Unfortunately, it is reality that many pregnant women and/or women with young children, come before the Courts for a variety of criminal matters, which can result in terms of imprisonment being imposed.
Pursuant to the Sentencing Act 1991, the law does not currently recognise that someone’s gender ought to be taken into account with respect to sentencing of a criminal offence. Therefore there is no special category that women who are pregnant or have a young family are categorised into, when coming before the Court for sentencing.
In light of the above, pursuant to Section 5(2)(g) of the Sentencing Act 1991, when sentencing an offender, the Court must have regard to;
“The presence of any aggravating or mitigating factors concerning the offender and/or any other relevant circumstances”
This provision allows an accused and/or their legal representative to make submissions to a sentencing Magistrate/Judge as to any mitigating effect that an accused’s current health (which can include pregnancy) or care responsibilities (in the case of young children) ought to be taken into account with respect to sentencing. For example, should an individual be at a real risk of a term of imprisonment and is due to give birth whilst in custody, might provide a strong argument to attempt to avoid a custodial sentence.
However, it is also the case that there are some offences and circumstances in which a full-time custodial sentence will be imposed, despite the above submissions being made to the Court. In these situations, there are several programs available to expectant mothers (and those with young families) in an effort to reduce the impact that a custodial sentence will have on a child, especially those born whilst the mother is in custody.
