Dame Vera is a barrister and has been a long-time champion of women’s justice. Our Director, Harriet Wistrich, first worked with her in the early 1990s when she advised on the criminal appeal by Emma Humphreys which resulted in the court overturning her conviction for murder in 1995. In 2001, she became the MP for Redcar, became a Minister in the Ministry of Justice in 2006 and was Solicitor General from 2007 to 2010. Between 2012 to 2019 she was the elected Police and Crime Commissioner for Northumbria. In 2019 she was appointed Victims Commissioner and CWJ collaborated with her closely on the catastrophic collapse of rape prosecutions. Vera now holds a number of honorary academic posts and has recently been appointed to the Women's Justice Board.
Pregnancy and Prison. Do not mix.
Rianna Cleary, an 18-year-old care leaver, was pregnant when she was remanded to prison, on a charge of robbery. She went into labour when locked in her cell, and, though she rang desperately for help, nobody came. When she rang a second time, the officers turned her bell off. She gave birth to baby Aisha, and had to chew through their umbilical cord, losing copious blood and, eventually, passing out, with Aisha wrapped in a towel beside her. By the next morning when the cell was unlocked, Aisha’s lips were blue. The prison had no baby-sized resuscitation masks, and this tiny baby died. The coroner found that, if Rianna had been taken to hospital, Aisha would have had ‘a chance of survival.’[1]
In 2020, Louise Powell was sent to prison for eight months for harassment, criminal damage and common assault, not knowing that she was pregnant. One evening, she had severe abdominal pain; her cellmate shouted for help, but no health personnel arrived. Louise was in agony, for hours, until she went to the prison toilet, where the baby started to be born. Someone then called a nurse, who attended, and Louise’s baby, Brooke, was delivered, but she died very shortly afterwards.[2]
These cases are not only heartbreaking but highlight the unacceptable disregard for pregnant women and mothers in our criminal justice system.
Twenty-two per cent of pregnant prisoners miss midwifery appointments[3]; medical facilities are insufficient, and there are rarely midwives or doctors in prisons at night. One in ten prisoners do not get to hospital in time, and give birth in transit.[4] Dr Laura Abbott, Senior Lecturer in Midwifery at the University of Hertfordshire, found that in-cell births are common; they take place in a non-sterile environment, and they often happen without any midwifery support. Consequently, babies born to women in prison are twice as likely to be premature, and – a statistic of which we should all be ashamed - they are seven times likelier to be stillborn.
The NHS now says that due to the complexities for women in detained settings,
‘all pregnancies there are high risk’[5]
The Royal College of Midwives describes prison as ‘No place for pregnant women’[6] and the Royal College of Obstetricians and Gynaecologists emphasises the need for non-custodial sentences for mothers-to-be.[7]
This is not about improving conditions in jail, which is an inherently stressful and unfriendly place, inimical to safe pregnancy and new motherhood. As has been powerfully argued by campaign groups including Birth Companions, Level Up and No Births Behind Bars, ‘prisons are, and will always be, inappropriate and unsafe spaces in which to navigate the complexities of pregnancy and early motherhood’.[8] If women prisoners do manage to give birth safely or, if they enter prison during the postnatal period, they are likely to be separated from their baby. There are six hundred pregnancies and one hundred births in prison annually, but only sixty-four places on mother and baby units. Any separation will affect breastfeeding, but will also disrupt the formation of a secure attachment bond between mother and child, potentially leading to long-term negative consequences for the child’s development.[9]
The solution is obvious. Courts should never imprison pregnant women and new mothers, unless it is unavoidable and absolutely necessary.
Last week, a new Sentencing Guideline was withdrawn because of controversy about its declaration that offenders from racial, religious and cultural minorities, when convicted, should be the subject of a pre-sentence report before being sentenced. This was said to be discriminatory against the racial, religious and cultural majority. The Guideline also included advice that pregnant and post-natal women defendants should, similarly, have the benefit of a pre-sentence report. That guidance has now also been suspended causing fears of a step backwards for women.
However, there already exists a reassuringly supportive Guideline, published in April 2024[10] providing that pregnancy, childbirth and post-natal care were, in themselves, mitigation for most offences. It acknowledged that custody can be harmful both to mother and child; recognised that women in prison are likely to have complex health needs, which may increase risk, and registered concerns about accessing healthcare. Furthermore, in the recent case of Thompson [2024] EWCA Crim 1038, the Court of Appeal reinforced these strictures, and began a series of appeals against sentence, by pregnant women, which have brought a new wave, both of understanding and of relative sympathy, to the law.
The new Women’s Justice Board, of which I am a member, aims to cut the number of women who go to prison. Its work is wider than pregnancy and motherhood, but we have a workstream about it. I am shocked that the lower courts still send such women to prison, despite the dire risks, the 2024 Guideline, and in the teeth of the strong Court of Appeal judgments delivered in this string of 2024 appeals.
Last week, I saw the seminal Clean Break Theatre play, ‘Lost Mothers,’ about this topic. In the discussion afterwards, a barrister related that Judges and Magistrates accuse women of getting pregnant to avoid custody and therefore determine to send them there. That is a headlong clash with what the Court of Appeal said in the case of R v Byron [2024] EWCA Crim 818.
In exchanges with counsel, at the sentencing hearing, the lower court Judge had said:
“… She knew that this matter was not going to go away. She knew what she was facing, and she knew that she was going to plead guilty. What does that say about responsibility in a mature woman that she decides, ‘I’ll tell you what, I’ll get pregnant again?”
In allowing the appeal and suspending the prison sentence imposed by this judge, Lord Justice May said:
“…whether a pregnancy is planned or not can be of no concern to a sentencing judge whose focus must be on the risks to mother and baby of pregnancy and birth in custody.”
In R v Charlton [2021] EWCA Crim 2006, Lord Justice Holroyde, in the Court of Appeal, explained how the lower courts should approach pregnancy as a factor in sentencing:
“First…. imprisonment would be a far heavier punishment for this applicant than for most other prisoners; secondly, the pregnancy and births can be expected to increase her motivation to remain drug free; and thirdly, it is necessary to have regard to the rights of the children who, as things stand, will be born in prison.”
Doughty Street Chambers have developed an excellent legal toolkit, from which these few cases are summarised. It is a vital weapon to make sure that lower level judges are informed of progressive judgments from the Court of Appeal, when sentencing pregnant women and mothers.[11]
There is a limitation on the Appeal Courts’ improved stance though. It was set out in R v Stubbs [2022] Crim 1907, where Mr Justice Pepperall noted that pregnancy might improve the prospects of rehabilitation, but added:
‘Pregnant offenders cannot automatically expect to avoid imprisonment.’
One can only reflect that, if our justice system were different, two little girls, Aisha and Brooke, who could not survive being born to mothers in prison, would be starting school, this year.
There are eleven countries that do not lock up pregnant women, or very rarely do so. It is time that we became the twelfth.
References
[1] Diane Taylor, The Guardian 2nd August 2023
[2] https://www.bbc.co.uk/news/uk-england-manchester-59938239.amp
[3] Royal College of Obstetricians & Gynaecologists Position Statement: Maternity care for women in prison in England and Wales
[4] Nuffield Trust: Pregnancy and childbirth in prison: what do we know?
[5] NHS England (2022): National service specification for the care of women who are pregnant or post-natal in detained settings
[6] Royal College of Midwives: Perinatal women in the criminal justice system
[7] Royal College of Obstetricians & Gynaecologists Position Statement: Maternity care for women in prison in England and Wales
[8] Birth Companions: ‘1001 days in the CJS – a better approach to pregnancy and early motherhood in criminal justice’
[9] Parent Infant Foundation: Evidence Briefs
[10] Sentencing Council, Sentencing pregnant women and new mothers (2024); See also, Sentencing Council, Miscellaneous amendments to sentencing guidelines 2023-2024 (2024)
[11] Doughty Street Chambers: Representing pregnant women and mothers in the criminal justice system: a legal toolkit