Lila* mum to a 15 year old, was 17 weeks pregnant when she was sentenced. This pregnancy, following a miscarriage, was unexpected, and she was delighted.
The sentencing judge didn’t take that view. Without knowing anything of Lila’s life she said that she believed the pregnancy had been planned to get an easier sentence. An extraordinary example of the sentencing court not seeing people’s lives as existing and extending well beyond their interactions with the criminal legal system. The judge passed a sentence of imprisonment.
Lila brought her pregnancy vitamins with her to prison. Staff took them away and they weren’t replaced. When she asked for folic acid, which is medically advised for every woman trying to get pregnant or during a pregnancy, she was told that she couldn’t have it, and it was suggested that she was asking for it to improve the condition of her hair and nails.
One night, in pain she called the nurse to her cell at 1am. She still doesn’t know why, but following that call out she was left in her cell in isolation for four days. Only it wasn’t isolation, it was forgotten-ness. No one brought her food or water. No one checked on her. She ate the food she had in her cell. She didn’t get out for a shower or fresh air.
On many days she was locked up for 17 hours. If she wanted a drink of water her only source was the sink in her cell which stank of sewerage. Understandably she was frightened of becoming ill if she drank that water. Consequently for much of her pregnancy she was dehydrated. On occasions, her time out of her cell was so limited that she had to choose between getting fresh air, a shower, or a meal.
Lila developed gestational diabetes. The hospital sent frequent emails to the prison asking them to provide her with nutritious food to help control the diabetes. The prison didn’t reply and nothing changed for Lila. Throughout the pregnancy she had high blood pressure. When the prison brought her late to hospital appointments she wasn’t seen by the midwifes as they ran to a strict schedule.
Lila had back problems and sciatica – common in pregnancy. She was sent to a weekly physio class and although the physio gave her exercises and positions to try to relieve the pain, Lila’s mattress was inadequate and she couldn’t get comfortable once in her cell. She couldn’t lie on the bed so ‘slept’ sitting up. The pregnancy mattresses were stored in a cupboard, and she asked for one. Her request was refused because the prison rule was that mattresses were unnecessary for women before they were 27 weeks pregnant. When Lila complained, she was told she might be moved to a different prison. She was frighted by that, as a move could mean she wouldn’t be able to see her daughter.
Lila’s sentence was appealed and one week before her son was born she was released from prison: her original sentence substituted with a suspended sentence. The principles of Bassaragh [2024] EWCA Crim20 were re-iterated and the judgement included reference to the inappropriateness of the sentencing judge’s treatment of Lila:
‘It is inappropriate to pass comment on how or why a female defendant has become pregnant. 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.’ Byron [2024] EWCA Crim 818
Lila broke down as she told her story at Doughty Street Chambers during the launch of the publication: Representing pregnant women and mothers in the criminal justice system: A Legal Toolkit.
‘It still affects everything . I have to be the best version of me for my son and my daughter but I’m struggling . He was born at 36 weeks. Got out one week before he was born. But due to the stress and my ill health baby came early and there’s so much I’m still dealing with from that.’
Over the past few years, and since the tragic deaths in English prisons of baby Aisha Cleary and baby Brooke Powell, there has been an increased focus on the sentencing of pregnant women. Janey Starling of the feminist campaigning organisation Level Up, created the ‘No Births Behind Bars’ campaign, which has raised the profile of the issue and has resulted in families of pregnant women contacting the organisation with concerns about their family member who is pregnant in prison. However despite the Royal College of Midwives and Royal College of Obstetricians and Gynaecologists stating that pregnancy in prison is not medically safe, and that being held in prison whilst pregnancy makes any pregnancy a high risk pregnancy, the courts have not yet altered their practice.
Doughty Street barristers, Pippa Woodrow, Maya Sikand KC and Hannah Smith have worked with Janey Starling at Level Up, to produce a tool kit for lawyers. It adds to the resource I produced for lawyers in 2018, updated in 2020, Safeguarding Children when Sentencing Mothers.
It is detailed and comprehensive and you should read it, so I won’t try to summarise it here, but I will share some of the key points from the launch presentations.
Bail applications
Kirsty Brimelow KC, Vice Chair Elect of the Bar Council, and former Chair of the Criminal Bar Association, advised lawyers not to be dissuaded from applying for bail for pregnant women even if previous bail applications have failed. A renewed application requires a change in circumstances and that is always the case when a defendant is pregnant as pregnancy is a changing situation. She advised that the tribunal should be given the Ombudsman’s report and the Coroner’s Report from the death of Aisha Cleary, along with the NHS report on pregnancy in detention, so that they can be in no doubt that prison is not a medically safe place for either a pregnant woman or the developing foetus.
Sentencing or Appeals against Sentence
Pippa Woodrow, who has undertaken a number of successful appeals including Bassaragh which established the principle that pregnancy could be exceptional circumstances allowing departure from mandatory minimum sentencing provisions, gave clear advice.
- Use the science and get fact specific – don’t assume that your tribunal know about the established risks to mother and baby of pregnancy in prison, or that every pregnancy in prison is a high risk pregnancy. Drive home the risks and the high stakes nature of the decision, including not just the short term risks but the longer term risks as well. See page 3 of the Toolkit. Expert reports can allow the mother’s voice to be heard. Use them well.
- Get granular on the circumstances – tell the tribunal about this mother and her circumstances, and the prospects for her baby if sentence will involve separation. Don’t just tell them that someone else will have to care for the baby. Tell them who and where, and why it is important for the baby to stay with their mother. Reference attachment theory. Reference all the research literature on mother/ child separation due to imprisonment. Understanding that the interests of children are a distinct consideration to which full weight should be given is not the same as understanding what that means. Explain what the impacts are for any children, and ensure that the tribunal understand how much more punitive a prison sentence is for a pregnant or post-natal mother than for any other person.
- Prison law and doing the maths – work out the days so that you know what the key time frame is. Don’t assume that the tribunal will do this, or will do it correctly.
The launch ended with a call for practitioners to collaborate to improve legal practice in this area.
A picture appeared on the screen of three beautiful babies born in the community rather than in prison, thanks to the efforts of lawyers, academic experts and activists.
A reminder that this isn’t about law, it’s about lives.
*name changed
Dr Shona Minson 