By Geraldine Brown and Rona Epstein

An estimated 600 pregnant women are held in prisons in England, and about 100 babies are born inside. Pregnant women are especially vulnerable and in need of extra care – so why are there pregnant women in our prisons?

One woman’s story: sent to prison, eight months pregnant

R v Assia B. [2016] EWCA Crim 1477

Assia B was charged with three offences and pleaded guilty to one: possession of an identity document with an improper intention contrary to the Identity Document Act 2010, Section 4. For this she was sentenced to ten months in prison. She came to the UK on a student visa, and while in the UK she was raped. When her visa expired she was terrified of returning to Algeria due to the stigma of having been raped. She obtained a false Portuguese passport which she used to obtain employment. She was arrested, charged and remanded in custody for one month, then released on bail subject to an electronically monitored curfew.

By the time of her trial in the Crown Court in September 2016, her circumstances had changed. She had married a naturalised British citizen and she was pregnant, due to give birth a month after the hearing date. The court was told of her health difficulties, including asthma and a pulmonary embolism. The recorder was asked to adjourn the hearing for a pre-sentence report but refused. Assia B had no previous convictions. The recorder said that she could have applied for asylum in the UK, and considered that the circumstances of the offence were too serious to allow anything other than immediate imprisonment. So Assia B went to prison. Two weeks later, her case came before the Court of Appeal.

The Court of Appeal saw medical reports indicating that Assia B’s health difficulties continued during her time in prison. A pre-appeal report revealed that the stress of imprisonment was having a negative effect on ‘this vulnerable young woman’ and recommended that there were exceptional circumstances that would justify a suspended sentence – this was an isolated offence and there was nothing in Assia B’s attitude, lifestyle or circumstances to indicate a risk of further offending. The court ruled that in view of the pregnancy and health difficulties, it was right to suspend the sentence of imprisonment, and quashed the sentence of immediate imprisonment, substituting a suspended sentence of six months’ imprisonment suspended for two years. 

Any court can ask for a pre-sentence report made by probation staff: this will explain the health and family circumstances of the accused. In this case, the recorder refused to get a pre-sentence report. The appeal court commented:

We also consider that the Recorder was somewhat precipitous in moving to sentence without the assistance of a pre-sentence report. She plainly thought that immediate custody was an inevitable part of the sentence and a pre-sentence report would therefore serve no purpose. In our view, though, that conclusion was not so obvious and a pre-sentence report would have been useful. Even if the Recorder, or a subsequent judge was to conclude notwithstanding the report that immediate custody was necessary, it would still have served some purpose to have that report accompanying the defendant when she was remanded.

The court had an opportunity to suspend the sentence or pass a lighter sentence, given that the defendant was pregnant, vulnerable, in ill health, and the victim of a violent crime. However, they chose to do neither.

On remand 

Very few women commit violent offences or present a serious risk to the public, so why are pregnant women remanded in custody?  Almost half of first receptions in the female prison estate are for unconvicted women.  So 15% of the women in prison are on remand. Many women remanded into custody don’t go on to receive a custodial sentence.  In 2018, 63% of women remanded into prison by the magistrates’ court and 38% remanded by the crown courts did not go on to receive an immediate custodial sentence (KEY FACTS - WOMEN IN PRISON). They were, however, in jail long enough to disrupt further lives often already marred by chaos and distress.  In the year ending September 2019, 44% of all prison receptions were remand receptions (LACKING CONVICTION - PRISON REFORM TRUST).

On licence

The Transforming Rehabilitation Act 2014 provided that all offenders who had served prison sentences of more that one day should be compelled to attend probation supervision for one year. If found by probation staff to have not failed to comply satisfactorily way they could be recalled to prison, even though they had served the prison term ordered by the court. Women on licence recall now make up 8% of women in custody.

The dominant factor for recall is failure to keep in touch with the supervising officer, rather than direct risk of re-offending. In a recent study made by the Prison Reform Trust, of 24 women who had been recalled, three of these were pregnant at time of recall and one stated that failure to attend one appointment had been due to a hospital visit for a pregnancy scan. This woman stated she was recalled and separated from her daughter the day after she gave birth (BROKEN TRUST - PRISON REFORM TRUST).

On sentence

Women predominantly serve short sentences, for minor offences. Our earlier study (with Lucy Baldwin, De Montfort University) found that even very short sentences of imprisonment can be hugely damaging to mothers and their children ‘Short but Not Sweet’. We wish to explore why these short sentences are imposed rather then the court suspending the sentence or ordering community punishments. Ministry of Justice research, comparing similar offenders and similar offences, shows that community sentences are now outperforming short prison sentences and are 8.3 % more effective in reducing re-offending rates. They are of course less disruptive of family life (EFFECTIVE COMMUNITY SENTENCES - PRISON REFORM TRUST).

Our new research study

We plan to explore the reasons that courts send pregnant women to prison. With the collaboration of Birth Companions, we have set up an online survey asking women who have been pregnant in prison about the court processes which led to their being in prison during a pregnancy and about their experiences while pregnant in prison.  Our research is funded by The Oakdale Trust.

Why now?

On 27 September 2019 a woman held in HMP Bronzefield on remand gave birth alone in her cell; the baby died. Following this incident a number of investigations were set up, among them: Internal investigation at HMP Bronzefield; Internal Sodexo review; Joint investigation between the Prison Service and HMP Bronzefield; NHS Clinical Review; Police Major Crimes Investigation; Police Safeguarding investigation; Surrey Social Services Rapid Response Review.  The prisons and probation ombudsman (PPO) is to carry out an overarching independent review into the circumstances of the baby’s death.

Not one of these inquiries has as part of its remit to ask the question: why was this woman on remand in prison?  Nor to enquire why the other pregnant women – about 50 at any one time  – are incarcerated. On remand, on sentence, on recall – should a pregnant woman be in prison?

Now there’s a new investigation following the stillbirth of a baby at HMP Styal on Thursday 18th June. The woman had complained for days of pain and was not apparently referred to a doctor or offered any medical care.

Recent research

Dr Laura Abbott carried out research into the experiences of pregnant women in Britain’s prisons. She found that women experienced frustration and stress which impacted upon their emotional wellbeing. Pregnant women reported being unable to access basic comfort and adequate nutrition and fresh air. The fear of potential separation from their baby was an underlying stress. Indeed, 50% of women separated soon after birth, however, the ‘not knowing’ was especially difficult as women found it difficult to bond or let go of their unborn.  She summarises her study as revealing: (a) ‘institutional thoughtlessness’, whereby prison life continues with little thought for those with unique physical needs, such as pregnant women; and (b) ‘institutional ignominy’.

Miranda Davies, a senior fellow at the independent health think tank the Nuffield Trust said: ‘We know from our research that even before the Covid-19 outbreak, pregnant women in prison faced significant risks. Our analysis showed that in 2017-18 roughly one in 10 pregnant women gave birth either in their prison cell or en route to hospital, raising questions about their ability to access the right care.’

The rights of the child

In 2012 I raised the issue of the rights of the child (European Convention on Human Rights, Article 8) when a parent is at risk of incarceration. Those rights should be protected, as made clear in a landmark Court of Appeal case, R (on the application of P and Q) v Secretary of State for the Home Department 2001. Every sentencing court should conduct a balancing exercise, weighing the child’s rights to parental care against the seriousness of the alleged or proven offence: my research covering 75 cases of maternal sentencing in England and Wales found that this was not taking place.

In 2017 Shona Minson (Oxford University) published her research, Who cares? Analysing the place of children in maternal sentencing decisions in England and Wales. She analysed the differentiated treatment by the courts of children faced with separation from their parents, comparing the approach of the family courts, where the best interests of the child are the paramount consideration of the court and they have legal representation, with proceedings in the criminal courts which may result in the imprisonment of a parent where children are neither represented nor acknowledged.

In January 2018 Shona Minson launched training materials which she had developed together with the Prison Reform Trust, which set out the rights of the child when a parent is at risk of imprisonment either on remand or on sentence and how these rights should be protected in the criminal courts.

However, illustrating how entrenched are practices and attitudes, several months after the introduction of these materials, HHJ Stephen John heard the case of R v Myers. Natasha Myers, mother of a 3 year old and a 14 year old, was accused of taking prohibited items into a prison on a visit to her partner. She was sentenced to 18 months in prison. The judge appeared to take no account of the rights or welfare of her dependent children.  He unilaterally revoked the mother’s bail part way through the hearing (a decision which the Court of Appeal called ‘questionable’), so instead of leaving court at the end of the day with her 14 year old who was present at court, the mother was removed from the court to the cells.  The child became distressed in court. The next day the judge made the child apologise to him for her behaviour and then warned her that any further emotional responses would result in her being taken to the cells.’ The Court of Appeal found in favour of Myers and her conviction was set aside although she had already spent almost 5 months in prison.

Conclusion

The recent horrifying reports of loss of babies in two women’s prisons, the harsh practices of the courts as seen in R v Myers and both older reports like the Corston Report and newer ones such as Why focus on reducing women's imprisonment? have made clear how punitive attitudes exacerbate the problems experienced by vulnerable women in our society.

The link between the issues of poverty, deprivation and social exclusion and coming to the attention of the criminal justice system is clear. What is also clear are the wider costs ensued by punishing the vulnerable and excluded rather than working towards equality and social justice.  We see our work as a means of generating evidence that opens the way to working for a different approach – one that seeks first to understand and then to repair the fissures in our society, and to expend energy and resources to that end rather than to punish those at the margins of society. Our research to explore why pregnant women are in prison should be seen in this context.

Our survey is accessible HERE

Please do take part if relevant to you, and pass on to others you feel would be interested.

Rona Epstein, Honorary Research Fellow Coventry Law School R.Epstein@coventry.ac.uk

Geraldine Brown, Centre for Agroecology, Water and Resilience, Coventry University G.Brown@coventry.ac.uk