This Bill has been introduced to remove the ability of the Sentencing Council to issue Sentencing Guidelines which frame a request for a pre-sentence report by reference to a ‘personal characteristic’ of a defendant. You can read the Bill and follow its progress here.
The Bill will impact women and I have written the briefing note below to explain its consequences.
The Sentencing Guidelines (Pre-Sentence Reports) Bill
The Implications for the Sentencing of Women
In 2019, the Parliamentary Joint Committee on Human Rights (JCHR) undertook an inquiry, The Right to Family Life: Children Whose Mothers are in Prison. They concluded that urgent change was required in four areas: data collection, sentencing, support for children whose mothers go to prison, and pregnancy and maternity care for women in prison. With regard to sentencing, their recommendations were as follows:
Judges can only fulfil their obligation to weigh the Article 8 rights of a child when sentencing if they know that the child exists. At the moment there is no guarantee they will have that information. We recommend that when sentencing an offender the judge must make reasonable enquiries to establish whether the offender is the primary carer of a child. If the offender is a primary carer of a child, the judge must not sentence unless a pre-sentence report is available at the sentencing hearing, unless in exceptional circumstances. This report must contain sufficient information for the judge to make an assessment of the impact of sentencing on the child.
Following that enquiry the Sentencing Council expanded the sentencing guideline relating to the mitigating factor, sole or primary carer of dependents, stipulating that a pre-sentence report should be requested by the sentencer when the defendant was the primary carer of dependent children.
Following the deaths of babies Aisha Cleary at HMP Bronzefield, and Brooke Powell at HMP Styal and the reports of the Coroner and the Prisons and Probation Ombudsman, the risks of pregnancy in prison were recognised, and the mitigating factor ‘pregnancy, childbirth and postnatal care’ was added to the Sentencing Guidelines, mandating a pre-sentence report be prepared for every pregnant women before the court for sentencing, and that sentencing should be adjourned until such a report was available. It is recognised that every pregnancy in prison is a high risk pregnancy.
The known risks of pregnancy in prison which have been accepted by the Court of Appeal in a series of decisions, include:
Seven times more likely to suffer a stillbirth;
Twice as likely to give birth prematurely;
Twice as likely to give birth to a baby that needs specialist neonatal care;
Three times more likely to suffer gestational diabetes;
Five times more likely to miss vital midwifery appointments due to staffing issues.
The harmful outcomes of maternal imprisonment for children are well documented and include poor physical and mental health outcomes, both in the short and longer term. The imprisonment of a parent is recognised as an Adverse Childhood Experience.
“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.” (Sentencing Council, DRAFT Imposition of community and custodial sentences (Female Offenders) )
As to children under 2 years old: “The first 1,001 days of a child’s life (from conception to their second birthday) are a critical period of brain development that sets the foundations for their lifelong emotional, psychological and physical health” (Department of Health and Social Care, The Best Start for Life: a vision for the 1,001 critical days (2021))
In April 2025 a revised Imposition of Community and Custodial Sentences Guideline, was due to come into force. The guideline specified that pre-sentence reports should normally be requested for a number of cohorts including women, with specific guidance relating to mothers of dependent children and pregnant women. The purpose of such reports being to provide the sentencer with full information about the children and the pregnancy, in order to make the best sentencing decision.
Due to claims of ‘two tier justice’ the Lord Chancellor requested the removal of the guidance on pre-sentence reports, and the consequence is that the Sentencing Guidelines (Pre Sentence Reports) Bill is being fast tracked and the guideline has not yet come into force.
The Bill will make it unlawful for guidance on requesting pre-sentence reports to be framed by reference to any ‘personal characteristic’ of an offender. It will apply retrospectively. In answer to the Joint Committee on Human Rights, and in debate in both chambers, the government have stated that personal characteristics is not an exhaustive list and includes pregnancy.
The consequence of this is that the protections for women and children in the guidelines, directing sentencers to ask for pre-sentence reports so that they have information about their very particular circumstances, will be removed. This will increase the number of women sentenced to custody instead of being given community sentences because of the circumstances of their pregnancy, or their caring responsibilities.
The consequences of this for women and children has not been taken into account in assessing the impact of the bill. The fact sheet on the bill states:
‘The disapplication of particular aspects of the Sentencing Council’s Imposition guidelines on PSRs will not have a quantifiable cost or benefit impact on society as it is a return to the current practices, therefore providing no change’
It’s not a return to current practice. It removes significant protection for pregnant women, unborn babies, mothers and dependent children.
The government have stated that the Bill does not interfere with sentencers’ ability to request a pre-sentence report, and they suggest that pre-sentence reports will still be requested for pregnant women because of the Court of Appeal authority R v Thompson [2024] EWCA Crim 1038, which stated that it is ‘desirable’ for a judge to have a pre-sentence report when sentencing a pregnant woman.
There is a fundamental misunderstanding of how sentencers act. They are required to follow the Sentencing Guidelines and can only depart from them in exceptional circumstances. They only know about Court of Appeal dicta if someone brings it to their attention. This does not happen consistently, particularly in the magistrates’ courts where the majority of women are sentenced. It is for this reason that the Sentencing Guidelines develop – as they have in the case of the revised Imposition Guideline – codifying Court of Appeal authority, making it instantly clear to sentencers what is expected of them.
Rigorous research has provided evidence on which the Sentencing Council have created effective guidelines, thus providing protection for unborn babies and safeguarding children. Many women have been given non-custodial or suspended sentences as a consequence, and these will have been in the best interests of children and will have kept women out of prison, improving the likelihood of reducing recidivism.
The current Bill will erase all of that progress and protection.
An equalities assessment of the Bill should be undertaken considering the impacts it will have on maternal and child health, and children’s rights.
Amendments should be incorporated to ensure that the Bill does not unintentionally increase the use of imprisonment for women in direct contradiction of the government’s stated aims.
Dr Shona Minson 