On 8 July 2021, the Mental Welfare Commission published a report entitled,‘Concerns About the Care of Women with Mental Ill-Health in Prison in Scotland: An Analysis of the Records of Nine Women in Custody’. It reviewed the records of nine women who received mental health care in prison custody in Scotland between 2017 and early 2020 in response to a a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) in October 20191 about their visit to police and prison premises in Scotland in October 2018. The CPT had raised serious concerns about the wellbeing of women with mental ill health in HMP YOI Cornton Vale, particularly about delays in accessing inpatient treatment, and about women with personality disorder not being eligible for transfer to a psychiatric hospital.

If we are to reduce the numbers of women being sent to prison in Scotland, there is no better place to start than the recommendations of the report of the Commission on Women Offenders (CWO). In particular, we would like to see immediate action taken in the following areas.

1.A new approach to the imprisonment of women
In line with the CWO report’s recommendation, we must aspire to reserving prison for the small number of women in Scotland who need to be imprisoned for reasons of public protection. As we understand it, approximately 18% of women in prison today are subject to high levels of supervision. Based on a female prison population of 400, this would equate to around 70 women. This figure should be at the forefront of our thinking regarding the development of the female prison estate. The decision to cancel the new prison for women would be entirely negated if the Scottish Government were to make provision for the same number of custodial places for women, albeit in a different configuration. The aspiration must be to divert low-level female offenders away from the criminal justice system wherever possible, and channel those convicted of low-level offences towards non-custodial community-based services.

The size of any future custodial or community-based units for female offenders should not be determined by the number of women required for the operation of a meaningful set of programmes or interventions. The size of units should instead be determined by what is required to meet the needs of those women.

Clearly, there is some way to travel before we arrive at that point, so we must redouble efforts to stem the inflow of women into the criminal justice system and into prison.

2. Reducing the use of remand
Everyday in Scotland there are a quarter of women in prison on remand. We know what a catastrophic impact even a short spell on remand can have on a woman’s life. The economic and social costs of using prison in this way are vast. Even a few weeks on remand can see a woman lose her home, her possessions, her job and even custody of her children. It can sometimes take years for women to regain custody, with the concomitant costs to the public purse that this brings. Critically, however, the majority of women who serve a period on remand are not given a custodial sentence, making the use of remand even more unjust and unjustifiable.

Ensuring that bail supervision schemes are made available consistently across Scotland was a recommendation in the CWO report. We were greatly troubled to learn that only four women (and four men) across the whole of Glasgow were placed on supervised bail in 2014. Previous use of supervised bail suggests that changed judicial behaviour and encouraging results are possible.

Further, recent reforms to the Bail Act in England and Wales have seen to it that accused persons cannot be remanded into custody where there is no real prospect of a prison sentence on conviction. There is already evidence to suggest that this is beginning to have an impact on the numbers of prisoners on remand and this might be an initiative worthy of consideration here in Scotland.

3.Reducing the use of short term sentences
Given that three quarters of women in prison receive custodial sentences of less than six months, there must be a renewed effort to divert these women from prison. We understand that an evaluation of the impact of the presumption against sentences of less than three months is due to be published later this year and HLS hopes this evaluation will inform any future proposals to increase the scope of the presumption.

4. Sustainable resourcing of community-based services
HLS was pleased that Cabinet Secretary Matheson has allocated a further £1.5m to projects tackling female offending, although we understand that this is not continuation funding for existing projects. We are of the view that there must be long term, sustainable funding of community-based services by the Scottish Government. Drip-feeding community-based services for offenders on a one or two-yearly cycle is wholly inadequate if we are to see an increase in the use of these services.

The uncertainty generated by short term funding cycles has many serious consequences. The timescales within which they have to demonstrate positive outcomes are often unrealistic. On the other hand, we know that prison – particularly short-term sentences - does not work to reduce reoffending, yet we continue to fund the prison estate to the detriment of community justice. The uncertainty impacts on staff turnover and morale, which in turn impacts on the service users themselves. Crucially, sentencers too must be able to have confidence in these services and a sense that they have a lifespan of more than a few years.

We are aware that a number of projects focused on tackling the needs of female offenders funded by the Scottish Government were asked to demonstrate that they could sustain themselves after that funding had come to an end. However, local authority finances are also under immense pressure, so it is increasingly challenging for these services to find alternate means of sustaining themselves.

Conversely, the Scottish Prison Service can rely on the knowledge that it will be funded year-on-year with all the benefits that that certainty brings in terms of being able to plan ahead, invest in and develop staff, offer services etc. No such luxury exists for most of those offering services for female offenders in the community.

Of course, it is not just funding for community justice centres that matters, but also projects that seek to divert women away from the criminal justice system and other pots of money that fall outwith the justice portfolio, e.g. housing, health, education. Tackling the problem of homelessness amongst this vulnerable group of women is vital. For instance, only 18 of the 153 women who have used the services offered by Tomorrow’s Women have their own tenancies.

5. Tackling breach of orders
We know from the Scottish Government’s own analysis that female offenders are more likely than their male counterparts to breach orders due to their more chaotic lifestyles, and that this often results in a custodial sentence. We must not set these women up to fail, particularly when the ultimate, and frequent, sanction for a breach is imprisonment. At a round table discussion in 2012 between SWGWO and the SCCCJ, it was noted that

“…if judges built relapse strategies into CPOs, this would help avoid the simple progression of relapse from a CPO straight into a custodial sentence. A threshold of gravity in relation to the offence should be made known to the sentencer to assist with decisions – statistics broken down by summary/solemn offences leading to custodial sentences, for example. Thus, if a woman was known to be well above the threshold of gravity it would be easier to avoid a custodial sentence at the lower threshold. If more information about alternatives to custody is made known, then there may be other non-custodial sentences which could be used. The more that this type of information is made available to judges, the better the opportunity will be to impact on the numbers of women prisoners without compromising judicial independence. This should be a judicial training issue.”

Experience of DTTOs is helpful in demonstrating the sort of judicial approach which would be more effective. Sentencers did not expect miracles, rather they recognised effort and progress. It marked a new way of working for most of them but it allowed such sentences to succeed in the longer-term, despite short-term offending, relapses and setbacks.

6. Electronic monitoring (EM)
In Denmark, 60% of all custodial sentences of under six months are converted into sentences of EM and intensive supervision. Denmark is a country with a similar sized population to Scotland but its prison population is only 4,000. In Belgium, any prison sentence imposed of less than three years is automatically commuted to electronic tagging. Perhaps there is scope to consider greater use of EM in Scotland, albeit with proper community-based support.

7. Appointment of an Independent Monitor
The CWO report noted the lack of strategic leadership on this issue and suggested that an independent non-executive member of the SPS Board be given a specific remit for women offenders “championing and driving through change”. With the benefit of hindsight, and given the way in which this agenda has developed since the publication of the report, we believe that it would be better for the Scottish Government to appoint an individual to oversee the implementation of all the report’s recommendations, not only those that relate to the prison estate. Such an individual should be truly independent, without any ‘baggage’ or affiliations.

8. Shifting the balance from custody to community
Much of the activity outlined above will require significant investment. We know that when there is a high quality, viable community-based service for women (and men), sentencers will use it. We cannot simply blame sentencers for falling back on imprisonment when the alternatives are more precariously funded and they cannot be certain of the service’s longevity.

The CWO did indeed talk about a change in the use of existing resources – a point made by Cabinet Secretary Matheson in response to a question in Parliament from Alison McInnes MSP the day after the announcement regarding HMP Inverclyde. The question therefore is what we regard as ‘existing resources’. This leads us back to the central argument we continually make not only about the response to female offending, but to offending behaviour in general. Until there is a substantial rebalancing of resources away from custody to community-based responses to offenders and those at risk of becoming caught up in the criminal justice system, it is hard to see how we will make significant inroads into the size of the prison population.