From 1 April 2024, the Council is including a new, dedicated mitigating factor: ‘Pregnancy, childbirth and post-natal care’, in the majority of offence specific sentencing guidelines, providing guidance for courts on sentencing pregnant offenders and new mothers.

Consideration of pregnancy in sentencing was previously part of the ‘Sole or primary carer’ mitigating factor, which set out that, when sentencing a pregnant offender, relevant considerations may include any effect of the sentence on the health of the offender and on the unborn child.

What does the new mitigating factor mean?

When sentencing offenders, judges and magistrates are obliged to follow any relevant offence specific guideline or, where there is none, the General guideline, unless it is in the interests of justice not to. The new mitigating factor sets out what, when sentencing a pregnant or post-natal woman (someone who has given birth in the previous 12 months), the court may take into consideration, for example:

• the medical needs of the offender including her mental health needs
• any effect of the sentence on the physical and mental health of the offender
• any effect of the sentence on the child

If considering a custodial or community sentence for a pregnant or post-natal offender, the judge or magistrates should ask the Probation Service to consider these issues in a pre-sentence report and, if a suitable pre-sentence report is not available, should normally adjourn sentencing until one can be provided.

Why will the guidelines include this factor?

Sentencing involves consideration of both the seriousness of the offence, including the impact on victims, and the circumstances of the offender.

The impact of custody on an offender who is pregnant or post-natal can be harmful for both the offender and the child, including by separation, especially in the first two years of life.

Women in custody are likely to have complex health needs, which may increase the risks associated with pregnancy for both mother and child. The NHS classifies all pregnancies in prison as high risk.

There may be difficulties accessing medical assistance or specialist maternity services in custody, and access to a place in a prison mother-and-baby unit is not automatic.

The factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. Sentencers will also look at the Imposition of community and custodial sentences guideline.

For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants that would make a custodial sentence disproportionate to achieving the aims of sentencing.

Where immediate custody is unavoidable, courts will consider all of the factors above when deciding the length of the sentence.

Why did we make the change, and what happens next?

Although the mitigating factor of ‘Sole or primary carer’ provided guidance for the courts on sentencing pregnant offenders, the Council was persuaded that a separate, dedicated factor was justified to give more prominence to the guidance and provide more information to help the court in making a decision. We consulted on the proposed factor and the content of its expanded explanation (which provides the supporting, additional information) in the autumn of 2023. We received many detailed and helpful responses, and these have been incorporated into the wording now used in guidelines.

The Council has also recently consulted on revisions to the Imposition of custodial and community sentences guideline. The proposals included adding multiple new specific references to pregnancy and the unborn child, including within a new section on female offenders, where relevant to sentencing decisions about community or custodial sentences.

We have yet to consider the responses to this consultation, but the Council’s intention is to take a consistent approach to pregnancy and maternity across guidelines.