Response to the Sentencing Council consultation on proposals to provide expanded explanations in existing Sentencing Guidelines

(I am posting this as it may be of use to anyone formulating their own response. Some formatting has been lost from the original so please forgive any odd spacing or numbering!)

Introduction

I am responding to the expanded explanation found in Appendix A, p.26 M14

‘M14. Sole or primary carer for dependent relatives

This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

In addition when sentencing an offender who is pregnant relevant considerations may include:

  • any effect of the sentence on the health of the offender and
  • any effect of the sentence on the unborn child. In such situations the court should ask the Probation Service to address these issues in a PSR.’

The Sentencing Council have a duty to ensure that their Guidelines uphold the rights of children whose primary carer is before the court for sentencing and are in accordance with the case law on this point.  This response therefore, begins with a summary of children’s rights and relevant authorities.

The rights of children whose primary carer is before the court for sentence

  • The Human Rights Act 1998 Article 8 gives everyone a right to family and private life and that right is not removed from child (or parent) as a consequence of the parent’s criminal offending.
  • The United Nations Convention on the Rights of the Child1989 provides that no child should be discriminated against or punished because of the status or activities of their parents (Article 2), and a child’s best interests should be considered in all proceedings concerning a child (Article 3). A child has a right to express their views in all matters concerning them (Article 12), and the state has a duty to provide special protection and assistance to a child who is unable to reside with their parent (Article 20).
  • The United Nations Rulesfor the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’) 2010, to which the UK is a signatory, state:‘Non-custodial sentences are preferable for women with dependent children, (unless the offence is serious or violent or the woman represents a continuing danger). Even then, a custodial sentence should only be given after considering the best interests of the child and ensuring that appropriate provision has been made for the child.’

Principles on the sentencing of parents established by case law

  • The criminal sentencing of a parent engages the Article 8 right to respect for family life of both the parent and the child. Any interference by the state with this right must be in response to a pressing social need, in pursuit of a legitimate aim, and in proportion to that aim. The more serious the intervention the more compelling the justification must be – the act of separating a mother from a very young child is very serious.

R (on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151 paragraphs 78 and 87

  • The welfare of the child should be at the forefront of the judge’s mind.

ZH (Tanzania) (FC) Appellant v Secretary of State for the Home Department [2011] UKSC4 paragraphs 25 and 26

  • It is the court’s duty to make sure that it has all relevant information about dependent children before deciding on an appropriate sentence.

R v Bishop [2011] WL 84407 Court of Appeal

  • There is no standard or normative adjustment for dependent children, but their best interests are a ‘distinct consideration to which full weight must be given’.

R v Petherick[2012] EWCA Crim 2214paragraph 19

  • In a case which is on the threshold between a custodial and non-custodial or suspended sentence a child can tip the scales and a proportionate sentence can become disproportionate.

R v Petherick [2012] EWCA Crim 2214paragraph 22

  • It may be appropriate to suspend a custodial sentence when the person being sentenced is the parent of dependent children.

R v Modhwadia [2017] EWCA Crim 501

 Comments on the proposed expanded explanation ‘sole or primary carer of dependents’

It is positive that the Sentencing Council are considering adding more detail to the factor ‘sole or primary carer of dependent relatives’ however, it will not ensure consistent and best practice sentencing for two reasons. Firstly, there is insufficient information in the proposed expanded explanation, and secondly, the information should not be contained in an expanded explanation but as a formal step in the sentencing process, or as a separate Guideline.  I provide detailed comment on each of these reasons below.

i)There is insufficient information in the proposed expanded explanation

The wording suggested at M14 is not consistent, nor is it as comprehensive as, the references to consideration of primary carers in other published Guidelines. I contend that should be a minimum requirement of the expanded explanation:

  • It does not include any reference to a suspended sentence, which is included in the Imposition of Community and Custodial Sentences Definitive Guideline, where it states that if ‘immediate custody will result in significant harmful impact upon others’ it ‘may be appropriate to suspend a custodial sentence’. This guidance should be included in the expanded explanation.
  • It is not as clear as the wording in ‘Step Five: Parental Responsibilities of Sole or Primary Carers’ in the Child Cruelty Definitive Guideline published in 2019. That Guideline provides for situations where the parent has committed the offence against the child, and yet, even in that situation where the child is directly the victim, it is brought to the sentencers’ attention that the offender may have ‘otherwise been a loving and capable parent/ carer.’ It is clear that this is not relevant only because the child is the victim of the crime, as it also references ‘other children in the offender’s care’.  The phrase ‘otherwise been a loving and capable parent/ carer’ is not included in the extended explanation and I contend that it should be. Research with Crown Court judges found that sentencers may presume that a parent’s criminal behaviour is proof of their inadequacy of their parent, and this is not routinely the case (Minson, 2017).  It is important that sentencers are reminded of the fact that a parent is a loving and capable parent.
  • The Child Cruelty Definitive Guideline also states that what is to be considered is ‘the effect that a custodial sentence could have on the family life of the victim and whether this is proportionate to the seriousness of the offence.’ This articulates what is being considered (the child’s Article 8 right to family life) more effectively than the phrase ‘impact on dependents’ which is used in the expanded explanation.

The expanded explanation should include the requirement for a sentencer to request a Pre-Sentence Report in all cases where a primary or sole carer of dependents is sentenced. It should not be limited only to instances when the defendant is pregnant. This would bring the Guidelines in line with both case law and current best practice, agreed across the Judiciary and Probation, see below:

  • The case of R v Bishop [2011] WL 84407 Court of Appealstates that it is the responsibility of the court to ensure that it has all relevant information about child dependents prior to sentence.
  • The training resources which were co-designed by, and are used by the Judicial College, National Probation Service, and Criminal Bar Association, ‘Safeguarding Children when Sentencing Mothers’, provide that sentencers should ask for a Pre-Sentence Report in all cases where a primary carer is sentenced, in order to have the fullest information about the impact of a sentence on a child dependent. This approach is evidence based; research found that a sentencer is more likely to consider the impact of a sentence on dependent children if they have a Pre-Sentence Report (Minson, 2014; Minson, 2017)[1] 
  • The most recently published guidance issues by the National Probation Service ‘Pre-Sentence Reports: Interim Guidance on Report Formats’ (March 2019) states that: ‘For those at risk of custody and who are primary / main carers with responsibilities for children/dependents, an adjournment [for a Pre-Sentence Report] is considered mandatoryto ensure that: i) The impact of a custodial sentence on dependents is considered ii) Care plans are developed and in place with Children’s Services or Adult Safeguarding Services.’ This Guidance was signed off by among others the Probation Institute, HMIP, OSAG, Sentencing Council, Justices Clerks Society, Senior Presiding Judge’s office.

Adjournment for a Pre-Sentence Report when the defendant is the sole or primary carer of dependents is now accepted best practice and this should be reflected in the Sentencing Guidelines.

ii) An expanded explanation will not ensure consistent sentencing; a specific reference in each Guideline, or a separate Guideline on primary carers will be more effective in achieving this aim

Research conducted directly with the Judiciary on the issue of considering children’s rights within maternal sentencing decisions (Minson, 2017) made the following findings:

a) Judicial understanding of the Guidelines and case law which set out the duties of the court in relation to considering dependents in sentencing decisions is limited and at times incorrect.

Each judge was asked the question: ‘Do you know of any sentencing guidelines or authorities which you would follow when determining the weight that should be given to a defendant’s primary or sole caregiving status?’ Their answers show the confusion which currently exists among the Judiciary.

  • 3 did not believe the Sentencing Guidelines contained any guidance on the consideration of dependents in sentencing
  • 3 knew of no Court of Appeal or Supreme Court authorities on this point
  • 2 knew of authorities but believed that they do not apply in every case
  • 3 knew of authorities and believed them to mean children should notbe a factor which mitigated in favour of a shorter or non-custodial sentence
  • 12 knew of authorities and understood the need to balance impact on the family with other factors in the case, and 2 of the 12 named the leading authority of R v Petherick
  • 11 judges asserted that they use their own judgement to determine the relevance of dependents to sentencing
  • 1 judge said the welfare of the child should be at the forefront of every judge’s mind.
  • No judge said the duty was on the court to ensure they had sufficient information to undertake the correct balancing exercise (R v Bishop [2011])
  • 3 judges regarded consideration of dependent children as being contrary to justice
  • 4 judges believed that the consequences on dependent children are entirely the responsibility of the mother and therefore the court does not need, nor should it try, to reduce the harms which might be suffered by the children
  • 1 judge took the view that being a parent makes the offender more culpable

An analysis of 33 cases which mothers appealed against sentence in the Crown Court to the Court of Appeal 2003-2011 found that in 21 of the 27 cases in which sentence was reduced on appeal, the child dependents were mentioned by the Court of Appeal as a reason for the reduction, indicating the lower courts had not given the factor sufficient weight in their sentencing decision (Epstein, 2012; Minson and Condry, 2015).

b)Judges do not take a consistent view on the relevance of dependents as a factor in mitigation

  • When asked to list factors which might mitigate sentence only 10 out of 20 judges mentioned dependents as a possible mitigating factor
  • When asked directly if a defendant’s caring responsibilities couldbe considered as a mitigating factor all judges said yes
  • 18 judges believed it would sometimes be relevant and 9 judges said it’s a factor in determining sentence length. 3 judges said it could usually be ignored.
  • When asked to give all mitigating factors a number between 1 and 10, the higher the number the more relevance it would have in a sentencing decision, ‘sole or primary carer for dependent relatives’, was the only factor on the list of mitigating factors to be allocated both 1 and 10.

The inclusion of ‘primary or sole carer for dependents’ as a factor which can be considered in mitigation, has been evidenced to be be insufficient to ensure that sentencers fulfil their duties to uphold children’s rights and follow the authorities on this point.

Concluding Comments

Adding an ‘expanded explanation’ is, in light of the available research evidence, very unlikely to ensure that it is read and properly considered by every sentencer in every relevant sentencing hearing. However, if it were inserted as a separate sentencing step, as with the Child Cruelty Definitive Guideline, then sentencers would be prompted to check at everysentencing hearing whether the defendant was a sole or primary carer of dependent children.

The consequences for the 312,000 children each year whose parents go to prison, and 17,000 whose primary carer mother go to prison (Crest Advisory, 2019), are life altering. I provide only a summary of what is known, but their life expectancy is shortened, they are at increased risk of mental health and addiction problems they are likely to earn less than their counterparts, they experience changes of carer, home and school, their education is often disrupted, relational changes affect future stability they live in increased poverty, they experience social isolation and shame; they develop behavioural problems stemming from their ‘confounding grief’ and they have an increased likelihood of criminal offending themselves. (Hagan and Dinovitzer, 1999; Link and Phelan, 2001: 287-294; Osgood et al., 2005; Dallaire, 2007; Murray and Farrington, 2008; Giordano, 2010; Dallaire and Wilson, 2010; Cho, 2011; Hagan and Foster, 2012; Turney, 2014; Minson, 2017;van de Weijer, S.G.A., Smallbone, H.S. & Bouwman, V. J Dev 2018; Minson, 2018).

To send a primary carer to prison is one of the most serious things a sentencer can do. It cannot be left to chance whether or not the impact on dependents is given proper consideration. It should be embedded as a separate stage in every Guideline.

If it is not, the court, as agent of the state, is likely to be in breach of its duties to protect children from discrimination or punishment they face as a consequence of the status or activities of their parents.

Footnote 1: Research conducted with Crown Court judiciary (Minson, 2017) found that common misconceptions hinder a judge’s willingness to make appropriate enquiries about children and to properly understand how their mothers’ sentence would affect them. The following views were expressed by judges, all of which are contrary to research evidence.

  • ‘Only some children’ are negatively impacted by the imprisonment of their mother
  • Only young children are negatively affected
  • As young children can go to Mother and Baby Units there is no need to consider the impacts of sentence upon them.
  • A mother’s worth to their child is linked to her offending behavior
  • A child’s socio-economic status determines their future potential and those from lower income brackets suffer less harm when their mother is imprisoned.
  • Every woman before the court has someone who can look after her children for an extended period of time. Those who claim otherwise are ‘blackmailing the court’
  • If someone in the family takes on the care of the child whilst the mother is in prison the child will not suffer any negative impacts

(There is a huge body of academic research literature which can be drawn upon to demonstrate why these are misconceptions, but space constraints mean it has not been cited in this response)

The majority of those interviewed thought that only a small subset of children suffer harm: those who are taken into local authority care, the very young, or those who have a ‘good’ mother. Other than separation from siblings and the loss of their parent these judges did not seem to be aware of the breadth and depth of the consequences for children. They made no reference to issues of education, behavioural problems, attachment issues, overcrowded housing, unsuitable carers, anxiety, stigma or stress. With the exception of a single judge, none of the judges mentioned the kin caregivers at all in their analysis of harms or consequences. There was no recognition whatsoever among this group of sentencers that an incredibly heavy burden is placed on kin caregivers. None of the judges gave any thought to the appropriateness of the caregivers, and even when asked directly about financial difficulties they might face they took the view that that was irrelevant.

 

 References 

Cho, R.M. (2011) ‘Understanding the mechanism behind maternal imprisonment and adolescent school dropout’.  Family Relations, 60, 272-289

Crest Advisory (2019) Children of Prisoners: Fixing a Broken System

Dallaire, D. (2007) ‘Incarcerated Mothers and Fathers: A comparison of risks for children and families’ Family Relations, 56 (5) p440-453

Dallaire, D., Wilson, L. (2010) The relation of exposure to parental criminal activity, arrest, and sentencing to children’s maladjustment.  Journal of Child and Family Studies,19(4), 404-418

Epstein, R. (2012) Mothers in Prison: The Sentencing of Mothers and the Rights of their Child. Coventry Law Journal Special Issue Research ReportCoventry: Coventry Law School

Giordano, P.C. (2010) Legacies of Crime: A follow up of the children of highly delinquent girls and boys.  New York: Cambridge University Press

Hagan, J., Dinovitzer, R. (1999) Collateral consequences of imprisonment for children, communities and prisoners. Crime & Justice,26,121

Hagan, J., Foster, H., (2012) Children of the American Prison Generation: Student and School Spillover Effects of Incarcerating Mothers.  Law & Society Review, 46(1), 37-69

Link, B.G., Phelan, J.C. (2001) Conceptualising Stigma.  Annual Review of Sociology, 27, 363-385

Minson, S. (2014) ‘Mitigating Motherhood: A study of the impact of motherhood on sentencing decisions in England and Wales’,London:The Howard League for Penal Reform

Minson, S., Condry, R. (2015) The visibility of children whose mothers are being sentenced for criminal offences in the courts of England and Wales.  Law In Context, 32, 28-45

Minson, S., (2017) ‘Who Cares: Analysing the place of children in maternal sentencing decisions in England and Wales’(2017) University of Oxford , open access Doctoral Thesis

Minson, S., (2018)’Direct harms and social consequences: An analysis of the impact of maternal imprisonment on dependent children in England and Wales’,Criminology and Criminal Justice, online first 23/8/2018

Murray, J., Farrington, D. (2008) Effects of Parental Imprisonment on Children.  In

Osgood, D.W., Foster, M., Flanagan, C., Ruth, G.R. (2005) Introduction: why focus on the transition to adulthood for vulnerable populations. InOsgood, D.W., Foster, E.M., Flanagan, C., Ruth, G.R (Eds.) On your own without a net: the transition to adulthood for vulnerable populations.  Chicago: University of Chicago Press

Turney, K. (2014) Stress proliferation across generations? Examining the relationship between parental incarceration and childhood health.  Journal of Health and Social Behavior, 55, 302-319

van de Weijer, S.G.A., Smallbone, H.S. & Bouwman, V. J Dev (2018) ‘Parental Imprisonment and Premature Mortality in Adulthood’,  Journal of Life Course Criminologypp 1-14

 

 

 

 

 

 

 

 

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