If ever there were a week for me to commit a crime, this was it. The Sentencing Council – which advises judges on how long convicted criminals should be locked up for – was poised to implement guidance that would mean that, as an ethnic minority, I stood a better chance of avoiding prison than a white male. But at the last minute, they capitulated. Fortunately, as a woman, I still stand a good chance of avoiding being locked up if I end up in trouble.
Rhetoric from both parties against two-tier justice – where criminals are treated differently because of who they are – has been strong. The Lord Chancellor, Shabana Mahmood, has declared that she is against ‘any differential treatment before the law for anyone of any kind’. Shadow Justice Secretary Robert Jenrick lamented the guidelines, which he said are biased against men, white people, and Christians. You might conclude from these statements that neither Labour nor the Conservatives would tolerate a justice system in which men and women are treated differently on the basis of their sex, but the reality is quite different.
Female offenders are already less likely to go to prison than men. If they do, they face shorter sentences. Mahmood wants to go further, which is why she announced a new Women’s Justice Board at the last Labour party conference. The goal, she said, is ‘to reduce the number of women going to prison’ – and by women she means criminals.
Both the ambition and composition of the board runs contrary to everything Mahmood has said on two-tier justice. One board member, former Labour MP Kate Green, has demanded that ‘gender-sensitive, gender-informed, pre-sentence reports are made mandatory’ (exactly what Mahmood pushed the Sentencing Council to drop). Another member, Anne Fox, is the Chief Executive of Clinks, a charity calling for more pre-sentence reports for ‘racially minoritised people’. Mahmood may have adjusted rapidly to the new political climate, but her board clearly never got the memo.
To be fair, Mahmood is hardly the first to call for differential treatment of men and women under the law. Labour’s Baroness Corston – an inspiration to Mahmood – first put forward this argument in a 2007 report. The Conservatives doubled down with their 2018 Female Offender Strategy. And the cross-party Justice committee has also called for mandatory pre-sentence reports for women. You can almost forgive the Sentencing Council for being so tone-deaf, given the direction of travel of the last 20 years.
Those in favour of different sentencing for men and women highlight a number of issues, including the impact on children, higher rates of domestic abuse amongst female criminals, higher rates of self-harm and reoffending, and a higher proportion of female inmates serving short sentences. These are legitimate concerns, but it is not obviously clear why stopping criminals from going to prison is a fair solution.
After all, male offenders can also be victims of abuse, at risk of self-harm and reoffending. And if the government believes that ending short custodial sentences reduces reoffending, surely the same would apply for men? The most compelling argument relates to that of the impact on children, but a sample of sentenced children found three-quarters had an absent father, while a third had an absent mother. In fact, sentencing guidelines for some offences like theft (which make up a large share of women in custody) already take into account the consequences of being the primary carer for a dependent.
When setting out her ambition for the Women’s Justice Board, Mahmood declared: ‘I will not tolerate a world in which we lock up women, who are not violent’. Consider the women sent to prison for taking part in Just Stop Oil’s criminal activity. They were not violent. Yet should they have been spared prison over their male counterparts, simply for being female? This is in no way compatible with Mahmood’s commitment to prevent differential treatment before the law. Furthermore, you could easily see groups like Just Stop Oil, or even criminal gangs, preying on women to exploit differential sentencing.
Putting aside the contradiction with the Lord Chancellor’s strong rhetoric on two-tier justice, some in Government are concerned that preferential sentencing for women could breach equalities legislation. Policy may therefore focus on reducing the number of shoplifters going to prison, as this disproportionately impacts women. But with shoplifting at record levels, it seems perverse that Mahmood’s mission to arbitrarily reduce the number of women in prison means they avoid punishment, just as the British Retail Consortium warns that a lack of consequences is precisely why shoplifting, which costs £2 billion a year, is on the rise.
We must also remember that the impact of crime on victims and the community is unaltered by the sex of the perpetrator. Of the nearly 3,400 women in prison, nearly three quarters are in for violence, sexual offences, robbery, theft, possession of a weapon, criminal damage and public order. We must never lose sight of the victims of these crimes.
Equality under the law is the cornerstone of our justice system. Mahmood herself conceded that ‘the appearance of differential treatment before the law is particularly corrosive, and its impact could easily be counterproductive’. With the Women’s Justice Board due to report back this Spring, Mahmood should consider how we can be equal in society when our actions do not bear equal consequences under the law.
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