by Felicity Gerry QC
11 November 2014
In 1963, in an address to the Magistrates’ Association, Edmund Davis J stated that every court sentence should pass one test: ‘is that the best thing to do in the interest of the community?’
This evening is an opportunity to discuss women offenders. You have a discussion paper drafted by myself and Lyndon Harris at the request of Sarah Plaka at Halsbury’s Law Exchange which is the background for today. You have a magnificent panel of experts and a super chair. We would like to thank you all for supporting and engaging in this event.
I once prosecuted a woman who injured her baby. She was young, lonely and vulnerable and she handled her baby too roughly. A support package was suggested by the defence. The judge sent her to prison for 16 months. He sentenced her below the guideline for the offence. She served half. She lost her child and her relationship and will have to live with the consequences of her actions for the rest of her life. She was 17. In my opinion the sentence was pointless. One argument is that she should have had more support before. Today is about discussing what to do with women like her, putting emotions to one side and thinking clinically about how to approach penal policy.
We hope tonight will involve a stimulating and wide ranging discussion.
Decades of research has shown that most women prisoners are victims of violence, abuse and addiction and that they (and their families) suffer inordinately in the current penal system. Women in custody are more likely to have mental health issues or drug dependency problems than men and are five times more likely to have a mental health problem than other women in the general population. Prison is often more harmful for them as women have higher rates of self-harm – they account for 43% of all incidents of self-harm despite representing just 5% of the total prison population. Reliable research on prison reform has found that prison sentences fail to address the multiple and complex needs of female offenders.
Successive Governments have said they are committed to diverting women away from crime and to tackling women’s offending effectively. The conclusions in Baroness Corston’s March 2007 report on “A Review of Women with Particular Vulnerabilities in the Criminal Justice System” of reducing the number of vulnerable women in prison has been openly supported. Are words enough? What are the necessary actions?
In my opinion the discussion today centres around 4 stages:
- How to sentence a woman offender
- Where to imprison women offenders and sometimes their children
- How to treat women prisoners
- What to do for women offenders on release
I will take each of these in turn:
How to sentence a woman offender
There is no specific sentencing regime applicable to female offenders. Here we can think about the Sentencing Council and judges.
- Should there be a specific sentencing guideline in relation to female offenders?
- Is there a need for gender specific and unconscious bias training for judges?
- Should the judiciary produce written reasons in all cases so that the public are more informed?.
- Should there be a legal requirement for judges to investigate local support services before sentencing?
I am sure Joshua will come up with more.
Where to imprison a woman offender
Minister for Justice, Chris Grayling has acknowledged the need for women prisoners to be close to home. The former minister for female offenders Lord McNally announced that the Ministry of Justice was “Keeping women prisoners closer to home and giving them the skills to find employment so they turn their backs on crime for good are at the heart of significant reforms”. It is a sensible viewpoint. Prison is more expensive than alternative measures. The average cost of a women’s prison place in prison is approximately £56,415 per annum. By contrast, an intensive community order (that commands the confidence of the police and the courts) could cost approximately £10,000- £15,000.
There are 120 prisons in England and Wales, 15 of which are contracted out to the private sector. Of those 120, there are 11 prisons for women holding 3,902 female offenders. Equality is about making sure people are treated fairly and have access to equality of opportunity. It does not always mean that everyone will be treated in the same way, but it recognises that individual needs can be met in different ways. Accordingly, women’s prisons do not need to be the same as those for men.
At present, women are more likely to be held in custody further away from home than men due to the dispersal of women’s prisons across England, which makes it harder to maintain good links with housing providers. However, the UK Ministry of Justice (MOJ) has implemented a building programme for “super prisons” in the UK and to date, despite years of research and recommendations, there has been no announcement on community prisons for women. Should prison be the default response to criminal offending by women or is it time for major change?
How to treat women prisoners
It is unarguable in my view that all persons deprived of their liberty shall be treated at all times with humanity and with respect for the inherent dignity of the human person. These are matters of law. The vulnerability of women prisoners also makes it a matter of conscience. For example, the current Prison Service Order (from 2008) states the following:
“Women prisoners are held in conditions and within regimes that meet their gender specific needs and which facilitate their successful resettlement”, “resource pressures” mean that “Most of these standards are “best practice” already in many establishments but it is recognised that it will not be possible to implement all standards immediately”.
If this is right, why is there so much self-harm and suicide?
How to release a woman offender
Women are often inadequately prepared for their release from prison: Having a stable home, secure employment and proper provision for childcare upon release from prison are some of the most important factors in the successful rehabilitation and resettlement of women. It is notable that prisoners who have problems with both employment and accommodation on release have a reoffending rate of 74% during the year after custody, compared to 43% for those with no such problems. Just 11% of women received help with housing matters while in prison. Only 24% of women with a prior skill had a chance to put their skills into practice through prison work.
Clearly there is no single solution to all these questions but today we all have the chance to try and develop workable penal law and policy suggestions for the women and children in the system in the UK. When they ask me – where were you Mummy when all these women were dying in prison, I hope to be proud to say I was at the HLE Debate and we didn’t just talk about change we made it happen.
 Criminal Law, Smith and Hogan, 1988 edition, p 12
 Reforming Women’s Justice: Final Report of the Women’s Justice Taskforce, Prison Reform Trust, 2011, p.11, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Women’s%20Justice%20Taskforce%20Report.pdf>
 Ministry of Justice (2010) Safety in Custody Statistics 2009, London: Ministry of Justice
 Reforming Women’s Justice: Final Report of the Women’s Justice Taskforce, Prison Reform Trust, 2011, p.4, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Women’s%20Justice%20Taskforce%20Report.pdf>
 Some preliminary research has shown that this does occur in other jurisdictions
 Reforming Women’s Justice: Final Report of the Women’s Justice Taskforce, Prison Reform Trust, 2011, p.i <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Women’s%20Justice%20Taskforce%20Report.pdf>
 The Howard League (@TheHowardLeague), “There are currently 120 prisons in England and Wales, of which 15 are privately run.” 16 October 2014, 11.06. Tweet.
 Pg. 18, The Women’s Justice Taskforce (2011) Reforming Women’s Justice
 Reforming Women’s Justice: Final Report of the Women’s Justice Taskforce, Prison Reform Trust, 2011, p.18, <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Women’s%20Justice%20Taskforce%20Report.pdf>
 Hedderman, C. et al. (2008) Implementing services for women offenders and those ‘at risk’ of offending: action research with Together Women, London: Ministry of Justice
 Niven, S. and Olagundoye (2002) Jobs and homes – a survey of prisoners nearing release, London: Home Office