Dame Vera is a barrister and has been a long-time champion of women’s justice. Our CEO, Harriet Wistrich, first worked with her in the early 1990s when she advised on the criminal appeal by Emma Humphreys which resulted in the court overturning her conviction for murder in 1995. In 2001, she became the MP for Redcar, became a Minister in the Ministry of Justice in 2006 and was Solicitor General from 2007 to 2010. Between 2012 to 2019 she was the elected Police and Crime Commissioner for Northumbria. In 2019 she was appointed Victims Commissioner and CWJ collaborated with her closely on the catastrophic collapse of rape prosecutions. Vera now holds a number of honorary academic posts and has recently been appointed to the Women's Justice Board.
Clumsy drafting of the Sentencing Bill may increase the number of women sent to prison
Earlier this year, David Gauke’s Independent Sentencing Review was published making a range of recommendations aimed at reducing the size of the prison population, which has caused alarming overcrowding. However, there is a big problem for women with its interpretation in the Sentencing Bill, which has its Second Reading in the House of Lords today (12 November). The very first clause of that Bill presents a very real risk of increasing, rather than reducing, the number of women who are imprisoned for short sentences, despite prevailing views that short sentences do more harm than good.
I am on the Women’s Justice Board (WJB) and most of its experienced and dedicated members share my concern. In 2024, at the launch of the WJB, Shabana Mahmood, then Justice Secretary, exhorted us to keep women who offered no threat to the public out of prison. Her speech looked forward to the day when we could all watch a women's prison being closed.
The Concern
The Gauke Review recommended a reduction in short prison sentences, of 12 months or less, whilst leaving them available for exceptional circumstances. It proposed a presumption that short sentences should be suspended, but it also argued for an increase in the use of community orders, which have a far lower reoffending rate than prison.
There is abundant evidence to show that women are disproportionately given short custodial sentences, mainly for non-violent, low-level offences such as shoplifting or breaches of court orders. Nearly 70% of women in prison are victims of domestic abuse[1], many have complex needs and whilst, for male prisoners, relationships can be a protective factor, families rarely stay together if the mother goes to prison.
Women can lose their children, home, job and their friends, through one short prison sentence. Not surprisingly, 73% of such women re-offend within a year.[2]
Reducing short prison sentences is long overdue and the recommendation is welcome. However, for women, replacing short sentences with community orders is a vital option. Suspended sentences are preferable to immediate custody, but community orders are a much better option. Women with multiple needs may breach suspended sentences due to the complexity of their lives, the challenges they face in complying with court-ordered requirements, mental health disorders, caretaking responsibilities, unstable housing and lower employment prospects. Conflicts with conditions, missed appointments or failure to meet financial obligations linked to their sentences, can result in technical violations which will breach the suspended sentence and lead to women being returned to court for imprisonment. Women may also breach community orders, but the consequences are not likely to be as severe. Women on suspended sentences live under the threat of prison from day one of the sentence, long before the benefits of treatment and support, which may be offered alongside a suspended sentence order, have any chance of working.
The law is harsh about breaches of suspended sentences. It requires a court to activate a suspended sentence by sending the woman to prison, unless it is unjust in all the circumstances. It even reminds the court dealing with the breach, that the court imposing the sentence had decided that custody was appropriate, so only exceptional new factors should be considered. If there is a new offence, however small, an extra term of prison will be added on.[3]
As long ago as 2008, a study of changes to suspended sentences made in the Criminal Justice Act 2003 noted that ‘the impact of the [suspended sentence order] on the sentencing of women depends on whether the courts use the order as a real alternative to custody or as a displacement of non-custodial sentences (in other words, using it as a Community Order with the added threat of custody should the woman breach the terms of the order).’ If suspended sentence orders are used in the latter circumstances, the study warns, ‘we could, in the long run, see more women imprisoned for breach of the order rather than for the original offence’.[4]
The Problem
The problem is that Clause 1 of the Sentencing Bill introduces a presumption ONLY for suspending short custodial sentences. No reference is made to the availability of community orders. For Courts, this is the new rule. Women – and men – who were going to be sent into custody for 12 months or less MUST have their sentence suspended (unless there are exceptional circumstances). Which means that if they breach the terms of the suspended sentence, they will be sent to prison.
However, under existing legislation, before a court decides to send someone to prison, it must form the opinion that the defendant has passed ‘the custody threshold’. The rules for deciding that – known as ‘the basis of opinion provisions’ - are set out in Section 77 of the Sentencing Act 2020, which allows a court to pass a community sentence if there are mitigating features, even where the custody threshold would normally be met.
These provisions are still in force. So, contrary to the appearance of Clause 1 of the Bill, a sentencer who has decided that the person has passed ‘the custody threshold’ is empowered, nonetheless, to pass a community sentence instead.
However, it is unlikely in the extreme that untrained magistrates will be aware of these provisions or that they still exist. They are not being informed of it; just told that the new rule is to suspend short sentences. The precious opportunity offered by S77 is going to be lost, though many troubled women could benefit from its use.
So, members of the Women’s Justice Board have drafted an addition to Clause 1 of the Sentencing Bill, to ensure the opportunity to impose a community sentence will not be missed by the sentencing court. The amendment simply clarifies that the ‘basis of opinion’ provisions in s77 Sentencing Act 2020 still apply, and that the court should still, where appropriate, mitigate the sentence to a community order as provided for in that section.
The amendment was tabled in the Commons by Andy Slaughter MP, Chair of the Justice Select Committee and Pam Cox MP, distinguished academic and MP for Colchester.
That is all we are asking for, to help safeguard women from the perils of automatic suspended sentences – to draw judicial attention to the preferable option of a community sentence.
References
[1] Ministry of Justice (2025) Identified needs of offenders, custody and community, 31 October 2024, para. 3.8.
[2] Prison Reform Trust (2025) Bromley Briefings Prison Factfile, February 2025, p.72
[3] Sentencing Code Schedule 16