The right to family life: children whose mothers are in prison Contents

4Sentencing

Women in prison

Women in prison: facts

  • On 1 February 2019 there were 3,797 women in prison in England and Wales.45 8,106 women entered prison in the year to June 2018—either on remand or to serve a prison sentence.46
  • Most women entering prison to serve a sentence (82%) have committed a non-violent offence.47
  • More women are sent to prison to serve a sentence for theft than for violence against the person, robbery, sexual offences, fraud, drugs, and motoring offences combined.48
  • The proportion of women serving very short prison sentences has risen sharply. In 2018 62% of custodial sentences given to women were for less than six months.49
  • Women sentenced to custody are almost twice as likely as men to have no previous convictions (22% vs 12%).50

35.There is a consensus that the criminal justice system’s current approach to women who offend is not working well.51 Indeed, the Government’s Female Offender Strategy recognises that coming into contact with the system, and in particular custody, can undermine the ability of women to address the issues that have caused their offending.52 The strategy highlights the fact that short custodial sentences do not deliver the best results for female offenders and sets out the Government’s intention to look at what more it can do to emphasise that short custodial sentences should be viewed as a last resort.53 The issues have not been the core focus of this inquiry, but they provide extremely important context for it. We support the Government’s objective of reducing the number of women in custody, especially on short-term sentences and increasing the proportion of women managed in the community successfully.

Case law

36.There is a significant body of case law relating to the sentencing of primary carers which sentencing judges should follow. Principles are established in these key cases:

The current framework for sentencing mothers

37.When sentencing an offender, a court must also follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so.64 For most offences, sentencing guidelines provide a range of appropriate sentences and give guidance on various factors the court should take into account that may affect the sentence given; these are called “aggravating” and “mitigating” factors, which may increase or reduce a sentence, respectively. They are available for most of the significant offences sentenced in the magistrates’ court and for a wide range of offences in the Crown Court. Offence specific sentencing guidelines contain the mitigating factor “sole or primary carer for dependent relatives.”65

38.In addition, the Sentencing Council issued an overarching guideline effective from 1 February 2017 on the imposition of community and custodial sentences (the ‘Imposition guideline’). The Imposition guideline, reflecting one aspect of the case law, states that:

“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.”66

39.Lord Justice Holroyde, Chair of the Sentencing Council, told us that he believes that the current set of guidelines are sufficient and that there is no need for a separate guideline advising on the sentencing of mothers.67 When asked about whether existing guidelines set out that the best interests of the child should be a primary consideration in decision-making he replied:

“No, not in those terms. I have indicated that the effect on others, including children, is a topic to which the sentencer is directed to have attention. It would be appreciated, I am sure, that the sentencer has a number of considerations to bear in mind, including perhaps most obviously the effect of the crime on victims. We do not spell out in terms in our guidelines, which we like to keep pretty short and focused so far as possible [ … ]”68

40.It was put to us that despite the references to primary caring responsibilities in the sentencing guidelines, in practice judges do not consistently sentence mothers according to the principles set out in them and established in case law. Rather there is a widespread lack of knowledge about the consequences for children of sending a mother to prison.69 In her research, conducted in 2015, Dr Shona Minson quotes a Crown Court Judge as saying:

“Most judges are still of the school of thinking, that family mitigation is neither here nor there.”70

41.Despite the subsequent introduction of the Imposition guideline and the roll out of new training materials for the judiciary outlining their duties towards children of defendants,71 Dr Minson doubted that these positive steps alone would have significantly changed sentencing practice.72

Pre-Sentence Reports

42.We are concerned that courts may not have the information they need to sentence appropriately. Case law has established that is the court’s duty to make sure that it has all relevant information about dependent children before deciding on a sentence.73 Dr Jo Easton, Deputy Chief Executive and Director of Policy and Research at the Magistrates Association told us that having this information before the court is vital:

“It is very clearly set out in the sentencing guidelines, [ … ] you have to look at the impact on the children and ensure that the sentence is still proportionate, which is the correct language to use in terms of human rights. If the information is not before the court or it is not detailed enough, it may be very difficult for them to make that judgment.”74

43.Pre-Sentence Reports (PSRs) which are prepared by the National Probation Service (NPS) should play an important role in meeting this legal requirement; informing judges and magistrates whether offenders have dependent children and the likely impact of a custodial sentence on them. However, Dr Natalie Booth from De Montfort University questioned whether PSRs are fulfilling this function:

“Pre-sentence reports (PSRs) have the potential to be a useful conduit to provide information about the defendant’s personal circumstances (and caregiving responsibilities) but they are used inconsistently and ineffectively in many cases.”75

44.This is backed up by the initial findings from research carried out by the Centre for Justice Innovation in 2018 into the use of PSRs:

45.The National Probation Service has produced an evidence-based checklist to support probation staff in considering the full range of factors which might be relevant to a woman’s offending or to the proposed sentence, including in relation to her children. The checklist is currently being piloted with a view to being rolled-out nationwide shortly.77 The Ministry of Justice was unable to make it available to us.

46.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.78

47.The take-up rate of Child Benefit is very high; 93% of those who are eligible for it made a claim in 2016–17.79 Given that some women may be reluctant to disclose that they have dependent children, the National Probation Service should check with HM Revenue and Customs (HMRC) whether a defendant is in receipt of Child Benefit when compiling her Pre-Sentence Report.

Views of Children

48.We have heard that children feel invisible in the sentencing process. Georgia summed up how she felt in these terms:

“This is the thing I always think about, and I think back to it quite a lot. I know my mum did wrong and deserved a punishment, but if you were to stand my mum up in that box with me and my brother, and someone turned around and said, “Do you sentence these three?”, would the judge look at it differently?”80

49.In order to comply with their obligations under the Human Rights Act, case law provides that judges must understand the potential impact of a custodial sentence on children. To this end, judges must ensure they have sufficient information about the likely consequences of separation of a child from his or her primary carer. This could include hearing from the child, if appropriate. Judges should state how they have taken this information into account in their sentencing remarks.

Welfare of the child

50.Despite the sentencing guidelines, an estimated 17,000 children each year are being harmed when their mothers are sent to prison,81 the vast majority for non-violent offences.82 We are concerned that the sentencing guidelines are either not followed or are not effective.

51.We know from our evidence that the welfare of dependent children is not always taken into account in sentencing hearings. We have also heard forceful evidence of the damage done to a child when a mother is sent to prison. These messages are not new. To shift entrenched practice and protect children’s rights to family life, the sentencing framework needs to give greater visibility to the welfare of the child. The welfare of the child must be at the forefront of the judge’s mind. The impact of sentencing on children must be a distinct consideration to which full weight must be given by the courts. This duty, which reflects existing case law, should be given statutory force.


45 Ministry of Justice (2019) Population and capacity briefing for Friday 1 February 2019, London: Ministry of Justice

46 Ministry of Justice, Prison receptions: April to June 2018 Table 2.1 Offender management statistics quarterly: April to June 2018, (2018)

47 Ministry of Justice, Prison receptions: October to December 2018 Table 2.5b, Offender management statistics quarterly, October to December 2018 (2019)

48 Ministry of Justice, Prison receptions: April to June 2018, Table 2.5b, Offender management statistics quarterly: April to June 2018, (2018)

49 Ministry of Justice, Prison receptions: July to September, 2017 Table 2.5a, Offender management statistics quarterly: July to September, (2018)

50 Ministry of Justice, Prison Population 2015, Table A1.18, Offender management statistics quarterly: January to March 2015 (2015)

51 See for example All Party Parliamentary Group (APPG) on Women in the Penal System, Sentencers and sentenced: exploring knowledge, agency and sentencing women to prison (2018)

52 Ministry of Justice, Female Offender Strategy, Cm 9642, June 2018

53 Ministry of Justice, Female Offender Strategy, Cm 9642, June 2018, para.12

54 R v Bishop [2011] EWCA Crim 1446, para 9

56 R v Kayani [2011] EWCA Crim 2871

57 R v Petherick [2012] EWCA Crim 2214

58 R v Petherick [2012] EWCA Crim 2214, para 20

59 Ibid. para 21

60 Ibid. para 22

61 R v Petherick [2012] EWCA Crim 2214 para 22

63 R v Modhwadia [2017] EWCA Crim 501

64 Coroners and Justice Act 2009, section 125

65 The Sentencing Council is in the process of consulting on an expanded explanations guideline on aggravating and mitigating factors. This proposes slightly more detailed guidance on the ‘sole or primary carer for dependent relatives’ mitigating factor which appears in 83 offence guidelines. The main addition is that ‘Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed.’ It also refers to pregnant women.

67 Q20 [Lord Justice Holroyde]

68 Q20 Lord Justice Holroyde

70 Ibid. p.152

71 These have been produced by Dr Shona Minson, have been adopted by the Judicial College and been brought to the attention of all judges through the College’s internal Learning Management System

72 Q20 [Dr Shona Minson]

73 R v Bishop [2011] WL 84407 Court of Appeal

74 Q20 [Dr Jo Easton]

75 Dr Natalie Booth (CMP0016)

76 The Centre for Justice Innovation, The changing use of pre-sentence reports, July 2018

77 Ministry of Justice (CMP0014)

78 The Farmer Review on Women makes a similar recommendation. This is that a written PSR should be made mandatory for all women (and male primary carers) before a custodial sentence is passed (if a recent report is not available). This should include accurate information on relationships and the impact of custody on family ties.

80 Q6 [Georgia]

81 The Howard League for Penal Reform, Voice of a child, 2011

82 Ministry of Justice, Prison receptions: April to June 2018, Table 2.5b, Offender management statistics quarterly: April to June 2018, (2018)




Published: 9 September 2019