Financial crime and pregnancy in prison

‘I’m anxious… can’t sleep at night, like I need to know now, I want to know. It’s my baby. I want them to tell me if I’m allowed my baby or not.’ (Abi)

‘I sat my board really late which was stressful in itself, I spent my whole pregnancy trying not to bond with my baby in case they took him… then I went into labour and I still didn’t know. Can you imagine that I went to hospital not knowing if I was coming back with him or not?’ (Dee)

Between us we have decades of experience of practice and research on the shocking circumstances for women in UK prisons, particularly for non-violent offences. Despite the well-known vulnerabilities of women prisoners, courts are still sending mothers and pregnant women into prison for financial crime. Parliament recently rejected a proposal to require judges to record how they consider the best interests of children in sentencing.

Most recently, Lucy’s research on pregnancy in prison highlighted the tragic case of Louise Powell whose child was still born in horrific circumstances in Styal prison. Hers made the headlines but there are many more whose plight is hidden and horrible.

Given that the current international guidelines (the Bangkok Rules) are such that sentencers are supposed to reserve custody for women in only the most extreme of circumstances, why are pregnant women being sent to prison for financial crime at all – whatever the figures? If we accept that the best interests of children is not to be imprisoned, that children should not be punished for the crimes of their parents, and that repayment of losses is preferable together with disqualification from working with money, then what is the point of brutal punishments?

Lucy’s research, and the research of Dr Laura Abbott, reveals the often horrific, tragic experiences of women miscarrying in cells, giving birth in cells, and having their babies torn from their arms when they have not gained a precious space on a prison Mother and Baby Unit (MBU), left bereft at their loss.

In Lucy’s book, Motherhood in and After Prison (Waterside Press: 2022) she argues that prison is not a safe space for pregnant woman and that in all but the most serious of cases there should be a presumption against sending a pregnant or perinatal women to prison – a position shared by the charity Birth Companions and the Level UP campaign.

We suggest that the term ‘most serious of cases’ should be defined in law to exclude financial crime altogether. There are other sanctions available, and prison should be reserved for those who are a risk to the public. This is not to suggest that financial crime should not be punished [custodially] at all – alternatives are far more useful, even when the value is high. Women offenders are such a low statistic that sentencing a woman is already an exceptional exercise; sentencing a pregnant woman to a non-custodial penalty makes sense. The attempt to deal with this in Petherick [2012] EWCA Crim 2214 by suggesting ‘on the cusp’ cases could lead to non-custodial outcomes was nonsensical in financial cases – health and wellbeing of child and mother always outweighs financial loss.

The research

Most pregnant women in prison have committed low risk of harm offences, are victims of domestic abuse and/childhood abuse. Many have traumatic histories, substance misuse issues and mental health difficulties. All too often prison is being used as a supposed ‘place of safety’ for mothers and babies in the absence of alternative resources in the community. Epstein et al’s recent study with 22 pregnant women showed all were sentenced for non-violent offences: five for shoplifting, six for breach/recall (missed appointments /failure to change address), two were on remand, four were drugs offences (Why are Pregnant Women in Prison?, November 2021). Recently, a woman was recalled to prison for failure to attend appointments. She had given birth 24 hours earlier. Her baby was taken into care. This is not acceptable. There needs to be a greater focus on early, supportive trauma-informed, community-based alternatives to prison for non-violent women – especially those who are pregnant.

Nuffield Trust research into the healthcare experiences of prisoners, although not exclusively focused on women, revealed that in a 12 month period across 2017/18, 56 births took place. Six of the women gave birth before they reached hospital (Locked Out, February 2020). In both 2019 and 2020 two babies were stillborn when mothers gave birth in cells, one mother on her prison toilet.

In 2016 Michelle Barnes took her own life at HMP Low Newton, five days after the death of her baby, after being refused an MBU space and separated from her baby 48 hours after her birth. An independent inquiry found that Michelle’s post-birth mental health care was inadequate and that planning and preparation for the separation of her and her baby were poor. Michelle was traumatised and alone when she hanged herself in her cell.

Why mother and baby units are not the answer

In the UK there are six mother and baby units with the capacity to hold 66 babies and 54 mothers (there is an allowance for twins). However, as discovered by Maya Sikand in her 2015 report Lost Spaces, overall the units are rarely more than 50% full. Sikand found that rejection rates were high, most often down to social workers’ reluctance to support mothers’ applications (often never having seen the facilities). The process of applying for an MBU space is inconsistent and very stressful for the mothers. Mothers in both Baldwin and Abbott’s research described how their boards did not sit until quite late in their pregnancies and decisions were delayed, sometimes not being made until after the birth (the case for two mums in Baldwin’s study*).

Inefficiency is not a reason to abandon the MBU idea but it is still prison, with no let up for mothers who need support not detention. This is especially acute when they have not committed a sexual or violent offence, their case has a background of abuse, addiction or other vulnerabilities. Why is the research ignored by judges and legislators? Are MBUs being used as a smokescreen for fear of headlines?

What can be done?

The new Sentencing Guidelines, in force from 1 October 2019, note that when a sentencer is considering ‘sole or primary carer for dependent relative’ as a relevant sentencing factor; then they should, in the case of a pregnant woman, consider the potential effect on the defendant’s health and the health and wellbeing of her unborn child. The downside of ‘consider’ is that it is not an obligation. There is also a concern that sentencing guidelines deter magistrates and judges from educating themselves on the research and global guidance.

It has reached a clear point where gender specific sentencing guidelines are needed. Lucy has also mapped out the need to consider implementation of a ‘Perinatal Pathway for the Courts’. This pathway would include specific and detailed guidance to advocates and sentencers regarding the needs and preferred outcomes for pregnant mothers and mothers in the perinatal period. In addition, sentencers and legal advocates should receive training in this specific area, enabling them to make informed decisions and recommendations.

The mother of the baby who died in Bronzefield was on remand. The mother of a recent baby who died was serving a short sentence of only a few months and it was her first time in prison. It is clear the guidelines are not being adhered to consistently. It is incumbent on advocates to place the long-available research before sentencers – and no sentence of a pregnant mother should go ahead without it.

The experiences of women who are pregnant and suitable for alternatives to custodial sentences demonstrate that authoritative research and guidance on punishment and human rights are not having a discernible impact. Women and children are suffering as a result. What must occur is the replacement of guidelines with a mandatory requirement to only sentence a pregnant or nursing mother to imprisonment if her offence was so severe and the risk of harm to the public so high, that only a custodial sentence is warranted. In such a case, the rights of mother and child to a healthy, safe and supportive and compassionate environment must be paramount. Unless this change is implemented, mothers and babies will continue to die in prison.