Women’s Justice Reform
Fifteen years ago, there were some 1,800 women in custody. Today there are over 4,000. In the course of a year more than 11,000 women are imprisoned. Instead of a punishment of last resort, women's prisons are now seen as stopgap, cut-price providers of drug detox, social care, mental health assessment and treatment - a refuge for those failed by public services.
Most women in prison have committed petty offences. Many have been victims of serious crime and sustained abuse. Distressingly, governors often comment that many women do not need to be in prison in the first place. More women are in court for theft and handling stolen goods than any other crime. Over 60% end up serving six months or less in custody.
More than half of women prisoners have suffered violence at home. One in three has experienced sexual abuse. A quarter has been in local authority care. Two-thirds have a neurotic disorder, such as depression or anxiety. Women prisoners have a much higher rate of severe mental illness such as schizophrenia: 14% compared with less than 1% in the general population. Over a third of women who are imprisoned will already have attempted suicide. Women, who make up only 5% of the prison population, account for almost half the incidents of serious self harm in custody.
We are locking up our most damaged and vulnerable women in bleak, under-staffed institutions, from which, despite the best efforts of staff, they are almost bound to emerge more damaged, more vulnerable and less able to take responsibility for themselves.
When women do go to prison it has a huge impact on family life because most are primary carers. As to their children, though only a minority are taken into local authority care, most are farmed out to relatives and friends, just 5% of children stay in their own homes when their mum goes to prison. Imprisonment will cause a third of women prisoners to lose their homes, reducing future chances of employment and shattering family ties. Ministry of Justice figures reveal that more than half those released will re-offend within a year of release.
Prison is not only ineffective in very many cases, it is also expensive. The average cost of a women’s prison place is £54,000. By contrast, an intensive community order could cost in the region of £10,000 - £15,000.
Things can be done differently. The Women’s Justice Taskforce was established in 2010 on a time-limited basis by the Prison Reform Trust, supported by the Bromley Trust, to consider the needs of women in the criminal justice system and what additional activity could be undertaken to maximise the benefit of work already underway in this area. The problem of women’s justice has been well mapped by the Wedderburn, Fawcett and Corston reviews and the Taskforce has drawn considerably on their analysis and on previous recommendations. The Government’s proposed reform for the criminal justice system, outlined in the recent Green paper on Breaking the Cycle, provides a timely opportunity to look again at how women’s justice might be framed within the broader criminal justice reforms.
On a practical basis there is considerable scope, and public and parliamentary support, for the development of local women’s centres as court disposals where women can address the causes of their offending, get out of debt, gain safe housing and employment skills, break addictions and take responsibility for themselves and their children. Reductions in the use of remand and breach of license and a new emphasis on restorative justice are in prospect. Attention still needs to be paid to reducing the high numbers of foreign national women in prison, many of whom have been trafficked into offending.
The government’s proposals for a national network of liaison and diversion schemes at police stations and courts by 2014 are particularly welcome given the disproportionate number of women offenders with a mental health need. The partnership between the Department of Health, the Home Office and the Ministry of Justice should ensure that many of those with mental health needs and learning disabilities are diverted from the criminal justice system into treatment and care, with the two-fold benefit of improving health and reducing crime.
Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system profiles good practice and sets the direction for effective liaison and diversion schemes. The government should learn from the good practice already in existence in designing and commissioning the national scheme. For women, the successful project run by Together (Working for Wellbeing) out of Thames Magistrates’ court, staffed by women practitioners, is a model that could be considered for extension nationally. Information gathered by local Women’s Institute members as part of the National Federation of Women’s Institutes ‘Care not Custody’ campaign could also be used to inform the programme.
The government’s plans for better treatment for drug addiction in the community, properly resourced and implemented, could also benefit the high numbers of women whose offending is driven by a drug dependency. High rates of alcohol misuse by women, often in conjunction with existing drug use, indicate the need to take a distinct approach to tackling hazardous drinking. Wherever possible, treatment should be provided in a safe, women-only environment with facilities for childcare. This is important for the high proportion of women offenders who have been victims of domestic violence and sexual abuse.
Some of the government’s proposals on sentencing could also stem the high numbers of women unnecessarily sent to prison. Over half of women entering custody each year do so on remand. These women spend an average of four to six weeks in prison and nearly 60% do not go on to receive a custodial sentence. Remand can have a devastating impact on women’s lives and those of their children.
The government has proposed to remove the option of remand for defendants who would be unlikely to be given a custodial sentence if they were convicted. If implemented, this could reduce the large numbers of women received into custody pending trial for comparatively low level acquisitive crime and those remanded in order primarily to ensure the preparation of a psychiatric assessment.
Women’s imprisonment can have a disproportionate impact on children given the large number of women who are mothers and carers. The UK has signed up to the Bangkok Rules which state that a woman’s current childcare responsibilities should be a consideration as part of the sentencing decision by courts.
It is important to note two judicial pronouncements on the balancing exercise which has to be conducted when a woman who is the carer of dependent children is convicted of an imprisonable criminal offence – weighing the article 8 rights of the parent and child and the seriousness of the offence.
R (on the application of P and Q) v. Secretary of State for the Home Department [2001] EWCA Civ 1151 (see: www.bailii.org/ew/cases/EWCA/Civ/2001/1151.html)
Lord Phillips, Master of the Rolls (at para.79) stated: “It goes without saying that since October 2, 2000 sentencing courts have been public authorities within the meaning of s.6 of the Human Rights Act. If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound by s.6(1) to carry out the balancing exercise identified by Hale LJ in In Re W & B (Children) at para.54, especially at subpara.(iii) … before deciding that the seriousness of the offence justifies the separation of mother and child. If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations under s.6(1), ask for more. It will no longer be permissible, if it ever was, for a court to choose a custodial sentence merely because the mother’s want of means and her commitments to her children appear to make a fine or community sentence inappropriate, if the seriousness of the offence does not itself warrant a custodial sentence. In such circumstances it must ensure that the relevant statutory authorities and/or voluntary organisations provide a viable properly packaged solution designed to ensure that the mother can be punished adequately for her offence without the necessity of taking her into custody away from her children.”
R. v. Joanne Mills [2002] EWCA Crim 26 (see: http://www.bailii.org/ew/cases/EWCA/Crim/2002/26.html)
The Lord Chief Justice, Lord Woolf of Barnes said: “with a mother who is the sole support of two young children, as is the case here, the Judge has to bear in mind the consequences to those children if the sole carer is sent to prison”.
Following these two leading cases, sentencers should be aware of their duty to acquire information on whether the defendant has young or dependent children. As Lord Phillips has said, “If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations under s.6(1), ask for more”. In addition, having obtained information on any dependent children, they must balance the needs of any such children against the seriousness of the criminal offence when sentencing mothers who are primary carers.
In a welcome move, the Sentencing Council, in publishing its first guidelines on assault, has recognised an offender’s status as “sole or primary carer for dependent relatives” as a mitigating factor in sentencing.
There is an unequivocal case for a reduction in the use of imprisonment for women and the re-investment in effective alternatives to custody that can command the confidence of the courts. Indications are that the government is listening to the Corston Coalition of charitable funders, plans to sustain women’s centres and is expected to welcome recommendations by the Women’s Justice Taskforce on strengthening leadership, structure and accountability. It is time to reserve women’s prison places for serious and violent offenders, return to proportionality and fairness in sentencing and cut the unacceptably high social and economic cost of custody.
Juliet Lyon CBE is Director of the Prison Reform Trust and a former member of the Corston Review and the Women’s National Commission