Accelerate Action: Pregnancy in Prison

On International Women’s Day, we must draw attention to the profound challenges faced by pregnant women and young mothers who are particularly vulnerable to the deep shortcomings of our justice and prison system. The practice of shackling women during childbirth, confined to a bed and surrounded by uniformed, often male prison officers, should never occur. Vanishingly few mothers of dependent children present such a danger to the public that justice can only be served by separating them from their young families and incarcerating them far away. Every single study on this issue comes to the same conclusion; the long-term damage and trauma this causes must stop.

There are finally signs that things might be about to change. The Women’s Justice Board was launched in January 2025 by the Lord Chancellor with these words ‘The simple truth is that we are sending too many women to prison. Many are victims themselves, and over half are mothers, leaving a child behind when they go inside…We need to do things differently’. And just this week, perfectly timed for International Women’s Day, the Sentencing Council published new guidelines which included a strong direction not to impose custodial sentences on pregnant women or during ‘the postnatal period (up to 12 months after birth)…unless the imposition of a custodial sentence is unavoidable’. The guidance emphasises the very obvious truth that ‘prison is a high-risk environment for pregnant offenders’, and the harm it is ‘likely’ to cause to the mental and physical health of both mother and child, ‘including by separation, especially in the first two  years of life’. – Chris Henley KC

In the article below, Alexandra Scott, Anna Renou and Anna Wright set out in much more detail recent developments and provide a useful toolkit for practitioners to deploy to ensure that in our daily practice justice is properly served for pregnant women and mothers. 

Context

In recent years the importance of reforming the sentencing of pregnant defendants has finally started to gain momentum, with the issue attracting significant attention from legal practitioners, academics, campaigners and the press.

In the four years since Chris Henley KC addressed the shortcomings of the prison estate for pregnant women, there has been wider recognition of the issues even as they persist. The statistics remain concerning. Campaigners highlight that “Pregnant women in prison are seven times more likely to suffer a stillbirth, twice as likely to give birth to a premature child that needs special intensive care and ultimately the long-lasting trauma on a mother and a child is devastating“.

These figures have been punctuated by the tragic deaths of babies born in custody.  In September 2019 Aisha Cleary was born to 18-year-old Rianna Cleary in her prison cell in HMP Bronzefield. She had no medical assistance, in spite of having called twice for help: the officer who answered the first call failed to act on her request for a nurse, and the second call for help went entirely unanswered. The coroner was unable to ascertain whether Aisha was alive at birth. The coroner found “clear evidence, not least, of systemic failings which more than minimally contributed to Aisha being delivered in a prison cell without medical assistance and, following delivery, losing the chance of resuscitation and survival.”

In the years since, a number of women have reported further incidents at HMP Bronzefield between 2021 and 2023. The Times reported as recently as 21^st February 2025 that pregnant inmates were handcuffed to male officers for antenatal appointments, intimate examinations and even during labour. The experiences were described by the women – with some understatement – as humiliating and degrading. 

Coverage by the BBC of a visit to the mother and baby unit at HMP Styal by the Princess of Wales in February 2025 was notable not just for making clear how reliant the prison estate is on the charity sector – the charity Action for Children runs mother and baby units in three prisons in the north of England – but also for reporting the true position as articulated by the inmates shouting “We need more funding. Tell them the truth.”

Campaigns

Campaign groups including Level Up are calling for the imprisonment of pregnant women to cease, pointing to eleven countries which either do not permit the imprisonment of pregnant women at all, or significantly restrict the use of custody, instead relying on a range of alternatives, including deferring terms of imprisonment (Russia), replacing custody with probation supervision (Chile), and using house arrest in lieu of remand (Brazil and Costa Rica). The co-director of Level Up commented that “the government must end the imprisonment of pregnant woman … several other countries have laws against imprisoning pregnant women and mothers and England must urgently catch up”.

Guidelines

Following a consultation, from April 2024, ‘Pregnancy, childbirth and post-natal care’ has become a dedicated mitigating factor, the Sentencing Council acknowledging that “Women in custody are likely to have complex health needs, which may increase the risks associated with pregnancy for both mother and child. The NHS classifies all pregnancies in prison as high risk”. 

The Sentencing Council also gives greater weight to this factor in its revised guidelines on the Imposition of community and custodial sentences, which comes into effect on 1^st April 2025. Pregnancy or post-natal care is listed as one of the factors for which a pre-sentence report will “normally be considered necessary”. 

This reinforces the guidance from Thompson [2024] EWCA Crim 1038: “where a woman who is pregnant or who has recently given birth is to be sentenced, it is desirable for the court to obtain a pre-sentence report so that the sentencing judge is fully informed about the likely impact of the sentencing decision on the child and on the family” (§22).

The guidelines go on to acknowledge in terms the lack of reliance that can be placed on the prison system as well as the impact on the women and children affected:

When sentencing a pregnant or postnatal woman, relevant considerations may include:

• the medical needs of the offender including her mental health needs
• any effect of the sentence on the physical and mental health of the offender
• any effect of the sentence on the child

The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.

Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.

Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.

There may be difficulties accessing medical assistance or specialist maternity services in custody.

Case law

The body of caselaw on this topic – and the sentencing of mothers of young children – has grown steadily through 2024 building on the earlier authorities of R v Petherick [2012] EWCA Crim 2214, R v Cheeseman [2020] EWCA Crim 794, R v Charlton [2021] EWCA Crim 2006 and R v Stubbs [2022] Crim 1907.

R v Tamang [2024] EWCA Crim 62, R v Bassaragh [2024] EWCA Crim 20, R v Byron [2024] EWCA Crim 818, and R v Thompson [2024] EWCA Crim 1038 set the tone for progress in this area, while the cases of R v Williamson [2024] EWCA Crim 91 and R v Douglas [2024] ECWA Crim 1623 seem to take different stances on the weight this factor carries in cases of bringing items into prison, the latter appearing to make clear that the Court of Appeal is not (yet) persuaded by the modern approach that pregnant women should never receive terms of immediate imprisonment.

R v Charlton [2021] EWCA Crim 2006

The appellant was sentenced to 3 years’ imprisonment for a dwelling burglary, the Recorder finding that notwithstanding the efforts made to address her drug addiction evidenced in her pre-sentence report, there were no circumstances that would render it unjust for him to impose the minimum term required under section 314 of the Sentencing Code. Upon arrival in custody, the appellant learned that she was pregnant with twins.

Holroyde LJ explained the relevance of the appellant’s pregnancy in three respects: “First, because imprisonment would now be a far heavier punishment for this applicant than for most other prisoners; secondly, because the pregnancy and births can be expected to increase her motivation to remain drug free; and thirdly, because it is necessary to have regard to the rights of the children who, as things stand, will be born in prison.” (§14). 

A sentence of 2 years’ imprisonment suspended for 2 years was imposed.

R v Stubbs [2022] Crim 1907

The appellant, aged 22, was sentenced to a term of 9 months’ immediate imprisonment for her part in conspiracies to import and supply cannabis. There had been a pre-sentence report available at sentence, which assessed her as a young and vulnerable woman whose abusive relationship led to her offending, with immaturity and poor decision-making being additional contributory factors. An addendum report noted a decline in her mental health, including incidents of self-harming by cutting. Psychological and psychiatric evidence supported a diagnosis of post-traumatic stress disorder, as well as agoraphobia, anxiety and depression. Ahead of the sentencing hearing, the appellant’s pregnancy was confirmed. The Judge took an indicative starting point of 21 months’ imprisonment, which he reduced to 9 months in light of all the mitigation and her pregnancy in particular, with a view to ensuring that the child was born after her release from custody.

A prison report was available ahead of the appeal, which focused on whether the indicative term of 21 months should have been suspended to reflect the additional mitigation, rather than reduced in duration.

While the appeal was ultimately refused, Pepperall J did concede that “Pregnancy will not only provide strong personal mitigation but might also tend to improve the prospect of rehabilitation. Furthermore, immediate imprisonment may often result in a significant harmful impact upon the unborn child. Pregnant offenders cannot, however, automatically expect to avoid imprisonment. In particular, some pregnant offenders will present a risk or danger to the public and others will have committed offences so serious that there is no alternative to immediate custody. Such offenders aside, in our judgment proper application of the imposition guideline will often justify the suspension of a short sentence in the case of a pregnant offender.” (§29).

R v Bassaragh [2024] EWCA Crim 20

The appellant, aged 22, pleaded guilty to possession of a prohibited firearm. The mandatory minimum sentence of five years’ imprisonment was imposed. At the time of the sentencing hearing, the appellant was not aware that she was pregnant. This was discovered following routine testing on admission to prison. The Court granted the appeal on the basis that the fresh evidence of pregnancy when considered alongside strong personal mitigation amounted to exceptional circumstances.

The Court made clear that the principles by which a sentencing court is to decide whether there are exceptional circumstances are now set out in the Guideline.

The Court noted that: “As background, all prison pregnancies are categorised as, in general terms, “high risk” pregnancies, by the NHS, the Prison Ombudsman, and the Ministry of Justice, and there is general recognition that the impact of custody on pregnant offenders can be harmful for both the offender and the child. Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. There may also be difficulties accessing medical assistance or specialist maternity services in custody.” (§26).

This was illustrated by the increasing rates of stillbirths in prison in recent years, the rates of premature birth, low birth weight, and perinatal mental health difficulties. Additionally, the Court highlighted the statistics that one in ten pregnant prisoners give birth in-cell or en route to the hospital. 

The Court emphasised the need for the individual circumstances of the appellant to be evaluated when judging the question of exceptional circumstances. In this regard, the following was noted:

1. The appellant was being advised not to carry beyond 37 weeks. By then, the appellant would have served the equivalent of a 15-month sentence;
2. Uncertainty about extending the appellant’s stay on the mother and baby unit beyond the standard 18-month term after the child’s birth. It was recognised this could exacerbate her anxiety during the early months of the birth and that separation after 18 months would be significant;
3. How the appellant’s ethnicity, as a black woman, increased the risks of adverse pregnancy outcomes;
4. The appellant’s previous history of pregnancy loss and other trauma, increasing her vulnerability to mental health deterioration in the stress of a prison setting;
5. Her family history of premature labour and repeated matters of antepartum bleeding during the pregnancy, and subsequently, the danger to safe delivery and neonatal development;
6. A recently diagnosed condition of pre-eclampsia, diagnosed in the days leading up to the hearing;
7. Additional strong personal mitigation including good character, a low risk of re-offending, regular employment, the fact she was still a young adult, and a strong prospect of rehabilitation increased by her upcoming motherhood.

The Court considered the authorities of Charlton and Stubbs and observed that Charlton is not authority for the proposition that being pregnant will always be an exceptional circumstance, instead endorsing the traditional approach in Stubbs that pregnancy does not result in an automatic expectation that prison will be avoided.

The Court concluded that the appellant’s pregnancy when combined with the other personal mitigation resulted in exceptional circumstances rendering it unjust to impose the minimum custodial sentence of five years. The Court considered that it was in the “interests of justice to take the very exceptional course” of suspending the appellant’s sentence.

While the judgment made no specific reference to expert evidence being necessary to demonstrate such factors, it was of vital assistance in Bassaragh. Obtaining such evidence can shed an overall light on the complex health needs of pregnant women and the exacerbation of those risks where there is seldom a guarantee of adequate support in custody.

R v Tamang [2024] EWCA Crim 62

The appellant was sentenced to two years’ imprisonment for four counts of theft relating to a number of weddings rings and other highly sentimental items of jewellery stolen from residents of the care home for elderly residents where the appellant worked. 

The appellant had a fourteen-month-old child, which proved to be decisive on appeal, notwithstanding the very serious breach of trust in the case. Coulson LJ found that “there is one powerful factor which does make it just and proportionate to suspend this sentence. That is the impact of an immediate custodial term on the appellant’s young child. That is a factor which the table in the guideline expressly required the judge to have in mind, and he failed to do so. In our view, making proper allowance for that fact, the sentence should have been suspended. A child of just over a year old should not suffer the incalculable harm of its mother being in prison at such a formative stage of its young life.” (§23).

R v Williamson [2024] EWCA Crim 91

The appellant was sentenced to 12 months’ imprisonment for her limited role in a much wider conspiracy to bring prohibited items into HMP Lindholme. Her role was confined to allowing her bank account to be used at the direction of her brother – a serving inmate – without any profit or reward. She pleaded guilty to being concerned in the supply of cannabis and a money laundering count.

The pre-sentence report noted that a term of immediate custody would entail the loss of her accommodation and have a detrimental impact upon her dependent children: four of her five children were still minors and she also had regular care of a grandchild. 

At first instance, HHJ Watson articulated the view that a deterrent sentence of immediate imprisonment was necessary for people who engage in “that activity”, but the Court of Appeal disagreed: “for the reasons given in the pre-sentence report, paramount among them the interests of the appellant’s dependent children, and because supervision for two years is likely to be the best means of ensuring that the appellant does not offend again, in our judgment everything pointed in favour of suspending the sentence and it would not signal any inappropriate lessening of the seriousness with which the courts take the supply of illicit items into prisons for this appellant’s very limited offending and other personal circumstances to be met with a suspended sentence order rather than immediate custody.” (§18).

R v Byrne [2024] EWCA Crim 801

The appellant was sentenced to 44 months’ imprisonment for a conspiracy to commit fraud by false representation and causing unnecessary suffering to a protected animal. 

On the date of sentence her son was nine months old. He was twelve months old when he was reunited with her and was 23 months old at the date of appeal. The appellant’s conditional release date was some six months after their eligibility for the parental unit was due to expire, with the result that if the appellant was not released on home detention curfew the child would be placed into foster care.

Dingemans LJ in the Court of Appeal found that “it is appropriate to reduce the sentence imposed on the appellant, not because the original sentence was not justified, but because the interests of the child and the fact that the child will end up in foster care outweigh the factors that justified the length of the sentence that was originally imposed.” (§35). 

R v Byron [2024] EWCA Crim 818

The appellant was sentenced to 27 months’ imprisonment following a late guilty plea to conspiracy to commit fraud by false representation.

During exchanges with counsel in the course of the sentencing hearing, the Judge made comments including “She announced her pregnancy of I think 12 weeks on the day that she came to enter her pleas. … She knew, she knew that this matter was not going to go away. She knew that 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’?”

The appeal was allowed, reducing the term of custody to 21 months’, suspended for 24 months. May J made clear that “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” (§18).

R v Thompson [2024] EWCA Crim 1038

The appellant was six months pregnant at the date of her arrest for her part in drugs supply. At the PTPH one month later, she entered guilty pleas to five counts: being concerned in the supply of cocaine and heroin, simple possession of cocaine and heroin, and possession with intent to supply crack cocaine. She gave birth a month before she was sentenced.

The court refused two applications for a pre-sentence report.  She was sentenced to 38 months’ imprisonment.

In allowing the appeal, Warby LJ summarised the guidance in Petherick: “First, the key question is whether the sentence imposed is proportionate to the legitimate aims pursued ([18]). Secondly, in answering that question “the plight of children, particularly very young children and the impact on them … is a major feature for consideration …”, both at common law and under the Convention (see [19]). Thirdly, the sentencing court ought to be informed about these matters, including the effect its sentence may have on the family life of others ([20]). Fourthly, where the case stands on the cusp of custody, the balance is likely to be a fine one ([22]). Fifthly, where custody cannot proportionately be avoided, the effect on family members may afford grounds for mitigating the length of the sentence ([24]).” (§21).

Warby LJ went on to comment that notwithstanding the fact that a term of immediate custody was inevitable “even in such a case where a woman who is pregnant or who has recently given birth is to be sentenced, it is desirable for the court to obtain a pre-sentence report so that the sentencing judge is fully informed about the likely impact of the sentencing decision on the child and on the family, including the arrangements that will or may be made for the care of the child.” (§22).

R v Douglas [2024] EWCA Crim 1632

The appellant, a pregnant mother of two, pleaded guilty to two counts of conveying cocaine and ketamine into prison. She was sentenced to 12 months immediate custody. The Court granted leave to appeal against sentence on the single ground that the sentence should have been suspended.

The appellant was caught on CCTV passing drugs to her partner during a prison visit in January 2023. At the time of sentence, she was pregnant and had caring responsibilities for two children aged nine and fifteen. The appellant was due for release on 5 April, before her expected due date in late May.

Constable J observed that sentencing of this kind inevitably engages the defendant’s Article 8 rights and also those of her family and dependent children. When imposing an immediate custodial sentence, the Court must conduct a balancing exercise between this and the legitimate aim of a custodial sentence. The question for the Court becomes, is the interference proportionate? As Lady Hale observed in HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25:

“…it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one.”

The Court considered the recent authority of R v Bassaragh [2024] EWCA Crim 20, where it found exceptional circumstances to deviate from the minimum sentence otherwise required by law for a pregnant offender.

As noted in Bassaragh all prison pregnancies are categorised as high risk by the NHS, the Prison Ombudsman and by the Ministry of Justice, and there is a general recognition that the impact of custody can be harmful for both mother and child.

Despite concerns about the impact on her two children and her pregnancy, the Court upheld the original sentence. Constable J acknowledged the case was “finely balanced” but concluded that the seriousness of bringing drugs into prison warranted the custodial sentence. The Court noted that the appellant’s children are currently being cared for by their father and extended family members, and that she is due to be released before her due date.

In their ruling, the Court expressed in obiter a view that being too lenient with pregnant women or mothers in such cases could perversely encourage criminal gangs to target them for drug smuggling operations. This has been criticised as regressive by campaigners and practitioners (such as Maya Sikand KC writing for Criminal Law Week (2025/06/7)) and appears to be out of step with the ambition of Minister for Prisons, Lord Timpson, to change how the courts sentence women and mothers. In a recent interview with The Guardian Lord Timpson said  “But there are far too many women [in prison], in my view, who are very ill. There are far too many women who are victims themselves. There are far too many women who are very, very vulnerable. Half are mothers, and the impact on their kids is massive … We need to do things differently”.

Reform and Resources

The attitude of Lord Timpson is reassuring, and dovetails to an extent with the call of campaigners like Janey Starling of Level Up and Pia Sinha, who heads the Prison Reform Trust, to significantly restrict the imprisonment of pregnant women.  Speaking to Channel 4 News on 19^th February, Janey Starling was explicit that “Prison will never be a safe place to be pregnant”. Pia Sinha observed that “when we have a situation where there are viable community alternatives, I see no reason why women, pregnant women, should be coming into custody. The majority of women are in there for non-violent offences and their needs can be perfectly well managed in the community.”

Until there is reform, Level Up and Doughty Street Chambers have produced a comprehensive guide for those Representing pregnant women and mothers in the criminal justice system: A legal toolkit. This is an invaluable resource, covering bail applications through to appeals against sentence, with a checklist for lawyers to ensure that all the relevant information and evidence is placed before the court. It identifies the six prisons across England and Wales that have Mother and Baby Units, and provides links to guides for expectant mothers.