An important Radio 4 podcast – Helena Kennedy QC speaks to a variety of guests on how women are treated in the criminal justice system, both as victims and defendants. Many of the statistics my readers will already know, although I did pick up new ones. Sandra Horley from Refuge states that three abused women per week commit suicide (in addition to the average of two per week killed by current or former partner). That is almost one woman per day dying due to domestic violence. Another statistic, although women make up only 5% of the prison population, they account for nearly half the self harm in prison.
I will try to do a transcript of this podcast, as it is too important to lose. Thanks to Hagocrat for finding this.
And a very big thank you to Hagocrat for the transcript. Bolding added for emphasis.
Is Eve Still Being Framed?
Transcript of radio programme broadcast on BBC Radio 4, 10 September, 2012
Announcer: Twenty years ago in her book, Eve Was Framed, the distinguished barrister and Labour peer, Helena Kennedy exposed widespread discrimination against women in our criminal justice system. Now, she explores how much has changed and asks, “is Eve still being framed?”
Helena Kennedy: My book, Eve Was Framed, drew attention to the ways in which women were marginalized in the criminal justice system. Law was essentially man-made. Senior judges and practitioners were nearly all men. The system was rife with prejudices amongst magistrates and judges, misconceptions by police and jurors. Rape victims who had worn short skirts were “asking for it”, and defendants were judged according to misleading stereotypes. Women defendants often faced a double jeopardy; judged both for the crime they were charged with and for offences against good womanhood. Certainly, much has changed in the last twenty years. More than fifty percent of lawyers entering the bar, for example, are now women, and women are reaching the highest ranks of the judiciary, among them Appeal Court Judge, Lady Justice Anne Rafferty.
Anne Rafferty: I think there’s been a sea change in perception. I think that the judicial ranks are much more alert now to whether they need to look in a different way at the treatment of women.
Helena Kennedy: So is everything in the garden rosy? It would seem not. According to the latest government figures, the number of women in prison has trebled over the last two decades to around 4,200 currently in jail, rising at a faster rate than for men. The numbers have started to drop a very little, but there is still widespread concern that too many women are being sent to prison for minor, nonviolent offences, and too many women are being remanded in custody, often in situations where they are unlikely to end up being given a jail sentence. What lies behind the figures? What are the underlying attitudes and policies which generate them? To begin to understand what is still wrong with our criminal justice system, we first have to look at how it treats women victims of crime.
Dia’s story began in 2010 when a man with whom she’d had a brief relationship began stalking her.
Dia: He just became really obsessive: I couldn’t leave my front door without him being there; he stalked me at my son’s school, at my doctor’s, when I went shopping; wherever I went he was constantly there. He actually got into my property and tried to force himself on me and assaulted me, and that’s when I called the police. From that point on, you could say, the system started letting me down.
Helena Kennedy: Dia initially had trouble getting the police to take her complaint seriously. It wasn’t until a woman officer became involved that her stalker was eventually arrested and charged with common assault and harrassment. But the trial rapidly turned into a nightmare. Dia arrived at the magistrates’ court to be told that special measures, which would enable her to give evidence from behind a screen, had not been applied for in time.
Dia: I was told by the police officer that if I didn’t go in and give my evidence without screens, the case would collapse and he would get away with everything, and I wasn’t prepared to let that happen – you know, I hadn’t suffered for months and months for this man to just walk free, so I agreed to go in, and, within minutes, another solicitor independent of my matters came out and asked me if I was the witness and the victim. I said yes – he said “the case has been dismissed”. And I was in shock … I was stood there waiting to give my evidence and as soon as he said that, the stalker walked past me, celebrating, and he walked out of the court room. I immediately ran into the court room and I asked the magistrate sitting there what had happened, why hadn’t I been called into court, I’d been stood outside waiting to give my evidence, and the magistrate said “this is a matter between you and your prosecutor”.
Helena Kennedy: Dia was devastated. She learned that the prosecutor, despite knowing that Dia was in the court house and willing to go into the witness box, had offered no evidence, and the case had been dismissed. The harrassment continued. A restraining order was issued, and, when her stalker ignored it, he was charged with breach of the order, and a new trial was set for March 2011.
Dia: You think things couldn’t get any worse but during the proceedings of this second trial the police and the CPS actually provided him with my new telephone number, details of my son that he never had – every single detail that you can think of, they provided that to him.
Helena Kennedy: The man was convicted and sentenced to community service. A restraining order was issued to prevent him going near her home. She received several apologies from the Director of Public Prosecutions, as well as financial compensation for the mistakes made in her case. But she is now calling for special measures and restraining orders to be made standard procedure so that others don’t suffer as she has.
Dia: Everything that they’ve done to me, what they’ve put me through, me and my child through, is much, much worse than what the stalker did to me. Their errors, and the consequences of their errors, are engraved in my life, in my child’s life.
Helena Kennedy: Dia is supported by the domestic abuse charity, Refuge. Its Chief Executive is Sandra Horley.
Sandra Horley: Sadly, Dia’s case is all too typical: she is just one woman out of tens of thousands of women across this country who are badly let down by the police and the criminal justice system. There’s often a failure to gather evidence, to lay charges, to prosecute vigorously, and so, and women are just deeply let down by the criminal justice system.
Every single week in England and Wales two women are killed by current or former partners. That figure has not changed over the last decade. It implies a deeply entrenched institutional failure on the part of the police and the criminal justice system to improving the way it responds to victims of domestic violence.
Helena Kennedy: Mother of two, Gurjit Dhaliwal, endured many years of physical and mental abuse from her husband before eventually taking her own life. Her husband was charged with her manslaughter, and a trial date set. Her brother, Nav Jagpal, says the family were hoping for some sort of closure.
Nav Jagpal: We felt that there was going to be some sort of justice following all the years of torment my sister had had to endure at the hands of her husband.
Helena Kennedy: But two of the medical experts called by the prosecution could not say with certainty that Gurjit Dhaliwal took her life suffering from a recognized psychiatric illness, as opposed to a psychological illness, brought on by her husband’s actions. The horrifying abuse she had suffered was not in dispute. But the case collapsed around medical definitions, and Gurjit’s abuser walked free from the court.
Nav Jagpal: There’s a real gap in what can be provided as justice to anyone going through this situation, or anyone who has had to experience carrying their sister’s coffin following years of domestic violence, and that’s simply that, unless that person doesn’t die, and it isn’t successful their suicide, and they can be assessed to understand and appreciate how bad the torment was, the perpetrator will walk free. They will literally get away with murder.
Helena Kennedy: This is another area of major concern for Sandra Horley at Refuge.
Sandra Horley: Thirty abused women attempt to kill themselves every single day in this country. Three abused women a week succeed in killing themselves, we have a very big problem on our hands. Refuge is continuing to lobby very hard for a new homicide offence of liability for suicide, which is based on causation. By that I mean whether the defendant’s actions toward the victim played a significant and causal role in the suicide. We need to be protecting women.
Helena Kennedy: Poor conviction rates for rape have long been cited as evidence that the criminal justice system fails women. In 2010, cross-bench peer Baroness Vivien Stern, conducted a wide-reaching review into how rape complaints are handled by public authorities. She reported major improvements in attitudes and practices, but surely there’s still a long way to go?
Vivien Stern: There’s certainly a way to go, because we were a very long way behind. The system was inappropriate in almost every way. But the changes in the last few years have been substantial. More people are reporting, more cases are going to court, and more convictions are being obtained by the prosecution service. At the moment the indicators are going in the right direction.
Helena Kennedy: Criminologist, Professor Carol Hedderman, has made several detailed studies of the way women are treated in the criminal justice system. She thinks there are still problems relating to attitudes to rape victims.
Carol Hedderman: Research uncovered some quite uncomfortable old-fashioned perspectives on how far being drunk was actually the equivalent of giving consent, and it wasn’t just amongst the general public but amongst members of the legal profession as well. There’s a level of “she’s asking for it if she lets herself get that drunk”, that her loss of control is a reasonable excuse for rape.
Helena Kennedy: So it’s that women forfeit protection and the protection of law still, if their own behaviour is somehow less feminine, and less appropriately female?
Carol Hedderman: Yeah.
Helena Kennedy: Baroness Stern concedes that such attitudes exist, but believes the system adequately guards against them.
Vivien Stern: Certainly there are measures now in place which enable judges to say certain things to the jury about myths that you shouldn’t believe, and the prosecutors are now very well trained, and I think it’s much less likely that those sort of ideas are going to be overwhelmingly influential in deciding outcomes.
Helena Kennedy: I’m not sure how you can measure attitudes and perceptions about rape victims and whether they are being effectively neutralized. From my experience, there is still more ground to cover. But clearly there are still serious problems relating to the way women victims are treated. And those same problems affect women offenders.
Of the 4,200 women currently in prison, over half are there for nonviolent offences. A disturbingly high proportion of them have suffered domestic abuse, have drug problems, or are suffering mental ill health. The level of self harm amongst women prisoners also attracts widespread concern. Whilst women make up only five percent of the overall prison population, they account for over half of the self harm incidents in prison. But first, why has the number of women in prison trebled over the last two decades? Professor Carol Hedderman.
Carol Hedderman: Some of it is to do with the courts trying to treat men and women as though they were the same, and women therefore getting caught up in a generally tougher move in the sentencing climate. I think when the public calls for tougher sentencing, they’re thinking of aggravated robbery and burglary, and sort of scary crimes, but actually, one of the things that’s happened is the very low level, rather sad, poor, mentally ill, ill-educated, bottom of the heap people are the people most being swept up in the move towards custody.
Helena Kennedy: And that’s men and women, but particularly women because that’s the kind of crime that women commit -
Carol Hedderman: And they are amongst the most socially excluded people in our society as well – they have higher mental health [illness] levels, they are more likely to be on benefits, which creates problems in fining them, so there’s a question about whether they get all the steps on the tariff before they actually get to prison.
Helena Kennedy: Professor Hedderman believes that a simple but fundamental change in sentencing policy could address the problem.
Carol Hedderman: As Scotland has recently attempted, I would try and take away the ability to sentence women to prison for first time nonviolent offences. It would save a large amount of money in prison places and it would reduce the damage that short prison terms are doing to the women who get caught up in the criminal justice system.
Helena Kennedy: In 2007, Labour peer and former MP Baroness Jean Corston, produced a major report for the Home Office on how vulnerable women are treated in the system.
Jean Corston: What I did find was that women were routinely sent to prison in conditions and for offences for which a man would not have been imprisoned, that most of them committed petty offences for which prison was entirely inappropriate, and that it had a devastating effect on their lives and particularly the lives of their children.
Helena Kennedy: Did you find that there were underlying attitudes to women offending that actually had an impact on how women were dealt with?
Jean Corston: Oh most certainly. I had a letter from a magistrate to say he’d read my report and that after thirty years on the bench he had to admit that he had felt much more punitive when sentencing women who had offended against gender stereotypes, which was recently described to me by one young girl who’d been in prison as a magistrate saying it’s outrageous that girls should fight – there’s this notion somehow that, if a woman does something that offends, it’s more serious, and as a young woman I remember the attitude to Myra Hindley as against Ian Brady, it was always “why could a woman do that?”, not “how could a human being do that?”
Helena Kennedy: The number of women being sentenced to prison has dropped slightly in the last few years. But an estimated 17,000 children are separated from their mothers every year by prison. Twenty-year-old Nina was sentenced to eighteen months in prison for selling ecstasy tablets at the Glastonbury Festival. She was separated from her baby son for several months before managing to get a transfer to a mother and baby unit.
Nina: It was horrible, I was lost and I was scared and frightened and … but I fought really hard to get the transfer to the mother and baby unit because I was informed afterwards that I could do that because my son was young enough to be reunited with me within the prison system.
Helena Kennedy: But other women she met inside were not so fortunate, many of them first offenders like herself.
Nina: One woman who was getting sent to a prison from the other side of the country from her children, you know, and it was really hard for the children to be able to come on visits, and the struggle that she faced and the heartbreak she went through every time she just wanted to see her kids – you know, it’s really damaging for the mothers and the children.
Helena Kennedy: Nina thinks judges should think twice before separating mothers and babies.
Nina: I just think that it’s imperative that they take all aspects into consideration like the influences the woman might have had, how the sentence is going to affect the mental health and emotional health of the woman. Once the mother and the child are separated, they’re both going to feel scared and they’re both going to feel lost – if a mother can’t deal with the way that she feels, being separate from her child, then she might turn to something that’s going to numb those feelings, and drugs do that.
Helena Kennedy: Another concern is the number of women who are sent to prison for breaching the terms of their probation or community service orders. Such orders often require a woman to follow a strict itinerary of counselling and education sessions. A major challenge for women who are often leading highly chaotic lives. When almost inevitably they breach their orders, they’re quite likely to go to prison. Barrister Lizzy Acker often defends women in the magistrates courts. One client, a pregnant single parent charged with common assault, angered the judge by bringing her first child into court with her as she’d no one to look after it. As Lizzie explains, the court faced the dilemma of how to sentence her.
Lizzy Acker: Do you want to conditionally discharge her? No. You can’t curfew her at her house. She obviously can’t do unpaid work because she’s 100% occupied caring for her children. So where the community interventions could be very helpful for her, he’s between a rock and a hard place, and that lady ended up with a curfew and a fine because that was all that could be accommodated -
Helena Kennedy: How the devil was she going to pay the fine?
Lizzy Acker: Quite. Is she set up for a fall there is the question you are left with-
Helena Kennedy: Which of course often drives women into other forms of crime where they agree to do things for men – being couriers for them, taking things from A to B, hiding things in their premises, or even sometimes prostituting themselves because it’s an easy way of accessing cash.
Lizzy Acker: I can’t, from my experience, say that it leads to that. All I can say is that you meet a woman in an impossible situation and the impositions of the court don’t make it easier.
Helena Kennedy: Women are also separated from their children when they are remanded in custody. When they eventually appear in court, less than half of them actually receive a jail sentence. But as Baroness Corston points out, the damage has already been done.
Jean Corston: They’re remanded in custody for a period of up to about 28 days. You know better than me that 28 days is long enough to lose your home and your children. Because you can’t pay your rent, you lose your tenancy, your children are taken into care.
Helena Kennedy: The criminal justice system in its efforts to treat women and men equally can fail to appreciate the things which make women different to men. Fail to understand the particular pressures and responsibilities which lead them into crime. Jean Corston absolutely agrees.
Jean Corston: Yes, there’s this notion law is blind and we treat you all the same, but that was at the very centre of my argument, that if you treat everybody the same, the outcome is not equality because men and women are different, I mean I’ve said to male colleagues how would you like it if the way I’m treated was the standard, and you were treated according to that standard? It wouldn’t suit you, because you’re not like me, men and women are different.
Helena Kennedy: My experience and that of other criminal barristers is that women defendants are less likely than men to fight a case, and, if they do, less likely to want to appeal if convicted. A sort of victim mentality and a tendency to want to get the whole business out of the way means they can sometimes be hard to defend. There are innate and important psychological in the way women behave, both as victims and as defendants, or, as in the case of Sarah, both.
Sarah: That night when I dialled 999 there had been two other separate rapes and I must admit after the last rape, yeah, I just thought to myself if I don’t ring 999 this is not going to stop, he’ll always say sorry in the morning and it shouldn’t have happened and he’ll never do it again, but I knew deep down that it would not stop.
Helena Kennedy: Mother of four, Sarah, suffered years of violence from her controlling and abusive husband before she eventually plucked up the courage to report him to the police. He was arrested and charged with rape. But under intense pressure from both her husband and his family Sarah retracted her allegations. Her current solicitor, Chris Holdsworth, who wasn’t involved in the early stages of her case, takes up the story.
Chris Holdsworth: She was charged initially with attempting to pervert the course of justice by making a false allegation of rape; she went to meet her barrister on the first occasion, broke down in tears and said “but the allegations that I made are true”; the defence team spoke to the prosecution and the prosecution felt that she had always indeed been raped by her husband and, as a result of that information, preferred a second count on the indictment of attempting to pervert the course of justice by withdrawing a true allegation of rape. Eventually, on legal advice, she went to court, pleaded guilty to that second matter, about withdrawing a true allegation, and received eight months imprisonment. And this for a woman who had never been before a court, never convicted of anything in the past at all.
Helena Kennedy: She was also the mother of four young children -
Chris Holdsworth: Correct.
Helena Kennedy: On appeal the sentence was reduced to a community order. But the conviction stood.
Chris Holdsworth: It seems totally unfair to me, not least because as a direct result of this case, the DPP changed policy, so nobody in her position in the future will ever be likely to be prosecuted again unless of course the DPP himself approves the prosecution. And so the very fact that she did what she did will help other people in the future. But she is left with a conviction.
Sarah: That’s the horrible thing, the fact that I have now got, at the moment, a criminal record and …. after what he did to me he’s got nothing.
Helena Kennedy: Chris feels that the court failed to appreciate that Sarah’s behaviour was a consequence of her deep psychological dependence on her controlling, abusive husband. Psychological reports, which were never called for in her case, would have revealed that she was suffering from a form of PTSD: battered women’s syndrome. Had they been produced, the case might never have got to court. So is Chris now satisfied that the DPP’s guidelines will prevent injustice in the future?
Chris Holdsworth: I think it’s certainly a better safeguard than we had before. But I also think there should be rule whereby in all such cases like this, then a psychologist’s report should be mandatory.
Helena Kennedy: We’ve heard a catalogue of concerns about the way women are treated in the criminal justice system, but what do those who sit in judgment in our courts think? Magistrate Val Castell is a member of the Magistrates’ Association Sentencing Committee. How does she account for so many women being sent to prison?
Val Castell: We do follow sentencing guidelines. I think that what’s happened is that some of the guidelines have actually increased the sentences recommended for some crimes. You do get government crackdowns on some things from time to time and benefit fraud has certainly been a case in point. Another one is failure to turn up in court when you’re supposed to, the bail act offences as we call them.
Helena Kennedy: Are those areas where you’ve seen that it’s women who are more likely to be the people appearing in court?
Val Castell: It may well be that with benefit fraud cases that that may be something which is more prevalent amongst women, but I honestly don’t know. So it may be that there are some cases that have now got a custodial penalty attached to them which tend to be committed by women.
Helena Kennedy: One of the things that seems so surprising is that our priority seems to be about imprisoning people who are committing violent offences, and yet the majority of women in prison are there for nonviolent offences -
Val Castell: The majority are there for nonviolent offences, which is not to say that women don’t commit violent offences – they do. You will always need to have women’s prisons: some women will always need to have custodial sentences and I think society as a whole would definitely be very uncomfortable at the idea of the Rose Wests running around on the loose -
Helena Kennedy: Yes, I think that while it’s accepted that there are obviously going to be categories of women who should be in prison, just in the same way as men, it’s about the extent to which we use prison, perhaps because of the failings of society rather than the failings of the women, in that they are really in need of drug rehabilitation or psychological help or -
Val Castell: That may be the case and I certainly think there has been a tendency sometimes to try to be helpful, because some of the services have been available in prison where they haven’t been available in the community.
Helena Kennedy: So we end up using prison, in a way, to compensate for the deficits in what is available in our communities -
Val Castell: Which is why it’s so important to get that kind of service available in the community.
Helena Kennedy: Appeal Court Judge, Anne Rafferty, also recognizes a problem with finding the right disposals for women offenders.
Anne Rafferty: You will occasionally hear that the author of the pre-sentence report would suggest a community disposition and the woman concerned just can’t do it because there’s an eight-year-old and a five-year-old and a six-month-old and there’s no one to look after them. That is undoubtedly a problem.
Helena Kennedy: Creates limits on the sentencing possibilities doesn’t it?
Anne Rafferty: Yes, and it’s a huge question, and it’s one for the politicians, not the judges.
Helena Kennedy: But it leaves it pretty hard for the judges to have to, between a rock and hard place as someone suggested, because there are not enough possibilities open to judges and so sometimes you end up having to give a fine when somebody just doesn’t have the money to pay it back.
Anne Rafferty: You always have to do the best you can in the sentencing circumstances. The sentencing circumstances are not the creature of the judges.
Helena Kennedy: A central recommendation of Jean Corston’s 2007 report was the setting up of centres which would support women offenders to carry out their community penalties, providing opportunities for rehabilitation with a range of counselling and education services. There are currently 39 of them around the country dedicated to turning around the lives of offenders and those at risk of offending. Val Castell says they provide magistrates with a valuable sentencing option.
Val Castell: Where you’ve got something like that available, in many cases it will be much better, and much better frequently for women offenders, to be able to get that sort of outcome rather than actually a custodial sentence.
Helena Kennedy: Is it available to you in your area?
Val Castell: No it’s not.
Helena Kennedy: So, what you’re saying is that there’s a great variability about alternatives to prison and that in some areas there are just not open to the bench and therefore you end up doing the same thing to women -
Val Castell: Absolutely – there is enormous variation and it’s something the Magistrates’ Association are very conscious of and we would like to see it much more evened out, we would like to see these options available to all benches.
Helena Kennedy: The Magistrates’ Association would like to see such centres set up all around the country. They’ve proved highly effective at diverting women from custody, and are massively cheaper than prison. But long term funding is uncertain, even for maintaining existing centres. Baroness Corston warns that there is a lot to be lost.
Jean Corston: I’ve heard the most life-affirming stories – women who’ve been in and out of prison for years and have suddenly been given this opportunity to turn their lives round or women who have been kept out of prison, who said to me: “Because of you I’ve got a life.”
Helena Kennedy: So we’ve got 39 of those centres set up as a result of your recommendations, but suddenly – no more centres.
Jean Corston: Well, certainly no more is my impression, and the other thing that really concerns me is that the funding is very precarious for all of them. They are hand to mouth now.
Helena Kennedy: The government has certainly acknowledged that there are problems for women in the criminal justice system. They say they are now focused on the key issues and are committed to reducing the number of women in prison. But is enough being done to turn good intentions into meaningful results? What we have learned is that treating as equal those who are unequal not only leads to further inequality but also leads to injustice. And justice is the objective.