Following the tragic cases of Rianna Cleary and Louise Powell, the serious risks faced by incarcerated pregnant women have been highlighted in astonishing detail.
In 2019 Rianna Cleary, who was only 18 years old, gave birth alone in HMP Bronzefield. It was her baby’s death (baby Aisha) which drew attention to a series of failings at HMP Bronzefield. The senior coroner criticised the prison and the Trust responsible for midwifery and obstetric care and concluded that “if Aisha’s mother’s labour had been identified and she had been transferred to hospital in a timely manner, there would have been an opportunity for effective steps to have been taken to secure Aisha’s survival.
In the case of Louise Powell 2021, she did not know she was pregnant and her child was stillborn in a prison toilet without medical assistance.
The Court of Appeal has confirmed that the impact of a sentence on family life and dependants can mean that an otherwise proportionate sentence may become disproportionate.
All women’s prisons must appoint a Pregnancy and Mother and Baby Unit Liaison Officer to act as a point of contact including the provision of a mother and baby unit.
Both pregnancy and caring responsibilities are recognised as specific mitigating factors in the Sentencing Council’s guidelines; sentencing courts are required to follow these (unless contrary to the interests of justice to do so)
The new mitigating factors set out what, when sentencing a pregnant or post-natal woman (someone who has given birth in the preceding 12 months) the court may take into consideration, inter alia:
The medical needs, including mental health needs of the offender
The effect of the sentence on the physical and mental health of the offender
Any effect of the sentence on the child
Some of the key legal principles dealing with sentencing and mitigation include:
The sentencing of a pregnant defendant or primary carer inevitably engages not only her own family life as protected by Article 8 ECHR but that of her family, including any dependent child.
Pregnancy (and/or) the impact on dependent children) can also be capable of amounting to exceptional circumstances justifying departure from minimum sentencing provisions.
If a case appears to be on the cusp of a custodial sentence, it may be possible to tip the balance against custody.
Where custody cannot be avoided, the effect on children or other family members might afford grounds for reducing the sentence.
The important thing is to take instructions on due date, history of previous complications in pregnancy, mental health history, etc., so as to be able to assist
the court as to the various points at which a sentence will, or may carry, risk of separation post-birth.
Fiona Grandy. Fiona has a wide range of experience within the field of criminal defence, and her calm, kind and sympathetic demeanour in tense and difficult police interviews is particularly effective.
Contact Lewis Nedas Law on tel. 020 7387 2032 or via our website online enquiry.