Time for far too many women: Helena Kennedy exposes judicial prejudice about 'appropriate' behaviour for ladies

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IF PRISONS are places for dealing with serious and violent crime, as the new Criminal Justice Act suggests, then most women in British prisons should not be there. Under the Act, sentencing should reflect the seriousness of the offence. Yet the overwhelming majority of women in prison are serving short, 'teach her a lesson' sentences for crimes of dishonesty.

Compared with men, women commit very little crime anyway. According to Home Office statistics released last week, of the total prison population of 44,865, just 1,607 are women. Of these, only 21 per cent (Nacro figures) have been sentenced for violence, sex and drugs offences; dishonesty (such as shoplifting and cheque card frauds), criminal damage and non-payment of fines account for the rest.

Despite the new statute, some judges and magistrates continue to imprison those they consider a public nuisance or a social misfit rather than a serious threat. A continuing problem is that women face hidden prejudice about what is deemed 'appropriate' behaviour for their sex.

Judges are not aware that they allow preconceived ideas about 'good' women to affect their decision-making. Sir Frederick Lawton, the retired Appeal Court judge, once said that he had never allowed the sex of a person in the dock to affect his decision. I am sure he was sincere and spoke for the majority of his colleagues. Judicial aberrations are always explained away as exceptional or maverick. Judge James Pickles was rounded upon for imprisoning a young pregnant woman for an offence of dishonesty, but only weeks later Judge Brian Woods, with little publicity, sent a seven months' pregnant woman to prison, saying: 'The law does not entitle me to draw genteel distinctions between the sexes. The fact that she is pregnant is really not relevant.'

The sociologist Pat Carlen set out in the 1980s to discover why women were sent to prison when most of their crimes are so trivial. Over several years she asked a representative selection of magistrates and judges the question: 'What affects your final decision when you are uncertain whether to send a woman to prison?' Here are some of the answers she received:

'It may not be necessary to send her to prison if she has a husband. He may tell her to stop it.'

'Women with steady husbands or cohabitees don't commit crime - they are kept occupied.'

'If she's a good mother we don't want to take her away. If she's not, it doesn't really matter.'

When I first read Pat Carlen's material I found the endorsement of everything I had felt in my bones and witnessed in court: women whose children are in care, who are divorced or separated, who do not fulfil expectations, encounter unmatched prejudice.

Magistrates and judges bemoan the limited range of possibilities when it comes to sentencing women. A conditional discharge may seem too lenient; fines perpetuate the vicious circle. If no really appropriate penalty is available, our judiciary plays the game of deciding what this little girl is made of. The tests are always the same, revolving around how the women function as wives, daughters and mothers.

The principles applied are essentially middle class. Social inquiry reports refer to the spick-and-span flat, the well-kept home and the scrubbed children. If a woman's children are in care her failure is already established.

The compulsion to make women fulfil accepted criteria of decent womanhood is a great temptation to lawyers. I have myself persuaded young women out of leather and into broderie anglaise in pursuit of a suspended sentence; turned live-in lovers into 'common-law wives' because wives fare better than mistresses. I too am guilty of playing this tune in the interests of my client, but why should it be necessary?

The 1990 report from the National Association of Probation Officers gave a classic account of a 19-year-old woman charged with a social security fraud involving thousands of pounds. She was a single parent, badly in debt. Instead of being put under the care of the probation service, she was separated from her baby and sent to prison for 18 months. The court described her as promiscuous as it passed sentence. The thinking behind such a case is that the amount of stolen money involved is too great to order probation: the woman, who apparently has no morals, will think she is 'getting away with it'. So we have another person incarcerated with little likelihood of it doing her one jot of good. The money will never be recovered and a child is taken from its mother.

In family courts it is accepted that only in the most extreme circumstances should the bond between a child and parent be broken. By contrast, criminal court officials wash their hands of responsibility by saying that if children suffer, the criminal mother is to blame.

Imprisoning mothers should be a last resort, but judges have different ideas of when they have reached the end of the road. Where a parent, male or female, has primary care of a child, the courts should be required to obtain social inquiry reports on the impact upon the family of imprisonment.

I am not blind to the inhumanity some women wreak on others, or to their criminality, but the majority of women in prison should not be there. Real alternatives, such as appropriate community service, hostels and rehabilitation units, are needed. Small satellite prison units could be created for the small number of women who have committed serious crime. Judges have the opportunity to play their part in penal reform but first they have to confront their prejudices and stop sending the wrong defendants to jail.

The author's book, 'Eve Was Framed', will be published on 19 October.