Written evidence from Ms Felicity Gerry QC and Lyndon Harris

Written evidence submitted by Felicity Gerry QC[1] and Lyndon Harris[2] based on our 4 year research project and 2 extensive policy papers: Women in Prison – is the justice system fit for purpose AND Women in Prison – is the Penal System Fit For Purpose for Halsbury’s Law Exchange an independent think tank.

Both papers give significant technical detail which we suggest would be of use to the Justice Committee. Both papers are too large to be added to the submission portal but can be found here http://www.halsburyslawexchange.co.uk/category/policy-papers/

Overview

• 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.
• Leading charities such as The Howard League, Women In Prison and the Prison Reform Trust have aimed to bring about change in the way women are treated by the criminal justice system but it is clear that both the justice and the penal systems are still failing to address the multiple and complex needs posed by women.
• 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.
• 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.
• It is therefore fiscally prudent to promote the wider use of community penalties in response to offending by women.
• This argument is not about giving women lenient sentences, or sentences less than a man would receive in the same circumstances; it is about diverting women away from the justice system altogether particularly when they have acted as a result of coercion, abuse or exploitation (as a victim of domestic abuse or human trafficking) or imposing the correct sentence by reference to the principles which recognize factors such as vulnerability, lower culpability, the devastating effects of incarceration on women and their families,  and the knock on effects to society.
• It is time to bring about a fundamental and radical change in the way women are treated by the whole of the criminal justice system. As Baroness Corston identified in her 2007 report – now nearly a decade old – “we require a radical new approach, treating women both holistically and individually – a woman-centred approach”.

Non-prosecution and non-punishment of women

• 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.
• The incarceration of women who have committed offences when they have been the subject of exploitation, abuse or coercion lacks reason and compassion.
• Treatment of women as victims is illogical when the patterns of abusive behaviour are diverse and so widespread. 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 recognize reduced culpability, thus apply new laws to move women from the position of “suspect” to the role of “witness”.
• Other than the limited defences in the Modern Slavery Act 2015 and the common law defence of duress, the exploitation, abuse and coercion of women is not applied as a criterion to reduce or extinguish criminal liability, either at conviction or sentence. This is an area ripe for legislative reform. Wide consideration should be given to reducing criminal responsibility in relation to all offences in a similar way to the partial defence of diminished responsibility to murder.
• The government has recognized the effects of coercive control in new legislation which contains criteria which could be adapted to apply to decisions not to prosecute or not to punish coerced or controlled women who have been found by a court to have offended or are suspected of having offended.

Gender-specific approach

• To comply with international commitments to gender equality, three key areas are training of judges, prosecutors, prison staff and other actors in the criminal justice system on gender issues, (particularly those set out in the Bangkok and Tokyo Rules), reducing the criminalisation of women subject to exploitation, abuse and coercion, and changing sentencing.
• There is at present no specific sentencing regime applicable to female offenders and the current approach is restrictive. The coalition government enacted a duty upon the Secretary of State to “…identify anything in the arrangements for the supervision or rehabilitation of convicted persons that is intended to meet the particular needs of female offenders.”[3] While this is a welcome step in recognising the different needs that women present, it is the first step on a long journey to a system which treats women appropriately.
• One part of this discussion therefore has to be the power of the Sentencing Council to effect change by reviewing sentencing guidelines – both offence specific and overarching – and whether it is achievable without alternatives and social provision. Where there is inequality, such measures can and should be taken.
• The Sentencing Council took the decision to lower sentencing levels for so-called “drug mules” in its 2012 guideline. This welcome step disproportionately impacts upon women. It demonstrates a willing rejection of the notion that men who use women for the purposes of crime will be encouraged to do so if sentencing levels are low (or lowered) for the women coerced etc. into committing offences.
• The supposedly simple solution for politicians to instruct judges to send fewer women to prison does not resolve the risk of re-trafficking, further abuse or re-offending. Nor does it abate the community appetite for retribution and risks putting the legislature at loggerheads with the judiciary.
• A sentencing guideline dealing with gender issues should be addressed. This could take many forms but should, we suggest, adopt a similar approach to the recently published youth guideline.
• Primary caring responsibilities should be taken into account by calling evidence as it would be in a family case. The Sentencing Council has made advancements in this area, explicitly referencing “primary caring responsibilities” as a mitigating feature in its guidelines. However, more ought to be done to integrate criminal courts with family, child and health services. 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. Research shows that most children are then placed in out of home care.

Community orders as a priority

• In relation to female offenders a “one size fits all” penal approach will not work. In the same way that sentencing of youths is heavily focused upon “individualization”, so too should the approach to female offenders.
• Whilst custodial sentences are sometimes appropriate, prison should not be the default response to criminal offending by women.
• Research has found that prison sentences fail to address the complex needs of female offenders.

Community prisons with health and welfare facilities

• Many female prisoners experience high rates of mental health disorders, have been victims of sexual and domestic violence, and suffer from substance addictions.
• Often women serving short sentences go on to reoffend: 54% of women leaving prison are reconvicted within one year; for those serving less than 12 months this increases to 64%. The Corston Report found that short sentences of around 30 days are particularly futile and damaging, and yet are commonly handed down.
• Evidence from Anawim Women’s Centre demonstrated that only 3% of women using its support services went on to commit further offences and 7% breached their community order. Yet reports suggest that many centres dedicated to assisting women in crisis are closing due to funding problems.

14 April 2017