Add your name to this letter to the Lady Chief Justice regarding changes to bail for pregnant women and mothers. The copy of the letter is below.
March 2025
Dear Dame Sue Carr,
Bail and pregnant women and mothers
We are a broad coalition of groups and individuals including lawyers, midwives, medical professionals, psychologists and academics who are concerned about the high risks that pregnant women experience in prison. We write to you in the hope that you can help resolve an emerging procedural issue in the criminal courts regarding bail decision-making for pregnant women and mothers of infants.
First, we will provide some context on the risks that pregnant women face in custody. As you may be aware, in recent years there have been three baby deaths within the women’s prison estate. In September 2019, Rianna Cleary, who was remanded in HMP Bronzefield, gave birth in her cell alone after her calls for help via her cell buzzer were repeatedly ignored. Rianna was left with no choice but to bite through the umbilical cord to free her baby, Aisha, who died. An inquest found ‘serious failings’ contributed to Aisha’s death and the Prison Ombudsman and NHS subsequently categorised all pregnancies in prison as inherently, and unavoidably, “high-risk”.
In June 2020, a pregnant woman in HMP Styal, Louise Powell, also gave birth without any pain relief or medical assistance, to a stillborn baby named Brooke. Though the Ministry of Justice has implemented new prison policies in response to the deaths of Aisha Cleary and Brooke Powell, the recent death of a third baby in 2023, for which a PPO investigation is currently underway, evidences how policy changes within an intrinsically unsafe system will never be enough to protect women and babies. The only way to truly mitigate these risks is to avoid sending women to custody.
Recognised health risks to incarcerated pregnant women and their children
The following matters are now well established and have been recognised by the Courts and Sentencing Council:
Concerns relating to incarcerated pregnant women are not exclusive to birth. The first 1,001 days of a child’s life set the foundations for their lifelong emotional and physical development. Maternal imprisonment causes long-term developmental harm to babies and infants that far outlasts the length of the time a woman spends in prison. Criminal justice proceedings and imprisonment are highly distressing environments for pregnant women and antenatal stress is proven to increase levels of the hormone cortisol in the mother’s body, which, when it crosses the placenta, can affect the health of the baby, brain development and emotional attachment.
Many women who give birth during their time in prison, or who enter prison during the postnatal period, will be separated temporarily or permanently from their baby. This interrupts breastfeeding and causes significant trauma at a time when the mother-baby attachment is shown to be crucial in supporting a child’s long-term development.
Changes to the sentencing of pregnant women
The high-profile baby deaths have brought the risks that pregnant women face in prison into sharp focus, sparking a sea change in sentencing policy. We note the government’s creation of a Women’s Justice Board and its focus. As you will be aware, on 1 April 2024 the Sentencing Council introduced a new mitigating factor for pregnancy and the postnatal period that requires sentencers to acknowledge that all pregnancies in prison are “high-risk”. The Sentencing Council’s significantly revised ‘Imposition of community and custodial sentences’ guideline, in force from 1 April 2025, includes directions for sentencers to “avoid the possibility of an offender navigating the risks associated with pregnancy, birth and the postnatal period (up to 12 months after birth) in custody.”
These changes to sentencing policy are underscored by a rapidly growing body of appellate case law. Several recent Court of Appeal decisions, including R v Tamang [2024] EWCA Crim 62; R v Bassaragh [2024] EWCA Crim 20; R v Byrne [2024] EWCA Crim 801; R v Byron [2024] EWCA Crim 818; R v Williamson [2024] EWCA Crim 91 and R v Foster [2023] EWCA Crim 1196, all of which have affirmed the risks prison poses to pregnant women, infants and dependent children and seen women’s custodial sentences overturned in order to prioritise and protect the welfare of their children.
The need for an improved approach to bail decision-making
We note that over one in five women (21%) are currently being held on remand for longer than six months. Many of them will not go on to receive a custodial sentence: in 2022, almost three quarters (72%) of women remanded and tried by the magistrates’ court did not receive a custodial sentence. In the Crown Court this figure was almost half (48%). These figures are set out in the Equal Treatment Bench Book.
Although when making sentencing decisions, judges and magistrates are specifically directed to consider the risks of custody to pregnant women, new mothers and their infants, there is no equivalent guidance which directs them to consider the potential impact of remand on a pregnancy and/or young children when applying the relevant provisions of the Bail Act, nor is there much by way of opportunity for the appellate courts to provide guidance in this context.
As a result, there is inconsistency in the approach to the imprisonment of pregnant women and mothers at the pre-trial stage as compared with the sentencing stage. We are aware of multiple cases in which the lacuna of guidance and/or legal directions in relation to bail decisions has led to the imprisonment of pregnant women on remand without regard for the potential risks or best interests of the child, and where later courts have found that, having regard to those issues, imprisonment was disproportionate. By that stage, irreversible damage may have been done, in particular to young children left without their primary carer.
The difference between the approach to these issues at bail and sentencing stages cannot, in our view, be justified: the inherent risks which arise as a result of maternal imprisonment are indiscriminate and do not differ based on whether a woman is on remand or imprisoned-post sentence. It is imperative therefore that courts are given the same support, mandate and directions to make bail decisions in a way that is congruent with the considerations set out in the new mitigating factor and Imposition guideline. Given the significant risks that pregnant women and their babies face in prison, it is critical that consistency in court decision-making and available guidance is achieved across all stages of the criminal process where custody is being considered.
We urge you to act without delay to ask the Criminal Procedure Rules Committee to consider a new criminal procedure rule and/or practice direction that establishes and/or makes clear the duty for Courts to consider the high risks that pregnant women, mothers of infants and the children affected face in prison when making bail decisions.
We would welcome the opportunity to discuss this further with you.
Yours sincerely,
Janey Starling and Seyi Falodun-Liburd, Level Up
Maya Sikand KC, Doughty Street Chambers
Sarah Vine KC, Doughty Street Chambers
Riel Karmy-Jones KC, Red Lion Chambers
Felicity Gerry KC, Libertas Chambers
Peter Carter KC, Doughty Street Chambers
Joe Middleton KC, Doughty Street Chambers
Maya Grantham, Leigh Day Solicitors
Rt Reverend Rachel Treweek, Anglican Bishop for HM Prisons
Jane Ryan, Bhatt Murphy
Michela Carini, Bhatt Murphy
Pippa Woodrow, Doughty Street Chambers
Camila Zapata Besso, Doughty Street Chambers
Ruby Peacock, Doughty Street Chambers
Louise Willocx, Doughty Street Chambers
Rosa Polaschek, Doughty Street Chambers
Stephanie Davin, Doughty Street Chambers
Mary Westcott, Doughty Street Chambers
Nick Brown, Doughty Street Chambers
Maria O’Connell, Hodge Jones and Allen
Guy Mitchell, Hodge Jones and Allen
Elizabeth Forrester, Birnberg Peirce
Dr Shona Minson, University of Oxford
Dr Laura Abbott, University of Hertfordshire
Dr Natalie Booth, Bath Spa University
Annie Fendrich, 6KBW College Hill
Rebecca Field, Hodge Jones & Allen
Ruth Waters-Falk, Hodge Jones & Allen
Stephen Hare, Hodge Jones & Allen
Rebecca Shotton, Hodge Jones & Allen
Sion Morgan, Hodge Jones & Allen
Cormac McDonough, Hodge Jones & Allen
Abbi Hart, Hodge Jones & Allen
Matthew Wong, Hodge Jones & Allen
May Spencer, Hodge Jones & Allen
Brid Doherty, Hodge Jones & Allen
Francesca Cociani, Hodge Jones & Allen
Casey Jenkins, Hodge Jones & Allen
Jonathan Black, BSB Solicitors,
Olivia Coffey, Hodge Jones & Allen
Anna Jemmison, Hickman and Rose Solicitors,
Katie McFadden, Hodge Jones & Allen
Lauren Mckinnon, Hodge Jones & Allen
James Gray, 25 Bedford Row
Ros Olleson, Baxter Brown McArthur
Sandra Cacchioli, Dalton Holmes Gray
Rebecca von Blumenthal, BCL
Donna Tayo, Powell Spencer & Partners
Zoe Chapman, Red Lion Chambers
Natalie Skinner, Red Lion Chambers
Hannah Wilson, Red Lion Chambers
Jemima Lovatt, 6 Pump Court
Matilda Robinson-Murphy, 2KBW
Alexandra Monaghan, Crucible Chambers
Jon Swain, Furnival Chambers
Janaki Mahadevan, Birthrights
Judith Dennis, Maternity Action
Naomi Delap, Birth Companions
Andy Keen-Downs CBE, Prison Advice and Care Trust
Marcus Green, Action on Pre-eclampsia
Karen Burgess, Petals – the baby loss counselling charity
Philippa Peak, Samuel Ross Solicitors