In 2014 a Halsbury Law Exchange panel debated “Women in prison: is the penal system fit for purpose” – the answer to which was a resounding no. Despite panellist (the then MP) Simon Hughes committing to effect change as a result of that discussion the law still hasn’t made the headway hoped for in this area.
Two years later and following the publication of the policy paper co-authored by Felicity Gerry QC and Lyndon Harris, the debate now faced by the panel and chaired by Joshua Rozenberg was whether the justice system is fit for purpose.
Delivering her keynote address ahead of the panel debate, Felicity Gerry QC argued that if there is to be true change in the substantive law then “this change must continue on a greater trajectory”. It is utterly illogical that our justice system does not recognise exploitation, abuse, coercion and caring responsibilities that women face on a daily basis and there needs to be significant improvement in judicial diversity”.
Many women are [in prison] because of the men in their lives
No-one on the panel has a more firsthand experience of the issues faced by women in prison than Vicky Pryce, who, typically of the majority of female prisoners, served a short sentence for a non-violent crime. She went onto tell the audience about the staggering rates of self-harm, depression, substance abuse and suicide in women’s prisons.
Should we consider women differently to men?
Research into the background of female prisoners set out in the policy paper indicates that between 13–19% of women in prison are estimated to have one or more dependent children, and that women are more likely to be the primary carer of those children. Baroness Helena Kennedy, whilst clarifying that where men are the primary carers of children this should also be taken into account when sentencing, indicated that this was a strong reason why women should be considered differently at sentencing. She felt a report on the welfare of any children affected should always be done before deciding on the appropriate sentence. The impact on children, whose one or more parents are in prison, or babies born in prison, can be lifelong. Baroness Kennedy has been writing about the issue since the 1970s and said “a lot has happened [in that time] but not enough has changed” and that the quadrupling of women in prison since 1994 was a “catastrophe”. There is urgent need for more imaginative ways to sentence women.
Is the public ready for reform of this nature?
Lord Beith explained that if the public can be convinced of the extreme waste of taxpayers money in the current sentencing system for women then they should lend their support to change. He elaborated by stating “why waste taxpayers money on policies that don’t work?” and that we simply need to find more cost effective ways of sentencing other than using prison.
How should the public be educated on sentencing reform?
In fact more than 80% of women in prison are there for non-violent offences and the public are largely in agreement that non-custodial sentences are more appropriate in these circumstances.
However, the public needs to be convinced that women’s drivers to offending are substantially different to men. Often they have been psychologically, physically and sexually abused and suffered the devastating effects of exploitation and coercion.
Jenny Earle of the Prison Reform Trust told the audience that most women were in prison for a first offence and that the consequences for them after they have served their sentences were ‘hellish’. 6 out of 10 women come out of prison with no home to go to because, unlike male inmates, they have no one to keep the family unit together while they are serving their sentence. The panellists agreed that the cost to families and children of offenders was high and by the same measure, the cost to society is amplified.
Are the courts ready for the solutions suggested in the paper?
John Cooper QC congratulated Felicity Gerry QC and Lyndon Harris on writing the “best report since Corston” (Corston Report 2007). He said that judges should never be ‘straitjacketed’. He criticised the current statute and set out the failings of the Criminal Justice Act 2003 s 142. He went onto to say the statute needs a complete rethink; sentencing should be about proportionality and there needs to be a complete re-education of the judiciary on matters of custodial sentencing. It was also said that the introduction of the Offender Rehabilitation Act 2014 has in fact made things worse for women. It was noted with positivity that the new guidelines on sentencing for theft recognises the presence of ‘coercion’ as reducing culpability.
Is control and coercion by men a factor to which women are uniquely vulnerable?
More than 50% of women in prison are officially classified as vulnerable, Vicky Pryce told the audience. Their histories include exploitation by men, substance abuse, and more often than not they have no educational qualifications. Also, due to the merry-go-round of short sentences women are not in prison long enough to equip themselves with ‘even a GCSE’. Therefore, it is a misnomer that prison gives the offender the chance of ‘reform and rehabilitation’.
It is widely acknowledged that having a job reduces the rates of reoffending but sadly women struggle to get jobs when they leave the confines of prison; only 8% of women find work after leaving, compared to 20% of men. This fact compounds the difficulty they encounter in trying to get their children back, as being able to support their children is brought into question. John Cooper QC stated that “women are often released into destitution”.
What other sentencing methods or practices can be drawn upon?
Baroness Kennedy drew on the practicalities of experimenting with sentencing methods, expressing that piloting new ways and means is better done with women. There was some agreement that the current trend for closing prisons was about ‘real estate’ and value of the land which can then be sold to developers.
The Baroness praised the Scottish approach where the sale proceeds of prison real estate are being reinvested in women’s therapeutic centres. These regional centres are accessible to those women who really need them and in these centres they are able to seek help for the issues with alcohol, drugs, domestic abuse and mental health issues. These regional centres also mean that women are able to keep connections with their families rather than being placed in prisons miles away from them. In Scotland there is a presumption against short custodial sentences.
There was notable mention of Finland by Lord Beith, where the prison population as a whole has been reduced simply by the refusal of the finance ministry to provide increasing fiscal support to prisons.
What other issues need addressing?
John Cooper QC suggested that there is also a need for reform in policing and how police deal with women offenders. It was felt that the overuse of cautions was counterproductive. In addition, Vicky Pryce had sympathy with the prison service, fully acknowledging the difficulty of their job. Jenny Earle argued that it is the responsibility of a whole range of different services, not just the prison service, to take responsibility for what happens to women offenders, particularly if they are given custodial sentences.
Questions from the audience inevitably led to a wondering why nearly a decade after the Corston Report there has not been any palpable change in women’s circumstances under sentencing laws. There was resounding agreement in the room that the popular media play a big part in impeding change, insofar as politicians are scared of critical and sensationalist write ups which stir public opinion negatively. Also there has been competition by successive governments to appear to be ‘tough on crime’. It was felt that a women’s justice board such as the Youth Justice Board should be established so that the issues can be debated outside the glare of the media. This would enable the issues and solutions to be presented to the public in a meaningful and rational way.
Concluding remarks noted that the panel discussion considered alongside answers to the technical questions raised by the 2016 paper would go a long way in bringing forth change. There was a huge wealth of different expertise in the room and together this could start to effect change. Felicity Gerry QC in her final remarks concluded that change has to come because the current state of affairs “costs too much, not just fiscally but socially”.