Remanding Women in Custody: Concerns for Human Rights
| Date | 01 May 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00644.x |
| Published date | 01 May 2007 |
RemandingWomen in Custody: Concerns for
Human Rights
Elaine Player
n
Concern about the increasing population of women in prison has tended to focus on the senten-
cing of female o¡enders. It is often overlooked that about one in ¢ve women held in custody
is there on remand, awaiting trial or sentence, and that most of them will not receive a
prison sentence at the end of the process.This article examines the legal grounds for a custodial
remand and explores the extent to which individual rights guaranteed under the European
Convention are adequately protected. It is argued that women are particularly disadvantaged
by the laws governing bail and by their practical application in the criminal justice system;
and that the pre-trial detention of so manywomen routinely violates the spirit of the Convention
by allowing questionable claims to social utility to prevail over the rightto liberty and to a fair
trial.
The women’s prison population in England and Wales has more than doubled in
size overthe last decade.
1
Most of this increaserelates to the sentencedpopulation,
caused by growing numbers of women appearing before the courts and, most
signi¢cantly, a shift in the severity of sentencing decisions.
2
The scale of the pro-
blem led the Government to issue a speci¢c strategy for women o¡enders
acknowledging that ‘the social costs of women’s o¡ending warrants a distinct
response’ and that a reduction in the use of custodial sentences is a central objec-
tive. One of its ¢ve key messages is: ‘to pursue alternatives to custodial sentences
for women, especially where the sentences are short and for non-violent
o¡ences’.
3
While the emphasis on alternative sentences is an important focus
in the drive to reducethe numbers of womeni nprison, it is importantto remem-
ber that about one in ¢ve women prisoners are not serving a custodial sentence
but are held on remand awaiting trial or sentence. The imprisonment of
these women raises speci¢c issues about the legitimacy of their detention that
do not apply to the sentenced population. Most signi¢cantly, women
remanded into custody have lost their liberty not as a legitimately imposed pun-
ishment for a crime, but for reasons purporting to uphold broader communal
interests.
n
Reader in Criminology and Criminal Justice,School of Law,K ing’s College,London.
1 On 30 June 1995the female prison population stood at 1,998 of which1,482 weresente ncedpris -
oners. By3 0 June20 05the population had increased to 4,514 of which 3,477 wereunder sentence.
National O¡ender ManagementService, O¡ender Management Caseload Statistics 2005 Home
O⁄ce Statistical Bulletin 18/06,(London: Home O⁄ce, 2006).
2 J.Woodbridge and J. Frosztega, Recent Changes in the Female Prison Population (London: Home
O⁄ce, 1998); L. Gelsthorpe and A. Morris,‘Women’s Imprisonment in England and Wales: A
Penal Paradox’ (2002) 2 CriminalJustice 277^301.
3HomeO⁄ce,The Government’s Strategy forWomen O¡enders: Consultation Report (London: Home
O⁄ce, 2001) 11.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 402^426
The practical and philosophical drawbacks to pre-trial detention in a liberal
democracy would suggest that it should be used only in exceptional circum-
stances that are de¢ned by rigorous and strictly applied criteria.Yet remanding
defendants in custody whilst they await their trial is not a rare phenomenon: in
2005 there were 5,000 female and 50,000 male untried receptions into prison.
Although a bare majority of men remanded in custody end up with a prison sen-
tence, the courts routinely conclude that most of the remanded women should
not receive a custodial penalty for their crime: around six out of 10 are either
acquitted at trial or receive a non-custodial penalty. While these ¢gures do not
necessarilyprove that a remand in custody wasu nwarranted, theydo reveal a level
of incongruity between bail and sentencing decisions that warrants some justi¢-
cation.
4
The minority status of women in the criminal justice system has meant that
criminal lawand policy have traditionally developed in responseto the law break-
ing behaviour of men, with relatively little consideration given to its relevance
and impact on women.This culture of neglect is beginning to change with the
development of theWomen’s O¡ending Reduction Programme and its commit-
ment to making gender an integral consideration in all policy development and
implementation.
5
Most importantly, the EqualityAct 2006 imposes for the ¢rst
time a legal obligation on public bodies to take an active stance in the promotion
of equality of opportunity bet ween men and women, in addition to the el imina-
tion of unlawful discrimination and harassment.
6
It requires all new legislation
and policy to be scrutinised in relation to their impact on gender equality, and
those working in the criminal justice systemwill need to understand andappreci-
ate di¡erences between women and men in order to properly comply with the
new gender equality duty.
7
In supporting thi s approach the following pages will
examine the grounds that are relied upon by the courts in England and Wales to
justify the de nial of bail to women and to question whether the ir rights to liberty
under Article 5 and to a fair trial under Article 6 are adequately protected.
Although many of the issues di scussed are relevant to defe ndants of both sexes
there are important considerations pertaining to women that deserve speci¢c
attention.
4 See A. Ashworth and M. Redmayne, The CriminalProcess (Oxford: OUP, 2005) 221^222, who
suggest these ¢gures may conceal more than they reveal about the relationship between the
remand and sentencing decisions and the di¡erent purposes they serve. They point out thatthe
courts may pass a community penalty when they would otherwise have imprisoned the o¡ender
had she not already served timeo n remand.Conversely,if the court is of the view that the period
on remand represents su⁄cient punishment for her crime, it might replace a community pe nalty
with a custodial sentence to enable her immediate release.The absence of research means that
these remain murky areas of sentencing practice.
5HomeO⁄ce,Women’s O¡ending ReductionProgramme: ActionPlan (London: Home O⁄ce, 2004).
6 EqualityAct 2006, Part 4, s 84(1)(1).
7 H. Dustin, UnderstandingYour Duty:Report on the GenderEquality Dutyand the CriminalJustice System
(London: Fawcett Society, 2006) at http://www.fawcettsociety.org.uk/documents/Understanding
YourDuty.pdf(last visited 3 December 20 06).
Elaine Player
403
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(3)MLR 402^426
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