The Scottish Working Group n Women Offenders is participating in the up-coming consultation on the female custodial estate in Scotland.
Below we outline our concerns:
Briefing on the Female Custodial Estate
There was a meeting of the Scottish Working Group on Women Offenders (SWGWO) on 28th January 2015 and we were able to take that opportunity to discuss our shared priorities for making inroads into reducing the female prison population and supporting women offenders in the community. The reduction in the prison population coupled with effective community support is possible with the correct use of justice reinvestment – moving budgets away from incarceration to those communities which produce the highest number of offenders. Issues, which could be discussed in current meetings concerning the setting up of alternatives to HMP Inverclyde, are set out below.
The discussions at our meeting on 28th January were wide-ranging but one point was strongly backed by those in attendance. The size of any future custodial or community-based units for female offenders should not be determined by the number of women required to offer a meaningful set of programmes or interventions. The size of units should instead be determined by what is required to meet the needs of those women. We must ensure that the services/programmes fit the women rather than making the women fit the programme. There should be no need for a central national facility which women need to return to in order to complete programmes. We must ensure that services are designed appropriately, allowing mobile or community-based provision.
One of the arguments levelled to justify the size of HMP Inverclyde was that only with a substantial number of women could the new prison offer a full range of programmes. That line of argument takes us into dangerous territory, given what we know about the self-fulfilling prophecy of creating new prison places.
We are supportive of the move to make us of the research conducted by Kate Donnegan and her team at SPS to look at ways of supporting female prisoners. We acknowledge all their hard work and dedication and hope that the learning from this piece of work will be applied to the “small, specialist prison” that Dame Angiolini envisaged as the replacement for Cornton Vale.
However, our overriding position is that we are very keen for the Scottish Government to commit to supporting female offenders, who do not pose a risk to the public, in community settings. These units could be attached to some of the women’s centres. We do not believe that these should be run by the prison service.
We hope that by considering such possible approaches as laid out below, the Scottish Government will move on to an era where the female prison population is reduced, the “churn” of women through the criminal justice system is reduced and the female offenders who need intensive support, therapy and healthcare are treated in the community, close to their families.
Issues which need to be addressed include:
- Diversion from prosecution – Just 481 women were diverted from prosecution in 2011/12.
- Remand – Of the women remanded in custody in Scotland, only around 30% went on to receive a custodial sentence
- Supervised Bail – only four women (and four men) were placed on supervised bail in the whole of Glasgow in 2014
- Breach of orders – This can lead to an escalation in sentencing women to prison
- Short term sentences – 8 out of 10 women in Scotland given a prison sentence were sentenced to less than 6 months.
- Funding for other diversionary services – Statistics suggest that women on community based sentences are less likely to reoffend. Women-specific interventions have been shown to reduce reoffending by supporting women to tackle the underlying issues they face
- Cap on female prison population and justice reinvestment to vulnerable communities including suitable mental health support – It has been estimated that as many 8 out of 10 women in prison face mental health problems
- Use of Restorative Justice principles
- Use of a whole systems approach to female offenders
- Consideration of children affected by imprisonment – Each year around 27,000 children in Scotland are affected by their parents’ imprisonment
- Continued raised profile of services for female offenders when the new Community Planning Partnerships start work
We also agree with the statement made by Prof Alec Spencer, Convenor of the SCCCJ, “Prison is neither necessary nor appropriate for the majority of women currently in the prison population.” and “….. Successful services like 218, and the intensive outreach family work that charities such as Circle provide, need to be made available in every locality. Otherwise prison will continue to be an expensive incubator for social problems.”
Wish to look at developing a ‘whole systems approach’ for female offenders, similar to that used with young offenders. We wish to see how the practice of minimal intervention and maximum diversion may be suitable for female offenders.
Finally, SWGWO wholeheartedly agrees with Baroness Stern who, in her speech to the women in parliament dinner in 2011, said: “When we take women who are sick, abused, addicted, and poverty-stricken and instead of giving them help we give them punishment that is not justice. That is cruelty and we need to stop it”
Issues surrounding female Offenders in Scotland
Diversion from prosecution
- Many women continue to be remanded in custody when, with the right support, they could remain in the community. Remand leads to loss of housing and breakdown of family relationships.
- Diversion from prosecution offers an early route out of the justice system for women, avoiding the cycle of custody and reoffending.
Source: Leaflet on women offenders
Tackling the overuse of remand is critical, given that a quarter of the female prison population on any given day is there on remand and that the vast majority of those on remand are not returned to custody after sentencing. We were all very shocked to learn that only four women (and four men) were placed on supervised bail in the whole of Glasgow in 2014.
We also wondered whether you would consider a recent approach that has been taken forward in England and Wales. Recent changes to the Bail Act mean that defendants cannot be remanded into custody where there is no real prospect of a prison sentence on conviction. There is already evidence to suggest that this is beginning to have an impact on the numbers of prisoners on remand.
In 2002, The Prison Reform Trust report Lacking Conviction, The rise of the women’s remand population published by the PRT in 2004 stated: “Something has gone very wrong with our criminal justice system when almost two-thirds (66 per cent) of the women who entered prison in 2002 were held on remand. Fewer than one in ten of these women were facing charges for violent offences. More women were sent to prison for shoplifting than for any other crime. When their cases were heard, under half of the women remanded to custody received a prison sentence. One in five was acquitted altogether. They were, however, in jail long enough to disrupt further lives often already marred by chaos and distress”.
Lacking Conviction, The rise of the women’s remand population published by the PRT in 2004. Prison Reform Trust, http://www.prisonreformtrust.org.uk/Portals/0/Documents/Lacking%20Conviction%20the%20rise%20of%20the%20women%27s%20remand%20population.pdf
- Between 1997/8 and 2006/7 there was an 83% increase in the remand population of female prisoners in Scotland
Source: Women, Punishment and Human Rights. Scotland Futures Forum paper 2011
- In England and Wales, the Legal Aid Sentencing and Punishment of Offenders Act 2012 was passed by parliament in May 2012. One of the changes is that “The Act makes changes to the law on bail and remand, aimed at reducing the number of those who are unnecessarily remanded into custody. Under the new “no real prospect” test, people would be released on bail if they would be unlikely to receive a custodial sentence”
Source: Prison reform Trust Website
- The remand population in prison at the end of June 2013 was 10,986, down 3% from the previous year. Within this total, the untried population increased 1% to 7,755 and the convicted unsentenced population decreased 12% to 3,231. This is partly due to measures introduced by the Legal Aid Sentencing and Punishment of Offenders (2012) Act enacted in December 2012, to restrict the use of remand.
Source: Prison reform Trust Website
- In England and Wales, in the past year (2013) the number of women on remand has fallen by 5%. On 30 June 2013, 604 women were in prison on remand, making up 16% of the female prison population. 3,631 women entered prison on remand awaiting trial in the 12 months ending March 2013 – a decrease of 13% from the previous year. This comes after an increase of 22% over the period between 2004 and 2008.
Source: Prison reform Trust Website
- In Scotland, In Scotland whilst there has been a small decrease in the daily female prison population, the number of women held on remand has increased from 23% (102 women) on 6/8/14 to 27% (112 women) on 7/12/15).
We urge the Cabinet Secretary to consider bringing in similar legislation in Scotland as soon as possible. This may be possible as part of the current Criminal Justice Scotland Bill, which is currently at stage 2 in the Scottish Parliament.
Breach of orders
Breach applications for community payback orders Scotland 2012 – 2013 – male and female offenders:
CPOs completed / terminated 9,983
Breach applications 2,786
We welcome measures outlined in the Commission on Women offenders to address the underlying reasons for women’s offending and, of course, diversion from prosecution and imprisonment. In saying this, we are wary of imposing too many conditions on women unless: 1) they receive adequate support to comply with these conditions, and 2) prison is not the automatic recourse in the event of breach. The more conditions placed on women (or indeed men), the more likely they are to breach those conditions and end up in custody for offences that did not merit custody in the first instance. Women are more likely than men to breach conditions of community-based orders for reasons other than offending. Consequently, we need to make sure that additional conditions – ‘supportive’ or otherwise – are not setting them up to fail.
Short term sentences
In their paper on “The drivers of female imprisonment” Burman and McIvor state that, for 2006 “the most common offences in respect of which women were convicted were failure to pay for a television licence, shoplifting, breach of the peace, assault (including resisting arrest), driving while disqualified and speeding“
Scottish Centre for Crime and Justice Research website
Given that three quarters of women in prison receive custodial sentences of less than six months, we feel that there should be a renewed effort to reduce the use of short term sentences.
Electronic monitoring (EM)
As you may be aware, in Denmark, 60% of all custodial sentences of under six months are converted into sentences of EM and intensive supervision. Denmark is a country with a similar sized population to Scotland but its prison population is only 4,000. In Belgium, any prison sentence imposed of less than three years is automatically commuted to electronic tagging.
In our response to the Scottish Government consultation on electronic monitoring, SWGWO stated that “It would be useful to investigate whether there is any mileage to be gained by revisiting whether electronic monitoring could be introduced as a condition of bail / bail supervision. There was pilot of such a scheme in 2005/6 and a subsequent evaluation by Monica Barry et al (http://www.scotland.gov.uk/Publications/2007/06/20102655/0) .
The Scottish Government concluded that it was not cost effective, not least, as the evaluation report stated at Section 7.4 ” One striking facet of the pilots, readily recognised by many stakeholders in the pilots, is the low numbers compared with the numbers being remanded in custody; granted EM bail applications comprised a reduction to the remand population of just 1.7 per cent.
However, SWGWO holds the view that EM as a condition of bail/ bail supervision should be a standard option for Scottish courts as an alternative to remand in custody for many female offenders. This is in light of the fact that 70% of women who are remanded into custody, do not go on to receive a custodial sentence. Whilst on bail these women could be helped to access services in the community to support them in their bid to stop reoffending.”
Source: SWGWO response to the consultation on electronic monitoring
We would like the Cabinet Secretary to consider greater use of EM in Scotland, albeit with proper community-based support.
Sustainable funding for community-based services
We were pleased to hear that you have allocated a further £1.5m to projects tackling female offending. However, we are of the view that there must be long term, sustainable funding of community-based services by the Scottish Government. The uncertainty generated by short term funding cycles has multiple ramifications. The timescales within which they have to demonstrate positive outcomes is often very limited. The uncertainty impacts on staff turnover and morale, which then impacts on the service users themselves. Crucially, sentencers too must be able to have confidence in these services and a sense that they have a lifespan of more than a few years. We are aware that a number of projects focussed on tackling the needs of female offenders funded by the Scottish Government were asked to consider how to sustain themselves after that funding had come to an end. However, as you will know, local authority finances are also under immense pressure, so it is increasingly challenging for these services to find alternate means of sustaining themselves.
Conversely, the Scottish Prison Service can rely on the knowledge that it will be funded year-on-year with all the benefits that that certainty brings in terms of being able to plan ahead, develop staff expertise, offer services etc. No such luxury exists for most of those offering services for female offenders in the community.
In its recommendations to the Scottish Government, and supported by SWGWO, the UKPAC report stated:
Women-specific diversionary approaches, working in conjunction with existing community provision including Community Justice Centres, should be introduced Scotland-wide
- Following its acceptance of the Angiolini Commission, the Scottish Government should legislate to enable police to divert women offenders from prosecution into rehabilitative services as part of a conditional caution. This should be done at the earliest opportunity and before the next election
- Community Justice Authorities, in conjunction with Criminal Justice Social Work Services and women-specific service providers, should develop local resources for use by Sheriffs and other court users, detailing the availability of local services and alternative sanctions for women offenders
- Local authorities should ensure their Criminal Justice Social Work Service provides women-specific services. In rural communities, virtual hubs or mobile outreach services should be developed
Source: Transforming Lives, reducing women’s imprisonment, 2014. Prison Reform trust and Soroptimist International, Great Britain and Ireland UKPAC.
Funding for other services
Of course, it is not just funding for community justice centres that matters, but also projects that seek to divert women away from the criminal justice system and other pots of money that fall outwith the justice portfolio, e.g. housing, health, education. Tackling the problem of homelessness amongst this vulnerable group of women is vital. For instance, only 18 of the 153 women who have used the services offered by Tomorrow’s Women have their own tenancies. We are concerned that with the development of the new Community Planning Partnerships, priorities and funding for female offender –specific services will be lost.
Cap on the female prison population
We realise that placing a cap on the size of the prison population is often seen as politically contentious, but, having noted how universally your decision re HMP Inverclyde was welcomed, we wondered whether this might be an idea worth considering.
We are concerned that by having small regional units within the prison estate, there could be an increase in the overall capacity for female offenders. A cap on the prison population could be part of a justice reinvestment scheme whereby the government only funds a set number of prison places and once full there is not more money in the budget to send any other women to prison in that fiscal year. Alternatives to prison would be provided to sentencers so that they could ensure only those women who really need to be incarcerated are given custodial sentences.
We must ask ourselves the difficult question “how many women we are willing to put in custody?” The risk is that smaller regional units could end up increasing overall capacity and if we’re not careful; how far should we be willing to go?
The values of restorative justice must be included in a new system to support female offenders. The joint committee on justice, equality, defence and women’s rights in Ireland recommended that: “Increased funding for restorative justice should be supported by the state as an investment in more progressive methods of dealing with the effects of crime.
Source: Joint Committee on Justice, Equality, Defence & Women’s Rights, Ireland.
A report published in 2013 by SCCCJ on a roundtable discussion entitled “Supporting Victims, Reducing Offending – A Shared Agenda?” noted that “The International Criminal Court in The Hague gives a template for how victims can have the opportunity to participate in proceedings and is an environment in which all participants in the judicial process are treated humanely.”
In its summary the report stated:
“We must agree to work towards peace within communities and to understand the complex requirements and interactions within a community and not see victims and offenders and separate groups isolated from each other. The current Lord Advocate is passionate about RJ practice. The time has now come to find a pathway that allows the Scottish Government to systematically assimilate RJ practice across the justice system and into communities.”
As a result of the meeting a working group on restorative justice was established to look at best practice on how to embed RJ practices across society to allow individuals affected by crime the opportunity to heal. Current organisations signed up to this working group include Sacro, Positive Prison? Positive Futures, Victim Support Scotland and individuals including Paul Morron, representative of Churches Together in Scotland. It will not be easy as this is a complex problem, but we must build momentum around developing a peace making approach which uses restorative methodology.
Source: Supporting Victims, Reducing reoffending – A shared agenda?
The concept of justice reinvestment has been used for some time in the USA. A recent analysis or JR over the past 10 years concludes that “the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms”. However, the authors state that there is yet more which can be achieved through this approach by:
- “Re-affirm and commit to achieving the two primary goals of JR: 1) significant reductions in all forms of incarceration and correctional supervision (i.e. probation and parole), and 2) reinvestment in high incarceration communities,
- Involve key stakeholders and non-governmental entities at the state and local levels throughout the planning, legislative, implementation and reinvestment process, and
- Create a multi-year plan for implementation and evaluation beyond short-term legislative or policy fixes”
Source: Ending Mass Incarceration – Charting a new justice reinvestment
The Scottish Prisons Commission’s first recommendation was “.To target imprisonment better and make it more effective, the Commission recommends that imprisonment should be reserved for people whose offences are so serious that no other form of punishment will do and for those who pose a threat of serious harm to the public.”
Scotland’s Choice, Report of the Scottish Prison Commission, 2008
In the last 10 years, the number of women convicted of a crime in Scotland has gone up by 14%, but the number of women in custody has more than doubled. In the same time the gravity of women’s offending has stayed more or less the same, but just 2% of crimes convicted by women involve violence.
“The Scottish Government has allocated £3m over the two-year period 2013-2015 to support women offenders in the community. This is welcome, however it pales in comparison with the annual cost of imprisoning women. The Scottish Prison Service estimated in 2011/12 that the average annual cost of imprisonment per prisoner was £32,371. Based on an average daily female prisoner population of 400, the annual cost of imprisonment for women is in the region of £13m (although it is likely to be higher than this, given the additional needs of female prisoners).”
Source: Quote from Howard League Scotland letter to Kenny MacAskill, June 2014
We note that Stage 2 of the Criminal Justice (Scotland) Bill will commence in April (following the publication of Lord Bonomy’s report into corroboration). We wondered, therefore, whether this might be a vehicle for advancing any of the actions noted above that require legislation.
The establishment of the Sentencing Council may also provide an opportunity to review sentencing options for female offenders.
In our response to the Commission on women offenders, Prof Cyrus Tata, Strathclyde Centre for Law, Crime & Justice, Strathclyde University Law School, noted that far more needed to be done in relation to sentencing. He agreed that the central aim of the Commission should be to reduce the incarceration of non-violent women offenders. He went on to state that he had performed research on sentencing practice:
“Pre-Sentence Criminal Justice Social Work Reports
Pre-sentence Social Enquiry Reports (now called Criminal Justice Social Work Reports) have been a key instrument to try to inform, advise and assist the judicial sentence away from a custodial sentence in marginal cases. Tata et al conducted research over four years examining the influence of such reports in sentencing by following through the trajectory of a sample of marginal custody/non-custody cases. Their research shows that this strategy of subtle persuasion is limited in its impact by a culture of judicial ‘ownership’ of sentencing, which forces report writers to encode their messages about sentencing. These encoded messages encouraging a more sparring use of custody sometimes work but can also often be missed or backfire against the report writer and his/her suggestions. Moreover, judicial sentencers often missed key information about the person (e.g. mental health needs, learning disabilities etc) and for this reason I am apprehensive about the recommendation for ‘truncated’ pre-sentence reports. It is true, as the Commission, suggests that many lawyers and judges believe these reports to be excessive in their ‘detail’. Yet this research shows clearly that vital personal and social circumstance information is often glossed over or missed altogether – and that is even when (and sometimes because) it follows the National Standards. This explains, at least in part, how non-violent vulnerable individuals end up in prison.
…One option may be to investigate the possibility of some kind of CPD requirement, with a sentencing element. This may help to counter the objection that there is ‘no time’ in the court diary to conduct judicial education.
… there are real dangers in making relatively short periods of custody more attractive by attaching supervision elements. This gives rise to the threshold point at which such composite/combined sentences could be applied and the real risk of sentencing inflation. There is also the problem of ‘condition loading’ and an increase in breaching.
What is the purpose of incarceration?
A clear recommendation to devise simple and clear principles about what the purpose of incarceration is and is not. Prof Tata also stated what he believed sentencing should be for – i.e. that imprisonment is for protection of the public from serious harm (normally violence (including sexual violence) only.
We agree with Prof Tata that “imprisonment cannot be used in order to: ‘protect’ women from harmful situations (e.g. domestic violence) on the ‘outside’, to give their chaotic lives ‘structure’, as general deterrence (there is precious little evidence of its instrumental effectiveness), or as rehabilitation, nor to address personal, social or educational needs (e.g. addiction, or literacy).”
“If prisons can do some good rehabilitative work while someone is inside that is very valuable, but as a society we must state clearly that the primary and over-riding purpose of incarceration is public safety only. Rehabilitation in prison should be secondary to that – if it is not then the improvement in the conditions of female incarceration (as recommended by the Commission Report) will make sending women there even more attractive, albeit for benign (if misguided) motives.”
Prof Tata went on to say: “It is sometimes suggested that addressing sentencing policy somehow undermines the separation of powers. This claim is bogus – it is entirely constitutional for Parliament to set the limits of a sentencing framework. It is then for sentencing judges to apply that framework in individual cases.
How these principles are then put into practice could be determined in consolation with systematic measurement of public attitudes and understanding; integrated with research evidence testing assumptions etc. One option is a Sentencing Council (or similar body) which can conduct this kind of intermediary work. A Council is provided for by the 2010 Criminal Justice and Licensing (S) Act…. It is important to note that a Council can do many other valuable things other than devise Sentencing Guidelines. It can work to inform, educate the public, and it can also be act as political buffer so that knee-jerk reactions are avoided and calm, evidenced reasoning prevails. Governments are not well-placed to perform this function: first, ministers to whom civil servants are answerable are likely to be subject to be penal populism whether now or in the future. Secondly, the credibility of a Council as an impartial body depends on it being at arms length from government. Of course this public and judicial education/ review function could be carried out by a body not called a ‘Council’ and could be bolted onto another existing independent body.”
The provision of systematic and meaningful information about sentencing as a point of sentence tool which is available to judges and is publicly available. The Irish Sentencing Information System is now publicly available for example, likewise Victoria.
Families affected by imprisonment
Each year around 27,000 children in Scotland are affected by their parents’ imprisonment.
- Two thirds of women in prison have children, and almost 40% receive visits from their children.
- In the last 5 years, 19 babies have been born in prison in Scotland.
- Partners worked together to develop a new Family Help Hub at Cornton Vale to support the children and families visiting. The hub opened September 2013.
- Family-focused support and interventions are available in prison and to support women as they leave
Women, equality and human rights
In our response to the commission, we said we agreed with the EHRC statement about women offenders:
“The case for a distinct approach for women offenders
Women offenders have distinct characteristics and so there is a need for gender specific services for women offenders:
- Women are more likely to be a lower risk to public safety, more likely to be on remand, have higher rates of mental ill health, alcohol and drug dependency.
- That women demonstrate different predictors of reoffending than men for example, women are more likely than men to lose their homes.
- That women’s desistance is driven by different factors and that interventions to reduce reoffending should focus on what works best for women, a one size fits all approach has proven to be ineffective.
- That an approach based on early intervention and diversion away from the criminal justice system can be effective in preventing reoffending, particularly by young women.
- That women offenders are more likely than men who offend to have dependent children, more likely to lose their housing while in custody, and less likely to rely on a partner outside to look after their children while they are in custody. This increases the potential for greater adverse impacts on the children of women prisoners.”
UNITED KINGDOM: SCOTLAND
(per 100,000 of
Source: World Prison Brief – Scotland http://www.prisonstudies.org/country/united-kingdom-scotland
Information on SWGWO
SWGWO was established at the start of 2011 and comprises a group of organisations and individuals concerned with all issues surrounding women’s offending in Scotland. The group wishes to see true equality for all women across the criminal justice system, and to sharpen the focus of policy makers on those women with mental health and learning disabilities and those women from a background of sexual abuse, addiction and substance misuse, as well as support for their families. The group would ultimately like to see that these women and their families are supported to move away from the criminal justice system towards a healthier future.
List of members is at https://swgwo.wordpress.com/members/
Scottish Working Group on Women’s Offending
 C. Tata, et al (2008) ‘ “Assisting and Advising” the Sentencing Decision Process: the Pursuit of “Quality” in Pre-Sentence Reports’ The British Journal of Criminology: International Review of Crime & Society Vol 48 pp385-855
 A claim made in the Justice Committee during discussion about a Sentencing Council and Sentencing Guidelines.