New guidance on sentences for pregnant women

The Sentencing Council has published a consultation on proposed revisions to the Imposition of community and custodial sentences guideline.

The proposed revisions reflect changes in legislation, developments in case law, recent sentencing research, and feedback from criminal justice practitioners.

The Imposition guideline sets out the general principles for imposing community orders and custodial sentences, and in what circumstances a custodial sentence can be suspended, among other sentencing considerations. The current guideline was published in 2017.

The Council’s proposed revisions are designed to encourage courts to consider the widest range of circumstances when considering the full range of sentencing options available to them, in order to ensure that the most appropriate sentence, tailored to the individual offender and offence, can be imposed.

The consultation is published within the context of the Government promising a presumption of community sentences instead of short (under 12 months) prison sentences and an ongoing campaign against the imprisonment of pregnant women which has gathered force since the tragic deaths in prison of two newly born babies in 2019 amd 2020. We must almost remember Aisha and her mother Rianna Cleary and Brooke and her mother Louise Powell.

The consultation runs until 21 February 2024.

Thresholds

Anyone who has been in court knows that difference crimes are associated with different thresholds – the normal expected sentence. The guidelines state that the circumstances of the offence and the factors assessed by offence-specific guidelines will determine whether the community or custody threshold may be passed. Here is the key text around making a community order:

“A community order must not be imposed unless the offence is serious enough to warrant the making of such an order. There is no power to make a community order for a non-imprisonable offence.

Even where the threshold for a community order has been passed, sentencers must consider all available disposals at the time of sentence as a fine or discharge may still be an appropriate penalty. A Band D fine may be an appropriate alternative to a community order in some cases and can achieve the purposes of sentencing.

  • If the offender received a non-custodial disposal for the previous offence, the court should not necessarily move to a custodial sentence for the fresh offence.
  • Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
  • As set out in certain offence-specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, but are not necessarily limited to two years’ imprisonment.”

Custodial sentences

The guidelines are clear that a custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified, stating clearly that prison must only be a punishment for the most serious offences.

However, even where the threshold for a custodial sentence has been passed, a custodial sentence should not be imposed where sentencers consider that a community order achieves the purposes of sentencing. Imprisonment should not be imposed where there would be an impact on dependants, including on unborn children where the offender is pregnant, which would make a custodial sentence disproportionate to achieving the purposes of sentencing.

The consultation also states that Pre-Sentence Reports should normally be requested when sentencers are considering imposing a custodial sentence and that PSRs may be particularly important when the defendants is pregnant and/or the sole or primary carer for dependent relatives.

Courts are advised that:

“The impact of custody on pregnant offenders can be harmful for both the offender and the child. Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. There may also be difficulties accessing medical assistance or specialist maternity services in custody.”

Further guidance asks sentencers to consider whether it is unavoidable that a custodial sentences is to be made with, again, specific reference to pregnant women:

“A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on dependants, including on unborn children where the offender is pregnant. Courts should avoid the possibility of an offender giving birth in prison unless the imposition of a custodial sentence is unavoidable.”