In 2006, following six tragic self-inflicted deaths at Styal prison within one year, the government commissioned the Corston Report. Baroness Corston and her team explored the underlying reasons why men and women offend and how their responses to prison and punishment differed. The Report which was widely welcomed suggested a different approach was needed to achieve equality of outcomes for women. The Ministry of Justice did not publish its Female Offender Strategy until 2018. Even now the government are still not remotely funding women’s services appropriately: there is a plan to build 500 extra prison places for women at huge expense, instead of investing in what is seriously needed in the community.
The National Audit Office published a report in 2022 on improving outcomes for women in the criminal justice system, echoing many calls for the government to respond to the specific needs of women prisoners. Then in April 2022 there was the Public Accounts Committee of the House of Commons report that it was ‘clear’ that implementing the 2018 Female Offender Strategy ‘has been a relatively low priority for the Ministry of Justice and was so even prior to the COVID-19 pandemic.’ They point out that the Government spent just £9.5 million on community services for women offenders over four years compared to a commitment to spend £200 million on 500 additional prison places for women.
Remand in custody
Women on remand (pre-trial detention) make up almost half of the women received into prison – accounting for 3,236 of the 7, 050 first receptions into prison in 2019. Too often women are inappropriately remanded into custody – almost two-thirds of women remanded to prison by magistrates are either found not guilty or are given a community order. The vast majority of women remanded to prison to await trial or sentence could safely be released on bail. This would be better for themselves, their families, their communities and the criminal justice system in general.
Dr Liz Hales reported on remand decisions in a busy London magistrates’ court in 2019 (see her article here). ‘Bail decisions for women were routinely made without requests for information in relation to dependent children or pregnancies.’ Even where such evidence was produced it did not appear to have influenced the remand decision. For example, she reported two cases where the duty solicitor failed to mention that the children of the defendant were in the foyer just outside the court room. In another case a woman who was eight months pregnant was finally granted bail, with conditions of financial sureties, only to be remanded in custody when those conditions could not be met on the same day. In earlier research, Hales reported several cases in which young children (even breastfed babies) were taken into care on their mother’s arrest, and the mother was subsequently refused bail.
Alternatives to custodial remand
There are two main alternatives to custodial remand: remand in the community with the support of women’s centres, and therapeutic residential facilities.
(1) Remand in the community with the support of Women’s Centres
In the case of vulnerable women in general and pregnant women in particular, we recommend remand in the community under the supervision of probation staff working closely with Women’s Centres. There is much evidence that Women’s Centres provide the necessary support for women whose lives are characterised by multiple disadvantage and, in many cases, domestic abuse. Helping such women access safe housing and deliver a child safely in the community is not only a crime prevention strategy but also a social and moral imperative.
(2) Therapeutic residential facilities
Residential support for pregnant women in the criminal justice system is another viable alternative to imprisonment. This can be seen in Jasmine Mother’s Recovery in Plymouth and Phoenix Futures, in Sheffield, as detailed in our research report Why Are Pregnant Women in Prison?
Jasmine Mother’s Recovery (formerly known as Trevi House) is one of the services offered by Trevi. Trevi began in 1993 in Plymouth, Devon, as a drug and alcohol residential rehabilitation centre working exclusively with mothers and their children. Jasmine Mother’s Recovery, their centre for pregnant women and women with babies, takes referrals from across the UK, accommodating up to 10 women and their children. Phoenix Futures National Specialist Family Service, Sheffield, provides similar services with an equal record of effectiveness. Jasmine Mother’s Recovery and Phoenix Futures are alternatives to prison for vulnerable pregnant women in the criminal justice system. They are non-punitive and non-judgmental – and they work. A wide network of such provision would protect women and their children and respect the human rights of both mother and child. It would prevent damage cascading down the generations to the detriment of us all.
A case study: Ms A
In September 2019 Ms A, a woman, on remand in HMP Bronzefield, gave birth alone in her cell. The baby died. At the time of the remand hearing she was only eighteen years old, was eight months pregnant and was ill. She was known to be particularly vulnerable, having been for most of her life under social services care as a ‘looked after child’.
The reasons that Ms A was remanded in custody have never been published. Although the Prisons and Probation Ombudsman (PPO) produced a report of its investigation into the death of Baby A, it did not publish the section which set out the reasons for remanding Ms A in prison. The Ombudsman’s office has advised us that they will issue no further reports on this matter.
Magistrates are required to give their reasons for remanding in custody in terms the defendant can understand, and by reference to the defendant’s circumstances and the case. Thus, the Ministry of Justice must know the reasons for remanding Ms A in custody. We do not know if the magistrates requested a Bail Information Report in this case, nor if they did so, what recommendations it made.
The reasons for this catastrophic error must be made public so that they can be discussed, and so that we, the public, may be reassured that there will never be a repetition of this tragedy. In March this year the Parliamentary Justice Committee called for evidence on adult remand in custody. I have asked the Committee to require the Ministry of Justice to release all information relating to the decision to remand Ms A in custody rather than in the community with support and electronic monitoring.
Remand in custody should not be ordered for any pregnant woman: prisons are not safe spaces for pregnant women and unborn babies. No court should endanger the life of an unborn child.
What about peaceful protest?
We all know that we have a right to protest peacefully. We know too that imprisonment is a last resort (the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified for the offence, s.230(2) of the Sentencing Act 2020). We know too that we are all innocent until proved guilty. Nonetheless people have been taken to prison from the site of peaceful protest and have served terms of imprisonment on remand.
In my study of 228 cases of sanctions for contempt of court which is a civil matter, and does not come within the ambit, nor the protections, of the criminal law, there are ten cases, five of them women, who served time in prison on remand following an entirely peaceful protest against the production of fossil fuels at Kingsbury Oil Terminal in North Warwickshire.
Radical reform is needed
In a major study of remand decision making in England and Wales in 2016, hundreds of bail hearings in the magistrates; courts were observed (the only way to get quality data about remand since little is published). The findings were startling. 93% of bail hearings involving representations by a prosecutor took five minutes or less. The average prosecution application for remand took took 3½ minutes and the average defence case took 5½ minutes. Often the defence did not contest the prosecution’s case for remand. At least in part, the brevity of the hearings appeared to be due to high caseloads and lack of resources. Furthermore, the reasons given by judges and magistrates for using remand were usually general, not relating to the particular circumstances of the defendant.
Dr Smith and Professor Cape subsequently advocated changes to the Criminal Procedures Rules (CPR), in particular to ensure that remand hearings were given sufficient time and that particular reasons were given for decisions. In 2020 Dr Smith conducted new research to check whether the changes in the rules had actually changed practice: unfortunately, they had not. He observed a week of magistrates’ court hearings and surveyed lawyers, judges and magistrates. Despite reasonable awareness of the changes to the CPR, defence practitioners believed that they were not observed. In his recently published research, Dr Smith reports that reasons for remand decisions were provided in fewer than half of the 27 observed hearings.
According to the Prison Service statistics for the female estate from April to June 2018, 14% of the prison population were women who had not been convicted and 41% of all first prison receptions were women on remand. In their 2016 study, Smith and Cape found that a worryingly high number of women were denied bail. Where the prosecution sought a remand in custody, bail was granted in only one in four cases.
Following the introduction of the ‘no real prospect’ test under The Legal Aid, Sentencing and Punishment of Offenders Act 2012, defendants should not be remanded to custody if the offence is such that the defendant is unlikely to receive a custodial sentence if convicted. However, many women remanded in custody do not receive a custodial sentence when subsequently convicted: according to the Prison Reform Trust, 70% of those remanded in custody by the magistrates’ court in 2019 were women; 59% of those tried by the Crown Court did not receive a custodial sentence.
Foreign national women are more likely to be remanded in custody than British women, often for less serious offences. The make up a significant and increasing proportion of prison admissions on remand, raising concerns that compliance with national and international standards of justice is being eroded in practice. This is the conclusion drawn by May Robson, following her research published in 2022.
In her chapter in Fiona Donson and Aisling Parkes’ volume on Parental Imprisonment and Children’s Rights (Every child matters? Global perspectives on incarcerated mothers and their children), Helen Codd notes that:
‘Women prisoners are likely to have committed non-violent offences and be categorised as non-dangerous and low risk after release, and thus there is a very real question as to why they are imprisoned at all if they do not pose a risk and a custodial sentence would harm their children.’
This strong and principled statement applies even more powerfully when we look at imprisonment on remand.
There is an urgent need to radically reform remand decision making in respect of women and, in particular, pregnant women and women with children. While the law on remand may have changed, it appears that cultural practices have not. And behind the statistics lie real human beings, with real human stories, frequently of tragedy and often of deprivation, poverty, disadvantage, addiction and poor health. They and their children must be better served – this will benefit not only them but also the whole society of which we are all a part.