Women in Prison
A response to the Sentencing Council
Breach Offences Guideline Consultation
25th January 2017
About Women in Prison
Founded in 1983, Women in Prison (WIP) aims to reduce the number of women in prison
and prevent the damage done to women and their families by imprisonment. Women in
Prison’s proposals are based on experience of delivering gender-specialist support services
in prison and the community for women affected by the criminal justice system.
For more information see www.womeninprison.org.uk
Introduction:
About Women in Prison (WIP):
Women in Prison (WIP) is a women-only organisation that provides holistic support to
women affected by the criminal justice system and campaigns to expose the damage done
to women and their families by imprisonment, advocating for a radical reduction in prison
sentences.
Our proposals are informed by our gender-specialist support work with women, delivered at
every stage of a woman’s journey through the criminal justice system. We work in women's
prisons across England as well as in the community in London, Manchester and Woking. We
also run three Women Centres - WomenMatta in Manchester, the Beth Centre in Lambeth
and the Women's Support Centre in Woking.
About this consultation response:
As we work with women only, our response to this consultation is concerned specifically with
women involved in the criminal justice system.
Our response is focused on the sections of the consultation that are most applicable to our
work and service users.
Section two: Breach of a Community Order by failing to comply with
requirements
Q1 Do you agree with the proposed approach to the assessment of seriousness of breach
of a community order? Please state if there are any other factors which you think
should be included in the assessment of seriousness.
A: Section 1 of the consultation document states that:
“Compliance with court orders is important to ensure public confidence in the justice
system, and in many cases to protect individuals or the wider public from harm either
from specific types of offending or continuing criminal behaviour”
Reoffending statistics following custodial sentences are staggeringly high and reoffending
rates increase with each custodial sentence. Reoffending rates are particularly high following
short custodial sentences. We know, therefore, that prison sentences for minor offences are
not an effective way of ensuring public confidence in the justice system, nor of protecting the
wider public from continuing criminal behaviour. The best way of ensuring compliance with
court orders and to ensure subsequent public confidence in the justice system is to design
sentencing guidelines in a way that increases the likelihood that those sentenced are able to
engage. This requires an understanding of the root cause of offending, which often include
substance misuse, poverty, mental ill health and/or homelessness. For women experience of
trauma and abuse (including sexual assault, domestic abuse and neglect as a child) is also
strongly associated with offending. Any sentencing guidelines for breach of offences
therefore need to
1. Take into account the circumstances of the individual and
2. Provide realistic and productive sentencing options that this individual will be able to
comply with
For example, it is unrealistic to expect an individual in active substance misuse to, without
support, fully comply with a community sentence. Instead, support such as rehab should be
readily available as a sentencing option to these individuals (particularly residential rehab).
Similarly, specialist supported housing for women completing their sentences (preferably
linked to women’s centre services) could be a practical way to improve compliance and long
term desistance from offending. The current housing crisis particularly affects women in the
criminal justice system and recent research has found 6 out of 10 women leaving prison
without a home to go to.
It is reasonable to look at levels of compliance with a community order in assessing
seriousness of the breach. The factors stated in the consultation document are all sensible and
the below factors should be taken into account to work in a defendant’s favour, if breached.
i) the overall attitude and engagement with the order as well as the proportion of
elements completed;
ii) the impact of any completed or partially completed requirements on the offender’s
behaviour; and
iii) the proximity of breach to imposition of order.
In “overall attitude and engagement”, should be included levels of communication with
probation and attempts to make appointments and attempts to re-schedule appointments as it
is reasonable to expect childcare issues, clashing appointments, illness and other factors to
occasionally be a hindrance (as is the case for any individual, whether in the criminal justice
system or not). Women are significantly more likely to be primary carers and to have other
caring responsibilities, but we find that this is often not given sufficient consideration when
sentencing decisions are made.
However, to only look at levels of engagement as a determining factor when assessing
seriousness of breach is to grossly simplify the complexity of non-compliance with
sentencing. Sentencing guidelines ought to take into account the reasons why sentences are
breached and base any assessments of seriousness of breach on a genuine understanding and
acknowledgement of these reasons. Courts ought to work with the defendant and local
services to come up with a reasonable and practical option. This should account for the
person’s holistic needs so that long term solutions are found. Many areas have specialist
support available but magistrates are not always aware of the potential for sentencing options
accompanied by support to help with compliance.
Aggravating and mitigating factors must form part of any guidelines. It is not rational to
exclude these in guidelines due to fears of double counting compliance related matters;
compliance, or lack thereof, shows only whether a defendant has been complying or not,
aggravating and mitigating factors show why/not. It is vital that these factors are taken into
account in sentencing, not just because it is fair to do so but also to affect change through
productive sentencing. When women fail to fulfil work or other requirements, the following
mitigating factors should be taken into account:
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childcare or other caring commitments
travel difficulties due to factors such as cost or severe anxiety
homelessness or insecure housing
mental health and levels of mental health care and support available in the community
addiction issues and levels of addiction support available
abusive and coercive relationships (including abusive partners being linked to the
offending or compliance)
levels of support available to women in their local communities, e.g. women’s
centres, social services or support charities (some areas do not have the specialist
support needed leading to a ‘postcode lottery’ for women in the criminal justice
system, particularly in rural areas)
This is not an exhaustive list. It is important to find out what the reasons for non-compliance
are in each individual case in order to come up with a more appropriate and realistic followup sentence. When determining levels of compliance, courts should also look at the level of
support available for women. Courts should, where possible, take advantage of local support
schemes such as women’s centres. Unfortunately, women’s services and other community
support services are under-resourced and provision is inconsistent across the country; women
should not be punished for the lack of support services in their local community. Even where
support services exist we find that magistrates and others are not always clear what these
offer. All courts should ensure they have up to date knowledge about services and regular
engagement with those services.
Q2 Do you have any general comments on the proportionality of the proposed
sentences?
A: As an organisation, we argue for a radical reduction in the women’s prison population and
a shift to community sentencing in the place of custodial sentencing. We consider custodial
sentencing for minor offences completely disproportionate. Data shows it is also counterproductive as ineffective at reducing reoffending and a very costly way of dealing with lowlevel offending. We do not believe a custodial sentence is a proportionate response to a
breach of community sentence, especially where the offence seriousness did not originally
merit custody.
In the majority of cases, fines are not a constructive sentencing option for women as the
majority of crimes committed by women are reflective of underlying poverty and social
exclusion. In fact, fines often become disproportionate in nature as an unintended
consequence is that they result in a spiral of debt and have consequences in other areas of
women’s lives such as housing options.
We would always argue in favour of community options with programme requirements at
their core. Programmes should be rehabilitative in nature and tackle the root causes of
offending. They must also be gender-specific and take into account individual circumstances
such as childcare and other caring responsibilities. Any unpaid work should be meaningful,
giving women a sense of purpose, responsibility and pride and should also serve to provide
women with valuable work experience on which they can build. These forms of community
sentencing options are proportionate to the crimes committed and are much more likely to
have public support given their cost-effectiveness and the sense of community payback that
custodial sentencing lacks.
Q3 Do you have any general comments on the additional technical guidance included?
Is there any further information which should be included?
A: Regarding point “i) If imposing more onerous requirements the length of the order may be
extended up to 3 years or six months longer than the previous length, whichever is longer”
seems very excessive as a consequence for breach of a community sentence.
Regarding point “iii) The maximum fine that can be imposed is £2,500”, the vast majority of
women involved in the criminal justice system would never be able to pay a fine this high
and would never be in a position to save up money to ever pay it off. As mentioned, we do
not believe fines to be a suitable sentencing option for acquisitive crimes or other crimes
linked to poverty.
Q4 Do you have any general comments on the draft guideline for breach of a
community order?
In the event that a further crime is committed when serving a community order and an
individual is re-sentenced for a combination of both offences, the sentencing court should not
simply consider how to impose a “tougher” sentence. Instead, it should consider whether the
original sentence was realistic, proportionate and possible to complete, given the individual’s
circumstances. If not, this provides a new opportunity for the court to pass a more suitable
sentence. If the second offence committed is similar in nature to the first one, the court should
not automatically assume that this is due to a lack of respect on the part of the defendant but
should instead ask itself whether this is a pattern that can be broken with the right form of
rehabilitative support.
Section three: Breach of a Suspended Sentence Order
Q5 Do you agree with the proposed approach to the assessment of seriousness of breach
of a suspended sentence order by failure to comply with a community requirement?
Please state if there are any other factors which you think should be included in the
assessment of seriousness.
As outlined above, we believe custody should be reserved for the very small number of
people who pose a risk to society. An individual who has been given a suspended sentence
clearly does not fall into a category of people who pose a significant level of risk, given that
they are by definition allowed to remain in the community. Consequently, we do not believe
that a breach of a suspended sentence should result in custody but should be a chance to reexamine what went wrong and why with the original requirements. Moreover, when speaking
about more onerous requirements and extended supervision, this should not be reduced to a
punitive measure but should be seen as an opportunity to offer rehabilitative support tailored
to the individual.
As stated previously, we do not think levels of compliance are, in themselves, enough to
determine assessment of seriousness but we believe aggravating and mitigating factors should
always be included in any meaningful assessment.
Q6 Do you have any general comments on the proportionality of the proposed
penalties?
Please see answer to Q2.
Q7 Do you agree with the proposed approach to the assessment of seriousness of breach
of a suspended sentence order by the commission of a further offence? Please state if
there are any other factors which you think should be included in the assessment of
seriousness.
Please see answer to Q5.
Q8 Do you agree that the proposed levels of penalty are appropriate?
Please see answer to Q5.
Q9 Do you have any general comments on the section relating to the unjust test? Please
state if there are other factors which you consider are relevant to the assessment of
whether activation would be unjust.
A: The factors for the court’s consideration mentioned in this section (any strong personal
mitigation; whether there is a realistic prospect of rehabilitation; whether immediate custody
will result in significant impact on others) should be extended to other sections of the
sentencing guidelines. These are highly relevant for any sentencing: there are often strong
personal mitigating circumstances, realistic prospects of rehabilitation is of paramount value
and, especially for women, immediate custody often results in significant impact on others,
most notably on children.
Q10 Do you have any comments on the structure and presentation of information in the
guideline?
A: No further comments
Q11 Do you consider that the penalty imposed in case study A is appropriate? If you do
not agree, please tell us what penalty should be imposed and why.
A: No further comments
Q12 What penalty would you think is appropriate in case study B, and why?
A: Z is a single parent and the sole carer of her child. Therefore, rather than looking at the
crime committed in isolation, the court must take into account the totality of the situation and
consider that the consequences of a custodial sentence are more wide-reaching than is
intended. Sentencers are required to take into account the best interest of the child. The case
study does not reveal Z’s family situation, but a potential consequence of a custodial sentence
in this case, and many similar cases, is that Z’ child will go into care, at a large cost to
society, increasing Z’s risk of reoffending, increasing her child’s risk of future involvement
in the criminal justice system and causing enormous distress to the child and mother. A
custodial sentence is therefore not proportionate to the offences committed. Z’s childcare
commitment is a valid reason for her non-engagement and is something that should be
addressed in conjunction with her sentence to unpaid work in order for her to engage fully.
Her commitment to the Think First programme shows her willingness to engage. The fact
that she has committed another, less serious crime, since completing the programme should
not be seen as evidence that the programme has not worked but should instead be measured
as “distance travelled” on the path towards desistance. As stated previously, imposition of
fines would not be suitable as Z is unlikely to be able to pay these. Rather than assuming that
further unpaid work would not be appropriate, Z should be given support with childcare
which would enable her to carry out the work. Given her successful engagement with the
Think First programme, additional rehabilitation programmes would also be suitable to build
on this engagement. The fact that the original custodial sentence was imposed despite Z’s
childcare responsibilities is not in itself a reason to maintain the suitability of a custodial
sentence as this should never have been passed in the first instance. It is vital that sentencers
look afresh at the whole situation when considering the consequences for breach – they may
see an opportunity for change that was not spotted before. In fact, we would like all
sentencers to approach their decisions in this hope for change. There needs to be an
acceptance that the complex needs of many women involved in the criminal justice system do
sometimes result in ‘false starts’ in turning their lives around. A return to court can be an
opportunity to really embed change that lasts.
Q13 Do you have any general comments on the draft breach of suspended sentence
order guideline?
A: No further comments
Section four: Breach of Post Sentence Supervision
Q14 Do you agree with the proposed approach to the assessment of seriousness of
breach of Post Sentence Supervision?
As with breach of other sentences, we consider mitigating factors an important part of
sentencing and do not think levels of compliance in itself is enough to determine seriousness
of breach.
A breach of Post Sentence supervision (PSS) is not the equivalent of a breach of a community
order or a breach of a suspended sentence; a PSS follows a period in custody, meaning that,
when released, a woman has already served the sentence for which she was sent to prison and
the PSS is an add-on to the sentence. Conversely, a community sentence or a suspended
sentence is the actual sentence that she has been ordered to serve. Therefore, they cannot be
seen as equivalent. Post Sentence Supervision was in actual fact intended as Post Sentence
Support and should not involve punitive measures. Unfortunately the current focus on
supervision means that the specialist support available is rarely adequate to meet the real
support needs a woman has on leaving prison.
Q15 Do you have any general comments on the proportionality of the proposed
sentences?
A: As stated in the consultation document, “PSS is intended to operate in a similar way to a
community order although has a purely rehabilitative focus”. Given this intention, it is
completely counter-productive that “the options available upon breach of PSS are intended to
be similar to the options available for dealing with breach of community orders”. Short
custodial terms, such as the 14-day recall to prison period associated with breach of a PSS,
serve no rehabilitative function whatsoever as any such period is too short for a prisoner to
engage in any activities, work or education in prison. Therefore, the consequence of breach of
PSS is in direct contravention of the intended operation of the PSS itself. By being sent to
prison, and hence being removed from the community, any chance of rehabilitative work
taking place in the community is temporarily eradicated. In fact we see cases of women we
work with who have been making progress with employment, education or securing a home
only to find that recall takes them backwards – perhaps to an even worse situation than when
they left prison in the first place.
The inflexible nature of a PSS means it is not appropriate to judge levels of compliance based
on the proportion of elements completed or the proximity of the breach to the imposition of
the order. All custodial sentences of more than one day but less than 2 years now carry a oneyear PSS, resulting in a period of supervision that does not take into account the original
sentence. It is disproportionate that a one-day prison sentence carries the same period of PSS
as does a two-year prison sentence.
As stated previously, the imposition of fines is not an appropriate response to breach for most
women. This is particularly important tin the case of PSS where, in theory, a woman can be
sentenced to pay fines several times over within the same PSS period, thus accumulating a
large amount of fines.
Q16 Is there any other information or guidance which should be included within the
breach of PSS guideline?
It is unclear just how many times someone can be ordered back to prison for a period of 14
days within the 1 year of PSS following a prison sentence. It seems that in theory a person
can be sentenced to serve one day in prison only to be released on PSS and then be ordered
back to prison in 14-day periods consistently over the next one-year period. Clearly, this is a
completely disproportionate response to the original offence and a situation that prohibits any
real chance of rehabilitation and resettlement.
In our experience of working in prisons when the PSS was introduced, women being released
under these new conditions had not been made aware of the new terms and had no
understanding of what was expected of them. A large number of women were, and still are,
being consistently recalled for 14-day periods.
The rolling out of the Transforming Rehabilitation (TR) agenda and the establishment of the
Community Rehabilitation Companies (CRCs) was badly planned and executed; the exact
levels of support to be provided by the CRC delivery agencies was not established at the
beginning and the remit kept changing throughout the first year of service delivery. As a
result, the women under the new PSS provisions did not have access to the intended
rehabilitative support but were still subject to the associated penalties. As an example, CRC
support workers were initially told they would support women in the community for up to a
year. This later changed to 48 hours intense support. This meant that women who were
released from prison on a Friday had only a few hours of support on the day as support
services tend not to be available on weekends. Almost two years on we see little change and
specialist services appear to be in the same insecure funding position as ever – and in many
cases worse. For example, our partner charity (Eaves) ran the Lambeth women’s centre with
Women in Prison and went into administration at the end of 2015 – and other agencies we
work with face closure due to lack of funding.
Section five: Failing to Surrender to Bail
A: No further comments
Section six: Breach of a Protective Order
A: No further comments
Section seven: Breach of a Criminal Behaviour Order
A: No further comments
Section eight: Breach of a Sexual Harm Prevention Order
A: No further comments
Section nine: Failing to comply with a notification requirement
A: No further comments
Section ten: Breach of a disqualification from acting as a director
A: No further comments
Section eleven: Breach of a disqualification from keeping an animal
A: No further comments
Section twelve: Analogous orders
A: No further comments
Section thirteen: Orders not included
A: No further comments
Equality and diversity
Q52 Are there any equality and diversity issues that the guideline does not take into
account?
These guidelines contain no gender-specific considerations. While the existing gender-neutral
sentencing framework allows courts to take into account individual circumstances which may
reflect gender roles or characteristics there is no formal acknowledgement of gender. There
are some marked differences in women’s routes into and out of crime compared to men and a
gender-neutral sentencing framework can have a disproportionate impact on women. For
example, domestic violence and coercion is often closely linked to women’s offending,
women are statistically more likely to complete a community sentence than men and, as
mothers are statistically much more likely to be the primary carer, a mother’s imprisonment
often has more widespread repercussions on children (and the whole family) than that of a
father’s. We know that when men are imprisoned there is often a primary care giver at home
keeping a roof over the family’s head. Removing the primary care giver has implications for
children’s care and for future housing of the family. It is estimated that 95% of children stay
in their family homes when their fathers are sent to prison; for mother the figure is 5%.
Another important issue is that responses in the criminal justice system, including community
sentencing, are generally designed with men in mind as men make up 95% of the prison
population and are responsible for the majority of criminal offences. Sentencing needs to take
this into account alongside the availability of gender specific services locally when making
its decisions.
Further Information
This consultation response was prepared by Sofia Gullberg, Policy Officer at Women in Prison.
For further information please contact [email protected]
t: 0207 359 6674
www.womeninprison.org.uk
Women in Prison Ltd. Unit 10, The Ivories, 6 Northampton St, London N1 2HY
Charity number: 1118727 Company number: 5581944