Clumsy drafting of the Sentencing Bill may increase the number of women sent to prison

Earlier this year, David Gauke’s Independent Sentencing Review was published making a range of recommendations aimed at reducing the size of the prison population, which has caused alarming overcrowding. However, there is a big problem for women with its interpretation in the Sentencing Bill, which has its Second Reading in the House of Lords today (12 November). The very first clause of that Bill presents a very real risk of increasing, rather than reducing, the number of women who are imprisoned for short sentences, despite prevailing views that short sentences do more harm than good.

I am on the Women’s Justice Board (WJB) and most of its experienced and dedicated members share my concern. In 2024, at the launch of the WJB, Shabana Mahmood, then Justice Secretary, exhorted us to keep women who offered no threat to the public out of prison. Her speech looked forward to the day when we could all watch a women’s prison being closed.

The Concern

The Gauke Review recommended a reduction in short prison sentences, of 12 months or less, whilst leaving them available for exceptional circumstances. It proposed a presumption that short sentences should be suspended, but it also argued for an increase in the use of community orders, which have a far lower reoffending rate than prison.

There is abundant evidence to show that women are disproportionately given short custodial sentences, mainly for non-violent, low-level offences such as shoplifting or breaches of court orders. Nearly 70% of women in prison are victims of domestic abuse[1], many have complex needs and whilst, for male prisoners, relationships can be a protective factor, families rarely stay together if the mother goes to prison. 

Women can lose their children, home, job and their friends, through one short prison sentence. Not surprisingly, 73% of such women re-offend within a year.[2]

Reducing short prison sentences is long overdue and the recommendation is welcome. However, for women, replacing short sentences with community orders is a vital option. Suspended sentences are preferable to immediate custody, but community orders are a much better option. Women with multiple needs may breach suspended sentences due to the complexity of their lives, the challenges they face in complying with court-ordered requirements,  mental health disorders, caretaking responsibilities, unstable housing and lower employment prospects. Conflicts with conditions, missed appointments or failure to meet financial obligations linked to their sentences, can result in technical violations which will breach the suspended sentence and lead to women being returned to court for imprisonment. Women may also breach community orders, but the consequences are not likely to be as severe. Women on suspended sentences live under the threat of prison from day one of the sentence, long before the benefits of treatment and support, which may be offered alongside a suspended sentence order, have any chance of working. 

The law is harsh about breaches of suspended sentences. It requires a court to activate a suspended sentence by sending the woman to prison, unless it is unjust in all the circumstances. It even reminds the court dealing with the breach, that the court imposing the sentence had decided that custody was appropriate, so only exceptional new factors should be considered. If there is a new offence, however small, an extra term of prison will be added on.[3]

As long ago as 2008, a study of changes to suspended sentences made in the Criminal Justice Act 2003 noted that ‘the impact of the [suspended sentence order] on the sentencing of women depends on whether the courts use the order as a real alternative to custody or as a displacement of non-custodial sentences (in other words, using it as a Community Order with the added threat of custody should the woman breach the terms of the order).’ If suspended sentence orders are used in the latter circumstances, the study warns, ‘we could, in the long run, see more women imprisoned for breach of the order rather than for the original offence’.[4]

The Problem

The problem is that Clause 1 of the Sentencing Bill introduces a presumption ONLY for suspending short custodial sentences. No reference is made to the availability of community orders. For Courts, this is the new rule. Women – and men – who were going to be sent into custody for 12 months or less MUST have their sentence suspended (unless there are exceptional circumstances).  Which means that if they breach the terms of the suspended sentence, they will be sent to prison.

However, under existing legislation, before a court decides to send someone to prison, it must form the opinion that the defendant has passed ‘the custody threshold’. The rules for deciding that – known as ‘the basis of opinion provisions’ – are set out in Section 77 of the Sentencing Act 2020, which allows a court to pass a community sentence if there are mitigating features, even where the custody threshold would normally be met.

These provisions are still in force. So, contrary to the appearance of Clause 1 of the Bill, a sentencer who has decided that the person has passed ‘the custody threshold’  is empowered, nonetheless, to pass a community sentence instead. 

However, it is unlikely in the extreme that untrained magistrates will be aware of these provisions or that they still exist. They are not being informed of it; just told that the new rule is to suspend short sentences. The precious opportunity offered by S77 is going to be lost, though many troubled women could benefit from its use.

So, members of the Women’s Justice Board have drafted an addition to Clause 1 of the Sentencing Bill, to ensure the opportunity to impose a community sentence will not be missed by the sentencing court. The amendment simply clarifies that the ‘basis of opinion’ provisions in s77 Sentencing Act 2020 still apply, and that the court should still, where appropriate, mitigate the sentence to a community order as provided for in that section. 

The amendment was tabled in the Commons by Andy Slaughter MP, Chair of the Justice Select Committee and Pam Cox MP, distinguished academic and MP for Colchester. 

That is all we are asking for, to help safeguard women from the perils of automatic suspended sentences – to draw judicial attention to the preferable option of a community sentence.

References

[1] Ministry of Justice (2025) Identified needs of offenders, custody and community, 31 October 2024, para. 3.8. 

[2] Prison Reform Trust (2025) Bromley Briefings Prison Factfile, February 2025, p.72

[3] Sentencing Code Schedule 16

[4] Sunita Patel and Stephen Stanley, Centre for Crime and Justice Studies (2008) The Use of the Community Order and the Suspended Sentence Order for Women, p.19

Rianna Cleary, an 18-year-old care leaver, was pregnant when she was remanded to prison, on a charge of robbery. She went into labour when locked in her cell, and, though she rang desperately for help, nobody came. When she rang a second time, the officers turned her bell off. She gave birth to baby Aisha, and had to chew through their umbilical cord, losing copious blood and, eventually, passing out, with Aisha wrapped in a towel beside her. By the next morning when the cell was unlocked, Aisha’s lips were blue. The prison had no baby-sized resuscitation masks, and this tiny baby died. The coroner found that, if Rianna had been taken to hospital, Aisha would have had ‘a chance of survival.’[1]

In 2020, Louise Powell was sent to prison for eight months for harassment, criminal damage and common assault, not knowing that she was pregnant. One evening, she had severe abdominal pain; her cellmate shouted for help, but no health personnel arrived. Louise was in agony, for hours, until she went to the prison toilet, where the baby started to be born. Someone then called a nurse, who attended, and Louise’s baby, Brooke, was delivered, but she died very shortly afterwards.[2]

These cases are not only heartbreaking but highlight the unacceptable disregard for pregnant women and mothers in our criminal justice system. 

Twenty-two per cent of pregnant prisoners miss midwifery appointments[3]; medical facilities are insufficient, and there are rarely midwives or doctors in prisons at night. One in ten prisoners do not get to hospital in time, and give birth in transit.[4] Dr Laura Abbott, Senior Lecturer in Midwifery at the University of Hertfordshire, found that in-cell births are common; they take place in a non-sterile environment, and they often happen without any midwifery support. Consequently, babies born to women in prison are twice as likely to be premature, and – a statistic of which we should all be ashamed – they are seven times likelier to be stillborn. 

The NHS now says that due to the complexities for women in detained settings,

‘all pregnancies there are high risk’[5]

The Royal College of Midwives describes prison as ‘No place for pregnant women’[6] and the Royal College of Obstetricians and Gynaecologists emphasises the need for non-custodial sentences for mothers-to-be.[7]

This is not about improving conditions in jail, which is an inherently stressful and unfriendly place, inimical to safe pregnancy and new motherhood. As has been powerfully argued by campaign groups including Birth Companions, Level Up and No Births Behind Bars, ‘prisons are, and will always be, inappropriate and unsafe spaces in which to navigate the complexities of pregnancy and early motherhood’.[8]  If women prisoners do manage to give birth safely or, if they enter prison during the postnatal period, they are likely to be separated from their baby. There are six hundred pregnancies and one hundred births in prison annually, but only sixty-four places on mother and baby units. Any separation will affect breastfeeding, but will also disrupt the formation of a secure attachment bond between mother and child, potentially leading to long-term negative consequences for the child’s development.[9]

The solution is obvious. Courts should never imprison pregnant women and new mothers, unless it is unavoidable and absolutely necessary.

Last week, a new Sentencing Guideline was withdrawn because of controversy about its declaration that offenders from racial, religious and cultural minorities, when convicted, should be the subject of a pre-sentence report before being sentenced. This was said to be discriminatory against the racial, religious and cultural majority. The Guideline also included advice that pregnant and post-natal women defendants should, similarly, have the benefit of a pre-sentence report. That guidance has now also been suspended causing fears of a step backwards for women.

However, there already exists a reassuringly supportive Guideline, published in April 2024[10] providing that pregnancy, childbirth and post-natal care were, in themselves, mitigation for most offences. It acknowledged that custody can be harmful both to mother and child; recognised that women in prison are likely to have complex health needs, which may increase risk, and registered concerns about accessing healthcare. Furthermore, in the recent case of Thompson [2024] EWCA Crim 1038, the Court of Appeal reinforced these strictures, and began a series of appeals against sentence, by pregnant women, which have brought a new wave, both of understanding and of relative sympathy, to the law. 

The new Women’s Justice Board, of which I am a member, aims to cut the number of women who go to prison. Its work is wider than pregnancy and motherhood, but we have a workstream about it. I am shocked that the lower courts still send such women to prison, despite the dire risks, the 2024 Guideline, and in the teeth of the strong Court of Appeal judgments delivered in this string of 2024 appeals. 

Last week, I saw the seminal Clean Break Theatre play, ‘Lost Mothers,’ about this topic. In the discussion afterwards, a barrister related that Judges and Magistrates accuse women of getting pregnant to avoid custody and therefore determine to send them there. That is a headlong clash with what the Court of Appeal said in the case of R v Byron [2024] EWCA Crim 818.

 In exchanges with counsel, at the sentencing hearing, the lower court Judge had said:

 “… She knew that this matter was not going to go away. She knew what 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?”

In allowing the appeal and suspending the prison sentence imposed by this judge, Lord Justice May said:  

 “…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.” 

In R v Charlton [2021] EWCA Crim 2006, Lord Justice Holroyde, in the Court of Appeal, explained how the lower courts should approach pregnancy as a factor in sentencing:

 “First…. imprisonment would be a far heavier punishment for this applicant than for most other prisoners; secondly, the pregnancy and births can be expected to increase her motivation to remain drug free; and thirdly, it is necessary to have regard to the rights of the children who, as things stand, will be born in prison.”  

Doughty Street Chambers have developed an excellent legal toolkit, from which these few cases are summarised. It is a vital weapon to make sure that lower level judges are informed of progressive judgments from the Court of Appeal, when sentencing pregnant women and mothers.[11]

There is a limitation on the Appeal Courts’ improved stance though. It was set out in R v Stubbs [2022] Crim 1907, where Mr Justice Pepperall noted that pregnancy might improve the prospects of rehabilitation, but added: 

‘Pregnant offenders cannot automatically expect to avoid imprisonment.’ 

One can only reflect that, if our justice system were different, two little girls, Aisha and Brooke, who could not survive being born to mothers in prison, would be starting school, this year.

There are eleven countries that do not lock up pregnant women, or very rarely do so. It is time that we became the twelfth.

References

[1] Diane Taylor, The Guardian 2nd August 2023

[2] https://www.bbc.co.uk/news/uk-england-manchester-59938239.amp

[3] Royal College of Obstetricians & Gynaecologists Position Statement: Maternity care for women in prison in England and Wales 

[4] Nuffield Trust: Pregnancy and childbirth in prison: what do we know?

[5] NHS England (2022): National service specification for the care of women who are pregnant or post-natal in detained settings 

[6] Royal College of Midwives: Perinatal women in the criminal justice system 

[7] Royal College of Obstetricians & Gynaecologists Position Statement: Maternity care for women in prison in England and Wales 

[8] Birth Companions: ‘1001 days in the CJS – a better approach to pregnancy and early motherhood in criminal justice’ 

[9] Parent Infant Foundation: Evidence Briefs 

[10] Sentencing Council, Sentencing pregnant women and new mothers (2024); See also, Sentencing Council, Miscellaneous amendments to sentencing guidelines 2023-2024 (2024)

[11] Doughty Street Chambers: Representing pregnant women and mothers in the criminal justice system: a legal toolkit 

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Holding the state to account for

Prosecuting perpetrators for manslaughter when domestic abuse leads to suicide

In January, the Crown Prosecution Service (CPS) failed in the manslaughter prosecution of Ryan Wellings, a domestic abuser, whose victim, Kiena Dawes, killed herself. It was only the
third prosecution of this kind that the CPS had ever attempted, and they have lost two. That is a shocking record, given the abundant evidence that more women are driven to suicide by
their abusers than are killed by them [1]. In 2022-23, for instance, a National Police Chief’s
Council report showed that 80 abuse-related deaths were homicides and 93 were victim suicides.

The three CPS attempts took place in 2006, 2012 and the third was Kiena’s case. That is no demonstration of relish to tackle these worrying cases. It is urgent that CPS and police work
out a strategy, to hold abusers accountable when women are driven to suicide, especially now that the police’s own figures show it to be an accelerating pattern.

Kiena

Wellings abused Kiena for two years. He tried to strangle her, hit her while she was pregnant, held her face under water when she was bathing her baby, put a cordless drill in her face to ‘drill her teeth out’ threatened to pour acid on her face and told her to kill herself. 

On 17 July 2022, he rammed her head into a radiator and, though police arrested him, he went home as soon as he was free. On 22 July, Kiena left her baby girl at a friend’s house and took her own life under a train. She left a note:

“….I was murdered… Ryan Wellings killed me.”

Coercive control, post-traumatic stress disorder and suicide

Domestic abuse charities have long seen the link between coercive control – from which women feel they will never escape – and suicide. Two thirds of people, who have suffered abuse, experience Post Traumatic Stress Disorder (PTSD) and brain injury. These are alarming numbers [2]. 

Thirty-seven studies have found that trauma, and hopelessness, typically found in abused women, are strongly associated with suicidality [3].

A review of 3,500 women, who were being supported by Refuge, showed that 83% had experienced hopelessness, 24% had felt suicidal and 18% had actively made plans to end their lives [4] [5].

However, most jurors are unlikely to know about these studies, and only a few will have seen domestic abuse, in their own lives. Calling expert evidence is imperative, if jurors are to understand that coercively controlling domestic abuse may put women into a mental state, pre-disposing them to suicide. 

The CPS won their only domestic manslaughter success through expert evidence. A psychiatrist told the court that the victim, Justine, had been in a “substantially abnormal” state, feeling depressed and hopeless and that there was “a clear link” between those feelings, caused by the actions of the defendant and her suicide” [6]. The defendant, Nicholas Allen, pleaded guilty.

The crime of manslaughter

In the case of Dhaliwal, the first of the CPS’ attempted prosecutions, in 2006, the Court of Appeal made clear that the offence, in law, can cover driving someone to suicide. They said:

‘…subject to evidence and argument on the critical issue of causation, unlawful violence on an individual with a fragile and vulnerable personality, which is proved to be a material cause of death (even if the result of suicide) would at least arguably, be capable of amounting to manslaughter.’ [7]

Kiena suffered from a personality disorder, causing impulsivity and poor self-esteem, and had made suicide attempts before she met Wellings. So, she had ‘a fragile and vulnerable personality,’ but despite the Court emphasising its relevance to manslaughter, ironically, it seems from press reports that Wellings’ defence successfully blamed her poor mental health for her suicide and exculpated him.

There are two points. The first is a legal rule called ‘the eggshell skull principle’. It says that a defendant is liable for the harm they cause to a victim, even if it is unusually serious harm because of a pre-existing vulnerability [8]. So, if Kiena’s poor mental health made her more susceptible to suicide, Wellings was nonetheless responsible, if his behaviour was a substantial cause of her death. The psychiatric evidence was that Wellings’ behaviour made her condition worse over time, and would have contributed to her suicide.

It is not clear that the CPS even argued this point, though it is especially vital in the context of research into Domestic Homicide Reviews about suicides, showing that, in no less than 94% of them, the victim had pre-existing mental health problems and in half, there had been previous self-harm.

Full information and the key legal rules are key to jurors properly unravelling these interacting factors.

Causation

If a separate decision to die by suicide is freely and voluntarily taken, it would, in a perfect case, break the ‘chain of causation’ between the abuser’s behaviour and the death. However, the courts have repeatedly said:

 ‘..causation is heavily context specific …’ [9]

For instance, in Corbett [10], a man who violently assaulted another was convicted of manslaughter when his victim ran away and was killed by a car. 

In the case of Wallace [11], a woman who threw acid over her boyfriend, causing him endless pain, and near-total paralysis, was convicted of his manslaughter, though he went abroad and signed, voluntarily, to be euthanised. 

It is common sense that what caused the death in the Corbett case, was not a free and voluntary decision to run (instead of fight).

If the research findings and psychiatric evidence are put into court and the ‘eggshell skull’ principle is pressed, it may become common sense that the cause of a victim suicide can be feeling trapped in unimaginable coercive control, like Kiena’s. 

There are at least three hopeful signs: 

In July 2023, an Inquest into the suicide of 30-year-old Kellie Sutton, heard about the impact of long-term abuse, from an expert, and the jury found that her abuser had unlawfully killed her. 

Secondly, after Kellie’s death, the abuser was prosecuted for coercive control, but the trial judge seemed to consider that he may have been guilty of manslaughter since he said: 

 “He drove [his partner] to hang herself that morning. Beat her, ground her down and broke her spirits.” [12]

 And thirdly, a CPS prosecutor told one of the Warwick researchers: 

“We did a briefing… because often, the suicide messaging has come across as if its everyone’s severe mental health problems. It is saying no, it is because they feel completely hopeless in that situation.” 

Conclusions

If the police tackled domestic abuse well, from the start, few cases would lead to death.The CPS says it intends to take on more such prosecutions, so casework charities, like AAFDA should liaise closely with them, on appropriate cases.  

Successful prosecutions for manslaughter are essential. Women abused into such despair that they take their own life, do so by compulsion, not by choice.

References:

1. An Analysis of Domestic Homicide Reviews in Cases of Domestic Abuse Suicide; Danger, Munro &   Andrade, University of Warwick July 2022

2. Domestic Abuse & Post Traumatic Stress Disorder (PTSD) National Centre for Domestic Abuse 2022

3. McLaughlin, J., O’Carroll, R. & O’Connor, R. (2012) ‘Intimate Partner Abuse and Suicidality: A Systematic Review’. Clinical Psychology Review 32: 677-689

4. Ibid at page 46

5. WRAP-Domestic-abuse-and-suicide-Munro-2018.pdf

6. Man jailed for manslaughter over ex-girlfriend’s suicide – BBC News

7. R v D 2006 EWCA Crim 1138

8. See Owens v Liver pool Corporation (1939) 1KB 394

9. Hughes (2013) UKSC 56

10. 1996 Criminal Law Review 594

11. 2018 EWCA, Crim 690

12. http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-4354153