Pregnant women should not be sent to jail unless it is “unavoidable”, according to new sentencing guidelines.
The guidance, published on Wednesday by the Sentencing Council for England and Wales, has been hailed by campaigners as a huge milestone. It outlines a raft of new measures to stop criminals who are pregnant or mothers of children under one year old being imprisoned.
According to the latest official data there were 215 pregnant women in English prisons between April 2023 and March 2024. Fifty-three children were born to mothers in custody during the same period, and all but one of these births took place in hospitals.
The new guidance, which comes into force on 1 April, says courts “should avoid the possibility of an offender navigating the risks associated with pregnancy, birth and the postnatal period in custody unless the imposition of a custodial sentence is unavoidable”.
It also lists pregnancy as an appropriate reason to suspend a sentence. While the guidance will not end imprisonment of pregnant women completely, it is likely to make a significant difference to the number placed behind bars.
The Sentencing Council said: “The guideline … includes some significant new areas of guidance, including new subsections on sentencing young adult offenders, female offenders, mothers and pregnant and postnatal offenders.”
It said that even offences that carry a mandatory minimum custodial sentence may now not result in a custodial sentence if the offender is pregnant or has a baby.
It added that pregnancy and the postnatal period may contribute to “exceptional circumstances” that could justify not imposing this sentence.
Janey Starling, of the campaign group Level Up, which advocates for an end to the jailing of pregnant women and those with babies, welcomed the changes. “This guidance includes a host of landmark measures affecting the sentencing of pregnant women and mothers of infants,” she said. “These changes are a huge milestone in our campaign and clear the path for statutory sentencing reform.”
The new Sentencing Council information acknowledges that prison is a high-risk environment for pregnant offenders, likely to be harmful to the physical and mental health of the mother and the child. The prisons and probation ombudsman and the NHS classify all pregnancies in prison as “high-risk”.
At least two babies are known to have died in women’s prisons in the past three years, when their mothers, Rianna Cleary and Louise Powell, gave birth without medical assistance, at HMP Bronzefield in September 2019, and at HMP Styal in June 2020.
The Royal College of Midwives has said prison “is no place for pregnant women”, and it was one of several high-profile signatories to an open letter to the Sentencing Council in 2022 that asked for a review of sentencing practices for pregnant women.
Eleven countries, including Brazil, Colombia and Mexico, have laws against sending pregnant women to prison.
Anna, who was pregnant in prison and who co-founded the Level Up campaign, said: “The news of the new Sentencing Council guidance for pregnant women and new mothers is amazing. As someone that has lived experience of being pregnant in prison and having my child in custody and understanding the risks this carries, it brings me immense joy to know that this guidance should mean far less women endure what others before them have.”
Liz Forrester, a lawyer who campaigns with the organisation No Births Behind Bars, said: “This is a seismic change we have been campaigning for, finally recognising the deadly impact of prison on babies and pregnant women.”
Ministry of Justice sources said they could not comment on decisions made by the independent Sentencing Council but that the new Women’s Justice Board launched in January was focusing on reducing the number of vulnerable women sent to prison.
The ministry also said the justice secretary, Shabana Mahmood, had been described as “incandescent” about another part of the guidelines that asks judges to consider the background of minority ethnic offenders before passing sentence.
Magistrates and judges have been told they should normally consider ordering a pre-sentence report on an offender if they come from “an ethnic minority, cultural minority, and/or faith minority community”.
The shadow justice secretary, Robert Jenrick, said the guidance was “completely outrageous” and enshrined a “double-standard, two-tier approach to sentencing”.
Mahmood has written to the Sentencing Council urging it to reverse its changes to the guidance and registering her displeasure.
“Today’s updated guidelines do not represent my views or the views of this government,” she said. “As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind. There will never be a two-tier sentencing approach under my watch.”
