The Imposition of Community and Custodial Sentences: Definitive Guideline was issued by the Sentencing Council in 2017, and at the time was pretty groundbreaking – at least in terms of mothers facing sentencing in a criminal court.
Through just one line in the guideline an important principle became embedded in the principles of sentencing:
‘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.’
Imposition of Community and Custodial Sentences: Definitive Guideline, Sentencing Council, 2017
Until 2017 the only mention of dependents, who could be adults or children, was that if the defendant was the ‘sole or primary carer for dependents’, that could be a factor taken into consideration as mitigation. Stating that if a sentence could be in the community then, ‘imprisonment should not be imposed’ due to the impact on dependents, was a big step forward in ensuring that sentencers considered the impacts on children when sentencing a mother.
Things moved on with the 2019 expanded explanation for the mitigating factor ‘sole or primary carer for dependent children’ in the General Guideline: Overarching Principles. It set out how exactly a court should consider the impact on dependents and stated that the sentencer should ask for a pre sentence report before sentencing a mother. My view was that the explanation was very good, but unfortunately it required several clicks on the web page to reach it, so most sentencers were missing it. Although it gave guidance on what a sentencer ‘should’ consider when considering that particular mitigation, the option was still open to the sentencer to ignore that mitigating factor entirely.
And so to the revised Imposition guideline, which is now out for consultation until February 2024.
Published only a few days ago, the revised guideline is already creating a bit of a stir in the media. ‘Menopausal or pregnant female offenders could be spared jail under new plans to make judges and magistrates hand out more rehabilitative community sentences’ was the Daily Mail’s headline, and Yahoo also picked up on the mention of menopause. The BBC led with what I think is the key intention of the guideline, ‘Court urged to consider fewer short jail terms’
The revised guideline is newsworthy. It makes it plain that short sentences are ineffective punishment, when measured by the purposes of sentencing as set out in the guideline at section 3:
- The punishment of offenders
- The reduction of crime (including its reduction by deterrence)
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparation by offenders to persons affected by their offences
Criminologists and policy makers have known for a long time that there is an increased likelihood of someone committing another offence if punished by imprisonment rather than in the community. Short prison sentences are pointless and harmful. Women are more likely than men to leave prison homeless and unemployed, and if mothers, they may also have lost their children into state or other care.
The revised guideline makes it very clear that prison and community sentences are both punishment. One does not trump the other, in terms of seriousness. The sentencer should have regard to the sentence which will achieve the purposes of sentencing in the particular context of that person and that offence. Even if the custody threshold is reached (‘so serious that neither a fine alone nor a community sentence can be justified’) Section 1 of the revised guideline makes it clear that the sentencer does not need to punish with a term of immediate imprisonment:
‘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.’
This actually reads quite similarly to the original guideline, but the inclusion of ‘unborn children’ is new, and it seems to be given more prominence in the way the guideline is set out. In general the revised guideline provides much more detail about the way in which the sentence should be reached, and is clear that the sentencing of particular cohorts, young people and women, should be thought about very carefully.
After years of research into sentencing practice and the impact on children of maternal imprisonment, I am really pleased to see such strong, evidence-led, development of the sentencing guidelines. In the past few years, following tragic deaths, there has been increased academic, public and policy focus on the danger of pregnancy in prison, for both mothers and babies, and it is right that this is reflected in the guideline which states at Section 7 that, ‘Courts should avoid the possibility of an offender giving birth in prison unless the imposition of a custodial sentence is unavoidable.’ Under Section 3, Effectiveness, the sentencer is directed to the guideline on consideration for offenders with mental disorders, developmental disorders or neurological impairments, as well as new ‘drop-down’ information sections on young people and (to use their terminology) female offenders. I set out this section below in full, and you’ll see it’s where the mention of menopause is made, as well as including a full paragraph on some of the harms which children will experience when their mother is imprisoned.
Female Offenders
When sentencing female offenders, courts should be aware that female offenders offend for different reasons than men and the impact of custodial sentences on female offenders is different. It is important for the court to ensure that it has sufficient information about a female offender’s background. As such, when considering a community or custodial sentence for a female offender, the court should ask Probation for a pre-sentence report. Courts should be aware of the following considerations when sentencing a female offender:
- Female offending is commonly linked to mental health, substance-misuse, or financial and homelessness issues, and female offenders are more likely than male offenders to be victims of domestic abuse or have experienced emotional, physical or sexual abuse as a child. Female offenders sentenced to custody are much more likely than male prisoners to suffer from anxiety or depression or attempt suicide. Women (typically aged 45 to 55) may suffer from the symptoms of perimenopause or menopause, which can affect their mood, mental health and behaviour.
- Women from an ethnic minority background in particular have distinct needs from both men from an ethnic minority background, and white women, and these should be considered before the imposition of a community or custodial sentence.
- Female offenders are more likely to be primary carers than male offenders. When mothers are sentenced to custody, only a very small percentage of children remain in their own home. Those dependent children are adversely impacted by having to adjust to new homes, new carers, and new educational establishments and are often separated from siblings. There is an emotional impact for those children resulting in shame, stigma, anger, grief and behavioural changes. Those dependent children consequently have an increased likelihood of committing criminal offences, mental health problems, substance misuse and other social issues.
- 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.
- There are only a small number of prisons for female offenders. Therefore, female offenders are more likely than male offenders to be imprisoned some distance from support networks of friends and family. This will impact on resettlement when they leave custody.
- Female offenders are at greater risk than male offenders of leaving custody without accommodation and being unemployed after release, leaving them vulnerable to further abuse and exploitation. A greater proportion of female offenders are unemployed when released than male offenders.
Courts should consider the research referenced in this guideline that short custodial sentences are generally less effective at reducing reoffending than community sentences, which can seek to better address the underlying causes of offending
Revised Imposition of Community and Custodial Sentences: Definitive Guideline
This revised guideline has been in process for some time and seeks to use the wide evidence base on punishment and its consequences to inform judicial sentencing practice. It makes no sense to increase prison numbers, at huge public cost, when we know that many sentences of imprisonment do much more harm than good, not just to those being punished, but to their families and our society in general. Seeing this reflected in the guideline has renewed my hope that change in criminal legal practice and policy is not impossible!
When a public body goes against the ‘tough on crime’ rhetoric to be instead, thoughtful, considered and I might suggest, justice focused in the widest sense of the term, it’s important that we throw our support in behind them. So if you think this is a positive guideline please respond to the consultation.
I leave the last word to Lord Justice Davis, Chair of the Sentencing Council:
‘The Imposition guideline in its current form is one of the most important of all the guidelines the Council has produced.
‘It gives judges and magistrates guidance on when a community order may be appropriate, whether a custodial sentence should be imposed and, where a custodial sentence is appropriate, when it should be suspended. The purpose of the guidance is to ensure a consistency of approach across all courts.
‘The revised guideline updates and extends the current guidance. It reflects new information and research in relation to young adult and female offenders and findings from research on the effectiveness of sentencing. We hope that judges and magistrates will find the guideline clearer and easier to use than its predecessor.’
Dr Shona Minson 