*/
Taking inspiration from Mary Seacole, every lawyer or future lawyer should work with ‘compassion, skills and bravery’ while representing accused women or prosecuting cases involving crimes against women. Like the Crimea in which she nursed, criminal law is a battlefield. It is still, at the senior level, largely populated by middle-aged men going to war when they don’t have a war to go to, in a system that is not fit for purpose for women.
Scotland is making progressive attempts to reform women’s prisons, recently introducing a presumption against sentences of less than three months for women offenders – the sort of sentence which causes women to lose their jobs, homes, and children. In Northern Ireland a 2021 report recommended strategic and operational reform and a gender responsive approach to criminal justice.
The UK Violence Against Women and Girls (VAWG) strategy published in 2021 requires a women centred and gender responsive approach – an anathema to politicians who recently voted against proposed changes to the Sentencing Act to make it a statutory duty to consider the best interests of a child in sentencing a primary carer. It is shocking that children are still sent to prison with their mothers and pregnant women are still incarcerated – the solution is not a mother and baby unit on the inside but parental support on the outside.
The VAWG strategy proposes strengthening tools available to frontline professionals – including putting in place a range of statutory guidance, training and online resources. What this really means is that there is a concession that the current system is policed and populated with professionals who simply do not understand women’s issues. Education and training is, of course, important but it doesn’t help on systemic failure in a system that is very reluctant to change. The VAWG strategy calls for evidence on victims and survivors. It does nothing to reduce the difficulties women face as accused persons at every stage of the criminal justice system and fails to take the gender responsive approach as thought out by Northern Ireland. It remains a document peppered with ‘tough on crime’ rhetoric rather than taking a trauma informed approach.
I have done my best to contribute to the development of law and greater understanding of the research on the need for greater change but I have formed the opinion that without reform the UK criminal justice system is failing women. How? Here are some examples…
Early in my career I was briefed to prosecute a case involving two sex workers. One had been raped by the defendant and he had beaten the other woman with an iron. He was living off their earnings and was so dangerous that they were brave enough to go to the police together. It was the beginning of many cases of this type that I dealt with at every level of seriousness until I took silk – the last one being a woman who was not a sex worker but was raped to death on a blind date. I currently represent Christine Keeler in a posthumous petition for mercy to pardon her conviction for perjury. She honestly denied she was a sex worker and denied the presence of a witness to an attack upon her which was said to be a material lie when it was totally irrelevant, given her attacker admitted he assaulted her. She is the poster woman for tropes where women suffer because of the behaviour of men and the justice system denies her credibility. I recently contributed to the de-criminalisation of sex work in Victoria, Australia. England and Wales is not so progressive. Why are sex workers criminalised at all and why is there not a legalised system that is safe for sex workers? It is because the system functions in a world that remains grim and discriminatory for women. Pardoning Keeler would be a start.
I have helped to develop toolkits, pioneered by The Advocate's Gateway, including the use of an intermediary for vulnerable clients and witnesses. One 13-year-old girl with learning difficulties gave evidence for five days about rape by her stepfather. She needed the time to tell her story. The development of special measures means the system has adapted, but it remains difficult to persuade women to complain because ultimately the process is traumatic. This can be tackled by being more trauma informed. The current training for advocates does not recognise the need for rapport and is flawed. There is also a lot to do on courtroom design and changes to the adversarial nature of cases involving women as defendants and defence witnesses, who often must avoid confrontation in their daily lives.
There are still far too few women in criminal law. In my last ten joint enterprise murder trials, I was the only woman silk in nine and the only woman in seven. There were no women judges. It is a very male working environment. I have been told off for the glasses I wear, colour of my lipstick and, ironically, for calling out misogyny. I have done it all with children and support from my family. I have stuck up for myself every time but it is exhausting and no wonder women leave for a better work-life balance elsewhere.
What of women I have defended? The tropes against women are visible, particularly in murder of children and abusers, terrorism and in harsh sentencing for minor offences. Recent research shows that women have been unfairly convicted under ‘joint enterprise’ laws. The Equal Treatment Bench Book is not enough. A gender responsive system is a long way off if it doesn’t include legal as well as policy changes to recognise reduced or absent criminal responsibility.
For many years I have contributed to research which helped change the law on female genital mutilation (FGM) but when the first FGM trial that led to a conviction took place, the trial included evidence on witchcraft. It was not an approach that helped educate people on this public health issue without risking discrimination. In Australia my work has contributed to the change in the law on reproductive rights – still sorely needed in the UK where criminal laws around abortion urgently need abolition.
In my PhD on ‘criminal justice as a strategic game for trafficked women’, I found that the dominant strategy is silence as trafficked victims who commit crime are fearful of their traffickers and the state. I dedicated my PhD to Mary Jane Veloso on death row who was compelled to traffic drugs from the Philippines to Indonesia. We raised her trafficked status, and she was reprieved 30 minutes before she was due to be shot. She remains on death row. Her traffickers have been convicted of trafficking others. Why was she ever prosecuted and, once her trafficked status was known, why not released? It is largely because of the global approach to drug trafficking – macho ‘wars’ that spare no thought for exploited women. How many UK women are wrongly in prisons overseas as drug mules? What of those women in the UK? In England and Wales, I recently appeared in the Court of Appeal to represent a trafficked woman who was sent to prison for obtaining a job with false papers rather than remain required to provide sexual services. Her conviction was quashed but only after she had served her sentence. In cases of compulsion, duress, and diminished responsibility, the system waits for women to be harmed before providing exoneration or reduced punishment.
I represented JUSTICE in the intervention in the Shamima Begum appeals. We gave the UK Supreme Court all the law on subjecthood – known as ‘belonging’ in Australia. This goes beyond citizenship and provides responsibilities to subjects, including the protection of the rule of law, to be brought home and protected or prosecuted, taking into account any grooming or trafficking. The court asked questions in the hearing that demonstrated they understood these constitutional protections, but failed to decide on that law, instead staying the proceedings and giving deference to the Executive for policy decisions. The fear for women realised – when you need the protection of the courts, they can fail.
I spent several years on a project on women in prison for LexisNexis and continue to campaign for a changed approach. The vulnerability of women in prison is well known and yet women are still sent to prison. Research proves it is pointless sending most mothers to prison when a community order would do – especially for financial offences and including for cases where they harm their children. Recently in Australia I defended a woman in crisis who was surprisingly prosecuted for briefly putting her child’s face in the bath water. He wasn’t harmed and the Sentencing Act there sensibly allowed for a ‘non conviction’ outcome. A small piece of progress that can have maximum effect when combined with a community programme. That said, it is time not to prosecute most cases at all, to close prisons and accept that alternatives to incarceration work where deterrence does not.
*
So, what can we conclude? Women die at the hands of abusers. Women react to abuse, sometimes with violence. The system has not changed much, and the research is not being prioritised. When women commit serious crime, the sentences are astronomical and every criminal trial risks a stereotype.
Taking a case-by-case approach may give some successes and some failures but change is far too slow. Systemic reform requires acceptance of the research and education that an alternative system has legitimacy – this includes systems that prioritise health and welfare responses and not retribution. A system that does not rely on professional women who manage to stay the distance.
My mother would say ‘success comes not by wishing but by hard work bravely done’. It is a mantra I pass to you in the hope that police, prosecutors, politicians, the media and the lawyers and judges will be brave enough to work for the change that women need in criminal justice – until then the UK criminal justice system will continue to fail women in a spectacularly public way.
Presumption against short sentences extended, Scottish government news story, 26 June 2019
How the criminal justice system in Northern Ireland treats females in conflict with the law, Criminal Justice Inspection Northern Ireland, November 2021
Tackling violence against women and girls strategy, Home Office, November 2021
Stories of injustice: the criminalisation of women convicted under joint enterprise laws, Becky Clarke and Dr Kathryn Chadwick, Manchester Metropolitan University, November 2020
Financial crime and pregnancy in prison, Dr Felicity Gerry KC and Dr Lucy Baldwin, Counsel December 2022
Improving outcomes for women in the criminal justice system, National Audit Office, January 2022
This article is based on Felicity’s Professorial Lecture at Salford University’s Mary Seacole Building on 9 November 2022 and was first published on www.counselmagazine.co.uk for International Women's Day.
Dr Felicity Gerry KC is at Libertas Chambers, London and Crockett Chambers, Melbourne. She is also Professor of Legal Practice at Deakin University. Felicity is well known for her four-year project on Women in Prison for LexisNexis and for taking sentencing appeals for mothers involved in financial crime.
Taking inspiration from Mary Seacole, every lawyer or future lawyer should work with ‘compassion, skills and bravery’ while representing accused women or prosecuting cases involving crimes against women. Like the Crimea in which she nursed, criminal law is a battlefield. It is still, at the senior level, largely populated by middle-aged men going to war when they don’t have a war to go to, in a system that is not fit for purpose for women.
Scotland is making progressive attempts to reform women’s prisons, recently introducing a presumption against sentences of less than three months for women offenders – the sort of sentence which causes women to lose their jobs, homes, and children. In Northern Ireland a 2021 report recommended strategic and operational reform and a gender responsive approach to criminal justice.
The UK Violence Against Women and Girls (VAWG) strategy published in 2021 requires a women centred and gender responsive approach – an anathema to politicians who recently voted against proposed changes to the Sentencing Act to make it a statutory duty to consider the best interests of a child in sentencing a primary carer. It is shocking that children are still sent to prison with their mothers and pregnant women are still incarcerated – the solution is not a mother and baby unit on the inside but parental support on the outside.
The VAWG strategy proposes strengthening tools available to frontline professionals – including putting in place a range of statutory guidance, training and online resources. What this really means is that there is a concession that the current system is policed and populated with professionals who simply do not understand women’s issues. Education and training is, of course, important but it doesn’t help on systemic failure in a system that is very reluctant to change. The VAWG strategy calls for evidence on victims and survivors. It does nothing to reduce the difficulties women face as accused persons at every stage of the criminal justice system and fails to take the gender responsive approach as thought out by Northern Ireland. It remains a document peppered with ‘tough on crime’ rhetoric rather than taking a trauma informed approach.
I have done my best to contribute to the development of law and greater understanding of the research on the need for greater change but I have formed the opinion that without reform the UK criminal justice system is failing women. How? Here are some examples…
Early in my career I was briefed to prosecute a case involving two sex workers. One had been raped by the defendant and he had beaten the other woman with an iron. He was living off their earnings and was so dangerous that they were brave enough to go to the police together. It was the beginning of many cases of this type that I dealt with at every level of seriousness until I took silk – the last one being a woman who was not a sex worker but was raped to death on a blind date. I currently represent Christine Keeler in a posthumous petition for mercy to pardon her conviction for perjury. She honestly denied she was a sex worker and denied the presence of a witness to an attack upon her which was said to be a material lie when it was totally irrelevant, given her attacker admitted he assaulted her. She is the poster woman for tropes where women suffer because of the behaviour of men and the justice system denies her credibility. I recently contributed to the de-criminalisation of sex work in Victoria, Australia. England and Wales is not so progressive. Why are sex workers criminalised at all and why is there not a legalised system that is safe for sex workers? It is because the system functions in a world that remains grim and discriminatory for women. Pardoning Keeler would be a start.
I have helped to develop toolkits, pioneered by The Advocate's Gateway, including the use of an intermediary for vulnerable clients and witnesses. One 13-year-old girl with learning difficulties gave evidence for five days about rape by her stepfather. She needed the time to tell her story. The development of special measures means the system has adapted, but it remains difficult to persuade women to complain because ultimately the process is traumatic. This can be tackled by being more trauma informed. The current training for advocates does not recognise the need for rapport and is flawed. There is also a lot to do on courtroom design and changes to the adversarial nature of cases involving women as defendants and defence witnesses, who often must avoid confrontation in their daily lives.
There are still far too few women in criminal law. In my last ten joint enterprise murder trials, I was the only woman silk in nine and the only woman in seven. There were no women judges. It is a very male working environment. I have been told off for the glasses I wear, colour of my lipstick and, ironically, for calling out misogyny. I have done it all with children and support from my family. I have stuck up for myself every time but it is exhausting and no wonder women leave for a better work-life balance elsewhere.
What of women I have defended? The tropes against women are visible, particularly in murder of children and abusers, terrorism and in harsh sentencing for minor offences. Recent research shows that women have been unfairly convicted under ‘joint enterprise’ laws. The Equal Treatment Bench Book is not enough. A gender responsive system is a long way off if it doesn’t include legal as well as policy changes to recognise reduced or absent criminal responsibility.
For many years I have contributed to research which helped change the law on female genital mutilation (FGM) but when the first FGM trial that led to a conviction took place, the trial included evidence on witchcraft. It was not an approach that helped educate people on this public health issue without risking discrimination. In Australia my work has contributed to the change in the law on reproductive rights – still sorely needed in the UK where criminal laws around abortion urgently need abolition.
In my PhD on ‘criminal justice as a strategic game for trafficked women’, I found that the dominant strategy is silence as trafficked victims who commit crime are fearful of their traffickers and the state. I dedicated my PhD to Mary Jane Veloso on death row who was compelled to traffic drugs from the Philippines to Indonesia. We raised her trafficked status, and she was reprieved 30 minutes before she was due to be shot. She remains on death row. Her traffickers have been convicted of trafficking others. Why was she ever prosecuted and, once her trafficked status was known, why not released? It is largely because of the global approach to drug trafficking – macho ‘wars’ that spare no thought for exploited women. How many UK women are wrongly in prisons overseas as drug mules? What of those women in the UK? In England and Wales, I recently appeared in the Court of Appeal to represent a trafficked woman who was sent to prison for obtaining a job with false papers rather than remain required to provide sexual services. Her conviction was quashed but only after she had served her sentence. In cases of compulsion, duress, and diminished responsibility, the system waits for women to be harmed before providing exoneration or reduced punishment.
I represented JUSTICE in the intervention in the Shamima Begum appeals. We gave the UK Supreme Court all the law on subjecthood – known as ‘belonging’ in Australia. This goes beyond citizenship and provides responsibilities to subjects, including the protection of the rule of law, to be brought home and protected or prosecuted, taking into account any grooming or trafficking. The court asked questions in the hearing that demonstrated they understood these constitutional protections, but failed to decide on that law, instead staying the proceedings and giving deference to the Executive for policy decisions. The fear for women realised – when you need the protection of the courts, they can fail.
I spent several years on a project on women in prison for LexisNexis and continue to campaign for a changed approach. The vulnerability of women in prison is well known and yet women are still sent to prison. Research proves it is pointless sending most mothers to prison when a community order would do – especially for financial offences and including for cases where they harm their children. Recently in Australia I defended a woman in crisis who was surprisingly prosecuted for briefly putting her child’s face in the bath water. He wasn’t harmed and the Sentencing Act there sensibly allowed for a ‘non conviction’ outcome. A small piece of progress that can have maximum effect when combined with a community programme. That said, it is time not to prosecute most cases at all, to close prisons and accept that alternatives to incarceration work where deterrence does not.
*
So, what can we conclude? Women die at the hands of abusers. Women react to abuse, sometimes with violence. The system has not changed much, and the research is not being prioritised. When women commit serious crime, the sentences are astronomical and every criminal trial risks a stereotype.
Taking a case-by-case approach may give some successes and some failures but change is far too slow. Systemic reform requires acceptance of the research and education that an alternative system has legitimacy – this includes systems that prioritise health and welfare responses and not retribution. A system that does not rely on professional women who manage to stay the distance.
My mother would say ‘success comes not by wishing but by hard work bravely done’. It is a mantra I pass to you in the hope that police, prosecutors, politicians, the media and the lawyers and judges will be brave enough to work for the change that women need in criminal justice – until then the UK criminal justice system will continue to fail women in a spectacularly public way.
Presumption against short sentences extended, Scottish government news story, 26 June 2019
How the criminal justice system in Northern Ireland treats females in conflict with the law, Criminal Justice Inspection Northern Ireland, November 2021
Tackling violence against women and girls strategy, Home Office, November 2021
Stories of injustice: the criminalisation of women convicted under joint enterprise laws, Becky Clarke and Dr Kathryn Chadwick, Manchester Metropolitan University, November 2020
Financial crime and pregnancy in prison, Dr Felicity Gerry KC and Dr Lucy Baldwin, Counsel December 2022
Improving outcomes for women in the criminal justice system, National Audit Office, January 2022
This article is based on Felicity’s Professorial Lecture at Salford University’s Mary Seacole Building on 9 November 2022 and was first published on www.counselmagazine.co.uk for International Women's Day.
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