FELICITY GERRY KC JOINS WE LEVEL UP IN A SUBMISSION TO THE SENTENCING COUNCIL ON A NEW MITIGATING FACTOR ON PREGNANCY, MATERNITY AND POSTNATAL CARE

Felicity joined a coalition of lawyers, academics, psychiatrists, and organisations with significant interest in, and long experience working with, perinatal women in the criminal justice system in making a submission to the Sentencing Council consultation led by WE LEVEL UP.

Question 17: ‘Do you agree with the proposed new mitigating factor and expanded explanation relating to pregnancy? If not, please provide any alternative suggestions.

Answer: NO: The Level Up submission relies on a wealth of authoritative research to demonstrate that the current proposal is insufficient and there should be a new mitigating factor which specifies that pregnancy, maternity, and the postnatal period is relevant to the sentencing of a female defendant convicted of any crime, and that an associated explanation should be included in all sentencing remarks.

The submission makes alternative suggestions including additional measures should also be introduced to avoid custody where a pregnant woman’s sentence is over the custody threshold, or she is facing a mandatory minimum sentence. In practical terms, this means:

1. Where a woman is on the cusp of custody, a non-custodial sentence must be considered.
2. Where a woman is over the custody threshold and facing a custodial sentence of up to 2 years, a suspended sentence must be considered based on the significant harm custody or separation causes to pregnant and postnatal women and their dependants.
3. Where a woman is facing a sentence of over two years, or a mandatory minimum sentence, pregnancy, and the postnatal period to constitute an ‘exceptional circumstance’ that makes the imposition of the minimum term a disproportionate sentence and would justify not imposing the statutory minimum sentence.

This approach gives due weight to the significant harm caused by custody to the pregnant woman, her unborn child and a baby who may be born in prison. It also prioritises the best interests of the child over separation and fits with the Ministry of Justice Female Offender Strategy which identifies that “custody is particularly damaging for women” and that many female offenders could be more successfully supported in the community, where reoffending outcomes are better. The impact of custody on a woman who is pregnant is very likely to cause significant harm to the physical and mental health of both the mother and the child.

Without a full medical and social picture of the pregnant or postnatal woman, there is a significant risk that sentencers will be unwittingly sentencing a mother to a stillbirth, a baby to death or other serious complications, or an infant to developmental trauma. and the sentencer should give reasons for all sentences of pregnant or postnatal women addressing the known research and data.

Download the submission by clicking this link

Find out more about Level Up here https://www.welevelup.org/