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Rethinking Remand for Women

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Rethinking Remand for Women Reset: Rethinking remand for women Key points • The presumption of innocence and the right • Under a law redolent of Victorian values, too to liberty are fundamental principles of a fair many women are remanded to prison for their criminal justice system. Remanding a person “own protection” to prison runs contrary to these key notions • The current approach to remand hearings and should be an exceptional measure penalises women – remand decision-making • Too often women are inappropriately needs to be rethought and reformed to remanded into custody – almost two-thirds of enable judges and magistrates to take a women remanded to prison by magistrates distinct approach to women are either found not guilty or are given a • Remand decisions for women are critically community outcome important and often complex and demanding. • The vast majority of women remanded to They need to be acknowledged as such prison to await trial or sentence could safely • In order to make fair and appropriate remand be released on bail, to the advantage of their decisions, judges and magistrates need families, their communities and the wider guidance and good information about those criminal justice system appearing before them, particularly women, • Being remanded to prison is a particularly and about the services they can access in devastating and punitive experience for the community women, and it is damaging to any children • The Howard League for Penal Reform is who depend on them working for significant legislative and practice • Foreign national and Black, Asian and reform of remand processes to ensure that minority ethnic women are even more likely women are only remanded to prison in the to be remanded without sufficient reason most exceptional and serious cases. About this briefing The overuse of remand for women As the courts return to nearer normal levels Disproportionate use of remand for women of activity following lockdown, the need for vigilance to reduce the numbers of people Women commit fewer and less violent offences entering the prison system remains critical. than men (MoJ 2018) and the overwhelming Reducing remand to prison to await trial or majority of women could be safely managed in sentence should be a key focus – particularly the community whilst they await trial or sentence. for women. Women on remand account Yet women on remand are over-represented in for almost half of the women received into the prison system. As a snapshot, in 2019, a prison – accounting for 3,236 of the 7,050 staggering 46 per cent of women entering prison first receptions into prison in 2019 (Ministry of did so on remand (MoJ 2020a, table A2.1i). Yet Justice (MoJ) 2020a, table A2.1i). almost 9 in 10 women on remand are judged to present a low to medium risk of serious harm With this imperative in mind, this briefing invites (MoJ 2018). The most common offence for which policymakers and practitioners to rethink the women are remanded to prison is theft – women practice of remand into custody for women. were remanded into custody for theft 792 times The briefing draws on evidence presented to in 2019 (MoJ 2020a, table A2.5i). the All Party Parliamentary Group on Women in the Penal System and on a review of the A growing problem available research, prison inspection reports and policy materials. The Howard League has Prior to the Coronavirus pandemic the number also engaged with lawyers, legal advisers, of women held in prison on remand had been magistrates and District Judges, as well as growing. On 31 December 2019, the number with policy officials and non-governmental of adults in prison on remand stood at a four- organisations working with women in the year high but the rise was particularly marked criminal justice system. for women – the number of remanded women had increased by 21 per cent on the previous With limited exceptions, people appearing in year (MoJ 2020b). This increase in the number court have a general right to be released on of women in prison on remand is mirrored in bail, under the Bail Act 1976. But a woman, some other countries, including in Australia or a man, can be remanded into custody, that (NSW 2020). is sent to prison until their trial or sentence, if the court has a well-grounded concern that Measures to reduce use of remand to prison they will: are not working • Fail to attend court when required, or In 2012, in response to concerns about the • Commit further offences before trial or overuse of remand, particularly in less serious sentence, or cases, Parliament restricted the circumstances in • Interfere with witnesses or obstruct which bail could be refused (Legal Aid, Sentencing the course of justice in some other and Punishment of Offenders Act 2012). Where a way. person faces an offence for which they could be sent to prison, the court’s powers to remand a In this briefing we consider the evidence that person are very significantly reduced if there is no remand into prison is being over-used for ‘real prospect’ that a prison sentence would be women, the particular problems which they imposed on conviction. experience as a result, and what might be causing this unnecessary imprisonment of However, this has not succeeded in preventing women. The briefing highlights the need to unnecessary remands of women. In 2019, 65 reform the approach to custodial remands per cent of women remanded into prison and and identifies changes which will reduce this subsequently dealt with by the magistrates’ unnecessary imprisonment of women. courts did not go on to receive an immediate prison sentence (MoJ 2020c). The position is better in the crown court, but even there 40 Why is remand into custody a problem per cent of women remanded to prison in 2019 for women in particular? did not subsequently receive an immediate custodial sentence (MoJ 2020d). Particular challenges Ethnic disproportionality Remand into prison can be particularly gruelling for women, as they cope with the uncertainty of This overuse of remand to prison is more awaiting trial, the sudden separation from family pronounced for Black, Asian and minority and other networks, and the challenge of adjusting ethnic women (Prison Reform Trust 2017). This to a new regime. Difficulties coping with remand is particularly the case in magistrates’ courts in custody are reflected in the growing number where, in 2019, 59 per cent of white women of incidents of self-injury by women on remand remanded in custody did not go on to receive – in 2019 there were 1917 such incidents, the an immediate prison sentence, compared highest number in a year since 2011 (MoJ 2020e with 73 per cent of Black women, 79 per cent table 2.6). of Asian women, and 78 per cent of women in the ‘Chinese and other’ group (MoJ 2020c). A person can only be held in police custody if he The Lammy Review (2017) (recommendation or she has been assessed as fit to be detained. 11) has invited more detailed examination But there is no such requirement for those of magistrates’ decision-making in relation being remanded to prison. Women entering to remand decisions for Black, Asian and prison often have pressing health needs. As an minority ethnic women. illustration, the most recent inspection report for Styal Prison notes: ‘95% of women said that The situation in the crown courts has recently they had problems on arrival. 53% said they had worsened as well. Despite the overall drop in a problem with illicit drugs on arrival and 27% the number of cases coming before the courts, had an alcohol problem. 72% reported having the number of women being remanded to a mental health problem’ (HMIP 2018). Yet prison in crown courts has risen over the last prisons routinely receive very little information year. For all women appearing in the crown about the women they receive on remand to court there was a six per cent rise in the enable them to support their particular needs number of remands in 2019 in comparison (Pattinson 2012). with 2018. However, the situation is even more marked for ethnic minority women – in Remand for ‘own protection’ 2018, 199 Black, Asian and minority ethnic women were remanded into custody in the In addition to the usual exceptions to the right crown court. In 2019 that figure rose 38 per to bail, under the Bail Act 1976 a court can also cent to 275 (MoJ 2020d). remand a person into custody for their ‘own protection’, even where their alleged offence Foreign national women remanded in large cannot be punished with imprisonment. This numbers power is not often used. However where it is, it is often used to remand to prison a woman Foreign national women tend also to be over- in crisis who presents a risk of harm to herself, represented in the group of women remanded particularly where her mental health needs into custody. Although they represent only eight are complex and unmet in the community per cent of the general population they account (Marougka 2012). Using penal measures to for almost 19 per cent of those remanded in provide therapeutic support is inappropriate custody (PRT/Hibiscus 2018). This is a long- and ineffective (Bradley 2009). Prisons are not standing problem. The most recent thematic equipped to care for these women, and looking review of remanded prisoners conducted by HM after them in custody can be very difficult Inspectorate of Prisons (HMIP), in 2012, found and dangerous, for the women and for staff that 25 per cent of remanded women said they (Pattinson 2016). This provision allows judges were foreign nationals, in comparison with 16 and magistrates to use prison as a ‘place of per cent of sentenced women (HMIP 2012).
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