, too, will be released in October, by which time she will have spent five months behind bars.

The defendant's family and lawyers appeared satisfied at the judge's ruling. "This gives us hope," Basuta's husband,Manjit Singh, said.

"I am encouraged that the judge was open-minded and fair," said her main lawyer, Eugene Iredale.

The case hinged largely on the testimony of Basuta's assistant, Cristina Carrillo, who at first backed up her story that Oliver had fallen over on the patio. But three days after her initial statement, she changed her line, saying that as an illegal immigrant she had been intimidated by her boss into going along with what she said. The defence tried unsuccessfully to depict her as an unreliable witness and say her testimony might be grounds for appeal at a later date.