Women in the criminal justice system

Helen Mills
Tuesday, 8 February 2022

Speech given to the Women in the Criminal Justice System conference on 8 February 2022.

I'm going to talk this morning about sentencing and criminalised women. There are two main things that I would like to do.

  1. One is I’d like to outline current policy directions for women on short sentences. I’ll particularly be focusing on reforms to the Police, Crime, Sentencing and Courts Bill which is currently making its way through parliament so feels timely for today.
  2. Two, I’d to make share some thoughts about the sentencing reform options which might help the government meet its intended target of diverting women from short prison sentences to the community. in particular what I think are some of the pitfalls and challenges of this reform agenda here as well as the best option for change

So let's start with recent policy developments.

Female Offenders Strategy 2018

For those seeking to reduce womens contact with prison, this may well have been much welcomed in principle. In practice it has been much criticised.

One of the stated objectives of the female offender strategy is to reduce woman's contact with criminal Justice and to reduce the number of women subject to short prison sentences in particular.

As has been discussed, at the time the strategy was written the vast majority of women who were imprisoned were sent to prison for non-violent offences and subject to a prison sentence of under 12 m – and in most cases – under 6 m.

However the strategy didn't specify any mechanisms to support and enable sentencers to divert women from custody.

So, around a year later, in 2020, when the government released the Smarter Sentencing White paper outlining the proposals for criminal sentencing,  it may have been disappointing but probably came as no surprise that women mainly featured as appendix B in the document. Appendix B had a significant inheritance from the Female Offenders Strategy. It highlighted the needs of women on short prison sentences in particular and the desire for diversion. But gave no commitments beyond the buck passing request that sentencers should be encouraged to use community sentences rather than short prison sentences. This is a phrase that has been regurgitated by successive governments over the last few decades.

Included in the main body of the White Paper, the publication did make the case for moving away from short prison sentences. It described short prison sentences as ‘offering only temporary respite from offending behaviour ‘and ‘at best providing limited Public Protection as most offenders continue to reoffend following release’. It also cited the Ministry of Justice research that in a matched sample, those subject to a short prison sentence are more likely to be reconvicted than a similar cohort subject of community sentence. 

However – what happened next, or did not happen next, may now sound like a familiar pattern in light of what we have already heard this morning.

The Sentencing white paper was followed by a sentencing bill – the police crime, sentencing and the courts bill.

This bill, which as I said, is currently going through Parliament is huge and covers a range of issues. Despite the hugeness of the bill, no legislation was proposed to address the problem the white paper had set out on the current use of short sentences for non serious offending.

The measures in the Bill most relevant to women subject to short sentences appear orphaned, recycled policies, fundamentally driven by other agendas than a coherent approach to diversion for women. Indeed, some union groups representing workers in the criminal justice system have described them as ‘gimmicky’ given the wider context of successive years of underfunding in both prison and probation.

I will highlight two reforms in particular – the introduction of a new extended electronic sentence and a pilot problem solving court approach for women.

Electronic monitoring

The bill introduces a new sentence extending the length of time someone can be subject to electronically monitored curfew to two years and increases curfews intensity from the current maximum of 16 hours a day to 20 hours a day.  This increases the punitiveness of the available options in the community.

For women carrying out community sentences who are the primary or sole carer for a child this kind of sentence can be very difficult. For example a curfew which doesn't allow a woman to leave her home in time to drop children at school. This can especially be the case for women who are socially isolated or living in poverty. This raises concerns this sentence may fuel wasteful prison demands via compliance issues rather than because their original lawbreaking demands imprisonment.

Problem-solving courts for women

The bill introduces 5 Pilots problem-solving courts. Women on short sentences have been identified as a key target group for at least one of the courts. A pilot in Greater Manchester that trialled a problem-solving approach for women was included in the Sentencing White Paper. I don't know more details about the new proposed court, and vitally the funding and resources it will have available.

Perhaps those who are here know more than I do and I'll be interested in your experiences of them. I do know from an evaluation I was involved with about a previous Community Justice court in Liverpool going back over a decade, that it had proved disappointing as an alternative to custody.

The main thrust of the custodial sentencing measures in The Bill focus on ‘tough Law and Order’ policies and increase prison sentence length for a number of very serious crimes and serious violence in particular. As has been discussed, criminalised women are most frequently in contact with the criminal justice system for less serious offences and for short prison sentences. However, one reform I’d like to highlight in terms of women’s imprisonment is the tightening of minimum sentences for repeat offenders.

Currently a number of offence types attract minimal custodial sentences in England and Wales as follows:

  • seven years for the third drug dealing offences
  • three years for the third domestic burglary
  • and six months for second offence of possessing a knife or offensive weapon.

Currently sentencers must apply the min sentence unless they find it unjust to do so. The sentencing white proposed that courts were imposing less than the minimum sentence too frequently. The bill would require courts to pass at least the min sentences unless there are exceptional circumstances. This tightens the criteria by which a sentence for less than the mandatory minimum could be given.

The justification for this change is for it to act as an extra deterrent to potential offenders. Evidence international is consistently against this. The issue for reducing woman's imprisonment in particular is that minimum sentencing ignores factors which would normally mitigate a sentence imposed, including its length. For example a woman storing a firearm for a man who is in an abusive relationship and subject to coercive control.

Given what we know about pathways into law breaking for women, will this new provision restrict sentencers being able to take such circumstances into the account in sentencing of some women?

Magistrates' sentencing powers

Outside the provisions set out in the bill, last month saw the announcement of an extension to magistrates custodial sentencing powers from six months to 12 months. This measure was introduced as a mechanism to contribute to tackling the backlog in courts.

The idea is that more cases can stay and be sentenced in the magistrate courts rather than go to the Crown Court. So, the theory goes, a backlog of Crown court cases can be heard more quickly. Defendants do have to agree to not having their case heard by a jury in the crown court.

This change doesn't require legislation because the powers for this were granted in the criminal justice act 2003. Will it help cases to go through the system more quickly? Maybe. The consequences in terms of women's imprisonment are difficult to predict with any certainty. Indeed, others have noted this change has been announced without projections about its impact on the prison population.

Although the government have said that they do intend to release an Impact Assessment this has not been released yet. Legal professionals have also raised concerns that this change risks more people's going to the Crown Court on appeal hence increasing the Crown court backlog.

Legislation is being tabled to introduce an ‘off switch’ for this change so that the measure can be quickly stopped if needed. This suggests there is some acknowledged risk of this move potentially exacerbating already overstretched prison demands or not meeting its stated objectives of reducing the Crown Court backlog. It has the feel of a quickly put out announcement, rather than one that has benefited from consultancy and due diligence.

So watch this space on how it develops in the coming months.

Presumption against short prison sentences

The sentencing white paper and the bill that followed are examples of the contradictory directions of current government approach to women and prison policy. iIn the diversion direction, appendix b in the white paper highlights the needs of women on short sentences and the desire for diversion. In the opposite direction, are policies that are an acknowledged blueprint for prisons growth more broadly and changes which feel expedient and cosmetic to the challenges of achieving diversion in practice. There seems an unwillingness to legislate to support substantial changes to custodial sentencing for women or to reduce short term prison population.

This has not always been the case.

You may recall back in 2019 that the then Justice secretary David Gaulk and former prison minister Rory Stewart were publicly making the case for introducing a presumption against or ban on short prison sentences. The central proposition of each is different.

A presumption would introduced particular criteria or exceptional circumstances by which a certain length of prison sentences could be imposed.

A bar or ban would prohibit sentencers from imposing a custodial sentence of less than a certain length.

Back in July 2019 in what was to be his last public speech as Justice Secretary David Gauke said "you could consider combining these options" with a presumption applying to sentences of up to 12 months and a bar for prison sentences of up to six months. There is, he said, a strong case to explore this given the evidence.

However a couple of weeks prior to an anticipated green paper on this issue, the agenda evaporated almost overnight with the election of Boris Johnson as leader of the Conservative Party. No green paper was published. No proposals about how legislation on this issue would work were publicly discussed.

That ended – at least for now – a strong arm approach of reforming custodial sentencing options as a current government agenda.

But it was taken up by the Liberal Democrats and the Labour Party in their manifestos at the last election. Both said if elected they would impose a presumption on short sentences, such as a presumption against 6-months prison sentences. Carol Black in her wide-ranging review of drugs also said a presumption against six month prison sentences would be helpful in order to better address underline problematic drug use in the community.

A presumption against short prison sentences sounds tempting straightforward from a diversion perspective. But on closer inspection I think it's not the ready-made solution it may first appear. For women. Or for diverting those on short prison sentences to community based sentences more generally.

There are several reasons why I think a presumption simply against the length of a short prison sentence might not prove to be effective in practice.

The first is the experience in Scotland. As some of you may well be aware, Scotland has had a presumption against short prison sentences in place since 2011. Initially, against short sentences of less than 3 months. Then extended in 2019 to a presumption against prison sentences of up to a year.

When I looked at the intentions of the original presumption, women on short prison sentences for persistent low-level offending were the prime candidates for the intended shift to community-based sentences in the place of short prison sentences. Ministers at the time cited them as such when the legislation was being proposed.

However when I looked at sentencing outcomes several years on from the original three months presumption, they showed that women continue to be sentenced to short periods in prison at much the same rate and for the same profile of offences, as they were before the presumption was introduced.

This has been acknowledged by a former Scottish Justice minister Humza Yousaf last year. He said that despite his hopes, the presumption had not worked to the degree he would have liked, and that more reform was needed for women in particular.

An early evaluation of the presumption suggested it failed to significantly affect sentencing decisions all outcomes. Some sentencers in Scotland reported that they were less likely to use short prison sentences in favour of community responses. Some that they had imposed a longer prison sentence where prior to the legislation they would have previously imposed a short prison sentence. And third group who said their use of short sentences was largely unchanged.

Sentencers' decision-making was affected in all three different ways it could have been affected, with the majority indicating that they carried on much as before.

In addition custody is, in statutory terms at least, already only used as a last resort in England and Wales. The principle that imprisonment should be reserved for serious offences was established in statutory terms in 2003, and confirmed most recently by the sentencing act 2020.

Despite this, as we know, in practice women have continued to be routinely imprisoned for low-level law breaking rather than for serious offending. It is not clear how a presumption against short prison sentences would differ from or work within our current custody threshold.

Would introducing a separate sentencing regime for short prison sentences be desirable in our system of continuous and overlapping sentencing options? Or put more bluntly, is a presumption against 6 month sentences another example of fiddling with part of the system, rather than thinking about sentencing as a concrete whole?

There are also obvious dangers of raising the floor on the entrance to prison. Whatever its progressive intentions, some people will inevitable cross this higher threshold. As a result, they will be subject to a longer prison sentence than they would have previously had; significantly backfiring on the intended diversion target for reform.

This is particularly so at the time when, as a result of changes in the Police, Crime, Sentencing and Courts Bill, longer prison sentences in particular are likely to drive increased prison demands.

In terms of a ban or bar, prohibiting the use of prison sentences of a certain length, international evidence suggests this tends to lead to sentence creep.

For example, in Western Australia, a ban on prison sentences of up to six months for minor crime resulted in an increase in prison sentences over six months for those who would have previously received a shorter prison sentence. As a result of movement in both directions – up-tariffing to a longer sentence and down-tariffing to a community based sentences – the net outcome of the ban on prison demands was considered negligible.

What could we do?

I do not want to leave you today feeling both jaded and that nothing works. There are concrete things we can do in sentencing reform.

We have to engage with underlying issues driving the numbers on short term prison sentences.

And base reform on better addressing these underlying reasons.

When I have spoken with sentencers about women on short prison sentences they expressed similar sentiments. Their current use of short prison sentences generally and for women in particular is associated with a sense of exhaustion.

These are women considered to have exhausted all other options. They have tried community sentences. They're considered to have not engaged with or continued to break the law. They're appearing in front of a court for the fifth or tenth, or countless time. They are perceived to have run out of Road. In 2017 half the women sentenced to custody for under 6-months had had five or more community-based sentences.

In such circumstances, sentencers are imposing a short prison sentence not because the seriousness of the lawbreaking demanded it but simply because nothing else seemed appropriate.

The answer is not to blame individual sentencers. This is a systemic problem requiring a systemic solution.

In terms of sentencing reform, we should address the current use of short sentences we need to address the arrangements for dealing with persistence. This can be done.

We should also clarify that previous convictions should not inevitable results in imprisonment, and introduce tighter criteria for determining the relevance of previous convictions.

What I say today draws on a range of work myself and colleagues have been involved with. Mostly from work we have been doing over the last couple of years about how sentencing reform could support a move from short prison sentences to community based sentences. Funded by the Lloyds Bank Foundation.

On the custody threshold, we need interventions which go further than simply restating the current statutory obligation on sentencers to only impose prison if the offence is ‘so serious that neither a fine nor a community sentence can be justified.’ For example, we could define the offence categories and circumstances that should not normally be imprison-able and set out the circumstances a community-based sentence cannot address.

In Germany, a presumption against prison sentences of six months or less, implemented in 1969, requires sentencers to make two assessments before passing such a sentence: firstly, that a community-based sentence is not appropriate, and secondly, that a short prison sentence would better achieve the intended sentencing outcome. There is perhaps something to learn from this.

Of course I'm sure I do not need to tell those of who that have chosen to be here that any change such as this should be accompanied with wider policy change and resources in the community.

Both German and Finland are examples of countries that have shifted from imposing short prison sentences to community-based options in general. Both have been longer term and broader based strategies rather than a stand alone sentencing reform.

Sentencing reform is not a silver bullet for women’s diversion from short prison sentences. But by focusing on concrete issues, we can develop reforms that can be further built on in the future to support progressive change.