The trials of Constance Marten

A new report takes a compassionate view of the case of Constance Marten & Mark Gordon. Could a different approach have saved baby Victoria?

Constance Marten and Mark Gordon had yet to be sentenced, when I first wrote about them in The Independent last Autumn, following their convictions for the Gross Negligence Manslaughter of their newborn baby Victoria, who died in a tent near the south coast in January 2023.

I had followed the case carefully and found it disconcerting. I was not convinced the public interest required a trial – two trials, in fact, for two people who had suffered the loss of a baby, even in circumstances where their actions must have contributed to the baby’s death. There was something wrong about the case and the manner in which it was conducted; there was something missing from the trial and the narrative that surrounded the broader picture of events.

The criminal justice process is a blunt instrument, it allows little scope for the personal history of those it seeks to hold to account. There is no room, except in the narrowest of circumstances, for considering the mental health and wellbeing of the accused, or the impact on them and their actions of their past lives, of their alleged crime, or indeed of the proceedings themselves, all of which can of course be profoundly traumatic.

It was not until I read the recently published Child Safeguarding Review Panel report on the death of baby Victoria that I realised it had laid a finger on the issues that, arguably, had infected the trial without ever being addressed: In a word, trauma; a cycle of trauma and grief in the lives of the two defendants in this case. The report, while not directly concerned with the trial or its outcome, turns the case on its head and focuses on what was frankly obvious all along - that the tragic incident has its roots in events which occurred many years earlier.

I have often reflected since on the reasons behind the surprisingly vindictive and personal tone that was adopted by the prosecution, over the two very long Old Bailey trials, lasting many months, that Marten and Gordon faced. I have wondered why it was, that - uniquely, in my experience of reporting significant criminal proceedings - the case seemed to get under the skin of people with a professional duty to serve the ends of justice, by being fair and dispassionate, including, seemingly, the judge, who gave Marten and Gordon both barrels in his sentencing remarks, before jailing them for a punitive 14 years each, with Gordon given a four year extension to the period he will serve on licence, after his release.

It was undoubtedly the case that Marten and Gordon’s behaviour throughout the proceedings, but increasingly during the second trial, had made the judge’s job extremely challenging. He seemed at times to be barely in control of his own court, in the face of their persistent awkwardness.

In broad terms, Marten and Gordon were refuseniks and disruptors, seemingly seeking to derail the trial. It became a battle of wills, but that was a fight the pair could never hope to win. They had lost that battle in the family courts and, unable or unwilling to change, they lost here too, quite possibly alienating the jury by their behaviour. The sentencing hearing was the judge’s platform, and he certainly made the most of it.

The pair had displayed, said HHJ Mark Lucraft (he is the Recorder of London and the Old Bailey’s most senior judge), in his sternest voice, “an arrogance and lack of thought for anyone but themselves”. They were selfish, had tried blaming everyone else, tried hiding their own “shameful conduct”. They were clearly not like most right-thinking people. “To most right-thinking people their children are the most precious beings; to be nurtured and cared for; to be kept warm; to be fed, even at the expense of the parents’ own comfort, and above all to be loved.” They had lied to suit themselves, he added.

Just as the prosecution had done, he damned them as parents, saying the reality was very different from the picture they had attempted to paint of being “caring parents”, (in fact there was evidence given by professionals who observed them, of their good parenting) and he criticised what he described as their failure to show genuine remorse (when in fact, if you chose to hear it, there was ample evidence of their grief and deep regret).

To be sure, it was a particularly tragic case. Pitiful, even. Emotive. How could the death of a baby, not yet a month old, be anything less? Although of course, such cases often turn on injuries, wilfully inflicted, and that was not what had happened to Victoria.

The couple had, however, deliberately and successfully hidden the pregnancy and birth of Victoria from the authorities who, they knew, would take their baby from them if they could. She was the couple’s fifth child. The previous four had all been removed and placed in care – two of them, at birth. Care proceedings are quite separate from criminal proceedings. Seeking to avoid more of the former, Marten and Gordon plunged themselves into the latter.

It was hard to avoid the conclusion that Victoria’s death was the tragic consequence of a long and unsatisfactory judicial process.

For an extraordinary and complex set of reasons, which I will go on to explore, Constance Marten and Mark Gordon were trying to live beyond the normal parameters of society. They had isolated themselves from the rest of the world, they had become outsiders in the existential meaning of that word. They, I am sure, would say they had been driven to it by over intrusive authority. Indeed, Constance did blurt out at the Old Bailey that their babies had been “stolen by the state”. They had been trying to resist the further intervention of social services and the courts in their family. As everyone knows, you cannot, but rarely, beat the system.

Not long after Victoria was born, through mishap, they had to flee after their car caught fire, leaving behind, among other things a tell-tale, fresh-ish placenta, along with a live cat. So, their deception and the birth became known and very quickly they were made the subjects of a highly publicised, nationwide police pursuit.

Their backgrounds - she the well-spoken, white, aristocratic, “errant” daughter and he, a black man with a criminal history of violent sexual offences - turned the “manhunt” into a salacious, sensational media event that ran for days.

Every year, in this country, risky, high-speed police pursuits result in numerous fatalities. The pursuit of Marten and Gordon never became a race through streets, but still it seemed a misjudgement for the police to turn the search for Marten, Gordon and their baby into such a public hue and cry. Like too many of the high-speed pursuits, with sirens and blue lights blaring, it did not end in the safe detention of the suspects that is the hopeful aim of such chases. Instead, it drove the “suspects” to new heights of perilous conduct. Metaphorically, Constance Marten and Mark Gordon were overtaking on bends and driving straight through red lights.

After criss-crossing the country, spending hundreds and hundreds of pounds on taxis (money was not the problem here), they ended up in a flimsy tent on the South Downs above Brighton with their newborn baby in the dead of winter. Driven half-mad by their mission to keep their baby with them, at any cost, they pushed themselves to exhaustion, ran out of food, were reduced to scavenging in waste bins, and ultimately could not keep Victoria alive.

According to the couple’s evidence, notably the account of Constance Marten, she had fallen asleep with Victoria in her lap, and the baby was no longer breathing when Constance awoke, slumped forward over the baby, having apparently, inadvertently smothered Victoria. Not knowing what to do with her, the couple had put Victoria in a shopping bag, ironically, a bag for life, repurposed for death.

In the cross-examination of Constance Marten, it came out like this: (I think, even on the page, you can hear the sneering, judgemental attitude of the prosecuting counsel, Joel Smith KC. It could be performative of course, an act for the jury’s benefit. It could be, but it didn’t feel like it. It felt personal, as if: what were you thinking, a woman of your pedigree, running off with this wayward black man, causing everyone all this trouble. You need to learn your lesson, young lady).

JS: Do you accept that in the condition you were in and the decisions that you made when you were in that tent exposed that child to an obvious risk of death?

CM: No

JS: An obvious risk of serious injury?

CM: No

JS: And conditions which any sane person would realise amounted to neglect?

CM: I am sane and no.

JS: Why hadn’t you phoned 999?

CM: Because she wasn’t alive

JS: Why not phone an ambulance so she can be taken to hospital and treated with dignity?

CM: I think Mark and I were in a very bad place, we were in a lot of shock and torment. When someone passes away that you love you’re not in a right frame of mind. But she wasn’t alive so there wasn’t anything the hospital would’ve been able to do. She wasn’t alive so how would the hospital have dealt with her, with dignity.

JS: Because you ended up putting her in a plastic bag didn’t you, sitting in her own faeces in a nappy?

CM: Please don’t put it like that.

JS: Is it true?

CM: That’s really not nice to hear, sorry, I don’t think we were in the right frame of mind at all, I think we were in a traumatic state. We didn’t know what to do.

JS: Was she left in a plastic bag in her own faeces?

CM: Please can you not say it like that, I don’t like that at all

JS: Is it true?

CM: I found it too difficult to change her nappy after she passed away so I wrapped her in a black headscarf, and I placed her in a bag and I had no intention of keeping her in the bag. And I know it looks awful, if you look at it objectively, it looks horrible but I don’t think either of us were in a good frame of mind. I think when someone passes away your immediate reaction is oh my God, they’re going to blame me, as if if I was an evil woman who has killed her chid, without the media presence I would’ve dealt with it in the normal way. It’s just we weren’t in a normal situation, everything about it was abnormal and we acted abnormally.

JS: Your instinct was to put your child’s body in a plastic bag?

CM: My immediate fear was this happening, that they weren’t going to accept the truth, that I had done something evil and sinister. I panicked and didn’t know what to do.

(Smith now challenges Marten about the litter placed over the baby inside the bag)

CM: I hadn’t looked at it like that at the time but when I saw the footage at the start of this case, I think that was the first time I looked at it objectively and I found it quite shocking. I don’t think I was in a right frame of mind; that’s not an excuse because I love my daughter and it upsets me to think she was in that position. I know it sounds really odd, but the way I look at it, it’s not really Victoria, when she’s gone, her body is just part of that, it’s not the biggest part of her, that’s her flesh, that’s just a part of Victoria.

JS: Do you accept that you stripped her of dignity in death?

CM: I definitely could’ve given her a burial, I hope to do so someday, but I think we were in a set of circumstances, we had been branded all over the press, my baby had just died I thought they were going to have a field day here. The truth isn’t going to be accepted, and that’s exactly what’s happened here. The truth isn’t being accepted. You want something weird, sinister horrible to have happened. I didn’t know how to deal with the situation, the whole nation was looking for me, and then my baby passed away. I didn’t know what to do. I just lived like a rat, panicked basically, scurried through bins because neither of us were in a right frame of mind. Terrified to be honest with you.

The jury in the first trial could not agree on a verdict for the charge of manslaughter, though convicted the couple on a series of lesser charges. That jury was then discharged. The prosecution did not have to seek a retrial. The case could have been left there, as it was. But that was not what happened. The prosecutors chose to “go again”.

At the second trial, the prosecution (as it is entitled to do) “improved” the evidence for its case on the gross negligence manslaughter charge that, in the alternative to accidental smothering, the baby had died of hypothermia. We do not know the basis on which the second jury convicted, but we do know, because he told us, that the judge sentenced them on the basis that Victoria had died of hypothermia – the opposite of Marten and Gordon’s own account.

The couple had gone so far beyond the bounds of “normal” behaviour that their actions seemed at first blush to defy all logic or understanding. But there were clues.

They shared a common cause.

During the trial, Marten received the vociferous support (they used to stand vigil outside the The Old Bailey with placards proclaiming their backing for her) of a group of women representing a campaigning organisation Support Not Separation, who (as the name suggests) argue that social services and the family courts are too draconian when it comes to judging mothers as parents and are not always acting in the best interests of babies and children when they remove them from the care of their natural parents.

The women identified with Marten’s plight and, I think, she identified with them, too. They shared a common cause.

Some of the SNS campaigners had their own painful stories of loss and their own experiences of, as they told it, overbearing scrutiny by the institutions of the state that are charged with responsibility for the welfare of children.

At the end of the second trial, a series of family court judgments (normally kept strictly private) were made public, with redactions to protect the identities of Marten and Gordon’s children. The judgments disclosed the detailed history of the couple’s attempts to create a family in the adverse circumstances they faced and - it must be said, to a large extent - had themselves created, through a similar pattern of non-compliance that they would exhibit at the Old Bailey.

Marten alluded several times at the Old Bailey to being the victim of past abuse by family members, and these allegations had also been raised previously by her during the family court proceedings.

Her family, she said, had disapproved of her taking up with a black man, when her relationship with Gordon had begun, not long before she first became pregnant. She maintained that she had taken flight to escape her family’s attentions. Later, her father would initiate Wardship proceedings to seek control over Marten and Gordon’s children. Her parents would both, separately hire private detectives to track the couple’s whereabouts.

One of the couple’s greatest challenges was the legacy of Gordon’s previous offending. While still a child himself, at the age of 14, and living in Florida (though born in the UK) he had committed two terrible armed “home invasion” type sexual assaults on women in his own neighbourhood. He readily admitted the offences but was treated as an adult by the court for sentencing and so, during the rest of his childhood and far beyond, had served 20 years in US prisons, before being released and deported back to the UK.

At his 1990 sentencing hearing, Gordon’s mother gave evidence of the repeated sexual abuse that Gordon himself had been subjected to as a child, back in the west Midlands. Accepting the truth of that account, it was hard to believe that awful experience had no bearing on the crimes he had committed. You could only then guess at the horrors he must have witnessed and experienced during his time in custody and how the abuse, the crimes, the incarceration, with next to no reported element of rehabilitation, quite possibly no therapeutic support, must have affected him.

On his return to the UK, he was obliged to register as a sex offender - still lugging the burden of his past with him - and that status would have raised alarms about him becoming a parent.

It was hard to know which of the historical factors had driven them underground. Perhaps a combination of them all. They had first tried to evade attention in 2017, during the first pregnancy, turning up at a hospital in Wales, where Marten gave birth pretending to be a traveller named Isabella O’Brien, reportedly (spiritedly) maintaining an Irish accent all through labour. When Gordon visited the hospital, he aroused suspicion, the police were called and he ended up being charged with assaulting two female officers. He served a short sentence of imprisonment.

The pattern was set for a turbulent succession of pregnancies between 2017 and early 2022 when a family judge finally granted care and placement orders for all four of Victoria’s older siblings.

Significantly, the judge made an “adverse finding of fact” concerning an incident in 2019 when Marten, then pregnant with her third child, had “fallen” out of a first floor window at their east London home in the early hours of the morning. Though the pregnancy survived, Marten suffered a ruptured spleen and a liver injury. The couple insisted it was an accident, but there was evidence that pointed to Gordon having pushed or caused her to fall and the family judge concluded, “the father has behaved violently towards the mother on at least one occasion, and that his conduct on that occasion, both in causing injury and in failing to seek medical help, put her life and the life of their unborn child at serious risk”.

“an incredible amount of shame”

Throughout the family proceedings, judges and others struggled to interpret their relationship, and whether or not it was one in which Marten was subject to coercive control. Later, at the criminal trial, I came to the conclusion that Marten, if anything was the dominant figure. The family judge also declined to make a finding that she was coercively controlled by Gordon.

It seemed possible, however, that he might be subject to ungovernable bouts of anger, when anything might happen. He needed help, therapy. They both did. But no doubt they found it hard to accept the help they needed.

In 2018 the couple had submitted, reluctantly and haf-heartedly it appeared, to a rare psychological assessment, later cited in one of the family court decisions.

Gordon, said the assessor, was “extremely difficult to engage with during the assessment process and remained guarded throughout”. She believed he would benefit from “compassion focused” therapy but that he was “fearful and suspicious” of officials. She said he felt “an incredible amount of shame” at his sexual offending history.

It was as clear in the criminal court as it was during the family proceedings that the couple were united against the world, and had at times placed the interest of their relationship ahead of the interests of their children.

The question was why they behaved in that way and what could be done about it?

The family judge who made the care and placement order in 2022 was satisfied that “the parents’ relationship continues and remains a central and dominating feature in the lives of both of them. Even if they were to take steps to live separately, which I very much doubt is actually within either parent’s contemplation, I am satisfied that this arrangement would not endure. I remind myself that although the parents were required to live separately throughout the proceedings in Wales, following the father’s release from custody, there were a number of occasions when the mother left A (the first-born child) in the placement in order to spend time with him. Since then her resistance to spending any time apart from him has only increased.”

Poignantly, at one stage, Gordon and that same first-born child had gone into the garden of the contact centre they were attending and planted five apple seeds, one for each member of their then family.

The family judge recognised all the negatives that surrounded them, but still observed, “it is also a story of loving and attentive parents who were warm, playful, and gentle with their children. Perhaps most hurtful, from the children’s point of view, is their parents’ baffling lack of commitment to them over the course of these lengthy proceedings and their inability, or unwillingness, to do what needed to be done in order to reclaim them. It is a picture that I, as a reasonably experienced Family Court judge, find it very difficult to comprehend.”

That same inability to comprehend Marten and Gordon also filled the court room, like an impenetrable fog, at the Old Bailey during their two criminal trials.

What was their relationship all about?

A few weeks ago came the report of the Child Safeguarding Review Panel, which endorsed the efforts of all the practitioners who had tried to help the couple but at the same time seemed to point to the system’s failure to find a way to engage them and to help them, in their struggle to be parents.

The report was written in an admirably non-judgemental tone – not excusing or questioning the crimes of which they had been convicted but at the same time wondering if things might have gone differently if alternative approaches had been found. The question was how to get behind cases of determined non-compliance.

I must admit to being pleased to see that Constance Marten herself had contributed to the review. She was quoted directly in the report on several key issues.

The report identified common factors present in the background of Victoria’s death and seen in other difficult cases too: Families who do not engage with statutory services; who conceal their pregnancies; who are struggling with domestic abuse; who include serious offenders; who move areas and become difficult to trace.

‘Trauma that can often only be made bearable by bringing another baby into the world”

It seemed that the very nature of current child safeguarding practice was being challenged. The report said, “a critical lesson is that keeping children safe but removing them with just cause from the parents, protects children but does not address the root of the problem and may increase the risk of harm for the next child, not yet born, not yet even conceived.” Plainly, the writers had Victoria in mind.

The report authors seemed to want to demand more of everyone involved, not just the parents themselves. “This review encourages all of us to imagine the trauma and grief of having multiple children removed, one after another, and to think much harder about what parents in that unenviable situation need in terms of ready access to effective support.”

I would certainly endorse that and go further to suggest it would be a good lesson for the criminal justice system too, not just in these most delicate of cases where parents have caused the death of their own children, but in others too, where offenders may have been unwitting victims of malign forces, outside their control.

As the report says, they are rare, the baby-death cases that result in criminal proceedings – there are far more that come to the attention of the relevant agencies where parents, “will have experienced considerable trauma in their lives and be grappling desperately with the continuing impacts of that trauma. Trauma that is inevitably made worse if their children are subsequently removed from them - however right that decision to remove may be. Trauma that can often only be made bearable by bringing another baby into the world.”

A ”trauma-informed” approach was required if the system was to “understand and engage better with the realities of human experience, choices, reactions and suffering; if we are to stop these cycles of risk and harm from repeating themselves in the future and change lives for the better.”

The important questions included how better to engage resistant parents such as Marten and Gordon.

The report observed that the provision of specialist support such as therapy needed to be separated from those with power to remove children. “Parents who have experienced trauma may struggle to engage with professionals they associate with past harm, particularly those involved in child removal. There should be separate social support that helps parents to process experiences and build trust that does not conflate therapeutic engagement with statutory authority.”

It was important, also, to understand why people concealed pregnancies. The report cites reasons such as, “trauma, fear, abuse or exploitation, unresolved grief, mistrust of services; tension between a woman’s right to bodily autonomy and privacy with the duty to protect unborn babies from harm.”

These observations from the report seemed to me to be points that Constance Marten herself might have made.

Indeed, she was asked for the report, “In your opinion, how well do child safeguarding agencies support parents to deal with the impact of having a child removed?” Marten answered, “Nothing was done, but I wonder whether there should be an independent and confidential service to assist parents that is separate from the local authority.”

She was asked how she felt about contact with the Child Safeguarding Agencies.

“I was given ultimatums, rather than true assistance. It felt like they were using the powers of the state coercively rather than constructively. It felt, in a way, that there was a flow chart which would ultimately result in the removal of my children, step by step. My mistrust of social services is not an innate feature of my personality, it developed due to my dealings with them.”

It was not just social services she had come to distrust, of course. It was the criminal justice system too with its trauma-uninformed approached and, arguably, its failure to deliver good justice for baby Victoria, her parents, her four siblings - and all of us, watching on. Only the police and the prosecutors, perhaps, went home happy.