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Creating choices in the UK : re-imagining the female criminal justice system Alton, Louise Elizabeth 2008

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CREATING CHOICES IN THE UK: RE-IMAGINING THE FEMALE CRIMINAL JUSTICE SYSTEM by LOUISE ELIZABETH ALTON LL.B (Hons), The University of Durham, 2006 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2008 © Louise Elizabeth Alton, 2008 ABSTRACT The prison system of the UK is riddled with sexual inequality, substantially the same procedures and facilities being extended to both male and female prisoners, representing a failure to realise that the two genders experience incarceration in materially different ways. The current formation of the system is blind to the social inequalities and difficulties which construct the identities of the majority of female offenders, resulting in an array of fundamental human rights abuses. Furthermore, decisions which significantly disadvantage female inmates are made daily, with little consideration given as to the correct bases for making such life changing choices. Time and time again however, proposals for meaningful and radical reform are met only with lethargic stalling by the Government, which seems content to pander to a punitive public desire heavily constructed by unjustified media representation. While similar processes have also operated in the Canadian context, federal female prison reform has taken a decidedly feminist tilt over the last 20 years. It is in light of this that thorough comparative examination and analysis of North American penal reform will provide a body of information which will eventually constitute an invaluable resource upon which to draw in planning the UK’s next moves towards a more substantively equal and effective female criminal justice system. TABLE OF CONTENTS ABSTRACT .1 TABLE OF CONTENTS ACKNOWLEDGEMENTS vi DEDICATION vii INTRODUCTION 1 1. An Overview of the Women’s Prison System 1 2. Approach to Reform 9 I. METHODOLOGY 12 1. Comparative Method 12 (a) The Power of Comparison 12 (b) Aims of Comparative Method 16 (c) Structure of the Comparison 18 (d) Widening the Comparative Net 22 2. Feminist Legal Theory 23 II. WHO IS THE FEMALE OFFENDER’) 29 1. Introduction 29 2. Types of Offences Committed by Women 33 (a) United Kingdom 33 (b)Canada 36 3. A Statistical Nightmare? Muddled by the Media’) 38 4. Who are Female Offenders and Why do they Commit Crime’) 54 (a) Why is this important’) 54 III (b) Economic and Social Factors .54 (c) Histories of Victimisation and Substance Abuse 60 (d) Solutions, the Gender Equality Duty and the Importance of Education 65 (e) Violence and Homicide: Why do Women kill9 73 5. Conclusion 79 III. RESTRUCTURING THE WOMEN’S PRISON SYSTEM IN THE UK 80 1. Introduction 80 (a) The Approach 80 (b) Creating Choices, Learning Lessons 82 2. The UK Women’s Prison System and its Impact on Female Inmates 83 3. The Canadian Women’s Prison System 94 4. Creating Choices in Canada 98 (a) The Task Force and Consultation 98 (b) The Task Force’s Starting Point 103 (c) Structural Proposals 105 (d) Implementation of Creating Choices 108 5. Creating Choices in the UK 113 (a) The Corston Report 113 (b) Government Response 119 (c) Dying on the Inside: Female death in UK Prisons 123 6. Beyond Corston: Lessons from Canada 127 (a) Prisons that Work 127 (b) The UK Government: Putting its Money where its Mouth is 129 (c) A Document for Change: Rapid and Thorough Implementation and Inclusivity 130 (d) Long Term Goals: Geographically Scattered “Secure Units” 134 iv (e) Which Female Offenders Should be Sent to a New Unit7 139 (f) Women’s Prisons in the Present: Short Term Answers 140 7. A Lesson for Canada: Female Provincial Imprisonment 141 8. Conclusion 145 IV. MOTHERS AND THE CRIMiNAL JUSTICE SYSTEM 146 1. Introduction 146 (a) Scope of the Discussion 146 (b) Overview and Approach 146 2. Sentencing of Women and Mothers: Patterns, Assumptions, Consequences 154 (a) Review of Relevant Case Law 160 (b) Gender Neutrality, Social Reality and Lessons from Child Custody Law 169 (c) Sentencing in Canada: What can be Learnt7 178 3. Approaches to the Issue of Mothers with Children in Prison 184 (a) Mother and Baby Units in the United Kingdom 185 (b) Review of Relevant Case Law 187 (c) Arguments Against MBUs 189 (d) Addressing Concerns 190 (e) Lessons from Canada 194 (f) Towards a Gender Neutral Future 196 4. Conclusion 208 V. CONCLUSION 211 BIBLIOGRAPHY 219 V ACKNOWLEDGEMENTS I would like to thank Professor Michael Jackson and Professor Janine Benedet for committing their time and expertise generously. I also wish to thank my parents for all their support and encouragement, without which none of this would have been possible. vi IA uv(iGiun 1ojj INTRODUCTION 1. An Overview of the Women’s Prison System The women’s prison population of the UK has risen rapidly in a short amount of time, more than doubling in the last ten years.’ An average figure of 1,998 women were in prison or police cells in 1995 and by the year 2000 that figure had risen to 3,355•2 Alarmingly, the total number of women in such custody in 2005 reached 4,5 14. Although the numbers saw a slight decline in 2007 they are still unacceptably high and are rising once again.4 In May 2007 4,433 women were in prison and this figure rose to 4,474 in May 2008. And why is this? Why have these figures spiralled so out of control? The Prison Reform Trust, a registered charity which campaigns to improve prison conditions and find alternatives to incarceration, explains this trend by citing “a significant increase in the severity of sentences”.6 So what arguments are there to justify this leaning towards greater punitive sanction? For what reason are thousands of women being locked away each year? Is it a benevolent attempt at reforming delinquent Home Office, Home Office Statistical Bulletin 18/06, Qffender Management Caseload Statistics 2005(London: Home Office, 2006) at 110 2 Ibid This figure is for the “population in prison establishments and police cells” ‘ Ibid. Prison Reform Trust, Bromley Briefings: Prison Faq/lie, May 2007 (London: Prison Reform Trust, 2007) at 14 The figures show that the women’s prison population fell by 45 from the previous year, to 4,390 National Offender Management Service, Prison Population and Accommodation Briefing for 25th May 2007, online: HM Prison Service <http://www.hmprisonservice.gov.uk> and National Offender Management Service, Prison Population and Accommodation Briefing for 23’’ May 2008, online: HM Prison Service <http ://www.hmprisonservice.govuk> 6 Prison Reform Trust, supra note 4 at 14 1 women’s lives? Surely not, for in 2004 it was found that 64.3% of women discharged from prison were re-convicted in the two years following their release.7 So how about politics and specifically punitive populism.8 This phenomenon became very pronounced in the 1990s when John Major announced in the Mail on Sunday, 2l February 1993, that “society needs to condemn a little more and understand a little less” and still continues to this day.9 Fuelled by the media, which has served to inflate fear of crime by portraying offending in an exaggerated and sensational manner, highlighting only the most violent and newsworthy stories, politicians have sought to gain public trust by taking a heavy handed approach to tackling crime.’0 Women throughout the UK have paid the price. The majority of women are sentenced to prison for non-violent crimes. For example, “more women were sent to prison in 2005 for theft and handling stolen goods than any other crime.” Violent offences are the exception for female offenders, yet, as Pat Carlen, Professor of Criminology at the University of Keele in the UK clearly articulates, the treatment these women receive has the force of a punitive “sledgehammer”.’2 Jack Cunliffe and Adrian Shepherd, Home Office Statistical Bulletin 06/0 7, Re-offending of adults: results from the 2004 cohort (London: Home Office, 2007) at 21 8 Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing,” in Chris Clarkson and Rob Morgan, eds., The Politics ofSentencing Reform (Oxford: Clarendon Press, 1995) Interview of John Major, UK Prime Minister from 1990 to 1997 (21 February 1993) in the [London] Mail on Sunday (21 February 1993) ‘° On this point see Robert Reiner, “Media Made Criminality: The Representation of Crime in the Mass Media,” in Mike Maguire, Rod Morgan and Robert Reiner, eds., The Oxford Handbook of Criminology, 3rd ed. (Oxford: Oxford University Press, 2002) 376 “Prison Reform Trust, supra note 4 at 14 12 Pat Carlen, Sledgehammer: Women’s Imprisonment at the Millennium (London: Macmillan, 1998) 2 What makes this all the more disturbing though are the reactions of these women to prison. Unlike the majority of male inmates, female prisoners tend to turn in on themselves, experiencing prison in fundamentally different ways from males.’3 For example, the HM Prison Service has reported that about 30% of the women’s prison population have self-harmed every year since 2003, whereas the figure is only 6% in the case of males.’4 This is a staggering disparity, highlighting the vast difference in reactions of males and females in prison. Reinforcing this frightening notion is the high rate of female suicide in prison — in the first six months of 2007 alone, six women committed suicide in prison while in 2006 three incarcerated women took their own lives. The problem is getting worse and now is the time to do something to reverse this frightening trend. The Corston Report, commissioned as a response to a number of deaths at Styal Prison for women in Cheshire, re-affirms that “prison is disproportionately harsher for women because prisons and the practices within them have for the most part been designed for men”.’5 The prison structure is failing to take account of the fundamental differences in the lives of men and women. A one-size fits all approach is not the answer here and is at present leading to appalling infringements of imprisoned women’s human rights every day. As such this work sets out to challenge not only the conditions in which female 13 Baroness Jean Corston, The Corston Report: a review of women with particular vulnerabilities in the criminaljustice system (London: Home Office, 2007) at 16 and 20 14 HM Prison Service, Female Prisoners, online: HM Prison Service, <http ://www.hmprisonservice.gov.uk/adviceandsupport/prisonlife/femaleprisoners/> 15 Corston, supra note 13 at 3 3 offenders are habitually incarcerated but also the imprisonment of such vast numbers of women as unjustifiable. A large proportion of women who are imprisoned in the UK have unstable backgrounds, characterised by abusive childhoods and violent relationships throughout their lives, while shockingly a quarter of female inmates have been in care as children.’6 As a result of this, it is not surprising to find that the Corston Report has announced that “women in custody are five times more likely to have a mental health concern than women in the general population”.’7 There is an obvious pattern here, one which needs urgently addressing. There is a failing of the system which is allowing women to reach the point where they offend. Therefore, not only does the situation of women who are already in prison need addressing, but also the circumstances which lead to their offending in the first place. The Corston Report additionally emphasises the fact that approximately 66% of the women’s prison population are mothers who are separated from their children by incarceration, the effects of which can be devastating on the prisoner as feelings of loneliness and isolation are inflamed, encouraging and propagating self-destructive behaviour.’8 The small number of women’s prisons in the UK further compounds the problem by meaning that most women are imprisoned at an average distance of 62 miles 16 Nicola Singleton et a!., Psychiatric Morbidity Among Prisoners in England and Wales (London: Office of National Statistics, 1998) at 27 See also Social Exclusion Unit, Reducing Re-offending by Ex-prisoners (London: Social Exclusion Unit, 2002) at 138 which revealed that 50% of female inmates admitted to being the victim of domestic violence and a third to being the victim of sexual abuse 17 Corston, supra note 13 at 1 1 Ibid. at 20 4 from where they live, although, as the Corston Report has pointed out, the average distance is now likely to be far further due to the recent re-classification of the Brockhill and Buliwood Hall prisons as men’s facilities.’9 Such a problem is not faced by male prisoners who, as a result of the large number of male prisons, have far less trouble arranging visits from family members.2° So, the shockingly high proportion of female deaths in prison and the numerous accounts of self-harm can be somewhat explained by the above observations, leading to the conclusion that the prison environment is not suitable for these fragile and unstable women. As a consequence of a greater understanding of women’s experiences and reactions to incarceration, many studies are now advocating various approaches to the problems inherent in the system. However, the difficulties still persist and the answers are still incomplete. Therefore, in light of the many pervasive problems in this area, this thesis is essential in attempting to resolve some of the issues which are gnawing away at the bones of both the women’s prison system and, perhaps more profoundly, society itself. Canada has faced similar problems in terms of its female prison system, including over- incarceration and poor conditions in female prison facilities. Originally, female offenders were imprisoned in the same prisons as male offenders, however in 1934 The Prison for Women in Kingston Penitentiary (P4W), then the only federal women’s prison in Canada, allowed women offenders to serve their sentences within it. It seemed like a ‘9Ibid. at2l 20Jbjd On average men are imprisoned only 51 miles from their homes 5 step forward - women would now be separated from male offenders in a prison of their own. However, from the very beginning cracks were appearing in P4W. It quickly became clear that it was not suitable to hold female prisoners. Significantly, in 1990, Creating Choices: The Report of the Task Force on Federally Sentenced Women was released.2’ This invaluable piece of work revolutionised the federal women’s prison system and will be examined in greater depth in Chapter III. A number of serious flaws were highlighted in the prison, including the structural inadequacy of the building, which had been built to a design created for male prisons which did not fit the specific needs of the women within its walls. The report recommended the closure of the prison and advocated the creation of four new relatively small regional prisons for women, plus a prison specifically designed for aboriginal female offenders. The debate was spurred on by a number of deaths at P4W and Kelly Hannah-Moffat, Professor of Sociology at the University of Toronto, notes that “for many, these deaths underscored how our mental health system and penal institutions had failed to respond to the needs of incarcerated women”.22 It appeared that the recommendations of the Task Force were taken seriously and subsequently implemented. In May 2000 P4W closed its doors for good and the five new regional prisons envisaged in Creating Choices became a reality. 21 Task Force on Federally Sentenced Women, Creating Choices: Report of the Task Force on Federally Sentenced Women (Ottawa: Ministry of the Solicitor General, 1990) 22 Kelly Hannah-Moffat, Punishment in Disguise: Penal Governance and Federal Imprisonment of Women in Canada (Toronto: University Press, 2001) at 142 6 It is to be hoped that throughout this research and study of both the Canadian and United Kingdom women’s prison systems valuable lessons can be gleaned. Creating Choices helped to shape a more responsive prison environment for women in Canada, though there are certainly still vast areas for improvement and a plethora of problems remain which mirror the many troubles blighting the UK system.23 It is for this reason that it is important to investigate the failings of both the Canadian and UK systems to formulate strategies for the improvement of both systems. Now is an important time to carry out a comparative study of the Canadian and UK women’s prison systems. The Canadian Charter ofRights and Freedoms has embedded human rights in Canada for 26 years and it is in view of this that it must be considered appropriate to examine the impact of human rights on the women’s prison system. In the UK, human rights were delivered in 2000 when the Human Rights Act 1998 (HRA) came into force. It is in light of this that the time is right to conduct an analysis of the impact of the HRA thus far and speculate on the appropriateness of the women’s prison system’s development, drawing on the lessons of Canada to highlight where the UK may be failing to deliver valuable rights adequately. Professor Michael Jackson has conducted extensive research into the issue of human rights in prisons throughout Canada, most recently in his book Justice Behind the Walls24 See for example Canadian Association of Elizabeth Fry Societies, Criminalized and Imprisoned Women, online: CAEFS <http://www.elizabethfry.caJeweek07/pW7crmwomen.pdf which explains that the women’s prison population in Canada is still growing steadily, yet over 50% of federally convicted women are charged for non-violent drug and property offences 24 Michael Jackson, Justice Behind the Walls: Human Rights in Canadian Prisons (Vancouver: Douglas & McIntyre, 2002) 7 and although a wealth of invaluable research is embodied in this book, the issue of the rights of female inmates is not dealt with in any substantial form. Ohedia has also conducted research into imprisonment in both Canada and England focusing on the human rights issue, yet again the topic of women in prison is skirted over.25 Stephanie Hayman though has conducted important work in this area and is one of the only academic researchers to perform any real analysis of both the British and Canadian experiences of female incarceration with the aim of teasing out lessons from the two countries 26 It is thus time to focus on women’s rights, and Canada and the UK will benefit from leaning on each other for the answers to a number of important questions. Although the primary goal of this paper is to fashion a definitive core of reform for the UK system from the Canadian system, it is also hoped that failings in the Canadian system might benefit from UK approaches. Where no positive lessons can be extracted from either system, perhaps it will be prudent to look to other countries for answers, or eventually formulate entirely fresh ideas for reform. It is hoped that this paper will take concepts which have already been touched upon further and add to the debate on this very serious and topical issue by allowing two systems of law to combine in a pooi of analysis which will enable the extrapolation of strengths and weaknesses. Hopefully this will facilitate a move towards a women’s penal system which truly recognises the unique needs and 25 Jayshree Ghedia, Prisoners: Rights, Rhetoric and Reality (LL.M Thesis, the University of British Columbia Department of Law, 2002) [unpublished] 26 Stephanie Hayman, “Prison Reform and Incorporation: Lessons from Britain and Canada”, in Kelly Hannah-Moffat and Margaret Shaw, An Ideal Prison? Critical Essays on Women’s Imprisonment in Canada (Halifax, Nova Scotia: Fernwood, 2000) 41 8 experiences of the female gender and effectively and supportively delivers fundamental human rights in an appropriate and inclusive manner. 2. Approach to Reform Firstly, the particular reasons for women’s criminality will be examined both in the UK and in Canada in order to determine the root causes of offending. This will primarily involve asking the question: what types of crime do women commit and why? and will necessitate an investigation into the differences between the offending of males and females. The rationale behind this approach lies in a desire to develop a formula for treating the disease itself rather than the mere symptoms. There are reasons women commit crimes and it is imperative that something is done to tackle the issues which lead to criminality in the first place, whether this be by improving the existing social support structure or by creating a fresh new scheme. Secondly, the structure of the women’s prison system itself will be scrutinised. This will involve examining the prison buildings and their geographical placement, the suicide and self-harm rate in women’s prisons in great detail and the provision of services to meet the needs of female offenders. The state of the composition of the men’s prison system will be contrasted with that of the female system in order to illustrate the unique problems experienced by women as the result of a systematic failure of a scheme which does nothing to tend to specific female needs and thus fails in almost every respect to do anything to change the lives of delinquent females in any meaningful sense. The situation will be compared with that in Canada in an attempt to determine whether 9 particular problems which are created and sustained by the women’s prison system itself have also been experienced in Canada and whether suitable methods of curing these problems have been unearthed, which may eventually assist in the evolution of penal policy and structure in the UK. A great portion of this section will be comprised of an overview and analysis of recent reports. The area of corrections is much debated at present and as such it is very important to examine current proposals and plans in order to determine what shape prison reform might take in the future. This will also be useful in focussing thoughts on the direction of progressive change. Thirdly, an important part of understanding the prison system involves understanding the specific issues that women, and especially mothers, face at the stage of sentencing. It is arguable that the sentencing criteria which are applied to women for a range of offences are unduly harsh and fail to take into consideration the subtle and often not so subtle differences between the lives of men and women. When women are sentenced leniently, the effect is usually to embed stereotypical assumptions of femininity and this approach will be seriously questioned. This brings into play Article 14 of the European Convention on Human Rights, which prohibits discrimination, as it will be shown that it is possible to construct arguments that sentencing criteria, when applied to women discriminate on the grounds of sex and also on the Article 8 ground of the right to respect for private life. The point of this is to construct a sensible structure for sentencing women, with a primary focus on mothers, which works within the context of women’s true experiences and difficulties, to provide fully and clearly, fundamental human rights. A great part of this analysis will be concerned with the issue of motherhood and prison, 10 entailing an in depth examination of sentencing criteria applicable to offenders who are also mothers. This will lead into a discussion of prisons which allow children to remain with their mothers upon incarceration. For instance, in the UK children are allowed to remain in prison with their mothers for up to 18 months, while in Canada the maximum age is four years. The justifications for these cut-off points will be looked at in order to decide upon the correct method of treatment of mothers and children in prison, which will take into account human rights arguments. The thesis will conclude by setting out a thorough proposal for reform of all the above sectors of the UK women’s prisons system. Throughout the thesis flaws in the Canadian approach will also inevitably by exposed and thus an incidental task of this work is to find remedies for these faults too. A comprehensive package of reform will therefore emerge which will hopefully fully take into account the differences, similarities, individual characteristics and realities of the lives of women throughout the UK and Canada. 11 I. METHODOLOGY 1. Comparative Method (a) The Power of Comparison The method of comparative law can provide a much richer range of model solutions than a legal science devoted to a single nation, simply because the different systems of the world can offer a greater variety of solutions than could be thought up in a lifetime by even the most imaginative jurist who was corralled in his own system.27 - Zweigert and Kötz, 1998 Comparative method is a critical tool. It allows research to be conducted through examination of different legal systems in the hope that the approach of other countries towards various problems may inspire change and constructive evolution in one’s own country. It is for this reason that the research presented in this thesis will rely heavily on comparative law in order to tease out solutions with which to remedy the cracks in the women’s prison system in the UK (and incidentally, in Canada), through the employment of the various descriptive and analytical techniques that the method entails. So what is it about Canada and the UK that make them appropriate for comparison? What is it about these two legal systems which will focus and make the best use of the power of the comparative method? Firstly, the fact that Canada is part of the Commonwealth, the roots of its legal system lying firmly in the UK and the common law 27 Konrad Zweigert and Hem Kötz, An Introduction to Comparative Law, 3rd ed. (Oxford: Clarendon Press, 1998) at 15 12 system, means that a bedrock of similarity exists between the two countries. It is upon this that the author wishes to build. The two prison systems have diverged at different points, yet there are evident similarities in the problems faced in each of the countries. To compare where two alike systems have taken different paths and to examine the consequences of each of those paths, set against the background of similar laws and experiences will provide a more meaningful idea of what will work in each system and what, evidently will not. One important issue to address at this point is the fact that the Canadian incarcerative system is split between federal and provincial jurisdiction, with those prisoners sentenced to two years or more falling under the responsibility of the federal sector overseen by the Correctional Service of Canada (5)•2 The whole of the UK prison system is comprehensively handled by the HM Prison Service which reports to the Ministry of Justice. This is a very significant difference between the two countries which must be dealt with from the outset. I have decided to make the federal women’s system of imprisonment in Canada the focus of the comparison with the UK system, for the reason that this is the area of Canadian penality which has experienced the most extensive reform over the last 20 years. The radically different style of federal imprisonment which has emerged will hopefully hold a greater range of innovative possibilities for the UK system in its entirety, while the provincial system may still at points be used comparatively where necessary. 28 Criminal Code of Canada, R.S.C. 1985, c. C-46, Part XXIII, s. 743.1 13 In addition to this, human rights have an obvious and integral role to play in the area of prison law.29 Both Canada and the UK recognise and apply the concept of fundamental human rights however there is one major difference. Human rights have only been enshrined in English law for eight years thorough the operation of the HRA.3° However, in Canada the Canadian Charter of Rights and Freedoms (the Charter) came into force on April 1982, meaning substantive rights protection has been afforded against the actions of the State for 26 years.3’ It is in light of this that an examination of the effect of rights rhetoric on the Canadian penal system may be informative for the UK. Perhaps fresh rights arguments will be found for the UK system, where it is arguable many fundamental human rights of female prisoners are being blatantly ignored. For example, Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) taken together provide a right to freedom from discrimination based upon private and family life. 32 It is possible that the inadequate prison visitation provisions and the distance women prisoners are generally kept from their families in the UK is a violation of these rights for the principal reason that, based on their gender, they 29 “Human rights” is a term used here to cover norms which are binding on governments 30 Human Rights Act 1998 (U.K.), 1998, c. 42 [HRA] came into force in 2000, importing the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5 [ECHR] into UK law. Under s.6(1) of the Human Rights Act “It is unlawful for a public authority to act in a way which is incompatible with a Convention right” and under s.6(3) a “public authority” includes “(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.” Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. (the Charter) .,2 ECHR Article 8(1) provides that “everyone has the right to respect for his private and family life, his home and his correspondence.” and ECHR Article 14 provides that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” 14 are denied meaningful access to their families.33 Male inmates tend not to experience familial deprivation in the same way as women in the UK because they are usually imprisoned far closer to their homes, thus the element of discrimination on the basis of gender is evident. Does Canada face the same problem? If so how has it reacted in terms of rights? What solutions have been posited to resolve the issue? Has Canada faced up to this and similar failings at all in terms of a section 15 Charter challenge or is Canada too in need of a rights rethink?34 This is merely one issue which can be addressed by means of the comparative method and analytical reasoning, drawing on the Canadian experience. Prima facie this appears to advocate a hunt for a uniform set of answers and all- encompassing prison policy, based on the belief that there are certain fundamental civil liberties applicable to all people in every part of the world. It must be submitted that this is, to an extent, the correct approach, however societal realities dictate that rights may vary from country to country and that the means of delivering those rights may not follow one set formula. Cotterrell puts it thus: The drive for universalism, seeking similarity in human rights jurisdictions, is challenged by so-called cultural relativism that demands the appreciation of difference. Nonetheless, the drive for legal uniformity is very strong See text accompanying note 19 s.15(1) of the Charter states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 15 given that the universality of the values to be represented in human rights law is powerfully championed.35 This is a sensible statement — a universal approach is appealing however it would be ignorant to assume that dissimilar strategies may never be necessitated in the different countries. However, it must be submitted that as two developed countries with significantly similar legal systems and cultures, Canada and the UK are calling out for the deliverance of substantially similar human rights and penal policy approaches and it is only the method of delivering those rights which may require a slight element of tailoring to take account of any actual differences between the countries. (b) Aims of Comparative Method The objectives of comparative law are noted as academic study, law reform and policy development, to provide a tool for research towards a universal theory of law, perspective to students, aid to international practice of the law, international unification and harmonization — common core research, a gap filling device in law courts, and aid to world peace.36 - Esin Orücü, 2002 Evidently some of the goals of comparative law are more appropriate than others in terms of this research. Twining notes that many see “an increased understanding of one’s own Roger Cotterrell, “Seeking Similarity, Appreciating Difference: Comparative Law and Communities”, in Andrew Harding and Esin Orticü, eds., Comparative Law in the 2f” Century (London; New York: Kiuwer Academic, 2002) 35 at 45 Esin OrUcU, “Unde Venit, Quo Tendit Comparative Law?” in Andrew Harding and Esin Orticü, eds., Comparative Law in the 21 Century (London; New York: Kluwer Academic, 2002) 1 at 2 16 system” as a laudable goal of comparative law.37 A comparison of the Canadian system will inevitably lead to a deeper comprehension of the way the prison system in the UK operates and hopefully how this affects female prisoners. One must first understand one’s own system before one can profess an ability to do something to change it and through a comparison of a variety of primary sources and a range of academic analysis and comment the author hopes to gain a full enough understanding of the UK system to be able to discover exactly where the mental glue needs applying. As Orucü notes though “since, to compare means to observe and to explain similarities and differences, the emphasis can be sometimes on differences and at other times on similarities.”38 This is something that must not be overlooked. Looking for similarities between systems can be just as helpful as focusing on the differences and this is something the thesis will rely on, since similarities can show where the strengths and weaknesses of a system truly lie. If a particular method is being utilised in both countries and is failing in both, perhaps this points to the notion that a radically new approach in both countries is necessary. An approach which is a raging success and which draws approval from both societies reveals where a great strength lies and may provide an impetus for similar approaches in similar areas. Closely linked to the idea of learning from the experiences of other countries is the aim of creating a framework for reform out of comparative study and it must be stressed that William Twining, “Comparative Law and Legal Theory: The Country and Western Tradition”, in Ian Edge, ed., Comparative Law in Global Perspective: Essays in Celebration of the Fñieth Anniversary of the Founding of the SOAS Law Department (Ardsley, New York: Transnational Publishers, 2000) 21 at 5238 Orücft, supra. note 36 at 8 17 this is the quintessential target of this work. Bringing each strand of discovery together to create a comprehensive strategy for reform is a necessary result of comparative method, otherwise the lessons learnt will merely represent pieces of an unfinished puzzle. The focus must be on reaching a cohesive conclusion which brings strategies and ideas together to improve the women’s prison system in a wholesome and overarching way. (c) Structure of the Comparison Zweigert and Kötz provide invaluable guidance on the best way to approach structuring a comparative study. They suggest that “the author first lays out the essentials of the relevant foreign law, country by country, and then uses this material as a basis for critical comparison, ending up with conclusions about the proper policy for the law to adopt, which may involve a reinterpretation of his own system”.39 The complexity of this study and the issues involved make it more appropriate to tackle the comparison in stages, i.e. “devote separate treatment to each sub-question ... and provide a country report on each”.4° In this way, each different section of the thesis will focus upon a particular issue. For the most part, the comparison will be constructed to firstly address the situation in the UK and then, separately, address the same or similar issue in Canada. Only then will it be appropriate to draw conclusions and collect together the fruits of comparison. While this will be the overarching technique, there will be times when a more integrated comparison is necessitated letting “the contrasts .. build toward [the] the Zweigert and Kötz, supra. note 27 at 6 40IbicL at43 18 overall conclusion”, a technique advocated by John C. Reitz in his useful article How to Do Comparative Law.4’ There are many different components of the comparative method and throughout the thesis a number of comparative techniques will be employed. One facet which will be used in examining the workings of each penal system will be descriptive comparative law and this will be the starting point within each section of the thesis. It will involve a mere depiction of each legal system — the structure, the policy, the legislation, the cases, the problems, the successes and so on and so forth. However, as Zweigert and Kötz point out, without more, descriptive comparative law really is devoid of any meaningful comparison.42 Something extra is needed and this is where “specific comparative reflections” will really bridge the gap between the mere sketching of a scene and the proactive mechanics of the comparison.43 It is implicit in the above that an element of what is called “historico-comparative perspective” will work its way into the descriptive comparative reports presented throughout the thesis.44 This approach will combine historical research into the prison systems with the comparative method in order to examine the history of penal policy in the UK and Canada, thus allowing conclusions to be drawn as to which practices and strategies have worked in the past and which have failed. Thus a number of reports from ‘ John C. Reitz, “How to Do Comparative Law” (1998) 46 The American Journal of Comparative Law 617at634 42 Zweigert and Kütz, supra. note 27 at 6 “ Ibid. Orucu, supra. note 36 19 both countries will need to be examined and contrasted.45 This will ensure that strategies which floundered in Canada for example will not be replicated in the UK and indeed that the mistakes of the past in the UK are not repeated. Comparative law contains many sub-categories, such as the two listed above (historic and descriptive) but there are two other categories which will be of great importance in this study. These are macro-comparison and micro-comparison. Macro-comparison involves comparison on a large scale, focusing not on the legislation and the specific problems themselves but rather on the “methods of handling legal materials, procedures for resolving and deciding disputes, or the roles of those engaged in the law”.46 It is more abstract and would involve an examination and evaluation of the success of the methods by which one country solves a particular problem or employs a particular policy. It might, for example entail an inspection of the reasoning behind sentencing decisions and indeed part of this work will focus heavily on such issues. It might also involve scrutiny of prison policy, in terms of the approach to dealing with mothers in the prison system who have young children. These are just two areas of macro-comparative analysis which will be interesting to explore with the aim of working to the root of policy in both the UK and Canada. Investigation of the approaches adopted in both countries will hopefully allow conclusions to be drawn as to where the balance of policy should lie. For example Creating Choices by the Task Force on Federally Sentenced Women, supra note 21 and the Corston Report by Corston, supra note 13 46 Zweigert and Kötz, supra. note 27 at 4 20 Micro-comparison on the other hand “has to do with specific legal institutions or problems, that is, with the rules used to solve actual problems or particular conflicts of interests”.47 This might involve detailed examination of certain legislation which governs the women’s penal system or perhaps, zooming in even further, particular rules which govern the running of prisons. From an analysis of the operation of such rules and legislation in the UK it will be possible to discern whether they are, for example, discriminatory in any way, and if so perhaps lessons can be learned from a comparison of similar legislation and rules in Canada. So which road should be taken at this point? Should the focus be largely macro- comparative or micro-comparative? In fact, this author sees no reason to place a definitive barrier between the two. In reality this would be impossible, for, as Twining recognises “micro-comparison pre-supposes macro-comparison; they are complementary rather than alternative approaches.”48 The result of fully merging the two methods of comparative law is the production of a framework of analysis which contrasts the overall legal processes of countries on a grand and comprehensive scale. In fact it may be prudent to go so far as to say that the two approaches are equal halves of a comparative whole. At least, in the case of this research this must be true, for the picture of each penal system would not be complete without both macro and micro-comparative assessment and any lessons would be only half learned. ‘ Ibid. at 5 48 Twining, supra note 37 at 32 21 A good example of this principle in practice could be put thus: Article 8 of the ECHR49 may be examined in detail and judicial treatment of this right could be scrutinised to determine exactly what the right requires. This could then be compared with s.7 of the Charter5° in order to discover whether the UK has missed something; whether perhaps the right might require something more. This micro-comparative analysis with nothing else is of limited value. Only when a macro-comparative take on the issue is layered over the top of our micro-comparative analysis will the full picture emerge. For example, the right to respect for private and family life may now be understood, but what treatment outside the realms of the rules may be having an effect here? What aspects of prison policy in the UK for example give inadequate weight to this right? What policy decisions in Canada may shed light on the issue? Both macro and micro-comparative analysis will consequently be integral methodological components throughout this work. (d) Widening the Comparative Net Although this work will focus predominantly on a comparison of the British and Canadian women’s penal systems, there may be times when it will be appropriate to cast the net a little wider and to include other countries in the comparison. This may be fitting where certain failures are discovered in both the Canadian and the British systems and thus the approach of neither country holds any significantly positive answers for the other. ‘ Convention for the Protection ofHuman Rights and Fundamental Freedoms, ETS 5, “Article 8: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ° s.7 of the Charter provides for the “right to life, liberty and security of the person.” 22 One particularly controversial issue is that of mothers and their children in prison. A question which could be asked is how long a child should be allowed to remain in prison with his or her mother. In the UK the maximum age is 18 months.5’ In Canada it is four years. Where does the correct balance lie? Such a difference in the ages here shows that the approaches to mothers of young children in prison are drastically different. It may be difficult to come to a conclusion as to the correct age limit, if indeed there should be one at all, thus it might be appropriate at this point to switch one’s attentions to other countries and the policies and structures they employ in their own mother and baby units. 2. Feminist Legal Theory Feminists cannot ignore method, because if they seek to challenge existing structures of power with the same methods that have defined what counts within those structures, they may instead “recreate the illegitimate power structures [that they are] trying to identify and undermine.”52 Katharine T. Bartlett, 1990 It is important, and almost inevitable, that throughout this research feminist legal reasoning will play a significant role through comparing and contrasting women’s prisons in both Canada and the UK and also by comparing and contrasting the experiences of males and females in prison. It is hoped that a feminist methodology will assist in revealing and dealing with the differences between the manner in which men See HM Prison Service, Inside HMPS Mother and Baby Units, online: HM Prison Service <http://www.hmprisonservice.gov.uk/prisoninformation/prisonservicemagazine/index.asp?id=573 0,18,3,18 ,0,0> 52 Katharine T. Bartlett, “Feminist Legal Methods” (1990) 103 Harvard Law Review 829 at 830-832 Bartlett quoting Joseph William Singer, “Should Lawyers Care About Philosophy?” (1989)1989 Duke Law Journal 1752 at 1753 23 and women experience society and react to the prison environment and thus the role that gender plays in the prison context. There are many different aspects to feminist legal theory and it is vital to recognise that there are various approaches which could be taken in applying such theory. Indeed, Bartlett, in her article Feminist Legal Methods highlights a range of techniques suitable for attaining the best results from research when placing an emphasis on analysis of problems from a feminist perspective.53 Feminist legal methods arguably allow one to get to the nub of complex issues and will enable exploration of the prison problem from a different angle, focusing on the gender specific issues which plague the system of incarceration. By looking at the subject from a feminist perspective one can endeavour to unveil the deeper problems faced by women as women in prison, rather than as abstract prisoners, reduced to numbers, and faceless criminals. One can begin to set the matter in context and delve beneath the surface to tackle issues which may at first glance be invisible. Bartlett champions feminist legal methods as a tool for conducting research, stating that such methods “value rule-flexibility and the ability to identify missing points of view”.54 And this is the central rationale for the use of such method — it gives women whom for too long have been silenced, a voice. Rather than looking at the problem from a typically male point of view, which cannot necessarily comprehend the situations of imprisoned women, it allows a fresh outlook on problems which as yet, other methods have failed to remedy. Bartlett, ibid. 54Ibid. at832 24 Essentialism of women must however, be avoided. It is a trap into which many have fallen and serves only to marginalise further particular women as individuals or as groups within the gender ‘woman’ — to muffle their voices ever more greatly as an ironic, yet benevolent and unintended consequence of attempting to help. However, this thesis does indeed examine the broad and general patterns surrounding women and the criminal justice system. While doing this it is important to bear in mind that not all women are the same. Not all react the same way and the gender is comprised of a variety of groups which in turn are comprised of a variety of individuals. This is something of which one must not lose sight. At the same time, there is an equally insidious trap that lays in wait of feminist researchers and may also flow from the mistake of envisaging a “universal womanhood”55 — stereotyping. It is important to recognise the differences between men and women during the course of this research, however reliance on certain views of women, i.e. the use of sweeping generalisations concerning their place in society and their reactions to the world around them can have unfortunate results: “difference as a category of analysis can reinforce stereotyped thinking and thus the marginalized status of those within it”.56 It is important to remain ever conscious that in attempting to do good for a certain group of women, the knock-on effect on women as a whole, as a gender, can be very damaging. Thus the author will seek to look at the bigger picture and keep issues of gendered traits in context when embarking upon any analysis. Gayle MacDonald, Rachel L. Osborne and Charles C. Smith, Feminism, Law, Inclusion: Intersectionality in Action (Toronto: Sumach Press, 2005) at 10 Bartlett, supra note 52 at 835 25 This research will draw heavily upon one aspect of feminist legal method advocated by Bartlett — “asking the women question”.57 This will involve challenging certain laws, policies and practices which prima facie appear gender neutral and fair in their treatment, but which upon closer examination have the inconspicuous effect of disadvantaging women in often silent but disastrous ways. It may be as simple as the fact that women’s needs have not been taken into consideration when formulating a particular rule, practice or procedure. A good example is the structure of the prison system itself— on the face of it, the buildings which house the women’s prison population are like any other prison building, built to strict regulations. Equality with the male prison population is assumed to be achieved. However, on closer inspection these designs disadvantage women in discreet yet thoroughly objectionable ways; from failing to provide for the psychological problems which afflict a large proportion of women in prison, to placing sturdy barriers between familial relationships which many imprisoned women cannot cope without - ways in which men often find little or no disadvantage. When “the woman question” is asked, a smokescreen which denies progress is cleared and one can begin to think about how to find solutions which really hear women’s voices and tackle the sometimes elusive problems which have been built into the women’s prison system. Ibid. at 837 Professor Bartlett explains that “asking the women question” is a feminist methodological device for “examining how the law fails to take into account the experiences and values that seem more typical of women than of men, for whatever reason, or how existing legal standards and concepts might disadvantage women.” 26 More specifically, a wide range of feminist academic thought needs to be consulted in order to gain a good foothold on the issue. In terms of sentencing for example, Pat Carlen takes an interesting approach by advocating sentencing criteria which take note of the differences between males and females but which can be applied in a gender neutral way.58 Her ideas and suggestions, based on the lives and realities of female offenders, are just one small part of the many worthwhile feminist commentaries from which can be gleaned an insight into the pervasive problems faced by women in the criminal justice system today and the potential solutions which are available to remedy these. Carol Gilligan’s “ethic of care” and “ethic of justice”, as another example, provide an interesting angle from which to view female offenders and may provide intriguing results when applied to theprison system.59 She believes that “... boys tend to reason in terms of autonomy, individualised justice and rights ... girls tend to focus upon relationships and sustaining those relationships”.6° This is merely one feminist theory which may be drawn upon to attempt to analyse and explain the behaviour and experiences of female offenders. It is well documented that women in prison cite losing contact with their children as one of the most crushing consequences of incarceration, while the reality of the matter is that the same cannot be said of men in prison.6’ However, Gilligan seems to Pat Carlen, “Against the Politics of Sex Discrimination: For the Politics of Difference and a Woman- Wise Approach to Sentencing,” in Donald Nicolson and Lois Bibbings, eds., Feminist Perspectives on Criminal Law (Oxford: Oxford University Press, 2002) 71 Carol Gilligan In a Djfferent Voice: Psychological Theory and Women ‘s Development (Cambridge MA: Harvard University Press, 1982) at 25-31 60 Jo Bridgeman and Susan Milins, eds., Feminist Perspectives on Law: Law ‘s Engagement with the Female Body (London: Sweet and Maxwell, 1998) at 58 Corston, supra note 13 at 16 and 20-2 1 See also Brenda Hale QC, The Sinners and the Sinned Against: Women in the Criminal Justice System, (Lecture for the Longford Trust, December 2005) at 16 in which 27 fall into the trap of essentialising the two genders, something which needs serious consideration as part of this thesis. Undoubtedly such theories will be very useful in the analysis which is to follow and a range of feminist legal theory will be invaluable in the construction of this author’s arguments. Baroness Hale went so far as to say that “separating [a woman] from her family is for many the equivalent of separating a man from his job.” 28 II. WHO IS THE FEMALE OFFENDER? 1. Introduction Crafting solutions to the “prison problem” is a complex task and policy papers, debate and research shrouded in an endless sea of jargon have often had the unfortunate tendency to cloud the already murky waters. As a result it is all too easy to lose sight of the very individuals whose liberty is routinely stripped from them by the current criminal justice regime. For this reason the work begins with an examination of the people who are at the very centre of the debate — the prisoners themselves. It is important to look carefully at the characteristics of offenders and the factors which contribute to their criminal behaviour. Only when we understand the people whom prisons are built to hold can we begin to appreciate the subtleties of their offending and draw out appropriate solutions. One of the major themes running through this thesis is a determination to illustrate that prevention is unquestionably better than a cure. An examination of the offender and the reasons they commit crime is therefore an essential element in composing preventative measures and is consequently imperative in reducing the number of people coming before the criminal justice system. It is not of course suggested that any one particular strategy might eradicate all traces of offending behaviour so that “cures” become obsolete, rather that close scrutiny of delinquency may allow us to unravel the convoluted tangle of experiences and characteristics which are so often the impetus for offending, in order to address as far as possible criminal behaviour. 29 While male offending behaviour is evidently in need of tackling, this work specifically focuses upon methods of lessening female offending. It is especially important to target females in this context because of the stark and numerous differences between their offending and the offending of males which sets them apart from the general offending community and as such this work will begin with an exploration of such differences. I will attempt to explain that these necessitate the implementation of specifically tailored schemes and approaches aimed at radically reducing female offending. Unlocking the female offender it is hoped, will assist in exposing a number of misconceptions about delinquent women and the reasons they offend. Once such erroneous perceptions are deconstructed we will be one step closer to composing enduring concrete solutions. As has been explained, the female prison population of the UK is rising at an almost unimaginable rate.62 Many studies and proposals broaching the issue of female incarceration have encouraged the use of non-incarcerative methods of dealing with women offenders in an effort to divert the flow of women from prison and into the community. Baroness Corston for example has recommended a radical new community based approach to dealing with female offenders, something which will be discussed in great depth in the following chapter of this thesis.63 Additionally, Pat Carlen has written extensively on this topic, exploring a range of potential “alternatives to women’s 62 See text accompanying note 1 Corston, supra note 13 30 imprisonment.”64 While such an approach to reforming the criminal justice system is laudable, and is indeed an avenue that this thesis will pursue in detail, it is suggested that the most appropriate strategy is to start at the very core of the problem and work outwards; pinpointing exactly what drives female offending and working to erase the factors which contribute to the criminality. While many studies refer to the need to reduce women’s crime, few seem to forcefully pursue the issue. Carlen for example refers only briefly to “accommodation schemes for women in trouble” which she proposes should have the aim of reducing offending and re offending.65 Baroness Corston on the other hand, has made admirable progress in this context, professing “it seems to me that it is essential to do more to address issues connected with women’s offending before imprisonment becomes a serious option”.66 It is encouraging that such a necessity has been so clearly and emphatically stated in the report and Baroness Corston does make a number of potentially very useful recommendations concerned with tackling the root causes of female offending. One example of such progressive reasoning can be seen in Baroness Corston’s following statement: The courts have community options available to them for treating women with substance misuse problems but women should have improved access to Pat Carlen, Alternatives to Women’s Imprisonment (Milton Keynes: Open University Press, 1990) 65Ibid.at 116 66 Corston, supra note 13 at (i) 31 appropriate community services, especially drug treatment, before coming before the courts.67 (Emphasis added.) I propose to go one step further than traditional attempts to lessen women’s offending and create a proposal for reform which builds on current suggestions, emphasising the vital importance of innovative preventative approaches which stand a real chance of reducing female crime rates. This section will therefore begin by explaining and bringing together relevant literature and facts and figures relating to the general offending behaviour of women, detailing the types of offences committed. This will reveal that although “female offenders do clearly appear in all categories of lawbreaking behaviour, they appear much less frequently in some categories of offences than others.” The proportional difference in the volume of particular types of crimes committed by males and females is very revealing and the patterns divulged through research provide a construction of the female offender which can firmly be engaged with. It is equally important to explain the potential of statistics to present misleading results and also the ability of the media and politicians to skew and shape societal perceptions of offending. This author is wary of such pitfalls and accordingly will seek to circumvent their effect by thoroughly examining such phenomena. It is also essential to explain not only the particular types of crimes committed by women but also the forces which are at work in compelling them to engage in such deviant 671b1d. at75 32 behaviour. Consequently, the motivation underlying female criminality must be substantially unpacked in order to clearly reveal the injurious aspects of women’s lives which are potentially amenable to constructive change. This will require a comprehensive examination of the backgrounds and life circumstances of the female offender. In all areas of research embarked upon in this chapter, comparison with the Canadian female offender will be enlightening. This author will seek to establish whether patterns of offending in Canada mirror those in the UK and if not, pinpoint where they diverge. It is important to discover whether similar catalysts for offending exist in North America and if so what devices the Canadian state has implemented to address such issues. Perhaps the UK can draw on Canadian approaches or, as is possible, perhaps Canada too is in need of greater resourceful preventative activity in this context. 2. Types of Offences Committed by Women (a) United Kingdom Statistics and research reveal a number of startling patterns running throughout the offending behaviour of women. Perhaps most striking is the unwavering acceptance that “crime is largely a male activity”.68 A range of authors have noted that this has led to a remarkable pre-occupation with the study of male offending and imprisonment at the expense of a smaller, yet equally important, population of female offenders who are crying out for relief.69 While the body of research in this area is growing steadily it is 68 Catrin Smith, “Gender and Crime”, in Charles Hale et at., eds., Criminology (Oxford: Oxford University Press, 2005) 345 69 See for example Carol Smart, Women, Crime and Criminology: A Feminist Critique (London; Boston: Routledge and Kegan Paul, 1976) at I “The underdevelopment of this particular area of study seems to be 33 vitally important to keep the debate alive and this work is greatly concerned to stoke the fire by drawing greater attention to the important issue of the female offender. As time progresses, some consistent patterns have emerged surrounding women offenders. For example, Home Office Statistics on Women and the Criminal Justice System released in 2003 revealed that “in 2002, 3 16,000 or 19% of 1.65 million known offenders were female ... The proportion of female known offenders remained unchanged from 200 1.70 Males remain severely over-represented in the criminal justice system and 2002 saw that “males convicted of all offences at all courts outnumbered females by almost four-and-a-half to one.”71 While such disparate levels of offending are striking, the dissimilarities between the types of offences committed by males and females is perhaps more telling. As has been explained, women’s offending is far more prevalent in some categories of offences than others.72 Most generally, it can be stated that “overall women commit less serious crime than men.”73 The Home Office’s Statistics on Women and the Criminal Justice System 2002 clearly reveal that the indictable offence most often committed by females was theft and handling with 60% of female offenders in 2001 either cautioned or found guilty of in part a consequence of the pervasiveness of the belief in the relative insignificance of female criminality.” 70 Home Office, Statistics on Women and the criminal Justice System: A Home Office Publication Under Section 95 ofthe Criminal Justice Act 1991 (London: Home Office, 2003) at 4 ‘ Ibid. 72 See text accompanying note 11 Sandra Walkiate, Gender, Crime and Criminal Justice, 2nd ed. (Cullompton: Willan Publishing, 2004) at 5 34 this offence74. The Prison Reform Trust, a charitable organisation created for the purpose of improving the UK prison system, confirms that such trends persist. The charity explains that about 31% “of all women sentenced to immediate custody in 2005” were there as a result of committing non-violent theft and handling offences.75 An additional category in which females are seriously over-represented is that of fraud and forgery, another non-violent crime. In 2002 approximately 8% of female “offenders found guilty at all courts or cautioned for indictable offences” had committed fraud and forgery crimes, compared to around only 4% of males.76 Drug offences constitute an additional category in which we can locate a large proportion of female offending. 31% of sentenced female offenders in February 2007 had committed drug offences.77 However, males do tend to commit proportionately greater levels of drug crimes according to the 2003 Statistics on Women and the Criminal Justice System with approximately 21% of males committing such offences in 2002 compared to only 11% of females.78 In any case, the statistics show that drug offences are the second most prominent crime among females after theft and handling.79 What is especially noteworthy about the offending of women is that it is primarily non violent in nature, as evidenced by the above figures. The Home Office has revealed that Home Office, Statistics on Women and the Criminal Justice System: A Home Office Publication Under Section 95 of the Criminal Justice Act 1991 (London: Home Office, 2002) at 4 The document also reveals that only 36% of offending males committed theft and handling offences Prison Reform Trust, supra note 4 at 14 76 Home Office, supra note 70 Prison Reform Trust, supra note 4 at 14 78 Home Office, supra note 70 at 4 Figures are for “offenders found guilty at all courts or cautioned for indictable offences”. Ibid 35 20% of males had engaged in a violent offence in 2003 as compared with only 11% of females.8° Additionally, the Violent Crime Overview 2004/2005 showed that 342 homicide suspects were male, whereas a mere 35 were female.8’ This is clearly indicative of the very different manner of offending between males and females. There does appear however to be mounting public concern over the seriousness and levels of female offending despite little evidence to substantiate these worries, and shortly I will examine exactly why this is so. (b) Canada Similar trends to those cited in the UK context can be revealed in relation to Canada. Holly Johnson and Karen Rodgers, in their article A Statistical Overview of Women and Crime in Canada succinctly sum up the situation thus; “women account for a minority of all persons charged by police in Canada each year, and rarely pose the kind of threat to public safety as do men who commit more numerous and violent offences.”82 Statistics Canada figures revealed that in 1991 33.7% of females had been charged with theft compared with only 14.9% of males, while a mere 13.6% of women were charged with violent offences as opposed to 2 1.3% of males.83 The figures also tell us that 12.5% of women were charged with fraud offences whereas only 5.6% of males were charged 80 Kathryn Coleman, Celia Hird and David Povey, Home Office Statistical Bulletin, Violent Crime Overview, Homicide and Gun Crime 2004/2005, 2nd ed. (London: Home Office, 2006) at 16 81 Ibid. at 53 82 Holly Johnson and Karen Rodgers, “A Statistical Overview of Women and Crime in Canada”, in Ellen Adelberg and Claudia Currie, eds., In Conflict with the Law: Women and the Canadian Justice System (Vancouver: Press Gang, 1992) 95 at 95 83 Ibid at 100 36 with such crimes.84 The minority of women committing violent offences is underscored by the Statistics Canada Canadian Crime Statistics 1992 report which sets out that only 0.06% of females charged in 1992 in Canada had committed homicide.85 Evidently the situation closely mirrors the patterns of gendered offending in the UK. Upon examination of offences involving drugs, the Canadian Alcohol and Drug Survey of 1994 demonstrated that 10% of Canadian males had used cannabis in the preceding year, compared to only 4.9% of females.86 Walter S. DeKeseredy explains that “in sum, then, Canadian females are less likely than males to ingest illegal substances. However, the lower female rates described ... are related in part to women’s greater consumption of legal drugs, such as alcohol”.87 This then may also provide an explanation for the lower numbers of females committing drug offences in the UK in comparison with males.88 Despite this, a very large amount of female offending is comprised of drug related crimes, with 5,400 women in Canada charged with such offences in 1991 89 What can be concluded from these figures is that “female offenders in Canada do not pose a serious threat to public safety ... Instead the overwhelming majority of female offenders are arrested for petty property offences and morality offences.”9° The same 84 Ibid Helen Boritch, Fallen Women: Female Crime and Criminal Justice in Canada (Toronto: ITP Nelson, 1997) at 16 taken from Statistics Canada, Canadian Crime Statistics, 1992 (Ottawa: Minister of Industry, Science and Technology, 1994) 86 Walter S. DeKeseredy, Women, Crime and the Canadian Criminal Justice System (Cincinnati, Ohio: Anderson Publishing. Co., 2000) at 19 citing results from the 1994 Canadian Alcohol and Drug Survey 87 Ibid 88 See text accompanying note 78 89 Johnson and Rodgers, supra note 82 at 102 90 Boritch, supra note 85 at 48 37 can ostensibly be said of offending women in the UK and it is therefore highly disturbing to see such large numbers of women being imprisoned year after year both in Canada and the UK. There are obvious patterns in the offending behaviour of female deviants across the two countries and such trends should certainly be at the heart of any attempt to bring about a reduction in the number of females committing crime. This analysis is merely the first step in unlocking the reality of female offending but already such results should be informing us that a distinct and specific approach is required to curtailing female criminality. Strategies must be tailored and well thought out if they are to have any chance of success. 3. A Statistical Nightmare? Muddled by the Media? It is no secret that statistics can lie. They can exaggerate and distort the truth to render the desired outcome and crime statistics are just as vulnerable to such treatment as any other data. It is for this reason that it is important to outline at this point the potential inadequacies of certain facts and figures in order to illustrate that the results presented may not always be so clear cut as they initially appear. The data that is used in this thesis is therefore to be examined broadly. The point of this section of the work is to emphasise the possibility that certain of the problems associated with female offending may in fact be far worse than the statistics suggest, making work to resolve issues of female deviance even more important. However, the operation of certain forces may conversely emphasise aspects of female criminality which are not in reality prominent, having the effect of cultivating unwarranted perceptions about offending women. Such 38 perceptions can be just as damaging as any factor contributing to delinquency and are something of which we must be equally aware if we are to rectify the situation. Tim Hope explains for example, that reported figures may be made somewhat unreliable by a number of factors. For one, he states, “there are a variety of reasons why the police do not record incidents.”9’ Reasons might include a lack of evidence that a certain crime was actually committed and also a desire to give the appearance of lessening crime rates in order to achieve “police targets” which are set by the government.92 It is thus clearly possible for the police to adjust the figures up or down to suit their own purposes. Hope also explains that not all victims report crime to the police and Carrabine et al find that certain crimes are more likely to be reported by people than others, especially theft of vehicles “in order to obtain help in recovering their vehicles for insurance purposes.”93 It is possible that this is an explanation for the large proportion of females revealed to be committing theft offences in both Canada and the UK. However, as already explained such occurrences might be underestimated as a result of lower levels of recording by the police, perhaps in a bid to give the impression of achieving targets. This may indicate that the problem of theft by females is far more serious than even the existing figures reveal, making work to reduce such offending all the more vital. Since the theft figures for women are very high in any case we may conclude that it is at least a significant issue ‘ Tim Hope, “What do Crime Statistics Tell Us?” in Charles Hale et al., eds., Criminology (Oxford: Oxford University Press, 2005) 39 at 43 92Ibid. at44 Eamonn Carrabine et at., Criminology: A Sociological Introduction (London and New York: Routledge, 2004) at 16 39 to address when examining the female offender. Whether increased reporting of theft crimes has boosted the figures or decreased police recording has reduced the figures seems to be irrelevant. There is a tension here which makes it very difficult to determine exactly how pronounced the problem of theft is however what can clearly be seen is that theft offences are a prominent crime committed by women offenders and therefore are a very relevant aspect of feminine offending. Of great concern to the female offending population must be the public perception of crime. While Baroness Corston assures us that “the public is not as punitive in outlook as some suppose” it is difficult to locate exactly from where she draws this conclusion.94 The Home Office Statistical Bulletin on Crime in England and Wales 2006/0 7 explains the results of the British Crime Survey from that period, noting that “around two-thirds (65%) of people thought crime in the country as a whole had increased in the previous two years, with a third (33%) of people believing that crime had risen ‘a lot”.95 This was despite the fact that the Survey “shows no significant change in crime”.96 What is very interesting about such revelations pertaining to the malleability of societal perceptions is the role crime reporting plays in perpetuating inaccurate views. Joycelyn M. Pollock and Sareta M. Davis of Texas State University have exposed a range of Corston, supra note 13 at 11 Sian Nicholas, Chris Kershaw and Alison Walker, Home Office Statistical Bulletin, Crime in England and Wales 2006/07, 4th ed. (London: Home Office, 2007) at 96 The 2007/08 figures have recently been released which in fact show a decline in crime. Ibid. at 1 40 techniques which can be used to exaggerate female violent delinquency.97 From something as simple as arguing “against the proposition that women aren’t violent at all and then [showing] examples of violent women” (perhaps picking out exceptional cases of female violence) to using “percentage increases to show that women are becoming more violent even though the percentage of total numbers show hardly an increase at all in homicide and robbery,” the media, statistics and researchers are able to shape and perpetuate unfounded fears about women’s offending.98 Indeed it does appear very few women commit violent offences at all. The media itself plays a significant role in constructing public perceptions of women offenders and even in encouraging more punitive responses to the offending of women. In 1995 Anthony Bottoms described a process of “populist punitiveness” and this process it is argued has a number of distinct negative implications for the female offender in particular.99 A large part of the process is concerned with the way in which the media, especially news media, represent particular societal factions and “promote damaging stereotypes of social groups”.’°° The effect of such reporting has historically been the emergence of “moral panics”.10’ Moral panics are a visible symptom of the public’s escalating fear of crime, fostered very often by the media.’°2 The problem is that newspapers and news programmes thrive on sensationalist stories. Robert Reiner for Joycelen M. Pollock and Sareta M. Davis, “The Continuing Myth of the Violent Female Offender” (2005) 30 Criminal Justice Review 5 98IbicL at6 w Bottoms, supra note 8 00 Carrabine eta!, supra note 93 at 335 ‘°‘ See Stuart Hall et a!, Policing the Crisis: Mugging, the State and Law and Order (London: Macmillan, 1978) See also Stan[ey Cohen, Folk Devils and Moral Panics: The Creation of Mods and Rockers, 3 ed. (London: Routledge, 2002) 102 Carrabine eta!, supra note 93 at 331-348 41 example, explains that “analyses of news reports have found that crimes of violence are featured disproportionately compared to their incidence in official crime statistics or victim surveys.”03 What this has done is fuel a political fire over the years, with certain political parties in the UK viciously competing to apply the most heavy-handed policies on crime, delivering the kind of action the public calls for in order to win support. Each party has spurred the other on, exemplified by the Conservative Party’s production, in the run up to the 1992 election, of a poster reading “Labour’s soft on crime”.’04 Labour’s response: to come down hard. The phenomenon is a self-perpetuating cycle which continues to this day: The Home Office Statistical Bulletin on Crime in England and Wales 2006/0 7 for example is evidence of this. It revealed that “readers of national ‘tabloids’ were around twice as likely as those who read national ‘broadsheets’ to think the crime rate in the country as a whole (43% and 21% respectively) and in their local area (18% and 9% respectively) has increased ‘a lot’ in the previous two years.”°5 This process is still well underway. On April 24tl 2008 the Home Office released a report which explained that “the level of violence against the person recorded by the police showed a ten per cent fall in October to December 2007.b06 David Cameron, leader of the Conservative Party, was content however to focus on violent crime, 103 Reiner, supra note 10 at 383 104 David Downes and Rod Morgan, “The Skeletons in the Cupboard: The Politics of Law and Order at the Turn of the Millennium”, in Mike Maguire, Rod Morgan and Robert Reiner, eds., The Oxford Handbook of Criminology, 3rd ed. (Oxford: Oxford University Press, 2002) 286 at 290 105 Nicholas et a!, supra note 95 at 97 ‘° Home Office, Home Office Statistical Bulletin 04/08, Crime in England and Wales: Quarterly Update to December 2007 (London: Home Office, 2008) at 4 42 emphasising a 4% increase in gun crime from December 2006 to December 2007.107 This is notwithstanding the fact that this percentage boost was created by a rise in firearm incidents involving “slight injuries” (5%) and “threats” (also up by 5%) 108 In actuality “fatal injuries” connected with firearms fell by 13% and “serious injuries” by 16%.b09 Mr Cameron went on to tell BBC News that “the worry about the guns and the knives and the violent crime on our streets has got to be dealt It is ironic that Mr Cameron should express this desire in the same interview in which he emphasises the rise in violent crime while skimming over the fact that the British Crime Survey of December 2007 showed that the risk of becoming a victim of crime had fallen to 23% from 24% in December 2006.” Once again politics instils unnecessary fear and summons up punitive public reaction. While this issue is a problem for many different groups of offenders, notably young offenders,”2 it must be argued that female offenders are hit particularly forcefully by such processes. Firstly, women face the problem that when they commit offences they are viewed as committing two crimes: they “break both the law and gender 107 Ibid. at 7 and see Mr Cameron’s comments in “Tories Want Crime ‘Hotspots’ Map” BBC News (24 April 2008), online: BBC News <http://news.bbc.co.uk/2/hi/uk news/politics/7365 569.stm> Home Office, supra note 106 at 7 ‘°9lbid. ‘° “Tories Want Crime ‘Hotspots’ Map” BBC News (24 April 2008), online: BBC News <http://news.bbc.co.uk/2/hi/uk_news/politics/7365569.stm> Home Office, supra note 106 at 2 112 See for example Matt Drake, “Ban the Hood for Good” Sunday Express (30 March 2008), online: Daily Express <www.express.co.uklposts/view/39622/Ban-the-hood-for-good> In response to a number of violent incidents by hooded offenders, the article goes so far as to suggest that “high streets and public transport would be safer if hoods were outlawed and exclusion zones imposed.” 43 constructs.”3 This has been termed “double deviance”114 and arises because, as Frances Heidensohn explains; women’s low share of recorded criminality is so well-known that it has significant consequences for those women who do offend. They are seen to have transgressed not only social norms but gender norms as well. As a result they may, especially when informal sanctions are taken into account, feel they are doubly punished.”5 From this it can be concluded that punitive populism is especially damaging for women as compared with men, amplifying the double deviancy concept. The first two layers of punitivism arise out of the double deviancy thesis as described: the public detests crime per se since it represents the defiance of social expectations. Additionally the public perceives women to be rebelling against their gender roles when they commit crime, i.e. “where a woman does not conform, she is punished for departing from the behaviour expected of the ideal WomanlMother.”6 On top of these rests the third layer of punitivism, elicited by the sensationalist media reporting which leads the public to believe that female criminality is rising in general (i.e. punitive populism). The result is Bridgeman and Milins, supra note 60 at 614 See Smith, supra note 68 at 352 ‘ Frances Heidensohn, “Gender and Crime”, in Mike Maguire, Rod Morgan and Robert Reiner, eds., The Oxford Handbook of Criminology, 3id ed. (Oxford: Oxford University Press, 2002) 491 at 504 116 Bridgeman and Milins, supra note 60 at 614 For example, one particular assumed gender role of a woman is wrapped up with mothering. A woman’s biological capacity to bear children leads to the assumption that mothers are best suited to take on primary childcare responsibilities (See Clare McGlynn, “Ideologies of Motherhood in European Community Sex Equality Law” (2000) 6 European Law Journal 29 at 33). When a mother transgresses this assumed norm by offending, she might be seen as doubly deviant for committing a crime and also for stepping out of her assigned role as mother. Additionally, assumptions revolving around the female body, for example, about feminine norms such as the inherently caring nature of women (see Gilligan supra note 59) are shattered when a woman commits a crime. A man may be seen as living up to his masculine role, while a woman is seen as transgressing her feminine role. This leads to her being viewed as doubly bad. 44 a punitive amplification effect, i.e. even though greater numbers of women may not be committing crime the public perceive that greater numbers of women are becoming criminal and therefore that greater numbers are stepping out of their gendered roles. Thus it is suggested that ideological and stereotypical views of women in society are exacerbated by sensationalist media reporting culminating in the greater demonization of female offenders and potential female offenders. One very extreme example of this process of punitive amplification through media hysteria comes from Canada; the case of Karla Homolka, who assisted her husband Paul Bernardo in abducting, sexually assaulting and killing two young girls.”7 Homolka herself had been repeatedly abused and raped by her husband. Jennifer M. Kilty and Sylvie Frigon make the important point that “while the image of Paul Bernardo has faded from the limelight, the media has consistently maintained its gaze on Homolka.”8 They explain that Homolka is “frequently misrepresented as overtly dangerous” and that “women criminals are constructed as the antithesis of acceptable femininity”. 119 Indeed it is this which makes such offenders particularly newsworthy. The mass media frenzy which has raged around this case, clearly focussing on Homolka, emphasises to the public that this woman stepped out of her gender role. It highlights that Homolka failed to conform to the public ideal of womanhood: “Women who commit violent crimes are often constructed in an extreme and sensationalistic fashion, which serves to reinforce See Dirk C. Gibson, Serial Murder and Media Circuses (Westport, Connecticut: Praeger, 2006) at 143- 158 Jennifer M. Kilt>’ and Sylvie Frigon, “Karla Homolka From a Woman In Danger to a Dangerous Woman: Chronicling the Shifts” (2006) 17 Women and Criminal Justice 37 at 39 19IbicL at 40 45 standard stereotypes and myths about the inherently violent nature of women criminals.”20 When the media sensationally reports on such women, it ingrains these stereotypes and encodes fear in society, giving the impression that the numbers of “evil” women are on the rise. Kilty and Frigon reiterate this point: Homolka’s involvement in these crimes created a moral panic, and posed the question that if a white middle-class woman from a good home could commit such crimes, then how are we supposed to differentiate between good and bad women? ... The construction of Homolka as simply a monster, or as an aberration, is demonstrative of the over-focus on her capacity for dangerousness.’2’ Assumptions about female roles in society fuel the process. Punitive attitudes and fear take hold as a result of sensational reporting and all women in society pay the price. Such assumptions about women need attacking in order to attempt to reverse the process. Kilty and Frigon suggest unwrapping the layers of female offenders’ experience, in order to reveal the realities surrounding their criminal behaviour: “rather than re-constructing [Homolka] as the new criminal monster to be feared, it is imperative that we contextualise her experiences in order to generate a more holistic understanding of her case and personhood.”22 Once again this could encapsulate fairer and less sensational media reporting. It could also include educating the public about the circumstances ‘201b1d. at4l 12! IbicL at 56-57 122 Ibid. at 43 46 which can lead to female offending, in order that society may become more understanding and less critical and fearful of women who offend. This may result in more public support for initiatives which aim to divert females away from criminal lifestyles. However, the current environment is in no way suitable for or conducive to responding to and reducing women’s offending behaviour before it occurs. Certain facets of society needs tackling immediately in order to forge a forum in which we can begin think about deeply effective ways of reducing female offending. The public needs to actively support initiatives aimed at the prevention of offending and as such, ingrained societal imagery surrounding female roles needs cleansing through education. Additionally, “labelling” groups of women as particularly violent in combination with the rising perception of groups of women as violently deviant may have the unintended effect of impelling certain women to live up to their label.123 Stanley Cohen called this phenomenon the “deviancy amplification spiral” in 1972 and it is arguable that the same 123 Newspapers have recently begun painting females as worse than males in their offending behaviour, especially in relation to youth gang involvement. See Matt Born, “Harry Potter Heroine ‘Encourages Violence in Girls” Mail Online (30 May 2006), online: Daily Mail <http://www.dailymail.co.uklpages/live/articles/news/news.html?in_article_id=388 169&injage_id= 1766 &ito= 1490> who explains that “indeed, there was evidence that girls are sometimes even more aggressive than boys — particularly when they are afforded a degree of anonymity, such as within a gang.” Rowan Pelling, “Be Very Afraid of Britain’s Teenage Girls” Telegraph (13 Feb 2008), online: Telegraph <http://www.telegraph.co.uklopinion/main.jhtml?xml/opinionl2008/02/ 13/do 1305 xml> reveals that the message seems to be; “be very afraid of Britain’s teenage girls” — This bolsters the idea that females are viewed as doubly deviant — girls in gangs are being characterised as worse than their male counterparts. They are unfeminine and therefore somehow more criminal than males who live up to masculine ideologies when they commit gang crime. These views of deviant females and the labelling of young females in this way may perpetuate or even cause their offending through unintentionally encouraging females to live up to such labels. 47 process may be applicable to potential female offenders at the present date.124 For example, the Youth Justice Board of England and Wales published a report in 2007 which warned of the dangers of mislabelling youth groups and consequently glamorising them, inadvertently encouraging young people to enter into more serious forms of offending.’25 Words have consequences and thus we must choose our words very carefully. Recent reporting of female involvement in gangs in the UK is therefore very worrying, having the damaging potential to inadvertently foster a gang mentality among young women.’26 What must be taken from this is a realisation of the desperate need for wider social change. If we are to reduce dramatically the rate of female offending, the public must first truly desire such a reduction. At present it seems that what the public really wants are swift and tough responses to crime. The smoke needs clearing so that the public can see the reality of female offending, so that labels can be removed,’27 and so that we can accurately pinpoint the actual offending of women. Eradication of common fears and stereotypes in society could be one method of stemming the growth or continuance of 124 Cohen, supra note 101 Also see Chris Greer, “Crime and Media: Understanding the Connections”, in Charles Hale eta!., eds., Criminology (Oxford: Oxford University Press, 2005) 157 at 173 125 Youth Justice Board, Groups, Gangs and Weapons (London, Youth Justice Board, 2007) 126 See Sandra Laville, “Caught on CCTV: The ‘Happy Slapping’ Killers” The Guardian (24 January 2006), online: Guardian <http://www.guardian.co.uk/ukl2006/jan/24Iukcrime.topstories3> in which the actions of a female gang who beat a man to death in the UK are reported 127 Supra note 123 The growing public concern over female gangs in the UK might serve to encourage female gang offending. See for example Michele Burman et al., A View from the Girls: Exploring Violence and Violent Behaviour (British Economic and Social Research Council, 2000), online: Royal Holloway, University of London <http://w-wwl.rhbnc.ac.uklsociopolitical science/vrp/Findings!rfburman.PDF> at 2 Burman et al explain that “media accounts sensationally present girls’ violence as a new and growing phenomena. Headlines such as the ‘rising tide of female violence’, the growth in girl gangs, girls becoming ‘more like boys’ — exacerbate this lack of understanding.” However, girl gangs do exist in the UK and perhaps it is public perceptions that are fuelling and encouraging to an extent their growth. 48 female offending and as such it is essential to educate the public. What is needed then are more accurate statistics and fairer reporting of women offenders in the community. Crime must not be glamorised by the media, so that young females are no longer enticed by alluring deviant lifestyles. There are potentially identifiable differences in Canada in relation to fear of crime, media construction of the offending community and certain stereotypes. To begin with, a 2001/02 report entitled Fear of Crime and Attitudes to Criminal Justice in Canada: A Review of Recent Trends has highlighted that in 1970 29% of Canadians reported being afraid to walk out at night, while this figure had dropped to 27% in 2000.128 The report additionally explains that in terms of public levels of fear England and Wales ranked 7th out of 15 countries, indicating a fairly high level of fear, while Canada ranked 12th, five places ahead, indicating far lower fear of crime.’29 Crime rates in Canada do indeed appear to be much lower than in the UK.’3° The report explains that research has found a link between fear of crime and support for incarcerative reaction.’3’ The important point is that it is possible that lower levels of fear of crime in Canada might have resulted in a less punitive public outlook, since the report specifically details that “Canadians appear less supportive of “Get tough” policies.”32 It is difficult to pinpoint the reason for lower levels of fear in Canada. Perhaps lower levels of crime per se have resulted in reduced 128 Julian V. Roberts, Fear of Crime and Attitudes to Criminal Justice in Canada: A Review of Recent Trends 2001-02 (Ottawa: Ministry of the Solicitor General Canada, 2001) at 2 129 Ibid. at 6 The rankings are based on questions asked to respondents concerning whether they were afraid to walk out in their local area at night time 130 See David Farrington, Patrick Langan and Michael Tonry, Cross-National Studies in Crime and Justice (Washington DC, Bureau of Justice Statistics, 2004) ‘ Roberts, supra note 128 at 22 citing Jennifer Tufts and Julian Roberts, “Sentencing Juvenile Offenders: Comparing Public Preferences and Judicial Practices” (2002) 13 Criminal Justice Policy Review 46 132 Roberts, ibid. at 19 49 public fear. Or perhaps other forces are at work as well. It might be argued that media representation in Canada plays a part in keeping fear of crime in check. There appears to be “generally positive coverage of corrections by news media” in Canada.’33 Crime rates in Canada “have been declining now for eight consecutive years” the report by Julian V. Roberts reveals and “public perceptions appear to be changing, perhaps in response to media coverage of the official crime statistics.”34 However, this may be quite a generalisation. Many news stories in Canada do appear to focus on CSC failures.’35 This includes coverage of escapes and the CSC policy of allowing murderers to serve their sentences in minimum security facilities which has recently been condemned by both newspapers and the public.’36 Additionally, the Conservative Government introduced mandatory minimum sentences for gun and gang crime via the Crime Bill (Bill C-2) which was given Royal Assent on 28 February This signals that the Canadian Government is developing a tougher stance on crime. Robert’s report pre-dates this development and media and public support for the Bill may in fact indicate that Canadian society is now not as lenient as Robert’s once professed it to be.’38 Despite Canada’s generally low crime rate, public intolerance for ‘33Ibid. at2l ‘34Ibid. at 17 See for example Sue Bailey, “Prison Staff Failed to Help Inmate: Report” Winnipeg Sun (21 May 2008), online: Winnipeg Sun <http://winnipegsun.comlNews/CanadaJ2008/05/21/5628761 .html> 136 See Suzanne Fournier, “Killers, Rapists Not Minimum Risk, say Fearful Residents” The Province (02 May 2008) online: canada.com <http://canada.comltheprovince/new/story.html?id=al 58c640-b6d4-48e0- 8cee-9d040232474c&k=406 18> ‘ Bill C-2, An Act to amend the Criminal Code (Protection ofChildren and Other Vulnerable Persons) and the Canada Evidence Act, 2nd Sess., 39th Parl., 2007 (assented to 28 February 2008) 138 See for example, Canadian Resource Centre for Victims of Crime, National Justice Network Update (National Justice Network, February 2008) online: Canadian Resource Centre for Victims of Crime <http://www.crcvc.caJnjn/njn_feb08.pdf at 2-3 50 criminality may be on the rise, perhaps in response to the media’s growing thirst for tantalising stories. Public perceptions are evidently sensitive to media exposure and the UK and Canada should perhaps begin to adopt more representative coverage of crime levels and correctional responses if they wish to cultivate well rounded, informed public opinions. It logically follows that a more lenient public outlook, encouraged by fairer media reporting and government action, may ameliorate the effect of the double deviancy thesis by fostering a lesser degree of fear and punitivism, especially since stereotypes and labelling of certain groups of females as deviant may be tempered by the potentially more favourable reporting. As has been explained above,139 such stereotypes per se can contribute to the offending behaviour of females and consequently lowering the levels of public fear and punitivism has the potential to reduce the rate of female criminality. What I am suggesting here is that females may be encouraged to live up to stereotypes and demonized images which circulate in society. If the public are better informed, a less punitive attitude may emerge and demonization of young females will be less likely to occur. This in itself may have some role to play in reducing female crime participation. Conversely it might be argued that media reporting can have little effect on female youth via unintentionally encouraging girls to live up to the labels applied to them, since few young people read newspapers.’4°In response to this, it must be argued that news reporting operates through a type of trickle-down effect. Though young L39 Supra note [23 and accompanying text ‘° National Statistics, Time Spent on Main Activity by Age Group With Rates of Participation, 2005, online: National Statistics Online <http://www.statistics.gov.uk/STATBASE/ssdataset.asp?v1nk9497> In the UK for example this study revealed that only 15% of people aged 16-24 spent time reading 51 women may not directly watch or read news stories about female crime which label them as dangerous or antisocial, it is rather exposure to societal reaction to the reporting which might serve to encourage offending behaviour. It is when a community expects female delinquency, treating young females indiscriminately with suspicion, that girls may seek to live up to such expectations. In this way sensationalist media reporting may be indirectly encouraging female crime. More research needs conducting to discover whether media crime reporting in Canada is any fairer on the whole than in the UK and whether the Canadian public are more lenient in outlook than the UK public. This would go some way to revealing whether greater public leniency genuinely influences levels of offending. However Robert’s report does explain that media massaging of public views does occur to an extent in Canada since, as is the tendency with media outlets, stories of “little editorial allure” are passed over in favour of more newsworthy and sensational stories)4’ “Clearly,” Julian Roberts explains in the report, “ways have to be developed of presenting crime and justice statistics in a manner which both emphasizes their limitations and communicates the realities underlying the statistics.”42 Roberts proposes a number of techniques which might assist in producing more representative reporting; from educating newspaper editors as to the effects of their news 141 Roberts, supra note 128 at 24 ‘421b1d. at24 52 coverage, to providing media personnel with access to helpful staff, such as statistical experts who are able clearly to interpret results.143 Once again, it must be emphasised that such practices might be particularly beneficial for potential female offenders: A community which is willing to understand the factors which contribute to female criminal offending, rather than simply adopting a harshly punitive stance and demonizing certain women (for example young females) who have as yet committed no crime, will offer a much more nurturing and active arena for change. The UK would therefore do well to look to Canada for answers which might stem the growth of punitive populism which is so damaging for all offenders and those at risk of offending, especially in this context, women. This portion of the work has shown how public attitudes to offending in general can have doubly deep implications for female offenders and potential female offenders in particular as a result firstly of committing crime and secondly of stepping out of a gender role. Punitive populism amplifies the process of double deviance. It is a phenomenon which affects all offenders and groups of potential offenders, in particular for example, gangs, but has a disproportionate negative effect on females. Not only do attitudes, shaped by the media flow of sensationalist reporting, in some way have the potential to encourage otherwise law abiding females to live up to the assumptions society makes about them, they encourage harsher punitive responses by the criminal justice system. Canadian society’s relatively non-punitive outlook as compared with that of the UK may ‘‘ Ibid. at 26 53 signal that the UK needs to embark on a sharp learning curve to quell public fear of crime in the hopes that this might reduce crime levels themselves. Canada though must also be wary of allowing punitive measures such as Bill C-2 to spiral out of control — initiatives to keep populist punitiveness in check in North America will also be very valuable in the coming years. 4. Who are Female Offenders and Why do they Commit Crime? (a) Why is this important? Harnessing the power of the media in order to cultivate representative public attitudes is only the start of any attempt to resolve issues of female criminality. Offending females in the UK (and in Canada) share a number of common characteristics and life experiences which set them apart from the majority of male offenders. These characteristics have the potential to substantially contribute to deviant behaviour and accordingly this section of the work will detail patterns and trends which appear to spark criminality in women. From the picture painted it is hoped that a range of strategies for tackling the underlying causes of offending will emerge, allowing greater numbers of women to be diverted away from the criminal justice system at the outset. (b) Economic and Social Factors Perhaps one of the most troubling and deep-seated problems faced by the female offending community in the UK is the relatively low economic and social status of a great proportion of the group. Not only do fiscal concerns blight the lives of many female offenders but also a worryingly large proportion of the general female population 54 of the UK. The Fawcett Commission on Women and the Criminal Justice System reported in November 2003 that “40% of women have a gross individual income of less than £100 a week compared to just over 20% of men”.144 The situation in Canada is comparable; Helen Boritch notes that “many more women than men in Canada continue to live below the poverty level, to be dependent on welfare, to be unemployed or to work in low-paying, part-time jobs, and to be the sole supporters of children.”45 Such hardship has the potential to encourage women to commit crime, for example to provide for themselves and their children. This phenomenon has come to be known as the “feminisation of poverty”.’46 It is this concept which might account for the large volume of female property crime (e.g. theft and handling) both in the UK and in Canada.’47 In the UK too, the reality is that “women are far more likely to have caring responsibilities and nine out of ten lone parent households are headed by a woman.”48 It is therefore hardly surprising to find that a UK based survey in 1994 of 1,057 imprisoned mothers revealed that the largest proportion of interviewees (54%) cited a lack of money as a reason for offending while 38% said it was a need to support children which elicited their criminal behaviour.” “ The Fawcett Society, Interim Report on Women and Offending (London: The Fawcett Society, 2003) at 145 Boritch, supra note 85 at 13 146 Roger Matthews, Doing Time, An Introduction to the Sociology of Imprisonment (New York: St Martin’s Press, 1999) at 123 147 See Boritch, supra note 85 at 66 where it is stated that “the fact that crime statistics reveal that it is poor, working-class, minority women, charged with various nonoccupational petty property offences, who continue to make up the vast majority of women arrested is seen as further support of the economic marginalization thesis.” ‘ The Fawcett Society, supra note 144 Home Office, supra note 70 at 6 take from Diane Caddie and Debbie Crisp, Home Office Research Study 162, Imprisoned Women and Mothers (London: Home Office, 1997) 55 What is illustrated by these statistics is that females “often commit acquisitive crimes for the purpose of gaining something material such as money or clothes.”50 Conversely, males are more likely to steal “items that are not necessary for their survival”51 since they tend to have lower levels of economic responsibility for dependents. Such revelations also go some way to explaining higher levels of fraud related crimes committed by women.’52 This is not to say that males never offend for reasons of poverty, indeed such an assertion would be absurd. What can be said however is that females are disproportionately impacted by this factor, most notably as a result of the gender division of domestic and public work which persists both in Canada and the UK.’53 It is this, coupled with the fact that a far greater number of women are single parents as compared with men which results in such a great amount of financial burden being placed on females in society.’54 ISO Crimeinfo, Women, Gender and Crime (England and Wales), online: Crimeinfo <http://crimeinfo.org.uk!servlet/factsheetservlet?command=viewfactsheet&factsheetid= 11 0&categoryfact sheets> 151 DeKeseredy, supra note 86 at 27 152 See Walkiate supra note 73 at 6-9 153 See Lisa Philips, “There’s Only One Worker: Toward the Legal Integration of Paid Employment and Unpaid Caregiving”, in Law Commission of Canada, New Perspectives on the Public-Private Divide (Vancouver: University of British Columbia Press, 2003) 3 at 8 where it is explained that “although women have made gains in terms of paid labour force participation, they have fewer opportunities to take up the most lucrative market opportunities, even when they are highly qualified, due to their disproportionate responsibilities for care work as well as employers’ presumptions that women are secondary workers and less committed to career progress.” See also Linda McDowell, “Love, Money and Gender Divisions of Labour: Some Critical Reflections on Welfare-to-work Policies in the UK” (2005) 5 Journal of Economic Geography 365 154 See Home Office, supra note 70 at 37 where it is explained that in 2001 “just over a quarter [of female prisonersj were living as lone parents before imprisonment (compared to 3% of adult males before imprisonment).” 56 In the Canadian case of Brooks v. Canada Safeway Ltd. [l989]’ it was held that an employment insurance policy which covered accident or sickness but excluded pregnancy discriminated against a pregnant employee on the basis of sex under section 6(1) of The Human Rights Act of Manitoba ]974•156 The public policy reasoning underlying the judgement was stated to be that “... those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged.”57 Such a fundamental principle, acknowledged in human rights terms, should apply equally in this context. In a number of respects women are funnelled into domestic roles.’58 They are left with a heavy social and economic burden and are imprisoned in increasing numbers for committing acquisitive crimes with the purpose of fulfilling the responsibilities heaped on their shoulders by society. Not only do women in general bear the economic and social cost of domestic labour and childcare, they face the secondary burden of imprisonment upon the perpetration of property crime committed to provide for their children.’59 Society needs to reduce such pressures on women, re-structuring gender roles to allow males to take a greater share of childcare responsibilities. Relieving these pressures will reduce the numbers of women in economic need and hopefully will therefore reduce substantially their offending, especially in terms of fraud and theft offences. ‘ Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219, 10 C.H.R.R. D/6183 156 The Human Rights Act ofManitoba, SM. 1974, c. 65, S. 6(1) Supra note 155 58 See Chapter IV, pages 175-179 below for a discussion of the forces contributing to the sexual division of labour between public and private work and how these issues might be addressed ‘ See for example the case of R v. Bowden [1998] 2 Cr App R (S) 7 at 8-9 57 So, how is such re-structuring to be brought about? What exactly can be done to reduce the societal and economic forces weighing on women? We need to dig deep for the answers and delve to the root of the issue, acknowledging that it is the very structure of both UK and Canadian society which is leeching opportunities from women. As has been explained, women are lagging behind men in the economic arena. Stereotypical views of appropriate feminine roles continue to mar the face of society and perpetuate the gender division of labour, denying females the same opportunities as their male counterparts.’6° Ideological assumptions about the correctness of female responsibility for childcaring for example dominate in society, grounded in beliefs surrounding the female biological capacity for childbearing.161 Such views help to relegate women to the realms of private childcare work and domestic labour, leaving males unencumbered to climb the ladder of economic success.162 Dorothy E. Roberts, a well-renowned US academic in the field of gender and the law, explains how such assumptions contribute to pushing women into such roles: “A woman’s status as childbearer determines her identity. Society assigns women the enormous responsibility of childrearing. Society not only does not pay women for this labour, but degrades it as well.”63 She goes on to explain that “society considers women who fail to meet the ideal of motherhood deviant 160 See McGlynn, supra note 116 161 Ibid 162 Philips, supra note 153 Also see Va! Singh and Susan Vinnicombe, “Why so Few Women Directors in Top UK Boardrooms? Evidence and Theoretical Explanations” (2004) 12 Corporate Governance: An International Review 479 at 480 who explain that women find it harder to reach higher paid positions in work, running into the “glass ceiling” for a number of reasons including for one “gender stereotyping of leadership”. It may thus make more economic sense upon starting a family for a male to continue to work in his higher level job than for his female partner who cannot break through the “glass-ceiling”. This is one reason women are more likely to be funnelled into domestic childcare work. 163 Dorothy E. Roberts, “Motherhood and Crime” (1993) 79 Iowa Law Review 95 at 96 58 or criminal.”64 In a later section of this thesis I will describe the numerous ways in which child custody law and sentencing decisions have the effect of further perpetuating the stereotypes and inequalities associated with female social roles.’6 The arguments made are just as relevant in aiding the battle to reduce women’s offending. Societal values need a drastic shake-up and, as I have argued, we need to start at the beginning — with the future of society: children. Both the UK and the Canadian governments must commit to a far-reaching program of education for our youngest citizens, teaching in gender-neutral terms and inculcating in them the notion of equality in all areas. As these children grow, their learning will filter down the generations and the seeds of a gender neutral society, where economic and societal pressures are evenly spread between the sexes, will be sown. Obviously education of children must not be the only focus. Education of judges who have the power to sustain the gender division of labour through their sentencing’66 in gender neutral thinking will be vital. Education of employers concerning interview techniques and hiring and promotion practices need addressing to ensure women have the same ability as men to earn and achieve greater vocational success. Another strand to the approach should be ensuring that males have greater opportunity and greater desire to be involved in childcare and domestic responsibility, freeing women up to pursue the higher echelons of public work. This may be achieved through education as described above ‘64Ibid. at98 65 For more on this see Chapter IV below Ibid. 59 and also by tweaking approaches to legal decision making involving a father’s participation in his child’s life)67 The general aim of these initiatives should be social and economic re-structuring which promotes gender neutrality throughout both the UK and Canada, with the aim of delivering greater financial stability to women.168 Once this result is achieved, we will potentially have gone some way to resolving certain of the major issues which contribute to inducing female offending — societal inequality and financial hardship. (c) Histories of Victimisation and Substance Abuse It is unsettling to learn the truth about female offenders. Far easier is it for society to remain blind to the reality of the issue, eagerly assuming the worst of female deviants. Prison is justified in the eyes of the masses; the women placed behind bars are malevolent and inherently bad. This is notwithstanding the overwhelming evidence of habitual past victimisation and suffering of the greater proportion of the female offending population. The Prison Reform Trust for example reports that “over half the women in prison say they have suffered domestic violence and one in three has experienced sexual abuse”69 while Crimeinfo emphasises the point that “a relationship has been shown between women’s victimisation and their subsequent offending behaviour.”70 In the Canadian context research has revealed similar patterns and the Canadian Association of Elizabeth Fry Societies (CAEFS), a non-governmental organisation concerned with penal Ibid. t68 Ibid 169 Prison Reform Trust, supra note 4 at 15 70 Crimeinfo, supra note 150 60 conditions and policy, explains that “82% of federally sentenced women have been physically or sexually abused in the past.”7’ This is not to say that a large proportion of male offenders have not suffered similar problems. For example, the Homicide in Britain study showed that prior to reaching the age of 16, 25% of 786 male homicide offenders examined had alcohol abuse issues, 17% had drug abuse issues and 24% came from families with a father who had violently abused their mother.’72 The situation is similar in Canada where a CSC study on federally sentenced male offenders found that “almost V2 of the inmate files showed that the offenders had been a victim of child abuse ... as children/adolescent, or had witnessed family violence.”73 The issue is even more pronounced when aboriginal offenders are examined and John-Patrick Moore has made clear in his research for CSC in 2003 that “the over-representation of First Nations [in federal prison] is inseparable from their personal struggles with alcohol and substance abuse”.’74 He concludes that “family- related difficulties are central to understanding the over-representation of First Nations in corrections.”175 ‘‘ Canadian Association of Elizabeth Fry Societies, CAEFS’ Fact Sheets: Human and Fiscal Costs of Prison, online: CAEFS <http://dawn.thot.net/election2004/issues32.htm> 172 Russell P. Dobash et al., Homicide in Britain (British Economic and Social Research Council, 2001), online: Royal Holloway, University of London <http://wwwl.rhbnc.ac.uklsociopolitical science/vrp/Findings/rfdobash.PDF> at 2 National Crime Prevention Council, Prevention and Children (30 September 1995) online: Faslink <http://www.faslink.org/offpro_e.htm> citing Caroline Cyr, Conceptual il/Iodel: Family Violence Programming Within a Correctional Setting (Correctional Service of Canada, [994) ‘ John-Patrick Moore, First Nations, Métis, Inuit and Non-Aboriginal Federal Offenders: A Comparative Profile (Correctional Service of Canada, 2003) at 25 ‘ Ibid. at27 61 Triggers of male criminality are of course in need of attention, however this thesis does not seek to attempt reform of the male prison system. This does not mean that certain proposals intended to address the root causes of female offending will not also be relevant in addressing the root causes of male offending also. While improved social support structures and community assistance may benefit potential male offenders and aboriginal offenders in Canada in particular, this thesis focuses on specific courses of action to tackle female precursors of criminality. Dr Judith Rumgay of the London School of Economics recognises explicitly that “it should not be forgotten that experience of victimisation among male offenders is higher than is often thought and also requires appropriate responses.”76 However, she goes on to highlight that “mental health and self esteem are significantly greater problems for women and [she suggests] that they are also very likely to be the product of victimisation.”77 It is for this reason that I focus solely on schemes which may be beneficial in responding to issues of potential and actual victimisation of women which may lead to offending behaviour. In addition to histories characterised by maltreatment and neglect which in some cases verges on torture, it is not surprising to find that in the UK “up to 80% of women in prison have diagnosable mental health problems”78 and that “four in ten women in prison have previously attempted suicide, a much higher figure than for both male prisoners and the general female population.”79 A report entitled Psychiatric Morbidity ‘ Judith Rumgay, When Victims Become Offenders. In Search of Coherence in Policy and Practice (London: Fawcett Society, 2004) at 23 ‘ Ibid. at 24 78 Corston, supra note 13 at 19 ‘ The Fawcett Society, supra note 144 at 9 62 among Prisoners in England and Wales revealed the startling difference in the mental states of male and female prisoners in 1997: “In the 12 months before entering prison, about 20% of male prisoners ... had received help or treatment for a mental or emotional problem. The proportion among female prisoners was double: 40%.180 What this tells us is that there are certain experiences common to a large proportion of female prisoners which are linked to their offending behaviour, becoming manifest in criminality and mental health problems. This phenomenon is of course not specific to the female offender; such circumstances also contribute to male offending. However, the above observations and facts illustrate that these issues are a more widespread problem for females than for males.’8’ A link can be made between such high levels of female psychiatric disorder and female drug offences, which, it has been explained, account for a large proportion of female In the previously mentioned Imprisoned Women and Mothers study it was revealed that 35% of female respondents cited drink or drugs as a reason for offending.’83 None of these figures can be viewed in isolation. The factors are all linked. Dr Rumgay refers to Green et al’s 1999 survey concerning the physical and sexual abuse of women in evidencing this point: “In general, abused women report greater health care utilization, 180 Singleton et al, supra note 16 at 9 181 See Jane Laishes, The 2002 Mental Health Strategy for women offenders (Ottawa: Women Offender Program, Correctional Service of Canada, 2002) at Appendix D which reveals that the same results can be seen in Canada where imprisoned women were found to be three times more likely than men to suffer from depression 182 See text accompanying note 79 183 CaddIe and Crisp, supra note 149 Once again, while male inmates also cite drink and drugs as reasons for their offending behaviour, this thesis focuses on addressing issues connected with female offending. 63 increased drug and alcohol problems and higher levels of psychological distress.”84 What Dr Rumgay draws from this is that the; associations between victimisation histories and a range of psychological problems, substance misuse and criminal involvement do not necessarily imply simple causative relationships. They do, however, suggest a complex adaptation to traumatic experiences, in which multiple behavioural problems, including antisocial activity, may be intertwined and may perhaps mutually reinforce or exacerbate each other.’85 This appears to necessitate a comprehensive approach capable of addressing each piece of the puzzle comprising the female offender. An all-encompassing plan of action is called for by the complex mesh of difficulties and experiences faced by women who offend or who have the potential to offend and any proposals must take this into account. Similarly high rates of drug crime amongst Canadian female offenders have been revealed — in fact one quarter of federally sentenced women in Canada were in prison in 2006 for offences involving drugs.’86 DeKeseredy explains that men and women tend to take illegal drugs for very different purposes: 184 Rumgay, supra note 176 at 7 citing Carmen R. Green et al., “Do Physical and Sexual Abuse Differentially Affect Chronic Pain States in Women?” (1999) 18 Journal of Pain and Symptom Management 420 185 Rumgay, ibid. at 7 186 Rebecca Kong and Kathy AuCoin, “Female Offenders in Canada” (2008) 28 Juristat: Canadian Centre for Justice Statistics I at 12 See also Boritch supra note 85 at 25 who explains that the proportion of Aboriginal female offenders committing crimes involving alcohol and / or drugs is even larger than the proportion of non-Aboriginal female offenders. It therefore seems that initiatives aimed at addressing Aboriginal female substance abuse will play a large role in reducing female offending in Canada. 64 Men mainly use these substances for excitement, pleasure or because of peer pressure, while women are more likely to ingest them for “self-medication” to dull the pain of poverty, unemployment, family violence, and other symptoms of class, race, and gender inequality.’87 This certainly seems to bolster Dr Rumgay’s assertion that the issues surrounding female criminality are complex, interrelated and self-perpetuating. It is therefore vital that we work towards untangling the sticky web of difficulties which amalgamate to ensnare women, prompting their deviance. (d) Solutions, the Gender Equality Duty and the Importance of Education The solution it would seem is to ensure that women are never exposed to the experiences and circumstances described above. This would indeed by an idyllic resolution and to begin to take the first steps towards such a lofty goal profound changes need to be made to the way in which society is organised. It is thus encouraging that Baroness Corston has put forward crystal clear recommendations with this target in mind: “There needs to be an extension of the network of women’s community centres to support women who offend or are at risk of DeKeseredy supra note 86 at 19-20 See also Boritch, supra note 85 at 25 who additionally explains that in Canada mis-use of drugs and alcohol are prominent among Aboriginal male offenders and especially among Aboriginal female offenders. See also John Weekes, Gerald Thomas and Greg Graves, Substance Abuse in Corrections FAQs (Ottawa: Canadian Centre on Substance Abuse, 2004) which tells us that “38% of male Aboriginal offenders have serious problems with alcohol versus 16% of non-Aboriginal males. On the other hand, 71% of female Aboriginal offenders have a serious drug use problem compared with 66% of female non Aboriginal offenders.” These issues are therefore equally as important to address as issues of more general female substance abuse which leads to criminal activity. As such the substance abuse issues experienced by male and female Aboriginal offenders are of great concern and are in need of attention by society as a whole. 65 offending and to direct young women out of the pathways that lead to crime.”188 (Emphasis added). She has suggested increased reliance on the use of community services provided by organisations such as the Asha Centre in Worcester, UK, a facility created to assist women in disadvantageous circumstances.’89 “Women”, says Baroness Corston “should have improved access to appropriate community services, especially drug treatment, before coming before the courts.”90 Baroness Corston’s comments and recommendations must be applauded, however, as will be described in more detail in the following chapter, the Government has disastrously failed to pledge any fiscal resources to implementing her vision.19’ Perhaps then it is time the argument is put a little more forcefully in the hopes that a more potent argument might give the government the shake up it needs. Improvement of any social support structure will inevitably be only the first step in diverting women away from criminal pathways. Entrenched problems of poverty and unemployment will need tackling directly as well, perhaps via Government commitment to enhancing the financial opportunities of women. As will be explained, the deepest method of addressing such issues may be by beginning to stamp out the inequalities faced by women in society in order to remover the social gender divide between private and domestic labour, increasing female prospects of financial stability. 188 Corston, supra note 13 at 2 ‘ See Jenny Roberts, “A View from the Voluntary Sector”, in Judith Rumgay, When Victims Become Offenders: In Search of Coherence in Policy and Practice (London: Fawcett Society, 2004) at 21 who explains that “the aim of the Asha Centre is to link disadvantaged women with community resources.” 190 Corston, supra note 13 at 75 See Chapter III below 66 For a start, and as Baroness Corston herself has emphasised repeatedly, the gender equality duty found in the Equality Act 2006 now requires public authorities to “promote equality of opportunity between men and women”.’92 This new duty brings the law one step closer to the substantive equality approach usually applied in Canadian case law.193 Such a development is very welcome, the legislation, being crucial in fundamentally changing the social reality of women’s lives, has the potential to substantially deliver greater levels of sexual equality. The major change that this duty will bring about is “a significant shift from the current complaints-driven approach to tackling discrimination once it has happened, to a proactive approach with the onus on the public body to address inequality before it happens.”94 The duty requires recognition that the differing needs and experiences of men and women may in some cases require that dissimilar services are provided to men and women, in order that equality of outcome is achieved.’95 With this in mind, one of the first areas in which pressure must be applied is the education system. It cannot be too forcefully stressed that education is a powerful tool therefore it is perturbing that all current proposals and recommendations merely briefly touch upon the issue. While Baroness Corston focuses upon the responsibility of public 192 Equality Act 2006 (U.K.), 2006, c. 3, s. 84(1) which imports the gender equality duty into the Sex Discrimination Act 1975 (U.K.), 1975, c. 65, s. 76A See for example the application of Canadian Charter of Rights and Freedoms, s.[5(l) (supra note 34) in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 in which a substantive equality approach was approved of: “It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.” i.e. recognising that different approaches between different individuals may be necessary to achieve equality in effect. Corston, supra note 13 at 23 ‘95Supranote 192 67 authorities such as the police force’96 and “other criminal justice bodies” to apply the equality duty’97 she says little about the role the Equality Act might play in the education sector. Most reports concerning female offending and the gender equality duty concentrate on the government’s role in fulfilling its obligations or on bodies with a direct relationship with the criminal justice system, seemingly underestimating the role the education system might have to play in controlling potential criminality.’98 This is, it is suggested, a fatal oversight. While the police and government departments are public authorities which offer services to women involved with (or who have the potential to become involved with) the criminal justice system, the same can equally be said of state schools. The education sector provides counselling services and Personal and Social Education classes amongst other facilities which have the capacity to touch upon the potential offending of females. As such, schools should be put under just as much pressure as any other public authority to adhere to the gender equality duty in respect of criminality. It is arguable that at present education establishments are failing actively to promote gender equality. Section 76A(2)(a) of the Sex Discrimination Act 1975 sets out that the gender equality duty will apply to a “public authority” and that this “includes any person who has functions of a public nature”.’99 Presumably state schools are caught under this definition, as they are caught by the same definition in section 6(3)(b) of the Human 96 Corston, supra note 13 at 24 Ibid. at3l Ibid. at 23-24 and The Fawcett Society, Women and Justice: Third Annual Review of the Commission on Women and the Criminal Justice System (London: Fawcett Society, 2007) at 31 199 Sex Discrimination Act 1975 (U.K.), 1975, c. 65, s. 76A(2)(a) 68 Rights Act 1998.200 Baroness Corston explains that “gender specific operational requirements” in women’s prisons may now be called for.20’ This logic can equally be extended to schools, which should now be put under pressure to actively promote gender equality. As has been explained there are certain aspects of female experience which are more likely than others to contribute to delinquency, such as poverty and abuse. Schools should therefore implement more greatly comprehensive schemes to address such issues at early stages of children’s lives. The argument is not that the needs of male pupils’ in this context be sidelined, rather that schools may now need to take a differential and more specifically tailored approach to the education of female pupils, aimed at addressing facets of life which are more likely to affect girls, culminating in offending. Such an approach would be inescapably complex and would require further research and planning to operate successfully in schools. I do not intend to propose specific packages of development for use in the education system but recommend at this stage that detailed investigation into the potential of learning facilities to address gender related criminal precursors be embarked upon. One example of the possible application of this approach might include the establishment of classes and programs in schools which are designed specifically for girls and which centre on the dangers of domestic abuse. This could include advice on how to identify when abuse is occurring in any given relationship and an explanation of the options available to support women in abusive situations. The issue of abuse is of course also relevant to male offenders and consequently classes 200 Human Rights Act 1998 (U.K.), 1998, c. 42, s. 6(3)(b) For a discussion on the application of the HRA to public authorities and bodies performing public functions see Poplar Housing and Regeneration Community Association Ltd and Secretary of State for the Environment v. Donoghue, [20011 4 All E.R. 604 CA 201 Corston, supra note 13 at 22 69 should not seek to deprive males of education in this area. However, specific classes or modules of Personal and Social Education should be devoted to educating girls about these issues, since disproportionately large numbers of female offenders are victims of domestic abuse.202 Another example of this technique might be seen in the type of counselling offered in schools or perhaps more appropriate and in depth education relating to the dangers of drug use and links to offending. This may involve for example, showing videos to girls in school which specifically focus on substance abuse and domestic violence and the ways in which these experiences can lead to female offending.203 Early intervention in female upbringing in this manner may help to address the causes of female offending at an early stage, assisting in preventing young girls embarking on a hazardous road to the criminal justice system. In light of the generally different pathways into crime experienced by males, it may be appropriate to have a different strand of teaching aimed at addressing those factors specifically.204 Education of young women which is aimed at providing them with the tools to circumvent criminal behaviour stemming from abusive situations is important, however other educational initiatives could more usefully be given even greater weight. 202 Social Exclusion Unit, supra note 16 at 138 203 Different videos may be shown to boys which specifically educate as to substance abuse by males and the pathways into male offending. 204 The high rate of female crime committed to provide for children could be focussed on when educating young women for example, something perhaps not as relevant in the education of young men. In some cases completely different classes for males and females may not be necessary. In these situations it might be appropriate to give both sexes the same teachings while stressing issues contributing to female criminality, so that equality is promoted in that particular class 70 Specifically, it must not be overlooked that domestic violence is carried out heavily by males against females. This suggests that the educative focus may more appropriately be placed on discouraging male violence through teaching young males about such abuse; delivering lessons in equality and the wrongs of treating women as subordinate objects. Such an approach indicates that the problem of domestic abuse lies not with female victims themselves; rather it is male culprits and the subjugation of females by those culprits, which needs rectifying. All young males have the potential to grow into violent abusers of females and all young females have the potential to grow into abused women. This is the reason a new era in education is so vital and has the power to fundamentally alter the ways in which men view and treat women. Male perpetrators of violence against women are not the only guilty parties where domestic abuse is concerned. The state must take a large portion of the responsibility in failing to adequately police male violence. The Canadian Association of Sexual Assault Centres, a group of sexual assault centres converging to work against the sexual subordination of females by males, recognises that political action is necessary in any effort to reduce male violence against women. Government scapegoating and attempts to shift the blame for this type of violence onto the shoulders of individual women or communities more generally is not helpful. The recommendation then, must be that while young girls are educated to allow them to avoid violence and cogently deal with it when it does occur, urgent and specific teaching should be given to boys, aimed at discouraging their potential role in domestic violence, signalling to all males that inequality and subordination of women is not tolerated in today’s society. Supported by 71 true and committed state policing of male violence, such educational devices have the ability to alter unjust power structures between men and women and substantially reduce physical and mental male aggression towards women. The approach is ultimately one of substantive equality — using different teaching as between the sexes, aimed at contributing to the reduction of offending by males against females and by females as a result of their own victimisation. Similar reasoning could also be applied to all government agencies and indeed Baroness Corston does recommend that “every agency within the criminal justice system must prioritise and accelerate preparations to implement the gender equality duty and radically transform the way they deliver services to women.”205 This is an important point however every public body which plays any part in female offenders’ lives must be prepared to promote gender equality in its working. It is worrying that Baroness Corston has “seen little that gives [her] confidence that much preparatory work is at hand or, moreover, evidence of any real understanding that treating men and women the same results in inequality of outcome.”206 It is for this reason that it is so important to teach lessons of substantive equality in schools. Children should be taught of the variety of gender specific troubles females may encounter in society, thus raising awareness of the factors which contribute to female offending. Education of the public in a wider sense might also help to ease punitive attitudes, something more likely to create a forum which focuses on helping females before they commence their offending behaviour. 205 Corston, supra note 13 at 25 206 Ibid. at 23 72 Similar arguments can be made in the Canadian context, especially in terms of education. Additionally s. 15 of the Charter could be used to place pressure on government bodies akin to that created by the Gender Equality Duty in the UK. Undoubtedly the country would benefit from school education specifically aimed at addressing the specific root causes of female offending, in a manner similar to that explained above in relation to the UK. (e) Violence and Homicide: Why do Women kill? Finally it is important to say a few words about the minority of female offenders who commit the most violent offences, especially crimes of homicide.207 When women kill it is very often for different reasons than men. Aileen McColgan has researched extensively in this area and notes that “although statistics are not available for the UK, S. Edwards states in ‘Battered Women Who Kill’ (1990) NLJ 1380 that 75% of women in the US who kill their husbands have been battered by them.”208 It is disturbing then that Home Office research reveals that “nearly one in four women have been assaulted by a partner at some time in their lives, one in eight repeatedly so.”209 What can clearly be drawn from case law in this area is that women who have been continually abused by violent partners often feel a distinct sense of hopelessness and kill as a last resort.210 Many women who kill have made attempts to escape violent relationships but often find 207 See text accompanying note 81 208 Aileen McColgan, “In Defence of Battered Women who Kill” (1993) 13 Oxford Journal of LegalStudies 508 at footnote 4 citing Susan Edwards, “Battered Women Who Kill” (1990) 140 New LawJournal 1380 209 Catriona Mirrlees-Black, Home Office Research Study 191, Domestic Violence: Findings from a newBritish Crime Survey sefcompIetion questionnaire (London: Home Office, 1999) at 61210 See R v. Duffli [1949] 1 All E.R. 932 and R v. Thornton [1992] 1 All ER. 306 73 “they have nowhere else to go.”21’ In the case of Ahiuwalia [1992] for example, Kiranjit Ahluwalia was abused by her husband from the beginning of their marriage ... years later the torture was still being inflicted upon her.212 She was threatened with a knife and pushed down the stairs while pregnant. She did not leave.213 Eventually, she could take the violence no more. She waited until her husband was asleep in bed and then set him alight. She was charged with murder. The law relating to partial defences to murder is woefully inadequate and has disproportionately detrimental implications for women who kill their abusive husbands.214 The defences are framed in a way which appears gender neutral but in fact encompass abusive males who kill their partners and medicalise abused females, leaving unprotected those women who endure years of torturous treatment and kill as a last resort.215 What is important to understand from the cases of abused women who kill their partners is that support services are ultimately failing to 211 See Walklate, supra note 73 at 129-132 for more reasons why abused women stay in violent relationships and information about the public misunderstanding of the reasons women stay in abusive relationships 212 R v. Ahiuwalia [1992] 4 All E.R. 889 213 Ibid. Again, there are a number of reasons Mrs Ahiuwalia felt unable to escape the relationship. For example, the court explained that she did not leave “partly because of her sense of duty as a wife and partlyfor the sake of the children.” 214 A partial defence to murder reduces the charge to manslaughter. The significance of this is that murder carries a mandatory life sentence whereas in relation to a manslaughter case a judge has discretion todecide the sentence length. Diminished responsibility is a partial defence to murder available under theHomicide Act 1957 (U.K), 1957, c. 11, s. 2(1) It requires the defendant to have been suffering from an “abnormality of mind”. See Katherine O’Donovan “Defences for Battered Women Who Kill” (1991) 18Journal of Law and Society 219 at 230 who states that the problem with this for battered women is that it “prevents attention being given to cumulative violence and appropriate responses.” Indeed, the defence completely disregards the violence inflicted upon a battered woman by her partner and focuses the attention on a defect in the woman’s mind. 215 For example, the partial defence of provocation, provided for by the Homicide Act 1957 (U.K), 1957, c.11, s. 3 This requires provocation which causes the defendant to lose their self control. The case of R v.Duffy [1949] 1 All E.R. 932 makes it clear that the requirement is in fact “a sudden and temporary loss of self-control” See also Bridgeman and Millns, supra note 60 at 633: Bridgeman and Milins criticise the state of the law after Duffy: “The Court, applying the supposedly gender-neutral law, looked to the male response in such a situation, expecting someone who was provoked to respond immediately. In so doing the court ignored the effect which the husband’s abuse might have upon his wife, and the difference inphysical size between them.” The application of the law to women in this sense results in inequality of outcome based on human biology. 74 effectively assist them in leaving violent relationships. It is a failure of the social system, allowing women to be backed into corners, left helpless and alone. Such services therefore need to be dramatically improved in order that women no longer feel trapped in relationships. Society needs to provide much more support for abused women. Such assistance could reduce the numbers of women who feel the need to lash out to protect themselves (and often their children) from the violent actions of their partners. In Canada the situation parallels that of the UK substantially. Elizabeth Comack pinpoints the major cause of battered women’s trouble as “rooted in social and economic — not psychological — determinants.”216 This, it must be agreed is a key point. Socio economic causes of women’s criminality certainly need tackling. Prevention, once again, is the answer. The Canadian case of Lavallee [1990] represented a victory for abused women.217 Angelique Lyn Lavallee was continually physically abused by her partner and eventually shot him in the head when he turned his back on her. A psychiatrist testified that “the appellant’s shooting of the deceased was a final desperate act by a woman who sincerely believed that she would be killed that night.”218 The question in issue was whether this expert evidence was admissible. It was held that since such evidence could assist a jury 216 Elizabeth Comack, “Women Defendants and the Battered Wife Syndrome’: A ‘Plea for the Sociological Imagination” (1987) 5 Crown Counsel’s Review 6 at 9217 R v. Lava/lee [1990] 1 S.C.R. 852 2181bicL 75 in dispelling myths surrounding battered women which could result in the denial of the defence of self-defence, it would be admissible.219 The Supreme Court of Canada’s feminist approach to self-defence in addressing battered woman syndrome and bringing the defence within the reach of abused women is admirable. In the UK self-defence is denied to battered women who use excessive force in killing their abusive partners.22° Debate has raged around whether self-defence should encapsulate abused women who use disproportionate force in killing, however a 2004 report by the Law Commission on Partial Defences to Murder rejected “a specific separate partial defence to murder based on the excessive use of force in self-defence.”22’ The complete defence of self-defence is denied to many abused women who may be unable to rely on even the partial defences of diminished responsibility and provocation 219 See Kwong-Leung Tang, “Battered Woman Syndrome Testimony in Canada: Its Development and Lingering Issues” (2003) 47 International Journal of Offender Therapy and Comparative Criminology 618 at 619 who explains that “the judges in Lavaliee set out to correct the gendered interpretation of women in abusive relationships by admitting the [battered women’s syndrome] evidence.” 220 It is made clear in the case of Palmer v. The Queen [1971] A.C. 814 that in order to utilise the complete defence of self-defence a defendant “may do, but may only do, what is reasonably necessary.” In addition to this common law defence, the Criminal Law Act 1967 (UK) 1967, c. 58, s. 3(1) states that “such force as is reasonable in the circumstances” may be used. See also McColgan, supra note 208 at 514 who explains that “it is probable that the jury would be directed, in accordance with common law self-defence, that the use of force could not be reasonable unless it was both necessary and proportionate.” McColgan goes on to explain that this standard is gendered and weighted towards accommodating male defendants. This is because, for example, the defence may require a defendant to have no alternative but to defend themselves. It may appear that a woman who kills her abuser had the option of leaving, thus denying her the defence, however McColgan (at 516) explains that this might require a woman to leave her children in a house with her violent partner. Additionally a woman’s use of a weapon against an unarmed partner may be constructed as a disproportionate reaction involving excessive force capable of removing the defence of self-defence from her. The problem with this, McColgan explains (at 521) is that females generally have lesser physical strength than males and may feel the only way to protect themselves is by using a weapon. The defence may thus appear gender neutral on its face but in fact has the potential to substantially disadvantage female defendants. 221 The Law Commission, Partial Defences to Murder: Final Report (London: The Stationery Office, 2004) at 6 76 due to their framing.222 The UK needs to take a feminist approach here, as did the court in Lavallee and expand the defences to murder or create an entirely new defence to fully encompass the situation of battered women who kill. A full critique of the construction of such UK defences and their possible reform is beyond the scope of this work. It is sufficient to note that the law in this area needs significant overhaul if it is ever to promote equality.223 In other respects Canada seems more reluctant to recognise the effect of domestic abuse on women. The country has unjustifiably retreated a step from acknowledgement of these problems. Noellee Mowatt is a 19 year old pregnant woman, who has suffered physical abuse at the hands of her boyfriend. She reported the abuse to the police and her boyfriend has been charged with assault with a weapon, three counts of breach of probation and forcible confinement. Shockingly on April 1st Mowatt was arrested. The reason for the arrest: police were concerned that she would fail to appear at court to testify against her boyfriend. Michele Henry, crime reporter for the Star newspaper explains that Mowatt had stated that “no one ever asked her to pick up a subpoena or tried to drop one off.”224 Despite this, she was jailed on a material witness warrant though she faced no charge. Amanda Dale, of Toronto’s YWCA vented her frustration at this situation: “It’s counterproductive to the broader goal of getting women to leave violent situations ... It 222 Supra notes 214 and 215 223 See Jeremy Horder, “Provocation and Loss of Self-Control” (1992) 108 Law Quarterly Review 191224 Michele Henry, “Pregnant Woman ‘Never Calling the Police Again” [Toronto] The Star (08 April 2008) online: The Star <http:/Jwww.thestar.com!News/GTAlarticle/41 1222> 77 will have a chilling effect on anyone coming forward and reporting to the police.”225 The situation is very worrying, representing the blocking of one possible escape route for battered women, who may now feel less safe than ever before in speaking out against their abuse. Such developments betray a complete misunderstanding of battered women’s circumstances and may potentially result in greater numbers of women living in violent relationships feeling forcefully backed into a corner. Retaliation may be the result. More victimised women may become offenders and this is something which must be prevented at all cost. Once again, education may be the answer. Enlightening policy makers and criminal justice officials as to the realities of battered women’s lives might pave the way for a new approach to law making which recognises the true experiences of abused females and the reasons they may feel unable to leave violent relationships. Assisting greater numbers of women to get out of such relationships must therefore be the first step in further lowering the numbers of females killing their abusive partners. In supporting battered women leaving abusive partners, the UK government and the Canadian Government must commit to improving services aimed at helping to free women from violent relationships. A sense of safety and control needs to be delivered to these women who must be provided with viable alternatives to retaliatory fatal violence. They need somewhere to go and someone who can help them; an integral component of any plan to reduce the offending of women. 225 Ibid. 78 5. Conclusion Prevention in this context is about pinpointing and removing triggers for female offending, which include sexual inequality, financial instability and domestic abuse to name but a few. Measures aimed at reducing female criminality might come in many forms, from an overhaul of packages of support provided for young women through the education system, to intensive intervention strategies implemented by the government and community outlets. While such practices would hopefully contribute to usefully reducing rates of female offending, parallel measures must be adopted to buttress these efforts. This might be through cultivation of more understanding public attitudes by channelling the power of the media for example. Only when the people truly desire change, putting aside their punitive mentality, will effective reform become possible. Once again, this process necessitates steps to enhance women’s equality in society in a more general sense, so as to improve female opportunity in all areas of life. A more even spread of domestic and private labour as between the sexes for example would assist this, allowing women superior fiscal prospects thus reducing pressure to commit offences designed to support a woman and her family financially. This section of the work has provided an overview of the female offender herself and has attempted to analyse broadly the reasons she might engage in deviant behaviour. It is hoped that the suggestions put forward will be beneficial in steering women away from criminal lifestyles both in Canada and the UK, a strategy which indeed has valuable implications for women and the criminal justice system in a wider sense. 79 III. RESTRUCTURING THE WOMEN’S PRISON SYSTEM IN THE UK 1. Introduction The previous chapter was aimed at exploring the identity of the female offender and the experiences and circumstances which have the capacity to cultivate criminal tendencies in women. The focus now shifts to the construction of the prison system itself, comprising an exploration of its composition and female reaction when placed within an incarcerative institution, something clearly linked with pre-prison identity. Disproportionate suffering is inflicted upon women in the UK’s prison system where specific female needs and situations are disregarded in almost every respect. With this in mind, a primary goal of this chapter is to expose the many ways in which the system disadvantages female inmates through a misunderstanding of the various life experiences which have constructed their identities, needs upon being submerged within the system and subsequent reactions to the prison environment. I concentrate here upon the structure of the system itself and its inadequacies in an effort to depict how that structure can be revolutionised to accommodate the very specific needs of female offenders. (a) The Approach The most general aim of this chapter is to provide a comprehensive summary of relevant developments in Canada and in the UK and consequently academic literature will be 80 scrutinised in an attempt to build up a picture of the areas most in need of reform. The approach will be wide in nature, examining the systems broadly in order to give an indication of the nature of the issues and problems existing. Firstly then, the structure of the women’s prison system in the UK will be sketched out, providing an overview of the type of prison configuration utilised at present. The objective of this will be to illustrate how the prison buildings themselves, their geographical location and importantly their infrastructure have had an unacceptably detrimental effect on female prisoners, largely as a consequence of being based on a male model of imprisonment. Secondly, the Canadian situation will be examined. The study will focus primarily on the new federal women’s prisons scattered throughout Canada. Stephanie Hayman, a senior lecturer in criminology at Kingston University in the UK, recently published a book entitled Imprisoning Our Sisters which takes a thorough look at the development of the federal women’s prison system, focusing on the progress of the regional prisons.226 This book will therefore be heavily relied on throughout the chapter in describing the successes and failures of evolutionary progression. In addition to this, Kelly Hannah Moffat has conducted similar research in Punishment in Disguise which constitutes another invaluable resource which will be drawn upon throughout this chapter of the thesis.227 The section will begin by scrutinising the geographical location of the Canadian prisons, the buildings themselves and the internal machinery which keeps them running. A brief outline of the history of the prison system will be necessary in order to 226 Stephanie Hayman, Imprisoning Our Sisters: The New Federal Women’s Prisons in Canada (Montreal:McGill-Queen’s University Press, 2006) 227 Hannah-Moffat, supra note 22 81 examine the successes and failures experienced in the hopes that lessons may be learned, possibly adapted or expanded upon and applied in the UK context. The “woman question” must be at the forefront of this chapter and will be applied rigorously throughout in an effort to determine any adverse and unequal effect the prison walls themselves have on women prisoners in comparison with their male counterparts (the hope being to carve out a path for substantive equality in the system).228 While the issue of provision for mothers in prison is certainly very relevant to prison structure this will be dealt with sparingly at this point. The entirety of the following chapter will be dedicated to this large and important topic. (b) Creating Choices, Learning Lessons Creating Choices: The Report of the Task Force on Federally Sentenced Women,229 released in 1990, was a groundbreaking document and in this author’s opinion a near seamless piece of collaborative planning. It laid out a blueprint for a radically new federal women’s prison structure in Canada and revolutionised the system. While the document admittedly contains certain flaws230,which will be closely scrutinised, failures in the resulting prisons can largely be put down to inadequate implementation by the Correctional Service of Canada (CSC) rather than to any insurmountable weakness in the report. Having said this it cannot be assumed that the planning itself was perfect and it will indeed need closely examining in order that failures can be illuminated. 228 See supra note 57 and accompanying text. Through asking the “woman question” it will be shown that the structure of the prison system in the UK was designed with men in mind and as such it effectively disadvantages women prisoners because of the reality of female offender’s lives and the differential manner in which they experience and react to the prison environment. 229 Task Force on Federally Sentenced Women, supra note 21 230 See generally Hayman, supra note 226 82 There is a great deal which the UK can learn from this document and the following assessment will deal explicitly with this point. Although the report focuses on federally sentenced women, the radical approach to the style and layout of the new prisons in Canada, it is suggested, offers much in terms of innovation for the UK where no federal / provincial divide exists. When in March 2007 the Corston Report was released in the United Kingdom it was welcomed with open arms by a multitude of campaigners and organisations.23’What is compelling about the document is that it comprises proposals which bear similarities to those put forward and indeed, eventually implemented, in Creating Choices. It will be argued that Baroness Corston’s recommendations can be expanded upon and clarified through an examination of the Canadian experience. The challenge is to ensure that any proposals are implemented fully, in a meaningful manner and it is in this sense that the UK has something valuable to learn from North America. To this end, the various reports and responses to these will be a major focus of this chapter in examining the development of the approaches to the issue of the women’s prison structure. 2. The UK Women’s Prison System and its Impact on Female Inmates In a number of ways women are held to experience the ‘pains of imprisonment’ more acutely than men. This is not because women prisoners are any less resilient than their male counterparts, but because the material, 231 Supporters of the Corston Report include the Fawcett Society, SmartJustice for Women and the Prison Reform Trust to name but a few 83 physical and social conditions of their confinement are significantly different.232 Roger Matthews, 1999 As has been explained, the number of women in prison in the UK has risen rapidly over the last decade, while no corresponding increase in the seriousness of the offences committed by females can be identified.233 The vast majority of the female offending population appears to commit non-violent crimes associated with past victimisation.234 The Prison Service has accordingly been significantly tested by the influx of women into the incarcerative regime and by all accounts it has failed. The problem is that the structure of the system remains wholly deficient to fulfil the needs of the women it envelops. The volume of females in the system puts extreme pressure on the service and it seems all institutions have been filled to bursting point. Up until last year there were 17 women’s prisons in the UK, this figure now having dropped to 15 with the closure of both the Brockhill and Buliwood Hall prisons, which have been reclassified to accommodate men; a result of the rapidly growing male prison population.235 Once again it seems the pressures of the system are too much for the Prison Service to deal with as the strain takes its toll. Ultimately it is the female sector of the prison population 232 Matthews, supra note 146 at 196 233 See text accompanying notes I and 11. Also see generally Chapter II above234 See text accompanying note 169. Also see generally Chapter II above235 See Will Woodward, “Overcrowding Blamed for 37% Rise in Suicides Among Inmates in ‘Failing’ Prison System,” The Guardian (02 January 2008) at 4 for information on the rapidly rising prison population and the tragic impact this is having in terms of suicide rates: “There were 92 self-inflicted deaths in prison in 2007, 25 more than in 2006” 84 which bears the brunt of such developments as women are forced into plainly unsuitable institutions. The stress of the number of women in prison is felt throughout the system but detrimentally impacts on females in a number of unique ways. The very structure of prisons, their location, and the facilities provided (or as may be the case, those not provided) contribute to a wholly unnecessary and indeed unfair level of suffering amongst an often overlooked section of the female population. The prison walls themselves have a disproportionately negative effect on women when compared with men and it is no stretch to say that the very bricks of the institutions in which these women are held contribute directly to their su# # There is insufficient memory for the Java Runtime Environment to continue. # Native memory allocation (mmap) failed to map 132120576 bytes for committing reserved memory. # An error report file with more information is saved as: # /usr/local/web-apis/harvester/bin/hs_err_pid61961.log

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