Ciara O’Neill wrote recently on the Halsbury’s Law Exchange about Michael Gove’s talk on 4 November at the AGM of the Howard League for Penal Reform: “He believes that our sentencing framework needs a complete overhaul…Gove recognised that evidence shows short sentences are more likely than not to lead to recidivism, and that the system needs a more appropriate sentencing framework. This will be based on extensive research into the effectiveness of current sentencing practices.” (“Gove admits the UK sentencing framework needs to be more sensitive, & 7 more things we learned at the 2015 Howard League AGM“)
The Prison Reform Trust (PRT) discussion paper, Reducing Women’s Imprisonment: Sentencing of Mothers, reaches Mr Gove’s in-tray at the right moment.
Women behind bars
The Soroptimists UK Programme Action Committee has worked with the PRT to reduce women’s imprisonment. Transforming Lives, reducing women’s imprisonment reported that too many women in the UK are still being sent to prison instead of receiving community sanctions and targeted support to address the causes of their offending. Systems could be put in place to support women’s centres and to reduce the courts’ reliance on custody as a method of dealing with women who have broken the law.
The law requires that prison be used as a sanction only when the offence is too serious to be punished by a fine or a community sentence. However, in 2009 (the most recent year for which this data is available) 1,052 women were sent to prison for breaching a court order with an average sentence length for that offence of less than two months, while the most recent Ministry of Justice prison reception data reveals that theft and handling offences account for 41% of all custodial sentences given to women. The argument is sometimes raised that prison is necessary for repeat offenders, but 28% of all sentenced women are in prison for a first offence (compared to 12% of men).
The PRT discussion paper proposes that where a court is imposing “rehabilitation activity requirements” (RARs) on an offender as part of a community order, it should ensure as far as practicable that these avoid conflict with childcare responsibilities (the RAR was introduced by the Offender Rehabilitation Act 2014). This is modelled on an existing provision in the Criminal Justice Act 2003 that requires a court to avoid, as far as possible, imposing a requirement that would conflict with an offender’s religious beliefs (s 217, Criminal Justice Act 2003).
There is evidence that, where the terms of a non-custodial sentence disregard a woman’s responsibility for children, there is an increased risk of breach for non-compliance. Breaches can in turn lead to custodial sentences being imposed where imprisonment was outside the sentencing parameters for the original offence. See Sue Jordan’s research on women who breached community orders (Jordan, S. (2013) “Missing voices: Why women engage with, or withdraw from, community sentences”, Research Paper 2013/01 London: The Griffins Society).
The way forward
The PRT discussion paper recommends:
- The government should review the sentencing framework to ensure appropriate recognition of and provision for an offender’s sole or primary care responsibilities, in relation to both custodial and non-custodial sentencing.
- The government’s Advisory Board on Female Offenders should review arrangements in the criminal justice system for women with primary or sole care responsibilities in light of s 10 of the Offender Rehabilitation Act 2014, and ensure a whole of government approach to improving outcomes for mothers and their children, including coordinated and consistent funding streams for women’s services and interventions.
- Sentencing guidelines should be strengthened by the addition of an “overarching principle” setting out the court’s duty to investigate sole or primary caring responsibilities of defendants and to take these responsibilities into account in sentencing. This would reflect the Court of Appeal decision in R v Petherick.
- Courts should establish mechanisms to ensure the provision of sufficient information to sentencers where the offender has primary caring responsibilities, including a requirement for a full written pre-sentence report and a local directory of women’s services and interventions.
- When imposing non-custodial sentences, sentencers must inquire about and consider a woman’s family responsibilities and ensure ‘rehabilitation activity requirements’ are achievable within those constraints.
- Judges, district judges and magistrates should be obliged to consider non-custodial sentences for offenders with primary care responsibilities, and in cases when imprisonment is an option should consider a community order, deferred or suspended sentence. If an immediate term of imprisonment is imposed, written reasons should be given for their decision.
- Training bodies, including the Judicial College, the Law Society and the Bar Council, should ensure sufficient emphasis in both induction training and continuing education on the balancing exercise to be undertaken when sentencing an offender with sole or primary care responsibilities.
We need a reformed sentencing policy. I urge the Minister of Justice to set about implementing these proposals without delay.
Rona Epstein is a Research Assistant in Coventry Law School R.Epstein@coventry.ac.uk