*/
Since two high-profile and tragic baby deaths in two different women’s prisons in 2019 and 2020, the serious risks faced by incarcerated pregnant women have been brought into sharp focus.
In September 2019, 18-year-old Rianna Cleary, remanded into custody post guilty plea but before sentence, was left to give birth alone at night in her locked cell at HMP Bronzefield after her calls for help via her cell bell were twice ignored. Rianna felt she had no choice but to bite through the umbilical cord. Baby Aisha died.
Following an inquest into Aisha’s death, the Surrey Senior Coroner found that, despite Rianna pressing her cell bell and asking for a nurse, the prison officer who answered did nothing, which ‘showed on his part a complete disregard for his responsibilities to a prisoner who was locked in a cell for the night with no other means of seeking medical assistance’. The second time she pressed her cell bell, it was unanswered.
Some months later, in July 2020, Louise Powell was sent to prison for 35 weeks. She did not know she was pregnant and went into labour prematurely. An officer rang the duty nurse three times out of concern for her physical health, but the nurse did not go and see her and failed to fully assess her clinical situation. Louise gave birth in a toilet. There was a communications failure at HMP Styal during the emergency response that led to a delay in calling an ambulance and in providing the ambulance service with sufficient information to properly triage the emergency. Her baby, Brooke Leigh Powell, was stillborn.
The Prison and Probation Ombudsman (PPO) and NHS England have since categorised all pregnancies in prison as ‘high risk’ due to the fact that a woman is held behind locked doors for significant periods of time. In other words: the very design of prison makes it a high-risk environment for a pregnant woman.
While it is the role of courts to pass an appropriate sentence, in accordance with sentencing guidelines, and the role of the prison service to safeguard women in custody, this finding by the PPO effectively means that sentencing a pregnant woman to custody – for any length of time – means sentencing her to a high-risk pregnancy.
In addition to the problems of access to emergency care, research shows that pregnant women in prison are: seven times more likely to suffer a stillbirth than women in the community; twice as likely to give birth prematurely; three times more likely to suffer gestational diabetes, and five times more likely to miss midwifery appointments due to staffing shortages inside prisons.
The rates of adverse pregnancy outcomes are even higher for Black women, including rates of maternal death, premature birth, pre-eclampsia, postpartum haemorrhaging and blood clots, stillbirth and serious post-natal complications. Black women are also at heightened risk of premature (and also precipitous) labour, i.e. prior to any transfer to hospital.
Since the PPO’s findings in baby Aisha’s case, Level Up has publicly campaigned for an end to the imprisonment of pregnant women. The campaign was co-founded with women who have experienced pregnancy in prison and is closely supported by protest group ‘No Births Behind Bars’ and a constellation of lawyers, academics and organisations including the Royal College of Midwives, who have declared that ‘prison is no place for pregnant women’. The campaign has played a vital role in bringing about change in sentencing practice, in particular the introduction of a new mitigating factor.
On 1 April 2024, the Sentencing Council introduced a new mitigating factor for pregnancy, childbirth and the postnatal period (the 12 months after birth) which requires sentencers to consider the effect of a sentence on the physical and mental health of both the mother and child. It also requires sentencers to obtain a pre-sentence report and, if one is not available, adjourn sentencing.
The Sentencing Council also acknowledges that harms of custody do not end once a child has been born. Psychological research on infant development shows that the first 1,001 days of a child’s life set the foundations for their lifelong emotional and physical development. If a woman can get a place in a prison mother and baby unit (MBU), the upper age limit for babies is 18 months, with some limited possibility of extension to two years. In practice, this means that many women are separated, either temporarily or permanently, from their babies.
In its draft Imposition guideline, expected to come into force in April 2025, the Sentencing Council recognises that:
‘When mothers are sentenced to custody, only a very small percentage of children remain in their own home. Those dependent children are adversely impacted by having to adjust to new homes, new carers, and new educational establishments and are often separated from siblings. There is an emotional impact for those children resulting in shame, stigma, anger, grief and behavioural changes.’
Given that 76% of women in prison are there for less than two years, the developmental harm done to their children if separated from them long outlasts the length of the time women will spend incarcerated.
These changes in sentencing policy are underscored by a rapidly growing body of appellate case law (see box on p 42). In 2024, the Court of Appeal heard six sentence appeals from pregnant women and mothers of dependent children. All were successful, resulting in reduced or suspended sentences that prioritised the welfare of mothers and children given the risks and harms of custody and separation.
The frequency of such appeals suggests that sentencers in the lower courts do not understand the substantive risks and harms that custody and separation create for pregnant women, mothers and their children.
This is where the value of our new legal toolkit comes into play. It is designed to equip lawyers with the core legal arguments, tools and resources to effectively represent pregnant women and mothers of infants. The toolkit covers all aspects of the criminal justice process including bail, sentencing and appeals against sentence. It also provides practitioners with the key prison law issues facing incarcerated mothers and pregnant women, including information on MBUs.
Level Up’s campaign, and subsequent public conversations about pregnancy in prison, combined with the rising prison population, have re-opened the question of maternal imprisonment more broadly. The government has again promised to reduce women’s imprisonment, is undertaking an Independent Sentencing Review and has encouraged courts to have more confidence in community sentencing. Lord Timpson, the Minister for Prisons, Probation and Reducing Reoffending, has joined the chorus of voices advocating for community-based alternatives to imprisonment for women.
The plight of pregnant women in prison has also captured the public imagination, so much so that both Eastenders and Coronation Street have featured plotlines that include incarcerated, pregnant characters. Public opinion is also sympathetic: polling commissioned by Level Up in 2024 found that the majority of the public would prefer to see pregnant women and mothers of infants kept out of prison if a non-custodial alternative is available.
Until the government takes legislative action on maternal imprisonment, fully informed advocates, appearing in both the Crown Court and the Magistrates’ Court, are the best defence for pregnant women and primary carers of dependent children.
Maya Sikand KC is a public law barrister at Doughty Street Chambers. She also sits as a Recorder in the criminal courts. She represented baby Aisha’s mother, Rianna Cleary, at her inquest in July 2023.
Janey Starling is an award-winning activist and co-director of gender justice campaign group Level Up. She spearheads the national campaign to end imprisonment of pregnant women.
Since two high-profile and tragic baby deaths in two different women’s prisons in 2019 and 2020, the serious risks faced by incarcerated pregnant women have been brought into sharp focus.
In September 2019, 18-year-old Rianna Cleary, remanded into custody post guilty plea but before sentence, was left to give birth alone at night in her locked cell at HMP Bronzefield after her calls for help via her cell bell were twice ignored. Rianna felt she had no choice but to bite through the umbilical cord. Baby Aisha died.
Following an inquest into Aisha’s death, the Surrey Senior Coroner found that, despite Rianna pressing her cell bell and asking for a nurse, the prison officer who answered did nothing, which ‘showed on his part a complete disregard for his responsibilities to a prisoner who was locked in a cell for the night with no other means of seeking medical assistance’. The second time she pressed her cell bell, it was unanswered.
Some months later, in July 2020, Louise Powell was sent to prison for 35 weeks. She did not know she was pregnant and went into labour prematurely. An officer rang the duty nurse three times out of concern for her physical health, but the nurse did not go and see her and failed to fully assess her clinical situation. Louise gave birth in a toilet. There was a communications failure at HMP Styal during the emergency response that led to a delay in calling an ambulance and in providing the ambulance service with sufficient information to properly triage the emergency. Her baby, Brooke Leigh Powell, was stillborn.
The Prison and Probation Ombudsman (PPO) and NHS England have since categorised all pregnancies in prison as ‘high risk’ due to the fact that a woman is held behind locked doors for significant periods of time. In other words: the very design of prison makes it a high-risk environment for a pregnant woman.
While it is the role of courts to pass an appropriate sentence, in accordance with sentencing guidelines, and the role of the prison service to safeguard women in custody, this finding by the PPO effectively means that sentencing a pregnant woman to custody – for any length of time – means sentencing her to a high-risk pregnancy.
In addition to the problems of access to emergency care, research shows that pregnant women in prison are: seven times more likely to suffer a stillbirth than women in the community; twice as likely to give birth prematurely; three times more likely to suffer gestational diabetes, and five times more likely to miss midwifery appointments due to staffing shortages inside prisons.
The rates of adverse pregnancy outcomes are even higher for Black women, including rates of maternal death, premature birth, pre-eclampsia, postpartum haemorrhaging and blood clots, stillbirth and serious post-natal complications. Black women are also at heightened risk of premature (and also precipitous) labour, i.e. prior to any transfer to hospital.
Since the PPO’s findings in baby Aisha’s case, Level Up has publicly campaigned for an end to the imprisonment of pregnant women. The campaign was co-founded with women who have experienced pregnancy in prison and is closely supported by protest group ‘No Births Behind Bars’ and a constellation of lawyers, academics and organisations including the Royal College of Midwives, who have declared that ‘prison is no place for pregnant women’. The campaign has played a vital role in bringing about change in sentencing practice, in particular the introduction of a new mitigating factor.
On 1 April 2024, the Sentencing Council introduced a new mitigating factor for pregnancy, childbirth and the postnatal period (the 12 months after birth) which requires sentencers to consider the effect of a sentence on the physical and mental health of both the mother and child. It also requires sentencers to obtain a pre-sentence report and, if one is not available, adjourn sentencing.
The Sentencing Council also acknowledges that harms of custody do not end once a child has been born. Psychological research on infant development shows that the first 1,001 days of a child’s life set the foundations for their lifelong emotional and physical development. If a woman can get a place in a prison mother and baby unit (MBU), the upper age limit for babies is 18 months, with some limited possibility of extension to two years. In practice, this means that many women are separated, either temporarily or permanently, from their babies.
In its draft Imposition guideline, expected to come into force in April 2025, the Sentencing Council recognises that:
‘When mothers are sentenced to custody, only a very small percentage of children remain in their own home. Those dependent children are adversely impacted by having to adjust to new homes, new carers, and new educational establishments and are often separated from siblings. There is an emotional impact for those children resulting in shame, stigma, anger, grief and behavioural changes.’
Given that 76% of women in prison are there for less than two years, the developmental harm done to their children if separated from them long outlasts the length of the time women will spend incarcerated.
These changes in sentencing policy are underscored by a rapidly growing body of appellate case law (see box on p 42). In 2024, the Court of Appeal heard six sentence appeals from pregnant women and mothers of dependent children. All were successful, resulting in reduced or suspended sentences that prioritised the welfare of mothers and children given the risks and harms of custody and separation.
The frequency of such appeals suggests that sentencers in the lower courts do not understand the substantive risks and harms that custody and separation create for pregnant women, mothers and their children.
This is where the value of our new legal toolkit comes into play. It is designed to equip lawyers with the core legal arguments, tools and resources to effectively represent pregnant women and mothers of infants. The toolkit covers all aspects of the criminal justice process including bail, sentencing and appeals against sentence. It also provides practitioners with the key prison law issues facing incarcerated mothers and pregnant women, including information on MBUs.
Level Up’s campaign, and subsequent public conversations about pregnancy in prison, combined with the rising prison population, have re-opened the question of maternal imprisonment more broadly. The government has again promised to reduce women’s imprisonment, is undertaking an Independent Sentencing Review and has encouraged courts to have more confidence in community sentencing. Lord Timpson, the Minister for Prisons, Probation and Reducing Reoffending, has joined the chorus of voices advocating for community-based alternatives to imprisonment for women.
The plight of pregnant women in prison has also captured the public imagination, so much so that both Eastenders and Coronation Street have featured plotlines that include incarcerated, pregnant characters. Public opinion is also sympathetic: polling commissioned by Level Up in 2024 found that the majority of the public would prefer to see pregnant women and mothers of infants kept out of prison if a non-custodial alternative is available.
Until the government takes legislative action on maternal imprisonment, fully informed advocates, appearing in both the Crown Court and the Magistrates’ Court, are the best defence for pregnant women and primary carers of dependent children.
Efforts continue on gender equality, support for the Bar, meaningful reform for the sector and advocating for the rule of law
To mark International Women’s Day, Louise Crush of Westgate Wealth Management looks at how financial planning can help bridge the gap
Casey Randall of AlphaBiolabs answers some of the most common questions regarding relationship DNA testing for court
Leading drug, alcohol and DNA testing laboratory AlphaBiolabs has made a £500 donation to Beatson Cancer Charity in Glasgow as part of its Giving Back campaign
Girls Human Rights Festival 2025: a global gathering for change
Exclusive Q&A with Henry Dannell
Patrick Green KC talks about the landmark Post Office Group litigation and his driving principles for life and practice. Interview by Anthony Inglese CB
Sir Nicholas Mostyn, former High Court judge, on starting a hit podcast with fellow ‘Parkies’ after the shock of his diagnosis
‘Hard work and commitment can open doors. I believe that I am proof of that,’ says Senior Treasury Counsel Louise Oakley. She tells Anthony Inglese CB about her journey from Wolverhampton to the Old Bailey
What's it like being a legal trainee at the Crown Prosecution Service? Amy describes what drew her to the role, the skills required and a typical day in the life
Barbara Mills KC wants to raise the profile of the family Bar. She also wants to improve wellbeing and enhance equality, diversity and inclusion in the profession. She talks to Joshua Rozenberg KC (hon) about her plans for the year ahead
