Felicity Gerry QC and Lyndon Harris, in partnership with Halsbury’s Law Exchange, have spent the last three years researching sentencing and treatment of female offenders within the criminal justice system to determine whether there is a true and principled case for reform.
In 2014, they published the report Women in prison: is the penal system fit for purpose? which aimed to help further discussion to develop workable penal law and policy suggestions.
Two years on, and despite a number of significant reports from leading charities such as The Howard League, Women In Prison and the Prison Reform Trust, which have similarly aimed to bring about change in the way we treat women throughout the criminal justice system, it is clear that both the justice and the penal systems are still failing to address the multiple and complex needs posed by women.
This discussion paper therefore aims to bring these important issues once again to the forefront and to strengthen the other voices also trying to pave the way for true reform in this area. It sets out the key facts emanating from the research, identifies keys areas where reforms could be made, and makes suggestions on how these changes might be implemented.
Building on the 2014 report, the authors concentrate on three key areas:
- Training of judges and other actors in the criminal justice system;
- The criminalisation of women subject to exploitation, abuse and coercion; and
Amongst the proposals, the paper notes judicial training on gender issues, particularly the content and existence of the Bangkok Rules, does not appear to be available in the published judicial college course materials. It highlights the issue of diversity in the judiciary and therefore suggests a test could be designed to ensure key players in the criminal justice system have knowledge of the UN Rules and domestic research, including key facts and gender issues. The paper also raises the question whether the failure to implement such training should be a reportable under the CEDAW mechanisms.
It reinforces that women in prison are likely to be victims as well as offenders, more than half (53 per cent) report having emotional, physical or sexual abuse as a child. Over half the women in prison report having suffered domestic violence and one in three had suffered sexual abuse. It suggests that the incarceration of women who have committed offences when they have been subject of exploitation, abuse or coercion is unreasoned.
It further suggests that treatment of women as victims is illogical when the patterns of abusive behaviour are diverse and so widespread. It goes on therefore to propose that women should be treated as witnesses to a global violence problem that nations must try to solve. It should be possible to accept certain acts as involuntary or recognise reduced culpability, thus apply new laws to move women from the position of “suspect” to the role of “witness”.
Other than the limited defence of duress, the exploitation, abuse and coercion of women is not applied as a criterion to reduce or extinguish criminal liability, the paper strongly recommends that this is an area ripe for legislative reform.
The authors propose that the absence of a sentencing guideline dealing with gender issues should be addressed. In particular, they note that primary care responsibilities should be taken into account but evidence is rarely called as it would be in a family case about the arrangements of children. The paper notes that the Sentencing Council has made advancements in this area, explicitly referencing “primary caring responsibilities” as a mitigating feature in its guidelines. However, the authors ask whether more ought to be done by the Council and ask whether courts should be provided with information concerning these issues. The Ministry of Justice estimates that between 24 per cent and 31 per cent of all female offenders have one or more child dependents and an estimated 17,240 children are separated from their primary carers (usually mothers) by imprisonment every year.
Finally, they make the case for more fiscally prudent decisions to consider that those who receive community orders rather than custodial sentences are less likely to reoffend and when they do they are less likely to commit violent crime. What’s more, the average cost of to keep a female offender in prison was approximately £56,415 per annum compared to £10,000-£15000 for an intensive community order. This argument has been made by others, such as the Prison Reform Trust and the Howard League. The authors support those groups and others in this endeavour.
The paper concludes that this argument is not about giving women lenient sentences, or sentences less than a man would receive in the same circumstances; it is about imposing the correct sentence by reference to the principles governing the sentencing system.
It is important to note one positive point since the 2014 report and that is numbers of female prisoners have fallen. However, female offenders – and their children – are still experiencing the devastating effects of short-term sentences and reports this month suggest that suicides in prison have reached “epidemic” proportions, with rates of self-harm and violence soaring to unprecedented levels.
It is time to bring about a fundamental and radical change in the way we treat women throughout the whole of the criminal justice system. As Corston identified in her 2007 report nearly a decade ago, “we require a radical new approach, treating women both holistically and individually – a woman-centred approach”.