Is ‘penal populism’ here to stay?
Yesterday evening, I attended an event at Doughty Street Chambers which was a presentation involving academics, legal professionals and activists on the human rights of pregnant women, mothers and children in the justice system. Following the highly-publicised, tragic and avoidable deaths of two newborn babies in women’s prisons in recent years, campaigning focus has rightly shifted to not just improving healthcare for pregnant women in prison, but to advocating for a complete end to sending pregnant women to prison in the first place.
The campaign to end the incarceration of pregnant women spearheaded by Level Up, a feminist campaigning group, has combined extensive media coverage with legal and political pressure to spotlight the issue of pregnant women in prison and, most importantly, to secure the releases of several pregnant women serving custodial sentences. Janey Starling from Level Up spoke at yesterday’s event alongside Pippa Woodrow, a barrister at Doughty Street who specialises in prison law and has worked on securing the release of pregnant women; Charlie, a woman who served a custodial sentence whilst in prison and was released following an appeal; and Dr. Shona Minson, a research associate at Oxford University’s Centre for Criminology who currently sits on the Government’s recently formed Women’s Justice Board.
The event featured a well-timed cause for celebration - thanks to continued advocacy, the Sentencing Council had just updated its guideline on the imposition of community and custodial sentences to acknowledge prison is a high-risk environment for pregnant women, advising courts to avoid sending women to prison both during pregnancy and in the 12-month post-natal period. The guideline went further to highlight that ‘women from an ethnic minority background suffer greater risks during pregnancy, childbirth and to their postnatal health than white women’, and that this should be taken into account when deciding whether to impose a prison sentence. This differed from previous guidelines that only really drove home the negative impact of incarceration of pregnant women who were on the ‘cusp’ of custody.
What felt like a win and a real homage to the impact of sustained and persistent advocacy, in an environment where policy change can feel painfully slow, was quickly soured by a tweet sent by the Lord Chancellor and Secretary of State for Justice, Shabana Mahmood, stating:
“The Sentencing Council is entirely independent. Today's updated guidelines do not represent my views or the views of this government. I will be writing to the Sentencing Council to register my displeasure and to recommend reversing this change to guidance. As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind. There will never be a two-tier sentencing approach under my watch.”
This statement was largely in response to the Sentencing Council’s recommendation that pre-sentence reports be considered necessary and therefore requested and considered for those from ethnic minority backgrounds. Pre-sentence reports are written or oral reports that provide the court with information about the person, taking into account all of their circumstances, as a means to enable sentencers to give people appropriate sentences. An obvious example would be a report outlining that someone’s offending was primarily driven by mental health issues, and a sentencer therefore directing someone receive a mental health treatment requirement in the community rather than go to prison for a short period of time.
Pre-sentence reports are not ‘get out of jail free’ cards: they are not binding on the sentencer, and they are not going to enable people who have committed serious offences to just walk out of the court. Furthermore, the sentencing guidelines are just that - guidelines. There is nothing within the aforementioned guideline that specifically directs sentencers to not send people from ethnic minority backgrounds, it simply outlines the necessity of a pre-sentence report, particularly for those who are disproportionately negatively impacted by the criminal justice system. Yet Shabana Mahmood’s comments have ignited a storm of ‘two-tier justice’ accusations and sentiments that people from ethnic minority backgrounds are now going to receive preferential treatment in the courtroom, despite a swathe of well-documented, long acknowledged evidence pointing to the existence of significant racial disproportionality in the criminal justice system that disadvantages people from ethnic minority backgrounds, particularly black people.
Shabana Mahmood’s comments are disappointing, because they encapsulate the ‘penal populism’ that the first report of the Sentencing Review recently made reference to, with many recognising what seems to be a pissing contest between the two main parties in being seen as ‘the toughest’ on crime, accusing each other of being soft, despite the fact that sentences have only gotten longer and longer in the past few decades.
I switched on LBC Radio this morning (despite the questionable views of some of the presenters, I do really like hearing all the different perspectives of the public) and heard these sentiments being thrown around and just rolled my eyes, because we’ve been here before. I had perhaps naively hoped for substantive changes within the criminal justice system with a Labour Government, particularly with the appointment of Lord Timpson as Prisons Minister, but it seems we’re still failing to follow the evidence and pandering to political sound bites instead, adding to the ‘culture war’ discourse as we go.
The irony is that the public are actually far more astute than politicians give them credit for when it comes to criminal justice, particularly when they are given a little bit more information than a news headline. Some research I was involved in with Revolving Doors back in 2022 found that the majority of the British public (65%) think that the reason why most people commit non-violent, low-level crimes is due to poverty, mental health issues, and problems with drugs and alcohol, and the majority (58%) also believe that alternatives to prison should be found in these cases. This indicates that when presented with further circumstantial information, the public can understand that alternatives to custody need to be given, which is exactly what a pre-sentence report tries to do. But repackaging the incredibly important pre-sentence report as ‘two-tier justice’ only furthers misinformation and fuels division.
The problem with criminal justice, in it understandably being an emotive topic, is it sometimes seems impossible to have measured, rational conversations about it without descending into panic and mudslinging. Everything that has been outlined by the Sentencing Council’s new guidelines are things that the voluntary sector working in the criminal justice system have been calling for for years, based on robust research and the insights of people who have been in and worked in the system, and yet a media storm can quickly damage years of advocacy and influencing.
My hope is that the Government can press ahead with evidence-based solutions to criminal justice reform long enough to reap the benefits, but that is hard to do within 5-year election cycles where at least half of the term is concerned with bringing in votes. I’ll be interested to see what plays out with the Sentencing Council and hope that they uphold their independence and stand firm against what appears to be an attack from both sides of the political spectrum.
