Manslaughter by reason of diminished responsibility

Statutory aggravating factors:

• Previous convictions,

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Guidance on the use of previous convictions

  The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

  Section 65 of the Sentencing Code states that:

  (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.

  (2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

  (3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.

  1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
  2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
  3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
  4. Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
  5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
  6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
  7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
  8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
  9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
  10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
  11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
  12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
  13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
  having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction (See step three for a consideration of dangerousness)
• Offence committed whilst on bail

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Section 64 of the Sentencing Code states:

  In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.  

• Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  See below for the statutory provisions.

  • Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
  • Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.

  Section 66 of the Sentencing Code states:

  Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—

  (a) racial hostility,

  (b) religious hostility,

  (c) hostility related to disability,

  (d) hostility related to sexual orientation, or

  (e) hostility related to transgender identity.

  This is subject to subsection (3). (2) The court—

  (a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

  (b) must state in open court that the offence is so aggravated.

  (3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—

  (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

  (i) the victim’s membership (or presumed membership) of a racial group,

  (ii) the victim’s membership (or presumed membership) of a religious group,

  (iii) a disability (or presumed disability) of the victim,

  (iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

  (v) the victim being (or being presumed to be) transgender, or

  (b) the offence was motivated (wholly or partly) by—

  (i) hostility towards members of a racial group based on their membership of that group,

  (ii) hostility towards members of a religious group based on their membership of that group,

  (iii) hostility towards persons who have a disability or a particular disability,

  (iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)

  (v) hostility towards persons who are transgender.

  (5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—

  (a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;

  (b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;

  (c) “membership” in relation to a racial or religious group, includes association with members of that group;

  (d) “disability” means any physical or mental impairment;

  (e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;

  (f) “presumed” means presumed by the offender.

   

• Offence was committed against an emergency worker acting in the exercise of functions as such a worker

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  See below for the statutory provisions.

  • Note the requirement for the court to state that the offence has been so aggravated.
  • Note this statutory factor only applies to certain violent or sexual offences as listed below. 
  • For other offences the factor ‘Victim was providing a public service or performing a public duty at the time of the offence’ can be applied where relevant.

  The Sentencing Code states:

  67 Assaults on emergency workers

  (1) This section applies where a court is considering the seriousness of an offence listed in subsection (3).

  (2) If the offence was committed against an emergency worker acting in the exercise of functions as such a worker, the court—

  (a) must treat that fact as an aggravating factor, and

  (b) must state in open court that the offence is so aggravated.

  (3) The offences referred to in subsection (1) are—

  (a) an offence under any of the following provisions of the Offences against the Person Act 1861—

  (i) section 16 (threats to kill);

  (ii) section 18 (wounding with intent to cause grievous bodily harm);

  (iii) section 20 (malicious wounding);

  (iv) section 23 (administering poison etc);

  (v) section 28 (causing bodily injury by explosives);

  (vi) section 29 (using explosives etc with intent to do grievous bodily harm);

  (vii) section 47 (assault occasioning actual bodily harm);

  (b) an offence under section 3 of the Sexual Offences Act 2003 (sexual assault);

  (c) manslaughter;

  (d) kidnapping;

  (e) an inchoate offence in relation to any of the preceding offences.

  (4) For the purposes of subsection (2) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker. (5) In this section, “emergency worker” has the meaning given by section 68. (6) Nothing in this section prevents a court from treating the fact that an offence was committed against an emergency worker acting in the exercise of functions as such as an aggravating factor in relation to offences not listed in subsection (3). 68 Emergency workers for the purposes of section 67 (1) In section 67, “emergency worker” means—

  (a) a constable;

  (b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;

  (c) a National Crime Agency officer;

  (d) a prison officer;

  (e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;

  (f) a prisoner custody officer, so far as relating to the exercise of escort functions;

  (g) a custody officer, so far as relating to the exercise of escort functions;

  (h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;

  (i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);

  (j) a person employed for the purposes of providing, or engaged to provide—

  (i) NHS health services, or

  (ii) services in the support of the provision of NHS health services,

  and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public. (2) It is immaterial for the purposes of subsection (1) whether the employment or engagement is paid or unpaid. (3) In this section— “custodial institution” means any of the following—

  (a) a prison; (b) a young offender institution, secure training centre or secure college; (c) a removal centre, a short-term holding facility or pre-departure accommodation, as defined by section 147 of the Immigration and Asylum Act 1999; (d) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006;

  “custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994; “escort functions”—

  (a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991; (b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;

  “NHS health services” means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006; “prisoner custody officer” has the meaning given by section 89(1) of the Criminal Justice Act 1991.

Other aggravating factors:

• History of violence or abuse towards victim by offender (which may include coercive or controlling behaviour) 
• Use of strangulation, suffocation or asphyxiation
• Involvement of other(s) through coercion, intimidation or exploitation
• Significant mental or physical suffering caused to the deceased
• Victim particularly vulnerable due to age or disability

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
  • Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
  • The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
  • Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
  • Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
  • Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
  • The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
• Victim was providing a public service or performing a public duty at the time of the offence

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  This reflects:

  • the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
  • the fact that someone is working in the public interest merits the additional protection of the courts.

  This applies whether the victim is a public or private employee or acting in a voluntary capacity.

  Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.

• Commission of offence whilst under the influence of alcohol or drugs (the extent to which a mental disorder has an effect on offender’s ability to make informed judgments or exercise self-control will be a relevant consideration in deciding how much weight to attach to this factor)

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.

  This applies regardless of whether the offender is under the influence of legal or illegal substance(s).

  In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.

  An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.

   

• A significant degree of planning or premeditation

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Evidence of planning normally indicates a higher level of intention and pre-meditation which increases the level of culpability.
  • Planning may be inferred from the scale and sophistication of the offending and/or the role of the offender.  
  • The greater the degree of planning the greater the culpability
• Offence involved use of a weapon

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • A ‘weapon’ can take many forms
  • The use or production of a weapon has relevance
    • to the culpability of the offender where it indicates planning or intention to cause harm; and
    • to the harm caused (both physical or psychological) or the potential for harm.
  • Relevant considerations will include:
    • the dangerousness of the weapon;
    • whether the offender brought the weapon to the scene, or just used what was available on impulse;
    • whether the offender made or adapted something for use as a weapon;
    • the context in which the weapon was threatened, used or produced.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when assessing the relevance of this factor to culpability.

• Other(s) put at risk of harm by the offending

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
  • Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

  Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• Actions after the event (including but not limited to attempts to cover up/conceal evidence)

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

  Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

• Concealment, destruction, defilement or dismemberment of the body
• Blame wrongly placed on other(s)

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this will make the offence more serious.
  • This factor will not be engaged where an offender has simply exercised his or her right not to assist the investigation or accept responsibility for the offending.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

• Offence committed on licence or post sentence supervision or while subject to court order(s)

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
  • Commission of an offence while subject to a relevant court order makes the offence more serious.
  • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
  • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality
  • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• No previous convictions or no relevant/recent convictions

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
  

  • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
  • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
  • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
  • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
• Remorse

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).

  Lack of remorse should never be treated as an aggravating factor.

  Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient.

  The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:

  • nervousness
  • a lack of understanding of the system
  • mental disorder
  • learning disabilities
  • communication difficulties (including where English is not their first language)
  • a belief that they have been or will be discriminated against
  • peer pressure to behave in a certain way because of others present
  • age and/or a lack of maturity etc.

  If a PSR has been prepared it may provide valuable assistance in this regard.

  Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

• Intention to cause serious bodily harm rather than to kill
• History of significant violence or abuse towards the offender by the victim (which may include coercive or controlling behaviour) 
• Lack of premeditation

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.

  However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence.

• The offender acted in self-defence or in fear of violence (where not amounting to a defence)
• The offender made genuine and sustained attempts to seek help for the mental disorder
• Belief by the offender that the killing was an act of mercy
• Positive character and/or exemplary conduct (regardless of previous convictions)

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.

  This factor may apply whether or not the offender has previous convictions. 

  However:

  • This factor is less likely to be relevant where the offending is very serious
  • Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

   

• Serious medical conditions requiring urgent, intensive or long-term treatment

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
  • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
  • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
  • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
  • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
• Age and/or lack of maturity (which may be applicable to offenders aged 18-25)

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Where a person has committed the offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people. That guideline may also be relevant to offending by young adults.

  Age and/or lack of maturity can affect:

  • the offender’s responsibility for the offence and
  • the effect of the sentence on the offender.

  Either or both of these considerations may justify a reduction in the sentence.

  The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). 

  In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

  • evaluate the consequences of their actions
  • limit impulsivity
  • limit risk taking

  Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

  Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.

  An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

  An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

  There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

  Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties.  Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.

  Where the offender is is care experienced or a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

  Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

  When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.

• Sole or primary carer for dependent relatives

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  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.  See also 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 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 and whether the sentence can be suspended.

  For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

  ­When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

  The court should ensure that it has all relevant information about dependent children before deciding on sentence.

  When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

  When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR.

  Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)

• Pregnancy, childbirth and post-natal care

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.

  When sentencing a pregnant or postnatal woman, relevant considerations may include:

  • 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

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

  Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.

  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. The NHS classifies all pregnancies in prison as high risk.

  There may be difficulties accessing medical assistance or specialist maternity services in custody.

  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. See also 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 which would make a custodial sentence disproportionate to achieving the aims of sentencing.

  Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.

  The court should address the issues above when giving reasons for the sentence.

• Difficult and/or deprived background or personal circumstances

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court may be assisted by a pre-sentence report in assessing whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:

  • the offender’s responsibility for the offence and/or
  • the effect of the sentence on the offender.

  Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:

  • experience of discrimination
  • negative experiences of authority
  • early experience of loss, neglect or abuse
  • early experience of offending by family members
  • being care experienced or a care leaver
  • negative influences from peers
  • difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
  • low educational attainment
  • insecure housing
  • mental health difficulties
  • poverty
  • direct or indirect victim of domestic abuse

  There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour. The Equal Treatment Bench Book contains useful information on social exclusion and poverty (see in particular Chapter 11, paragraphs 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.