There was a little girl, who had a little curl
Right in the middle of her forehead.
When she was good, she was very, very good
But when she was bad she was horrid.
WHEN JEFFREY ARCHER, the former Conservative Party chairman, sued the Star for libel in 1987 over his alleged association with a prostitute, his wife gave evidence on his behalf. She indicated discreetly that she and her husband enjoyed a full married life, speaking with delicacy about the indelicate. She was the exemplar of the ‘good wife’, standing by her husband as the wives of John Profumo and Cecil Parkinson had done before her. She was dressed unassumingly but with great care, attractive without being striking.
Mr Justice Caulfield was moved to lyricism when he dealt with Mary Archer’s evidence. Giving his directions to the jury (‘giving directions’ is when the judge instructs the jury on how to approach the evidence in the case), he suggested to them that their vision of her in the witness box would never disappear. Indeed, His Lordship became quite rapturous. ‘Has she fragrance? Would she have, without the strain of this, radiance?’ His personal view that Mrs Archer’s scent could expunge any whiff of scandal was undisguised. Here was the flower of womanhood, whose moral worth shone like a flame in the murky world of tabloid newspapers, sex and call girls.
Monica Coghlan, the prostitute, was Mary Magdalene to Mrs Archer’s Virgin Mary in this morality play. Her evidence did not evoke much sympathy and in the view of judge and jury was probably untruthful. Here was a woman who sold her body to the next buyer and who might lie for the right price.
Polar examples of the female sex, these two women created a contrast which was orchestrated by the press and which enabled Jeffrey Archer to recede from the centre of the courtroom drama. But in 2001, he was back before the courts charged with perjury. It transpired that he had lied in the libel action, having presented a false account of his movements on the night he had allegedly been with Monica. This time Mary had a tougher ride when she strode confidently into the witness box. No less fragrant, she was now portrayed as steely, calculating and manipulative. The stereotyping of women is an extraordinary phenomenon to behold and the lightning changes in how women are perceived can be the result of almost subliminal codes.
The good wife features regularly in our courts, usually as the other half of a male offender. For, as the songs and stories tell us, the love of a good woman can be the making of a man, and any hope of redemption is often deemed to lie with a criminal’s wife. Wives are also brought forth as a measure of whether the man has reason to mend his ways. Hidden victims of the criminal justice system, they and their children, as well as their spouses, have sentences passed upon them. Every term of imprisonment means for them the loneliness of separation, bringing up a family without support, suffering financial hardship, and the misery of long journeys and unfulfilling visits to remote prisons.
Wives are rarely indicted for being passive beneficiaries of criminality. If a husband indulges in unconventional means of bringing home the bacon, more often than not it is accepted as unlikely that his wife will be able to prevent it. She usually has to play an active role before the police will charge her, though her safe passage can be the bargaining counter used effectively by the police to get the husband to ‘cough’. Wives and womenfolk are the subject of frequent deals, where she goes home to the kids if the main contender sees sense and takes the rap. In 2010, the former Scottish Socialist Party leader Tommy Sheridan and his wife Gail found themselves charged with perjury. It was alleged that the pair had lied during a defamation case, brought against the News of the World in 2006 after the tabloid accused the politician of being an adulterer who visited swingers’ clubs. The charges against Gail Sheridan were ultimately dropped, but not before prosecutors reportedly put considerable pressure on her husband to plead guilty in return for his wife walking free.
When the good wife does appear in the dock, it is usually because she has allowed her love for her husband to ‘seduce’ her into crime, helping him to escape custody, harbouring him from the forces of law or concealing stolen items. Because the image of the faithful and supportive – if misguided – wife is so powerful, defence lawyers always try to turn a female client into just such a one. The use of the term ‘common-law wife’ is insinuated into proceedings precisely for this purpose, intended to communicate those positive aspects of womanliness that combine to create the archetypal wife. Judges and juries alike have a soft spot for this romanticised ideal; when charged with playing some ancillary role the good wife is often acquitted.
This is what gives rise to the misguided claim that women benefit from chivalry. But in reality the good wife stereotype only assists women who fit the mould. In 2004 family members of a man who had committed a suicide bombing in Tel Aviv were put on trial, including his wife. I acted for the brother of the bomber. The allegation was that as his wife, intimately involved with him, she must have known that he was going off to kill himself and others in an act of terrorism. A new law introduced after 11 September 2001 placed a duty on people to inform on others if they suspected anything connected with terrorism. Failure to inform was made, and remains, a criminal offence even for a wife. Wives of IRA men, who probably knew when their other half disappeared for weeks that they were part of an active service unit, were never prosecuted because it was accepted that to do so would be futile and counterproductive in the community. Expecting a woman who has the care of a family and profound emotional loyalties to pop down to the police station to ‘grass’ on her man was implausible. The Muslim community not surprisingly felt that the legal change with its new approach to wives was specially designed as an assault upon it and was affronted by the appearance of this devout young mother bereft by her husband’s death. The clincher in her acquittal was the irrefutable evidence that after the birth of her newest baby she had gone to her doctor to have a contraceptive coil fitted – not the act of a faithful wife who knew her young husband was on his way to his death.
Some wives can be too accommodating. When the Liberal Democrat MP and Cabinet minister in the coalition government Chris Huhne left his wife Vicky Pryce in June 2010, she slipped to the media the information that she had taken speeding points for her husband to prevent him losing his driving licence, which would have caused him difficulties in his busy political life. She tried to put the information of his criminal malfeasance into the public domain in a way that damaged him but did not boomerang back and bring down the forces of law on her own head.
The whole business brought both Huhne and Pryce before the courts for perverting the course of justice; the MP pleaded guilty, thereby putting an end to his political career but Pryce contested the case before a jury, maintaining she had been subjected to marital coercion. The jury did not believe her and convicted. She was sentenced to eight months’ imprisonment, served nine weeks, and wrote a strong book about the senselessness of imprisoning so many women who had committed low-level crime. Drawing on her own expertise as an economist, she called the book Prisonomics and concentrated on the fact that, as well as wasting lives, it made poor financial sense. The case gave rise to an interesting public debate about whether marital coercion was an old-fashioned defence to crime which had had its day given the modern emancipation of women. However, it was pointed out by many of us that while it may have been hard for a jury to believe that the redoubtable Vicky Pryce would be coerced by anyone, many women are forced under threat by spouses to commit all sorts of offences and the defence still had its place in the law. What was also notable about the case was the vituperative comments by the trial judge who clearly formed a poor view of Pryce and characterised her as a ‘vengeful’, ‘controlling’, ‘manipulative’ and ‘devious’ woman. All words that have haunted the case law over the centuries when dealing with women.
In the gamut of crime, women usually commit less serious offences. They also tend to play supportive roles: harbouring and handling stolen goods, carrying drugs, providing safe houses, cashing stolen cheques. As in the world of legitimate enterprises, they are on the payroll but are rarely the paymaster, a syndrome that is usually reflected in shorter sentences but has nothing to do with the kindness of judges. While Joyti De Laurey, the personal assistant to a director of Goldman Sachs, may have spirited away over £4 million without her banker boss noticing, few women embark on such bold embezzlement. White-collar criminals usually have a wife at home laundering their shirts. The attitude of the court to a female accused still depends on the kind of woman she is perceived to be. In itself this is no different from the conscious and unconscious approach to any defendant, who is judged according to all sorts of hidden criteria, such as whether they are employable or whether they show enough respect to the court. But for a woman, the assessment of her worth is enmeshed in very limiting ideas. If she challenges conventions in any significant way, she is seen as threatening or, at the least, disappointing. A mere hint in court that a woman might be a bad mother, a bit of a whore or emotionally unstable, and she is lost.
Preconceived ideas about ‘good’ women have always affected judges’ decisions. When wavering between a prison sentence and a community order, many judges play the sugar-and-spice game of deciding what this little girl is made of. The tests they apply commonly revolve around our clients’ functions as wives, mothers and daughters. Women who break the rules by being dissolute or unfaithful, or by otherwise not fulfilling their wifely functions, are bad wives. The courts do not like bad wives. ‘Mistresses’ and casual girlfriends fare little better, with their negative connotations of adulterous relationships and promiscuity. Single women pose special problems. Here the issue is whether they lead orderly or disorderly lives, hold down jobs and have community or family ties.
Good mothers get credit from the court. Yet the principles applied in deciding whether or not someone is a good mother are essentially middle class. The emphasis is less on how many hours women spend prattling with their children or rolling together on the floor than on cleanliness and homemaking skills. Presentencing reports, written by people who know the market with which they are dealing, make references to the spick-and-span council flat, the well-kept home, the neatly arranged ornaments and the scrubbed children. If a woman’s children are in care her failure is already established, and whatever circumstances led to the separation are largely ignored.
The compulsion to make women fulfil accepted criteria of decent womanhood is a great temptation to lawyers and experts alike, who in colluding with it succumb to a paternalism which effectively marginalises women. The prosecutions in the last 20 years of Sally Clark, Angela Cannings and Trupti Patel – all mothers accused of killing their babies – are a case in point. The common feature in these three shocking cases, besides the fact that each woman had lost more than one baby in circumstances that are commonly described as cot deaths, was that men in the police, medicine and the law jumped to conclusions about the capacity of these women as mothers. The burden of proof was reversed and there was an assumption of guilt rather than the presumption of innocence.
These women failed to fit the straitjacket of ‘natural’ mothers according to some fantasy of how natural mothers conduct themselves. They were questioned as to the frequency of the cuddles they administered and comments were made on the amount of tears shed. Perceived lack of emotion was read as callousness. Over and over again Sally Clark was described as a career woman who had a luxury dream home as though there was clearly no place for babies in her world. Sally Clark and Angela Cannings were both convicted of murdering their babies and sentenced to life imprisonment until their convictions were overturned in 2003. Sally Clark had served three years and Angela Cannings served one year before the convictions were quashed. Trupti Patel, a pharmacist, was acquitted by a jury in May 2003 despite prosecution claims that ‘against nature or instinct’ she too had smothered her children. At her trial she called her aged grandmother from India, who testified that she had lost five of her 12 children in early infancy, which suggested strongly that there could be some sort of genetic reason for the unexpected deaths. The cause of sudden infant death syndrome is still unknown.
Sally Clark’s first appeal was unsuccessful. Yet her friends and lawyers laboured away until they turned up a medical report which had not been made available at her trial; it showed that her second baby, Harry, had an infection at the time of his death. On seeing the test results – which had mysteriously never been disclosed – two eminent pathologists stated that in their view Harry died of natural causes. No one had ever doubted that the earlier death of Christopher was anything other than natural until doctors began to ‘think dirty’ because a second baby died. Sir Roy Meadow, the star witness for the prosecution, had testified that two deaths were unnatural, telling the jury that there was a ‘one in 73 million chance’ that both deaths had occurred naturally, something that could only happen once in every hundred years. This statistic was the smoking gun that convicted Sally Clark. In one soundbite the jury had a compelling case against her. The jury, some of whom were openly weeping, convicted her by 10–2 after two days’ deliberation. The statistic was grossly inaccurate. It is more rather than less likely that a mother who has suffered one cot death will suffer another. The true odds were not one in 73 million but one in 60. No one had challenged Sir Roy Meadow on where he had got his statistics, despite his wandering far outside of his field of expertise. He was subsequently struck off by the General Medical Council for serious professional misconduct, albeit to be later reinstated upon appeal.
When Sally Clark’s husband visited her in prison and told her that exculpatory evidence had been found, her first reaction was not ‘Thank goodness, I’m coming home’ but to burst into tears and ask whether Harry had suffered. In 2007, Sally Clark was found dead at her home. The coroner’s report recorded a verdict of accidental death by reason of acute alcohol intoxication. According to her family, she had never managed to come to terms with being falsely accused of murdering her children.
The sudden infant death lawsuits were cases where evidential gaps were filled with strange notions about how natural mothers should behave. Ideas about instinctive mothering floated through the courts. The fault did not just lie with doctors or lawyers; the police often fell from grace too. I chaired a working group for the Royal College of Pathology and the Royal College of Paediatrics and Child Health in the aftermath to examine medical, legal and police practice in such cases. I heard accounts from mothers who wakened to find their baby dead and were immediately the subject of suspicion – with crime-scene yellow tape being placed across the door almost as soon as the ambulance had taken the lifeless baby to hospital. Unlike other situations where a person is found dead and the body is left until professional help arrives, distraught parents try to breathe life into it, clean away vomit and mucus, pass the baby between them, splash it with water, put a finger in its mouth to see if something is blocking its airway. To police officers the removal of nightclothes and cleaning away of evidence may seem highly suspicious but parents do not want their baby in cold, wet clothes even if it is dead. They do not want its face crusted with detritus. Evidentially it may be unhelpful but to expect rationality is to lose connection with real lives.
Unfortunately not much has changed since the great scandals of the late nineties. In 2005 Suzanne Holdsworth was convicted of murdering a two-year-old boy, Kyle Fisher, whom she was babysitting for a neighbour. The allegation was that she had beaten his head repeatedly against a wooden banister at her home in Hartlepool. She was given life imprisonment and served three years before her conviction was quashed in 2008 when new medical evidence was presented showing that it was much more likely that Kyle had died of an epileptic fit. The police had jumped to the conclusion that, if the boy was with her when he died, she had clearly done something to him. Her panicked 999 call registered her as saying he was having a fit, which the police assumed was the result of violence. At the post-mortem a pathologist recorded the brain as normal at the time of death. What came to light was that Kyle had suffered an accident not long before his death, which had nothing whatsoever to do with Suzanne Holdsworth. It had happened in his own home and was the result of a fall out of his pushchair onto a fire prong which had pierced his eye socket and penetrated the brain. As a result there was bleeding in the child’s skull and water on his brain. Indeed, in photographs taken shortly before his death the little boy’s head is enlarged and his eye is clearly drooping, which was explained by doctors at the appeal as being caused by the swelling brain pressing down through the eye socket.
It transpired that the boy was due to have surgery because of the swollen brain and the likely risk of seizures. Although the police claimed they had spoken to the hospital surgeon, he had no record or memory of such a call and was quite clear he would have told the police about the brain injuries and likelihood of seizure. The original autopsy identified no bruising or abrasions to Kyle’s skin despite the claim that Suzanne must have beaten him against the banister. No DNA sampling was done of the banister to look for tiny particles of skin. The miscarriage of justice was explained as shoddy police work but it was more than that. The police, for whatever reason, preferred to believe that this woman was guilty of cruel and vicious behaviour towards a child.
In some cases, class divisions as well as gender expectations are at the root of the court’s inability to understand how the offences were committed. I remember a case in which a mother of four children was convicted of cutting her son with a breadknife. The woman’s children had different fathers, none of whom was around, and two of the children were of mixed race. The family was living on the breadline, in a flat without electricity, and the oldest boy, who was eight, was already showing signs of problem behaviour. Social services confirmed that a change of personnel had resulted in a period with no social work support. A doctor testified that the injury to the boy’s head was not serious and would have involved little force. A schoolteacher wrote to the court to describe the effort the woman was putting into helping her children to read. She had minimal previous history of offending. Nevertheless, she was sentenced to 18 months’ imprisonment. There is a chasm of misunderstanding between the privileged professionals who work the system and the offender bringing up children alone without financial and emotional resources. The misery of that existence and the toll it can take is rarely appreciated.
The idea that women can be subject to their hormones was the traditional way of explaining otherwise inexplicable behaviour. The special crime of infanticide, available only to a woman who is responsible for the death of her newly born baby, recognises that ‘at the time of the act or omission she had not fully recovered from the effect of giving birth or the effect of lactation and for this reason the balance of her mind was disturbed’. The offence was introduced as part of the Homicide Act in 1957 because it was appreciated that a charge of murder was wholly inappropriate, but the charge is confined to the first 12 months of a baby’s life.
The availability of contraception and abortion, as well as a change in attitude to the entire issue of illegitimacy, has meant a reduction in cases of infanticide. Girls and young women are not always so ridden with shame and fear of parental response. It makes all the more poignant the Irish case of 15-year-old Anne Lovett, who died in a churchyard in Granard, County Longford, where she had furtively gone to give birth, or the 16-year-old girl who was desperate to hide her pregnancy from her parents and, after giving birth in the bathroom of their home, choked the baby boy to death. Over the years I have represented a number of young girls who have kept their state of pregnancy secret, almost deluding themselves into believing that they were not carrying a child. They have then killed their baby after giving birth in lonely, desperate circumstances, silently enduring the trauma and pain of labour. In one case the girl was in such a state of shock after the birth that she stuffed the baby in her hockey bag, and when the bag moved, in her crazed state she hit it with the hockey stick. The judge spoke to me after the sentencing for infanticide by giving her a conditional discharge and murmured that in the old days the family doctor would just have buried the baby at the bottom of his garden and the family could have got on with their lives. Shame at pregnancy outside marriage, for adult women at least, has largely disappeared in many communities and we should relish the fact. But in some the stigma of dishonour is still so strong that the suffering is unbearable. In another case the accused was a Bangladeshi girl, 14 years old and terrified of telling anyone she had been raped by an uncle. She threw the baby from the bathroom window of a high-rise flat in the seconds after giving birth.
The death of a baby is highly emotive. As a society we have a duty to protect the most vulnerable among us especially if they have no voice and cannot complain of their suffering. In the vast majority of cases where a baby dies it is as a result of natural causes. In most cases where a baby has been killed the mother is suffering from postnatal depression and has spiralled into a nadir of hopelessness. Usually the mother is overwhelmed with guilt and just wants to die herself.
The young woman who stole baby Abbie Humphreys from a maternity ward in 1994 became a hate figure to the public because of the terrible pain and anguish she inflicted on the baby’s parents, but she was a sad, mentally unwell girl whose own miscarriage and failure to produce a healthy baby had propelled her into a serious delusional disorder. Instead of telling her family and boyfriend that she had lost her baby, she acted out an extraordinary fantasy pregnancy, filling her trousers with old clothing to simulate a swelling stomach and decorating a nursery for her expected child. The stoning of the prison van which brought her to the court may have assuaged primitive feelings among fellow citizens but courts have to reach beyond atavistic impulses to punish in order to deliver justice. This was a terrible crime but it was the product of mental illness; the judge’s response – making a probation order and sending her as a condition to a place where she could have psychiatric treatment – was wholly appropriate.
The pressure to fulfil society’s expectation weighs heavily on women. I have represented two very different women who had undergone years of in vitro fertilisation without success and finally adopted children whom they subsequently harmed. One child died; the other is permanently brain-damaged. In each case the years of pursuing motherhood led to heightened expectations and an idealised notion of what it would be like to mother a child. Their personal sense of failure when confronted with the reality of parenting stimulated a mental breakdown in both women. In another case I acted for a young woman who pleaded guilty to the attempted murder of her baby daughter. My client had been so violently abused by her boyfriend that she was demented with terror and could not take any more. She wanted a way out for both of them, took an overdose and tried to smother the sleeping baby. When the baby vomited she was stricken by what she was doing and phoned the police. She ended up in the dock while he was appearing on Top of the Pops in a music video, but his behaviour was never exposed; he was covered with anonymity because to name him would have identified the child.
Since the creation of the special female crime of infanticide, the law has come to a greater understanding of mental impairment. However, the infanticide law reflects a paternalistic and generalised approach to women’s psychology and physiology, and it is probably time that it is removed from the statute books and absorbed into a reformed Homicide Act. Childbirth and lactation do not dissolve women’s brains, but postnatal depression is a recognised disorder and would fulfil the criteria for diminished responsibility in appropriate cases.
Thirty years ago, a young woman of 19 called Ann Reynolds killed her mother shortly after giving birth to a baby whom she had surrendered for adoption. The girl had concealed her pregnancy and taken herself off to a hospital in a nearby town to give birth secretly. In the period that followed, she clearly suffered puerperal depression, and one night, after a confrontation with her mother, she killed her as she slept. She was convicted of murder, the jury having rejected her defence of diminished responsibility, but released on appeal after a campaign by local women led to the involvement of experts, who testified as to her hormonal imbalance, with the emphasis on a chronic premenstrual condition.
Since then, premenstrual syndrome (PMS) has figured a number of times as a defence or mitigation to crime, and in two well-publicised cases has successfully reduced a charge of murder to manslaughter. Christine English crushed her former lover against a telegraph pole with her car, and Sandra Craddock killed another barmaid at the place where she worked. Both pleas to manslaughter were accepted on the grounds of diminished responsibility due to PMS. Christine English received a conditional discharge and driving ban. At first Sandra Craddock’s sentence was deferred for a period, during which she received progesterone therapy. The success of the treatment eventually resulted in her receiving a probation order. At a later stage, after a further conviction, her counsel sought in the Court of Appeal to establish PMS as a special defence in its own right, but the judges were having none of it – quite rightly, in my view.
The issue has created unrest among many men and women, the former seeing it as a ‘get-out’ and the latter as a reinforcement of the ‘slaves to hormones’ view of women. Because we feel differently about women committing crime, we have over the years gone to some lengths to avoid defining them as criminal, preferring the idea that they have emotional problems; they were mad rather than bad. The truth is that our desire to seek psychiatric explanations for women’s crime was a way of trying to make it invisible, a profound expression of our worst fears about the social fabric falling apart. However, medicalising and pathologising women is a way of perpetuating the myth that they are victims of their own physiology and that the function of all women might be intrinsically impaired. The point which has to be emphasised is that these cases of a profoundly disturbed hormonal balance, in which women’s physiology affects their mental state, are extremely rare. In my own practice I have used the condition in relation to my client’s mental state only twice. In murder cases it can be raised only where evidence is strong that the hormonal imbalance is so extreme that the tests for diminished responsibility are fulfilled. There are probably just as many cases where exceedingly high testosterone levels in the male might account for outbursts of violence. It is just that, as usual, we are more predisposed to explore psychiatric explanations in women.
The workings of the female body and its potential for childbearing are sometimes justifiably used in special pleading for women, but it does have the double bind of being used to shackle women to very confining roles. Biology is commonly assumed to determine women’s lives, and there are times when it feels as though it does. Women are rendered much more vulnerable by virtue of their physiology, and the real evidence for this is in the extent to which they are the victims rather than the perpetrators of violence. Most of the violence women experience is in the domestic setting and not on the street. The home is by far the most dangerous place for women.
Yet when it comes to sentencing, judges typically take insufficient account of the fact that women are still the primary carers of children and other family members, and fail to see that the sentencing system is formulated with men in mind. The organisation Women in Prison reports that women, ironically, sometimes receive harsher sentences than men because they are mothers. They may be deemed unsuitable for community service because they have young children, but then the courts, unable or unwilling to come up with an alternative punishment, send them to jail. On other occasions the courts might kill with kindness. The All-Party Parliamentary Group on Women in the Penal System found evidence of women being slapped with community orders festooned with multiple and onerous conditions. Imprisonment for failure to comply is all too often the inevitable result.
When I was first in practice it was claimed that women got off lightly in the courts. However, the lower sentences merely reflected the less serious nature of the offending. The early noughties saw a shocking escalation in the numbers of women being sent to prison. According to Home Office statistics the average female prison population in 1994 was 1,811. By 1999 it stood at 3,247, and in 2005 the number of female prisoners peaked at 4,467. This means the number of women being incarcerated has more than doubled in a period of 10 years without any significant change in the nature of women’s offending. Between 2005 and 2015 there was a net increase of 6% in the number of prosecutions taken against women, and a net increase of 11% in the number of convictions for female offenders. Yet the proportion of women committing more serious offences fell by 5% in the same period. It is only very recently that this trend towards imprisoning women has shown any signs of slowing, with the female prison population in overall mild decline since 2005 and coming in at 4,007 on 30 June 2017. Let’s hope this trend continues but it will only do so if there is a genuine reappraisal of sentencing and the crisis in the prison system.
The majority of sentenced female prisoners – 84% – are held for non-violent offences despite the constant refrain that prison should really only be used for violent offenders or those committing serious crime. In 2015, the average sentence length for female prisoners was 9.5 months, with 76% of women in prison on short sentences of less than 12 months. These are sentences which serve no earthly purpose other than retributive punishment. In the same year, the most common offence committed by women was shoplifting, which amounted to 80% of all female convictions for theft. Shockingly high numbers of women are also convicted for TV licence evasion. These prosecutions accounted for 36% of all women coming before courts in 2015, up from 20% in 2005. More likely to be at home when the TV licence inspector comes to call, women make up 70% of the defendants prosecuted for that offence.
Once in prison, women are more likely to self-harm. In the year ending March 2016, Ministry of Justice Safety in Custody statistics show a self-harm rate of 2,034 self-harm incidents per 1,000 female prisoners, compared to just 328 per 1,000 male prisoners. A National Audit Office report found that women in prison were 24 times more likely to take their own life than women in the community.
Why did the last 20 years see this disproportionate punishment of women? Some of it can be explained by an increase in the severity of sentences generally. This was caused by the political parties competing over who could be tougher on law and order and a general ratcheting up of sentencing with a shameful rhetoric about punishment by politicians. The tabloids’ pursuit of judges who were deemed too lenient created a meaner culture in the courts and it was not helped by the perverse notion that women should just be treated like men, however different their circumstances. I have no doubt that in part we were seeing the crude equation that equality means no soft soaping of women, even if they have babies and young children or a history of being abused. Our call for gender equality has led to a hamfisted, literal interpretation of equality without considering the context of the women’s lives.
As I have already mentioned the idea that gender equality requires everybody to be treated in exactly the same way is a misconception. Stung by allegations of subconscious sexism, many judges have allowed the pendulum to swing too far back the other way. Some are so keen to appear unbiased that they determinedly ignore the fact that the person standing in front of them in the dock is a woman, whether of the fragrant variety or otherwise. The result is that the particular needs and vulnerabilities of women offenders often go unconsidered in the sentencing process – such as the burden of childcare still being primarily shouldered by women. Some of the comments made by judges who participated in research by Shona Minson in 2014 suggest that this is partially driven by the perceived need to avoid giving women special treatment.
‘We have to treat everyone equally so we can’t make exceptions just because she has children.’
‘I generally try to be gender neutral because there are always going to be individual considerations and they are not purely on a gender basis.’
‘Let’s not forget that fathers lose children too, so you know let’s equal it up a bit and not make a sexist point.’
These comments miss the point completely. Yes a father loses his children when imprisoned but the question is whether he is the primary carer of those children. It is perfectly legitimate for a judge to acknowledge that a woman’s childcare responsibilities make it less appropriate to give her a custodial sentence. Indeed, there are international human rights instruments and Supreme Court decisions that require the courts to do just that. Yet if judges are either unwilling or unable to recognise that treating men and women equally requires more than a simple one-size-fits-all approach, women will continue to receive sentences which are totally out of touch with the realities of their lives. Viewed from the perspective of the women involved, ‘gender-blind’ sentencing produces just as bad results as Mr Justice Caulfield’s scratch-and-sniff approach.
The more sensitive judges know that custody will be devastating for a mother, but feel compelled by sentencing guidelines to send her to prison nonetheless. There are no separate sentencing guidelines for women offenders, and the existing guidelines make next to no mention of gender-specific issues. The result is a limited range of possibilities when it comes to sentencing women. Fines perpetuate the vicious circle of poverty, and are inappropriate for women who simply cannot pay. Prison should not be used for women who have committed non-violent crime, particularly those who have suffered abuse, have young children, or are addicted to drugs or alcohol. Community sentences, which can require women to do unpaid work in their local area, participate in drug or alcohol rehab programmes, or seek treatment for their mental health issues, are more effective than prison at preventing reoffending and targeting the root causes of women’s crime. Despite this, community sentencing remains insufficiently adapted to women’s needs. While there are many small-scale organisations, programmes and pilot schemes around the country doing sterling work, overall provision of women-specific community options is patchy at best – dependent on uncertain funding and unlikely to improve in the face of sustained budget cuts. Curfews save on the cost of probation officers, but can leave women vulnerable to domestic abuse for the 12 hours per day that they are confined to their homes.
Community service is especially difficult for a mother of small children; she may not have access to childcare facilities while she is doing her unpaid work or attending probation sessions. Little attention is paid to the need to schedule mandatory appointments during school hours. Research by the Prison Reform Trust has found evidence that women’s childcare responsibilities are impacting on their ability to comply with their community sentences. The punishment may be imprisonment for breach, even where the original offence would never have merited a custodial sentence. All the research says that robust and comprehensive community sentencing options are the best response to the majority of women’s crime, but plainly much more must be done to make them a viable sentencing option, particularly for women with children.
Where a woman’s offending is minor, the police may decide not to prosecute in favour of issuing her with a caution, which can be made conditional on her attendance at a local women’s centre. These centres provide supportive, usually women-only environments, in which women offenders can access the help they really need – to overcome substance addiction, improve their mental or sexual health, increase their self-confidence, re-enter education, or develop their parenting skills. An evaluation of a pilot scheme testing out this sort of conditional caution managed a compliance rate of around 75%, with evidence of improved self-esteem, reduced drinking and improved money management for the women involved, who said that they felt listened to, and believed in (Easton et al. for the Ministry of Justice, 2010). The development of the women-specific conditional caution is to be welcomed as an example of a criminal justice approach that is explicitly targeted at tackling the real reasons why women offend. But women’s centres can only do as much as their dwindling resources allow, and police in areas with limited provision are unlikely to see mandatory referrals as a realistic option. The temptation to ‘up-tariff’ an offence is also problematic. The 2010 pilot evaluation found evidence that some women were given conditional cautions where a simple caution, coupled with the option to self-refer to a women’s centre, would have been sufficient. Well-meaning but misguided attempts to help should not result in women offenders being subject to harsher penalties which all too often set them up to fail. The sad coda is that these centres are disappearing because of the austerity programmes.
As I document the many cases I have conducted, representing women who have harmed themselves or their children or partners, it is hard to find one who was not herself a victim or an extremely vulnerable person with serious psychological problems. In her seminal 2007 report into women in the criminal justice system, Baroness Jean Corston identified three types of vulnerable women: those who are vulnerable because of their domestic circumstances, including domestic violence; those made vulnerable by personal circumstances such as mental illness and substance abuse; and those made vulnerable by their socio-economic status as poor, isolated or unemployed. None of these women require traditional incarceration but they are squeezed into a system that was designed for male offenders.
Imprisonment is used as a means of social control, and that is particularly true in relation to women. For most people, prison is the end of a road paved with deprivation, disadvantage, abuse, discrimination and multiple social problems. Empty lives produce crime. In my life at the Criminal Bar I have spent rather a lot of time in prisons. For those of us who have no experience of prison it is hard to imagine what it means to lose your liberty, to surrender to a regime where the rules are not your rules, where your autonomy dissolves, where your battered self-worth spirals into further decline. Small matters taken for granted in the outside world become complicated and strangely insurmountable because of the requirements of the authorities. Your timetable is directed by others, privacy disappears, petty resentments build into serious conflict, and indignities are part of the daily round. It is my idea of hell.
Until it was shut down in 2016 I was a regular visitor to Holloway Prison, first as a barrister visiting my clients, and later as a member of the prison’s Health Advisory Board. I saw the same issues arise repeatedly. Appalling family circumstances, histories of neglect, abuse and sexual exploitation, poor health, mental disorders, lack of support, inadequate housing or homelessness, poverty and debt, and little expectation of change. These are rarely women who make judges swoon over their metaphorical ‘fragrance’. Poor, battered and abused, they are women who find themselves continually punished.
In the face of all this they often show remarkable resilience and courage and frequently do not fulfil the stereotype of victims, which can be why they end up in prison: because they are seen as ‘bolshie’ and in need of discipline. Of course there are some women who have had reasonably privileged lives who end up in jail, but they are few. However, virtually all women who go to prison come out damaged by the experience. The consequences of removal from their children, their families and their communities are immeasurable. They are overwhelmed with feelings of guilt and shame.
Women do not need to be locked up for hours on end in over-crowded prisons where self-harming, tearing into their own flesh with hairclips and bottle tops, is endemic. They do not need their medication to be pushed through the metal flap in the door as though they are lepers. It is argued that deaths in custody are a result of chronic underfunding and lack of staff in the prisons. Most of the women who kill themselves take overdoses or hang themselves but one woman who choked herself by swallowing toilet paper stands out particularly in the memory.
A women’s prison in Cheshire, HMP Styal, became synonymous with the devastating impact which imprisonment can have on women’s mental health. In a single 12-month period between 2002 and 2003, six of the prison’s inmates took their own lives. The mother of one, Pauline Campbell, campaigned passionately on the subject after her daughter Sarah, who was only 18, committed suicide. Five years later Pauline killed herself by taking a fatal dose of antidepressants. Her body was found at her daughter’s graveside. In 2008, Lisa Marley was remanded to HMP Styal pending her trial for common assault. Due to a history of mental illness and suicide attempts, she was placed in a supposedly reduced risk cell in the prison’s Keller Unit. Less than 48 hours later, she hanged herself in her cell using bed sheets and the casing that surrounded her in-cell television. Officers detailed to keep Lisa under observation had failed to carry out the proper number of checks, or to report the red marks they noticed around her neck. A surprise inspection of HMP Styal in 2011 found that while overall the prison had improved, the Keller Unit was wholly unsuitable for safely holding its seriously mentally ill occupants, with officers often required to use force to remove ligatures from women intent on harming themselves. The Keller Unit was subsequently closed down. The Inquest Report documents the deaths of Emily Hartley and Sarah Reed, who both committed suicide in prison in 2016; Caroline Hunt and K.W. who also killed themselves did so in 2015; Diana Waplington in 2014 and Natasha Evans in 2013. Case record after case record in the report describe the mental anguish of the women who died and the failure of prisons and staff to deal adequately with their needs. The comments of coroners lamenting the system should be embla-zoned on the wall of the Department of Justice.
It is as plain as day that court-based diversion schemes for women with mental health problems need urgent improvement and expansion. A standardised liaison and diversion service is currently in the process of being rolled out across England. It is supposed to spot offenders’ substance addictions and mental health issues as early as possible, so that they can receive appropriate care and support as they progress through the system. The programme also aims to divert offenders away from prison by ensuring that judges and magistrates have the information they need to identify the best sentencing option. The infancy of the scheme makes it hard to tell how well it is working. Like other initiatives, however, its effectiveness will largely depend on whether it has the money and political backing needed to make it a success. It is no coincidence that the current spike in inmate suicides has come at a time of chronic underfunding for prisons and related services. The Prison Service is understaffed and undertrained. Officers have less opportunity to get to know prisoners individually and thus to spot the danger signs that a woman might take her own life.
Most of the women enter prison vulnerable to breakdown because of their personal histories but not all. The Independent newspaper’s 2003 campaign on mental health documented the experience of Wendy Kramer, who was imprisoned for two and a half years for conspiring to supply drugs. She left prison with severe mental health problems despite having no previous history of mental illness.
In prison I felt anxiety, panic, self-harm, suicide, depression – the unbelievable hurt inside your stomach which is what makes you bang your head against the wall. The main thing that gets to me is that there are a lot of women in there that shouldn’t be. They aren’t criminals; they are mentally ill.
Around 60% of women who are imprisoned have dependent children; it is estimated that over 17,200 children are separated from their mother by imprisonment every year. Whereas many men serve their sentences knowing their partners are taking care of their children, fewer than one in 10 children is cared for by their father while the mothers are inside. Just 5% of children stay in their own home once their mother is jailed.
In our family courts the philosophy is that the child comes first in any dispute. Children need their parents, and only in the most extreme circumstances should we break that bond. Yet in the criminal courts, and despite being legally required to consider the best interests of the child, officials often wash their hands of responsibility by saying that if her children suffer it is the criminal woman who is to blame. The family is presented as the foundation of society, to be supported and preserved. Women who transgress accepted roles and fail ‘the family’ unleash punitive responses.
The work of Dr Dora Black, the eminent child psychiatrist, who conducted studies on the mother and baby unit at Holloway Prison, explains that the trauma of separation of young children from their mothers frequently leads to mental illness or at the least to profound emotional problems when they reach adolescence. In England and Wales a maximum of 54 mothers can keep their babies with them in prison, though children cannot stay beyond the age of 18 months. Even where spaces are available, the process of getting one is far from straightforward, with the result that the units often operate below capacity. Some mothers are not aware that mother and baby units exist until they arrive in prison. Others report long delays between applying for a place in the unit and receiving the final decision, leading to high levels of worry and stress as they wait anxiously to find out whether they have been accepted. By and large, women have no idea what the decision-making process itself entails until they are presented to the board and asked to argue for their place.
The upshot of all this is that keeping your baby in prison is a privilege. Some states in the USA now recognise the right of every mother of an infant to have that child with her except where she has a history of child abuse or the child would suffer. It is extraordinary that this issue of children’s rights has taken so long to be addressed. Babies should be with their mothers, and unless a woman has committed an offence of violence which would carry a significant sentence, a mother should not be imprisoned. When I say this I am met with the retort that women would deliberately get themselves pregnant to avoid jail. The people who say this are also up in arms at the idea of women using their pregnant status to get council houses. Yes, when we reach for principles to guide a civilised society there will always be those who cheat or play with the rules, but against them there are the many more who will be salvaged by more humane responses.
Mothers who do end up in prison find that the system offers them little humanity. Breastfeeding becomes humiliating when done under the gaze of a male prison officer. The late Denise Marshall worked for a charity called Birth Companions, which supports female prisoners during pregnancy and after the birth of their children. In a 2010 interview with the Guardian, she described some of the worries that prison mothers have alongside the ordinary stresses of childbirth. Will the doors be unlocked in time when they go into labour? Will they be disciplined for swearing at officers when carried away with the pain of childbirth? Countless times I have observed these stresses and others for myself. One of my visits to the mother and baby unit at the old Holloway Prison especially sticks in my mind. A young woman there told me of the nightmare of being remanded in custody for report when there was no place on the unit to accommodate her baby. She was released after 24 hours on an application for bail to the High Court. But for those 24 hours she was separated from the baby, which she was breastfeeding, and suffered the agony of engorged breasts and desperation at how the baby was coping without her. In the end she was sent down for nine months. Her offence was a fraud valued at £700, and although this time she was able to bring the baby into prison with her, her other child, a toddler, was left in the care of the father and was seriously disturbed by the separation.
Imprisoning mothers should be a last resort, but judges have different ideas as to what that means. Where a parent, male or female, has primary care of a child, the criminal courts should be required to obtain social inquiry reports on the impact upon the family of imprisonment. The hypocrisy of lauding the family and motherhood on the one hand while refusing adequately to acknowledge the social and economic supports necessary to sustain women in their motherhood role is a shameful reflection on the values of the justice system. For men and women alike, separation from the family is the worst aspect of imprisonment, but for women the guilt of failing their children exacts a special burden. Their offence is seen as being against more than the criminal law, and that is how they themselves feel it.
The sociologist Pat Carlen has recently examined what she brilliantly and sardonically describes as the ‘carceral clawback’ – the way in which the arguments for reducing the imprisonment of women have been subverted and used as a rationale for locking women up. She sees the boast – made by successive Home Secretaries – of ‘making prison work’ as the problem. The ‘repairing gel’, as she describes it, was to be the creation of programmes inside prisons to address the background problems of the women and indeed the men too. This has given sentencers a sense of justification and freedom to lock up women rather than find a community alternative; courts adopt what they think is a welfare approach by imprisoning the woman so that she can be helped. In truth, provision of these programmes is very scant because of over-crowding and can never be much use if the sentence is short. Judges and magistrates sleep more easily at night if they think Styal Prison is like a short stay at the Priory, but they are deluding themselves.
Any review of sentences on women shows that women are now getting heavier sentences for less serious offences. All the arguments women criminologists and lawyers made to persuade the courts and policymakers that the background of most women and their place in society explained their offending were used, not to avoid prison, but to justify imprisonment. The very language we used in developing a feminist critique of offending was appropriated and used to legitimise the use of prison. There is much talk of ‘empowering’ women prisoners and raising self-esteem. Yet as soon as a woman is assertive she is very quickly reminded she is a prisoner and that unquestioning compliance with the rules is the expectation.
Eight years of austerity have had a devastating impact on Britain’s prisons, many of which are locked in a spiral of decline. The impact of savage budget cuts since 2010 has been felt right across the criminal justice system. Deteriorating prison hygiene, poor health care, inadequate resettlement support, cuts to community services, staffing crises and lack of mental health support leading to an increased risk of bullying, self-harm and suicide – the list is never-ending. Back in 2007 the Corston Report urged the creation of Women’s Centres around the country to provide small locally based units for women offenders where they could receive one-to-one psychotherapy, address their addictions, receive skills training and prepare for a life in the community. Many were established, but when Chris Grayling was Justice Secretary he took a scythe to most of the supportive initiatives in the criminal justice system, including the provision of books to prisoners. Therapeutic work now operates on a shoestring and involves group therapy where women are less willing to reveal the true nature of the abuse they have experienced. The number of Women’s Centres has not grown as planned and Probation Services in the community have been de-professionalised and greatly reduced.
One of our responsibilities must be to ensure that those who have to be in prison have opportunities; to repair the black holes in their own experience which led to offending; many activities should be taking place in a more developed way. The government has been well intentioned in trying to make some provision – therapeutic programmes have been created addressing violence or past abuse, and there are domestic violence projects for both victim and offender, therapy addressing childhood trauma, issues of sexuality or substance abuse. Funding is a problem, increasingly restricted and allocated on a short-term basis, with even those programmes currently receiving grants unsure if they will get them renewed next year. Whether a prisoner can access such a programme is more in the hands of the gods than based on any real assessment of need. Yet ministers talk about these initiatives as if they were available on tap. The Scottish government is currently planning to demolish its one women’s prison, Cornton Vale, in Stirling, and to rebuild it as a much smaller prison for a maximum of 80 female prisoners who have committed serious crime and must be detained in a secure prison setting. It is then the intention to build twenty therapeutic houses around the country where the regime will concentrate on the problems which brought the women before the courts. Only 15–20 women will be accommodated in each and the houses will be close to the families of the women staying there. Counselling, drug and alcohol rehabilitation programmes, job training and education will be available. There will be restorative justice initiatives so that women begin taking responsibility for their offending behaviour. The women will be able in time to work outside of the centres to gain experience in preparation for resettling in the community. It is the model which has been championed by prison reformers for years and as a pilot it could initiate real change throughout the UK.
However, political commitment to improving the lot of women in prison is irregular, coming in fits and starts rather than as part of a comprehensive and sustained strategy. In 2007, the Corston Report documented the appalling conditions experienced by some women in prison, and called for a radically different approach to women in the criminal justice system. One of its key recommendations was the replacement of women’s prisons with custodial units dispersed around the country, along the lines of the Scottish plan. The small number of women’s prisons meant that women were often incarcerated far away from home, making it difficult or impossible for family and children to visit. The government rejected the recommendation, and on average women prisoners today are jailed 64 miles away from where they live. Many of Jean Corston’s other recommendations were accepted, although progress in implementing them has been disappointingly slow. Routine strip searches have ended, and there are pockets of very good work being done in some areas in terms of supporting and rehabilitating female offenders. But women are still incarcerated in large numbers for non-violent crimes, and campaign groups report that women are still being sent to prison ‘for their own good’. Housing for women leaving prison also remains a major problem, with 60% of women left without a home to go to on release. The impetus for reform sparked by the Corston Report has been slowly draining away. In 2013 Nick Hardwick, who was then the Chief Inspector of Prisons, gave evidence to the House of Commons Justice Committee’s inquiry on women offenders. It is hard to disagree with his observation that ‘the whole business about prisons, and women’s prisons in particular, has almost been forgotten in some of the [government’s] thinking … You feel that you are always having to remind people about this issue, rather than it being at the forefront of their minds.’
I am not blind to the inhumanity some women wreak on others, nor to their criminality. Women can be horrible, and some do batter their babies or kill their husbands unprovoked. But very few women commit violent or serious offences or are career criminals. The majority of those who are in prison should not be there. What is needed is the creation of real alternatives, such as appropriate community service, hostels and rehabilitation units. If the spirit of sentencing policy is truly that prisons are to be places for dealing with serious crime, particularly violence, then it should be translated into reality by the judges with support from politicians. Our female prisons could then virtually be emptied.