Women's Justice Leadership Panel: report

5. Evidence and Thematic Discussion

A Call for Evidence was issued in October 2021 to leading experts in the field to gather information on:

• How women experience the Scottish justice system differently from men and in what ways their needs are not being met.
• What the impact on women is of a justice system that does not meet their needs.
• Best practice examples of gender-specific approaches in and across the justice system in the UK and internationally.

The responses to the call for evidence were analysed to identify five overarching themes that are central to women's experiences in the justice system. These themes, shown in the Figure below, formed the basis for the Panel's discussions.

The evidence gathered on these themes was further supplemented with analysis from Scottish Government Justice Analytical Services, case studies provided by the Reference Group, and presentations by guest speakers at each Panel meeting.

Through the identification of key areas of targeted and measurable activity, it is anticipated that the Panel's conclusions will inform and become an integral part of the future development and delivery of a number of strategies and initiatives, including:

• the Justice Vision for Scotland Action Plan,
• the Restorative Justice Action Plan,
• the Community Justice Strategy and Delivery Plan,
• Equally Safe, &
• the plans of other justice partners, contributing to achieving the goal of a truly person-centred justice system for all.

Key to success will be ensuring a consistency of approach and accountability across all of these activities in a truly holistic fashion.

Questions considered by the Panel

To support the development of the key findings, the Panel were asked to focus their discussions on fundamental questions:

• What do Panel members think are the main causes of the problems that women encounter in these types of cases/scenarios?
• What would a gender-responsive/competent system look like (in relation to the theme)?
• What difference would it make to women's experiences of the justice system?

In addition, and as part of the development of the conclusions within the final report, the Panel were asked to consider the following:

• how best to ensure that the conclusions of the Panel could be progressed.
• how success would be measured and evidenced.
• what mechanism was required to ensure that the work of the Panel was maintained, reviewed, and assessed for the longer term; and
• how to embed continuous feedback to all those who contributed to the work of the Panel.

5.1 Theme 1: Caring Responsibilities & Hidden Sentences

Evidence heard by the Panel

The Panel heard evidence from Professor Nancy Loucks OBE in her capacity as Chief Executive of Families Outside. Prior to Families Outside she worked as an independent criminologist, specialising in research on prison policy and comparative criminology. In 2012, she was appointed as Visiting Professor at the University of Strathclyde's Centre for Law, Crime & Justice.

Families Outside is a national charity in Scotland that works solely to support children and families affected by imprisonment. Their purpose is to improve outcomes for children and adults affected by imprisonment so they can live lives free from stigma and disadvantage.

Background

Women typically engage with the justice system in different ways from men – they enter for different reasons, with different backgrounds, and under different conditions. These differences include: experiences of victimisation; seriousness of offending; and being more likely to have primary childcare responsibilities than men.

Indeed, women can be impacted in their own right by virtue of having family members accused of a crime or imprisoned. 'Hidden sentences' refers to the significant harms experienced by having a loved one in prison or interacting with the justice system, including: "a reduction in household income, an increase in costs, poor mental health, stigma, negative media attention, and the loss of the practical and emotional support they previously relied on from the family member"^[8]. Families Outside report that 83% of individuals supported by their organisation in 2020 were women, and that anecdotally, mothers, partners, sisters, and female friends make up the bulk of prison visitors. As such, women's interaction with the justice system is not typical, and their experience has a range of knock-on effects^[9].

Women's role as mothers and primary carers means that their criminalisation and imprisonment also affects children. Maternal imprisonment can have strong negative effects on children's future life outcomes.

More specifically, a mother's imprisonment leaves a child vulnerable to even poorer outcomes than those who experience their father's (or other family member's) imprisonment. Families Outside report that only 5% of children whose mother is imprisoned remain in the family home, with only 9% being cared for by their fathers, whereas most children with an imprisoned father remain with their mother. The Scottish Prison Service Survey 2019 found 61% of women in prison are mothers of children under the age of 18^[10]. It is important to note that women's role as mothers, further impacts their experiences, including in relation to abusive relationships, family court processes, and access to justice. The following case study was provided by Families Outside.

Danielle's story

Danielle has two sons, aged 8 and 16. Prior to sentencing, a criminal justice social work report was prepared which outlined the consequences for Danielle's children should she receive a custodial sentence; a recommendation for a Community Payback Order was made. Instead, Danielle received a prison sentence; her eldest son was placed in residential care, and the younger with foster parents.

Danielle describes her time in prison as unexpected and terrifying: "I said no to everything and shut myself away." As a consequence of this, she was unaware of the option of family visits with her children or the support available to her. She did follow the advice of the local authority Housing service - to relinquish her tenancy voluntarily on the understanding that an application for accommodation on release would be considered more favourably.

When Danielle was released on home detention curfew (HDC), or "TAG", She was informed that her application for a tenancy would not be considered until the HDC has expired, and she presented as homeless. Although Danielle has now been out of prison for six months, her younger son remains in foster care and does not understand why he cannot live with his mum. Her older son has chosen to live independently at just 16.^[11]

Families Outside contend that the financial burden of imprisonment on the families of those in prison is significant, and also falls disproportionately on women. As does the burden of supporting people following their release from prison before they can establish their own income from either work or benefits^[12]. Support is often focused on those imprisoned, however, there are a range of invisible victims within the family who require support, and early intervention.

Families Outside raised the establishment of Community Custodial Units (CCUs) as an excellent opportunity to help increase the contact between mothers in prison and their children. This includes children's overnight stays with their imprisoned mothers – opportunities which would, in their view, support the implementation of Article 9 of the UNCRC. Whilst welcoming The Scottish Prison Service (SPS) progress through the SPS Family Strategy and Family Contact Officers, Families Outside stress that there are a number of areas where the unique role of families is emphasised by the SPS, but the unique needs of families are not represented. The SPS Throughcare Strategy^[13] describes the role families have in supporting reintegration at liberation but does not reflect the unique needs of families at this time.

The current (we understand a strategy for 2023 and beyond is being developed) SPS Family Strategy for 2017- 2022 sets out how SPS will review, develop, and deliver national and local policies and procedures relating to the care of children, young people and families who have a family member in prison based upon the following guiding principles:

• Family members are treated with fairness, dignity and respect.
• Families are included in their relatives' rehabilitation wherever possible.
• Every family is unique.
• The best interests of children are central to all decision making; and
• Effective partnership working is key to achieving successful outcomes.

The Strategy provides evidence on the impact of imprisonment, including how the existence of strong family bonds may be associated with desistance from offending.

Since Dame Elish Angiolini's Commission on Women Offenders Report in 2012, the Scottish Prison Service has committed to system wide reform with a focus on service re-design, alternatives to prosecution and remand, sentencing and prisons.

This has led to the Bella Community Custody Unit in Dundee, opening in August 2022; the Lilias Community Custody Unit in Glasgow, opening in October 2022; and HMP & YOI Stirling, which will replace HMP & YOI Cornton Vale.

Their new Strategy for Women in Custody 2021-25 sets out a new approach, specifically designed for women, which takes full account of their likely experiences of trauma and adversity.

The CCUs are the first of their kind in the UK, and, although they were developed by looking at international comparisons and best practice, they are unlike anything anywhere else in the world.

Panel Considerations

Panel members were invited to provide their thoughts in response to the presentation and to discuss the impact of gender on the evidence heard. The general reflections are captured below:

• There is difficulty in ensuring the right services are available – especially when there has been dissatisfaction and mistrust of the system. The recurring problem is financial; not just support but also coordination.
• There is a perceived lack of understanding of the impact of sentences on women and their families. This includes cultural differences in family dynamics. It was suggested that an obligation of the state to assess impact of sentencing on women and children. (e.g., timing, impact, planning for measures in place) may present a way forward.
• More early intervention and support is required to reduce the impact of imprisonment on the families left behind.
• There is a perceived existing lack of understanding of dynamics of domestic abuse and power imbalances among practitioners across justice system. Unless all practitioners have the same level of understanding, then harmful attitudes such as victim-blaming will persist and impact on decision-making, the willingness of women to come forward, and also their wider experiences of the justice system.
• Many women who are coming into contact with the justice system have complex needs, but may be reluctant to disclose their family circumstances for fear of losing their children. Concerns around full disclosure of their circumstances, through fear, may lead to their wider needs not being met or understood. Women need to be made aware of their rights and how the information they disclose will be managed.
• Invisibility is a key concern – support is needed for kinship carers. The risk of children going into care as a result of imprisonment needs to be identified early.
• Who really knows the situation? How can the appropriate people know about individual and complex needs of each woman? Different parties may know various aspects of the case, but it is not a joined-up approach.
• There is a need for a person-centred and trauma informed justice system – including judiciary and wider agencies. There is a need to support others who are impacted by the decisions made by these bodies.
• There should be recognition that many problems and issues are silent and invisible.
• There should be a requirement to proactively address invisible harms occurring, via an audit of consequences, and risk assessment.

5.2 Theme 2: Gap between Policy & Practice

Evidence heard by the Panel

The Panel heard evidence from Dr Marsha Scott in her capacity as Chief Executive of Scottish Women's Aid. Dr Scott is a feminist activist, researcher and practitioner who has advocated, volunteered, researched, and worked in the violence against women sector in the UK, the United States, and Europe for 30 years. Prior to taking up post at Scottish Women's Aid in April 2015, Marsha worked for 10 years at West Lothian Council, where she helped set up and had strategic responsibility for the West Lothian Domestic and Sexual Assault Team.

Scottish Women's Aid work towards the prevention of domestic abuse in Scotland, and have a key role in coordinating, influencing, and campaigning for effective responses to domestic abuse. They work with a network of 34 specialist local Women's Aid groups, dedicated in supporting women, children, and young people who have experienced domestic abuse, and together they work towards a shared vision of a Scotland where domestic abuse is not tolerated.

Background

Policy development and implementation are often described as distinct and separate stages within policy cycles. In practice, the lines between policy development and implementation can become quite blurred. Despite well intentioned and thorough policy, stakeholders often report a gap between policy and practice.

The gap between policy and practice can occur in many forms and exists when real world implementation of policy does not fully align with the intended policy design. In response to the call for evidence, Dr Fiona Morrison, Dr Ruth Friskney, and Professor Margaret Malloch drew on their collective experience, and emerging findings from their ongoing research on court advocacy services for women and children affected by domestic abuse in Scotland. In their research, participants reported a gap between policy aspirations of a 'victim-focused' justice system and the everyday interactions that women and child victims of domestic abuse have with the criminal justice system^[14]. Concerns were raised over the extent to which criminal justice professionals understood domestic abuse, and participants identified situations in which the criminal justice system generated additional risks for women and child victims of domestic abuse^[15]. Court communication issues were also identified, for example, decisions such as the application of Non-Harassment Orders being granted, or otherwise, not being sufficiently explained to the victim^[16].

It is acknowledged that the Covid-19 pandemic has placed additional pressure on the justice system, and has created additional risk for women and child victims of domestic abuse. Participants reported that pandemic measures, designed to ensure safety, were on occasion having an adverse impact on women attending court^[17]. Practical examples included: victims encountering perpetrators whilst queuing for entry into the court building; limits to court numbers restricting advocacy representation: and the negative impact of court delays on victims^[18]. Dr Scott also provided an example of The Scottish Courts and Tribunals Service (SCTS) failing to notify victims of domestic abuse that the court was closing as consequence of Covid-19 restrictions.

The following case study extract, provided by Women's Aid, illustrates the type of experience that women can have in the justice system.

Claire's Story

Claire says that when she left her ex-partner several years ago, the abuse 'didn't end; it just changed'. He continued to inflict as much damage as possible by stalking her through social media and in person, and by aggressively pursuing child residence through the family court despite no likelihood of success. As she puts it, 'He weaponised both children'.

'He would turn up on the doorstep at all times of the day, or hide in the bushes near the house watching me. I got a new dustbin and I came home one day to find that he'd scratched his signature on it. He was basically saying that I'd have to look at his name, touch something he had touched, every single time I put something in the bin.'

'A lot of us are ending up as litigants in person because we can't get legal aid. Some women who do get it are having to pay it back. It is unfair… He only wants parental rights and residence in order to control the [children's] lives and mine: he was never interested in them before... I offered him something he could have built on to salvage his relationship with his children but that wasn't enough for him. Instead, with full legal aid, he got solicitors involved in pursuing me; presenting files and files of paperwork to the court (which were thrown out); and as the sheriff put it, "wasting taxpayers' money".

'I'm expected to travel back [to home area] for family court hearings at 9.45 in the morning as the sheriff won't allow it to be transferred to here. It means I need to get childcare, which means getting family to stay over. But although I have to be there for 9.45, I might be sitting there until 4pm before it's called, so I don't get back until late evening. Despite the domestic abuse, I've been expected to wait in the same room as my ex for family hearings.

'There's a massive way to go in training sheriffs, sheriff clerks and reporters... My belief is that, if a man is convicted of committing domestic abuse in front of children, he should not be allowed to take you to the family court – ever. After running me over, pregnant, in front of the children, he pled guilty and bargained it down from assault with intent to reckless contact. I got £300 for the loss of my baby. He left court and was free to do it all over again, so he stalked and harassed me and the children for a further five years. They give out these pathetic sentences, and then women are left having to deal with an angry guy waiting for vengeance…'

Dr Scott highlighted in her presentation to the Panel that developing and implementing effective policy to support women in the justice system requires gender competency or understanding. A gender competent approach recognises the gender imbalances which are prevalent in society and enables the development of policy and practice that reflects and addresses these inequalities. Only by acknowledging these unequal power dynamics can institutions change in a way which promotes women's equality and, consequently, improves women's outcomes and experience of justice.

Although at present there is no agreed definition of the concept of gender competence, Dr Scott outlined why gender competency matters, and how the concept can be integrated into institutions. Dr Scott set out that a gender competent approach starts with the simple acknowledgement that women and girls' lives are often very different from that of men and boys. Any analysis, research, policy, or legislation can be said to be "gender competent" when it reflects that principle^[19]. Dr Scott stressed the importance of this, arguing that without this acknowledgement, the risk to gravitate towards a white male default becomes apparent.

Dr Scott argued that gender should be a primary consideration for policy makers rather than a strand, and that gender competence could be achieved by embedding gender experts in strategic decision making. Having familiarity with the dynamics of gender enables the development of policy and laws that disrupt the unequal distribution of power, prosperity, and safety in families, communities, and institutions and promotes social justice.

Panel Considerations

Panel members were invited to provide their thoughts in response to the presentation and to discuss the impact of gender on the evidence heard. The general reflections are captured below:

• There are issues relating to resourcing and capacity. This can lead to concerns that rapid decisions are being made without assessing the broader consequences, and that other resources might not be utilised effectively. For example, a perceived priority in restorative justice, over tackling the court backlogs for women.
• Consideration should be given to the intersectionality within Scotland's communities, and accessibility. There have been recent incidents of racism in which it was noted that women were unable to report this due to not having the right papers. It is important to ensure that women from different communities can access justice.
• Consideration could be given to women's support services being embedded in front line justice services to support day to day activity, e.g., within the police, court service etc. This could help and relieve some pressure points within the system and support innovation.
• The whole family approach in helping people understand why you need to look at women in a different way from men – instead of people thinking different treatment for women. It is about serving the whole community better and providing a clearer understanding.
• The gap between policy and practice in relation to the experience of women survivors of gender-based violence in the justice system can be evidenced from frontline services, such as support helplines, advocacy and legal advice surgeries, and direct work with victims.
• An example of the perceived gap between policy and practice in relation to women is the use of remand and presumption of short sentences. Theoretically, this should mean there are very few women in prison – however, remand is still being used to address issues such as housing problems, and abuse.
• There is also the gap between policy in practice with Equality & HR policies within justice workforce. For example, inequality within the legal profession – maternity is a key issue due to self-employment and not being able to consult at certain times of the day due to childcare. Increased understanding of gender competence within these organisations could aid the pursuit of women's equality in many ways.
• The work of the First Ministers' National Advisory Council on Women and Girls (NACWG) was highlighted. Key issues included:

  (1) gender competent policy making

  (2) coordination between civil and criminal justice systems

  (3) first response from police and how accountability is managed within police reviews procedures

  (4) fear and complexity for migrant women accessing safety.

• Consideration should be given to a gendered approach looking at risk differently for women when assessing bail or remand, sentencing, and parole.
• Women are often distressed and not presenting as dangerous or threatening, so the thresholds at which they are risk assessed should be different.

5.3 Theme 3: Culture, Gender, Sexism

Evidence heard by the Panel

The Panel heard evidence from two different sectors within the justice system: policing and the legal profession. The presentations focused on the culture, stigma, and sexism within these areas of the justice system, and the impact this has on women within both professions.

In addition to the presentations, an evidence note was prepared which highlighted how issues of culture, gender, and sexism manifest in other areas of the justice system (Annex A).

Guest Speaker 1. Clare Hussain is a member of the Scottish Women's Development Forum, and Misogyny Police Group.

The Scottish Women's Development Forum (SWDF) was established in 2003 to increase the representation of women in policing in Scotland. It strives to improve the retention, progression, and experience of all women across Police Scotland and the Scottish Police Authority.

Following a career in the Civil Service, Clare joined the police in 2008 and is a senior member of police staff in the Chief Data Office. Clare was elected as Chair of SWDF in April 2018 and is passionate about equality, inclusion, and enhancing the experience of all her colleagues in policing.

Guest Speakers 2. Professor Maria Fletcher and Seonaid Stevenson-McCabe, co-leads of the Women in Law Project (100 Voices for 100 Years).

Maria Fletcher is Professor of European Law at the University of Glasgow. She is currently Deputy Head of School and Director of Learning and Teaching. Maria's EU research interests lie in the field of justice and home affairs, human rights, citizenship and migration law. She is co-lead of the Women in Law Project, a collaborative project to research the past, document the present, and advocate for the future of women in (and of) law in Scotland and across the world. Maria is vice-chair and trustee of JustRight Scotland.

Seonaid Stevenson-McCabe is a Lecturer in Law at Glasgow Caledonian University and co-lead of the Women in Law Project. An LLB graduate of the University of Glasgow (2012), Seonaid went on to study an LLM in International Law. Seonaid previously worked at the International Criminal Court, before returning to Scotland to qualify as a solicitor. As a solicitor she trained commercially and, before joining academia in 2020, she worked at a law centre specialising in migrant and refugee rights. Outside of the academy, she is the Vice-Chair of JUSTICE Scotland, sits on the Board of Moray Rape Crisis and is on the Steering Committee of ProBonoSkills.com.

Background

Representation in the Justice Sector

Across the organisations that make up Scotland's justice system, women are not always equally represented in the workforce, especially when considering more senior roles. As part of evidence gathering for the Panel, in January 2022, Scottish Government conducted a qualitative evidence review. A snapshot of that exercise is detailed below.

Justice Workforce^[20]

The disparity between women and men is similar when looking at the workforce of the Scottish Prisons Service, with a third (33%) of the organisation's staff in post being female in 2019-20, showing marginal increases in recent years (31% and 30% in 2018-19 and 2017-18 respectively).

The Crown Office and Procurator Fiscal Service's workforce presents a different picture, with over two-thirds (71%) of employees being females in 2020, broadly in line with the proportions seen in recent years. This includes around 74% of female staff at both administrative and legal level being recruited. According to the Law Society of Scotland, in 2020 more than two-thirds of new entrants to the legal profession were women. Therefore, the proportion of legal staff accurately reflects the male/female ratio of legal graduates in Scotland. Disparity remains however at senior staff level, with 39% of staff at this level being female in 2021.

Similarly, Scottish Courts and Tribunal Service has a predominantly female workforce overall, with two-thirds (67%) being females in 2019-20. However, disparity exists at director and non-executive director level, with just over three-fifths (61%) of these roles being occupied by male staff and 39% being occupied by female staff.

Women in Policing

Ms Hussain provided recent figures of women's representation across Police Scotland for 2021. 34% of Scotland's Officers are women, and the percentage rises to 61% for Police staff. Although this represents significant progress, there is no doubt more needs to be done, and SWDF are committed to supporting Police Scotland and the Scottish Police Authority (SPA) to attract, and retain women.

At senior level, representation varies from 20% to 37%, with the larger representation being seen among Police staff. However, there is a clear pattern with senior roles being predominantly held by men.

Significantly, Ms Hussain reflected on the fact that women have higher sickness absence, and are more likely to leave Police Scotland. SWDF have developed discrimination policies around pregnancy and menopause – seeking to challenge promotion disadvantages for pregnant women and introducing a menopause toolkit. The Forum also holds 'dare to talk' sessions to better understand the barriers and challenges for women.

Ms Hussain spoke of the need for 'intervention meetings' to discover the reasons why women are leaving Police Scotland, and to consistently review grievance policy to ensure that it is fit for purpose and that women have confidence in it. Furthermore, Ms Hussain spoke of the hesitancy in women to come forward with grievances due to feelings of loyalty, and anxiousness on how it may affect career progression, and pension.

In November 2021, the Forum approached leadership to set up a Sex, Equality and Misogyny Group. This group was established in January 2022. A number of subgroups have been established which are chaired by senior officers, intended to progress issues such as behaviours, training and awareness, and reporting policies and procedures. An action plan has been developed. There is a requirement, at operational level, to change culture and encourage open conversations so that people feel more confident and safer to report.

Women in Law

Ms Stevenson-McCabe and Professor Fletcher reflected that there were clear similarities between Police Scotland and the legal profession. Women tend to be more prevalent at junior levels, do not receive promotion as quickly as male counterparts, and are more likely than men to consider leaving the profession.

In 2015, it was reported for the first time that 51% of practising Scottish solicitors were women, in 2019 this figure increased to 54%, and more recently in 2020/21 women accounted for 67% of training contracts started. As such, there has been considerable progress in recent times, however, significant disadvantages remain:

• Women spend longer as senior associates or similar level before becoming partners,
• Men are more likely to be equity partners compared to women,
• Fewer than 30% of partners and solicitor advocates are women, &
• Women earn 77% of what men earn.

The lack of flexibility within the justice system was highlighted as a reason why women might leave the profession. The Profile of the Profession study 2018^[21] conducted by the Law Society of Scotland, found that 90% of respondents believed that greater flexible working would allow more women solicitors to reach senior levels. Significantly, 26% of women respondents described personal experience of discrimination compared to 10% of men^[22]. Examples of gender discrimination have been documented, including Sheriffs commenting on solicitors clothing, particularly female solicitors^[23].

There is a lack of data on gender and ethnicity within the Faculty of Advocates. Most recent data, from 2019, shows marginal long-term improvement in representation. In 2004, 23% of practising advocates were women, this increased to 27% in 2014 and remained at 27% for 2019. It was noted by Lady Poole that, at this rate of change, it would take approximately another 70 years to achieve a gender balance of 50%.

In the Judiciary, at the most senior level, there are nine Senators of the College of Justice who are women, as compared to 27 men. The Judicial Diversity Statistics for 2021 shows that:

• 24% of Sheriffs are women.
• 45% of Summary Sheriffs are women.
• 25% of part-time Sheriffs are women.
• 50% of Sheriffs Principal are women.
• 29% of post-holders in the entire Judiciary are women.

As part of the 100 years of women in law project individual experiences were collated, and the following themes emerged:

• There are clear challenges attempting to balance professional and family life.

  "I think balancing motherhood with work commitment is one of the biggest issues for women in law… society now expects women to work like they don't have kids and parent like they don't have a job…" (Solicitor 1)

• Acknowledging and challenging gender perception, stereotypes, and structures.

  "One of the main issues … is the attitude of employers. There is a perception that women will take up that caring role and as such many employers do not expect men to take that time to share the responsibilities" (Solicitor 5)

  "Our socialisation, the media we consume, and our peer groups leave us with strongly held, yet under-analysed views about how women and men 'should' be… it is important for each of us to reflect on our individual biases and preconceptions and, as far as possible, to overcome them" (Solicitor 6)

• Progress is acknowledged and there is hope for the future; but work still to be done.

  "Whilst it is reassuring to see that the restrictions that women previously faced in entering the profession are now no longer present, this means absolutely nothing if senior and management level positions continue to be dominated by males. For meaningful progress to be made in gender equality and the legal workplace, that needs to change" (Solicitor 9)

In summary, Professor Fletcher and Ms Stevenson-McCabe reflected that more research and data are needed, and that more progress is required. The impact of representation cannot be underestimated, and in the words of Lady Hale (2014):

"I take the view that 'difference' is important in judging and that gender diversity, along with many other dimensions of diversity, is a good, indeed a necessary, thing. However, the principal reason for this is not our different voice, but democratic legitimacy. In a democracy governed by the people and not by an absolute monarch or even an aristocratic ruling class, the judiciary should reflect the whole community, not just a small section of it"^[24].

Panel Considerations

Panel members were invited to provide their thoughts in response to the presentation and to discuss the impact of gender on the evidence heard. The general reflections are captured below:

• The evidence highlights the importance of recording data, and more research to better understand why women are leaving justice organisations, are promoted less frequently than men, and are more likely to be on sick leave.
• Consideration could be given to positive action to redress the gender imbalance. It is worth thinking creatively about places where there would be a clear benefit.
• The Scottish Women's Rights Centre and social enterprise JRS Knowhow receive funding, from the Scottish Government's Workplace Equality Fund, to take forward a project, which runs from now until June 2024, called Learning with the legal sector.
• To enable women/mothers to work, it would be beneficial for flexible working to be the standard for all. Rather than addressing it with individuals as a problem in balancing personal lives/caring responsibilities.
• It would be advantageous for employers to scope affordable high-quality childcare.
• Employers should empower fathers to take advantage of the opportunity of paternity leave – this could take the onus off women.
• It is concerning that young women will have no concept of these issues and how they will affect them.
• There is a perpetual disconnect about how to prepare students for the issues that they will face whilst developing their career.
• Court culture may be impacted by only 29% of the judiciary being women. Broader representation will have a positive and cascading affect.
• It is important to think of the way business is conducted in the court room.
• Crown office is quite a different demographic as there is more women – about 70% and there is flexible working which is a benefit. Senior levels are still male-dominated – about 39% of women at the senior civil service level. More could be done to facilitate job share arrangements and to encourage part-time women to move up to senior levels.
• The Gender Equality Network in the Crown Office and Procurator Fiscal Service also looked at areas such as menopause and the gender pay gap. It would be helpful to link up these existing networks across the justice sector to share best practice.

5.4 Theme 4: Victim & Offender Status

Evidence heard by the Panel

The Panel heard evidence from one of its own members, Harriet Wistrich, founder of the Centre for Women's Justice. Harriet is a solicitor with over 25 years of experience, who specialises in human-rights cases, particularly cases involving violence against women and girls.

The Centre for Women's Justice has a vision to 'eradicate male violence against women and girls', and their mission is to hold the state to account. In doing so, they undertake strategic litigation, monitor and challenge trends in policy, and raise awareness.

Assistant Chief Constable Bex Smith, an executive lead for Major Crime, Public Protection and Local Crime within Police Scotland, also presented on their progress in developing their Violence Against Women and Girls Strategy.

In addition to the presentation, an evidence note was prepared, focussed on the 'victim' and 'offender' status of women in the Scottish justice system, and it explores how these statuses often overlap (Annex A).

Background

The Commission on Women Offenders^[25] found that many women in the criminal justice system in Scotland were frequent reoffenders who had complex needs, relating to their social circumstances, previous histories of abuse, and mental health and addiction problems. The New Economics Foundation (2012)^[26] found that the needs of most women who come in to conflict with the law make them similar to the broader population of women who have experienced abuse or trauma, and therefore require approaches which take this into consideration. As such, the separation of women in the justice system into 'victims' and 'offenders' misrepresents the experience and needs of those women^[27].

The reasons why women come into conflict with the law can often be linked to their experience of domestic abuse and other forms of VAWG; for some women, their conflict with the law arises from their attempts to defend themselves by using force against their abuser, leading them to face charges for assault and other offences^[28]. Others are coerced by their abuser into committing offences such as benefit or mortgage fraud, theft, handling stolen goods, bringing drugs into prison, and hiding weapons or drugs^[29]. The failure to identify the vulnerabilities which can lead to crime, minor or otherwise, risks re-traumatisation and often results in poorer outcomes for women.

Earlier research^[30] conducted by the Centre for Women's Justice, on 'women who kill', explored the extent in which the law itself, and the way the law is applied, prevents women accessing justice. The research included several interviews, and secondary data from domestic homicide reports and case files, from England and Wales. The report found that women are more likely to be killed by men who have a history of abusing them and a majority of women who kill their partners do so in the context of being subjected to abuse from the men they kill^[31]. In 77% of the cases referenced in this research, there was evidence to suggest that women had experienced violence or abuse from the deceased^[32].

Despite these findings, acquittals on the basis of self-defence appear small in number – of the 92 cases referenced, 43% of women were convicted of murder; 46% of women were convicted of manslaughter; and just 7% of women were acquitted^[33]. Additionally, women who kill violent partners report past failures of criminal justice system agencies to support them as victims of men's violence – 8 of 20 women referenced attempts to leave their violent partners and issues when seeking protection from Police and other agencies which led to under-reporting of domestic abuse. Women describe feeling trapped, at 'tipping point', and having exhausted all other safe alternatives – including criminal justice avenues^[34]. After a culmination of increasing coercive control, women often felt driven to kill perpetrators or face being killed themselves^[35].

At trial, the ability to provide evidence, and to provide it 'well', was central to the outcomes of cases. Failing to disclose abuse, lack of trust in the criminal justice system, and lack of legal expertise, led to poorer evidence and convictions for murder and manslaughter^[36]. Stereotypes and commonly held myths on how victims should behave were also present, with women reporting being judged not only by jurors but by advocates and judges^[37].

The 'double standard' report sets out evidence of the unjust criminalisation of victims of VAWG in England and Wales for alleged offending resulting from their experience of abuse, and proposes reform to law and practice.

The report sets out several key facts:

• At least 57% of women in prison and under community supervision are victims of domestic abuse^[38]. The true figure is likely to be much higher because of barriers to women disclosing abuse^[39].
• 63% of girls and young women (16–24) serving sentences in the community have experienced rape or domestic abuse in an intimate partner relationship^[40].
• Women are more likely than men to commit an offence to support someone else's drug use (48% to 22%)^[41]
• Around half of arrests of women for alleged violence result in no further action, indicating widespread inappropriate use of arrest^[42].
• Women in prison have elevated levels of poverty and unmet need for housing, healthcare, and addiction recovery support^[43].
• Arrest rates in 2014/15 were twice as high for black and 'mixed ethnic' women as for white women^[44]. Migrant women are overrepresented in prison, particularly on remand^[45].
• Most women are imprisoned on short sentences, and most are imprisoned for non-violent offences^[46].
• An estimated 17,000 children experience their mother's imprisonment each year. 13, 600 pregnant women, on average, are held in prison each year^[47].

Despite these stark statistics, criminal law and process have been criticised for failing to protect victims of domestic abuse and other forms of VAWG, who are accused of offending which derives from their own experience of abuse^[48]. Women and girls facing multiple disadvantages experience disproportionate and often overlooked forms of violence and abuse, and are often criminalised as a result. This experience can be acutely felt by black, Asian, minoritised and migrant women who experience additional layers of intersectional discrimination and cultural barriers to disclosure of abuse^[49].

Women who sell or exchange sex can also face criminalisation when reporting abuse, recent research for the Scottish Government found^[50]. Women involved in prostitution stated that they felt unable to disclose rape or sexual assault to police, but also to health services and victim support, for fear of the police being informed and the women arrested^[51]. The All-Party Parliamentary Group on Women in the Penal System Briefing Paper (3)^[52] estimated that, in England and Wales, there are around 37,000 arrests of women each year that resulted in no further action, and it is suggested that it is likely that this would be similar in Scotland^[53].

Despite the high prevalence of rape and sexual abuse in England and Wales, and the increase in reporting, prosecutions and convictions have dropped to the lowest since records began^[54]. Abusers can manipulate the criminal justice system to extend control over their victims, and to evade punishment^[55]. Failings in criminal justice guidance and practice mean that women who should be protected from abuse instead find themselves arrested, detained, cautioned, or prosecuted^[56]. A lack of effective defences limits women's choices and often leads to guilty pleas^[57]. For those who choose to go to trial, the courts are ill-equipped to take proper account of the context of abuse in which their alleged offending took place^[58].

Ms Wistrich argues that legislation, as it currently stands in England and Wales, is ineffective in these circumstances and that reform is required to protect survivors of domestic abuse. The use of self-defence requires a consideration of reasonable use of force and proportionality, which in the context of domestic abuse, is often contested and difficult to rely upon^[59]. In cases of coerced offending, the defence of duress should in theory be available, but research has shown that it is never effective in these sorts of cases^[60].

The role of mental health in the criminalisation of women must also not be underestimated and can seriously impact the experience of subsequent custody for women with poor mental health^[61]. The UN CPT (European Committee for the Prevention of Torture) highlighted significant concerns about women with serious mental health concerns in Scottish prisons, but that robust data in this area is lacking^[62]. In England and Wales, 71 per cent of women in prison reported a mental health problem, compared to 47 per cent of men, while women comprised 19 per cent of self-harm incidents in prison despite accounting for five per cent of the overall prison population^[63].

In a study by McMillan et al. (2021) covering four prisons in Scotland, 78 per cent of women were found to have had experienced a significant head injury, 40 per cent of whom had an associated disability^[64]. Additionally, 84 per cent of those who reported having a significant head injury had experienced repeated head injuries, predominantly resulting from domestic abuse (89 per cent of cases). A history of head injury in offenders can be associated with a greater risk of violent crime, and well as poorer mental health and drug problems^[65].

Being in custody alongside other women who have histories of trauma can also present a significant risk of re-traumatisation, as they can be regularly exposed to the self-harm and mental health crises of others^[66]. In addition, the lack of privacy, harsh lighting, strip searches and other unwanted physical contact are among aspects of the prison environment that can be triggering for those with histories of trauma^[67], while research suggests that women are more likely than men to continue experiencing the trauma-related effects of prison after release^[68].

Panel Considerations

Panel members were invited to provide their thoughts in response to the presentation and to discuss the impact of gender on the evidence heard. The general reflections are captured below:

• The data from the report, regarding arrests without charge is stark – there may be a need for this type of data in Scotland.
• Consideration could be given to whether research is needed on legal defences and whether they are working effectively.
• Relevant research was highlighted, including Rachel McPherson's work on self-defence and domestic abuse^[69], and Dr Nughmana Mirza's, currently progressing research project on South Asian women's experience of justice in Scotland. Further, the Domestic Abuse (Scotland) Act 2018, interim reporting requirement may provide useful insights.
• A positive example is Police Scotland's training on Domestic Abuse (DA Matters) – however it has identified that more needs to be done in terms of operationalisation.
• The Scottish Government are taking forward work on prostitution, seeking to develop a Framework which will consider the impact of stigma.
• The report highlights non-disclosure as a significant issue, and that there should be opportunity within practice to address this. The work on trauma informed approaches would seem an ideal opportunity.
• It is important for trauma informed approaches to reach operational levels. It has a powerful impact on the perception of justice for women, and it is these perceptions which act as barriers to disclosure.
• On community sentences, there is little evidence of women's experience. Anecdotally, women comply better but it is often in a complicated context, and many do not disclose due to a perception that it will lead to further scrutiny.
• Women are also impacted at the end of sentences, increasing numbers of women on remand, which has clear implications for their lives and families.
• The new community custody units provide a range of services for women, but these types of services are also required in community sentencing, particularly mental health. Women on the extreme ends of mental health are still being imprisoned.
• There is a need for trauma informed approaches to be embedded from day one, as elevated levels of distress and trauma are prevalent in the prison estate.
• There may be a need for organisations to understand the gendered nature of abuse – this lack of understanding leads to women being treated and labelled as perpetrators of crime.
• Minority ethnic women are often more likely to be seen as an aggressor. Issues regarding corroboration, and family involvement, are commonplace. There is a need for more data on this.

5.5 Theme 5: Intersectionality

Evidence heard by the Panel

The Panel heard evidence from Talat Yaqoob, co-chair of the First Minister's National Advisory Council for Women and Girls (NACWG), and chair of Women 50/50. Talat has led projects and campaigns across the third sector, specialising in gender equality, intersectionality, education and workplace equality and political participation. Ms Yaqoob provided an extensive presentation, drawing on a wide range of experience and knowledge.

In addition to the presentation, an evidence note was prepared, summarising intersectionality, and discussing the benefits of taking an intersectional approach when considering the experiences of women in the justice system (Annex A).

Background

The concept of intersectionality is used to articulate and analyse the lived reality of those who experience multiple and compounding inequalities. However, there are many different definitions and applications of the concept within academia and policy making^[70].

Its roots exist in Black feminist activism; however, it is now often used to refer to the interactions between the nine protected characteristics defined in the Equality Act 2010^[71], plus wider characteristics that shape lived experiences of discrimination, inequality and privilege, such as socio-economic disadvantage, occupation, and care-experience. The Equality and Human Rights Commission^[72] definition applies the concept practically to equality and human rights monitoring:

"Intersectionality is an analytical tool that we use for the purpose of equality and human rights monitoring to show the distinct forms of harm, abuse, discrimination and disadvantage experienced by people when multiple categories of social identity interact with each other."

The Scottish Government evidence synthesis on intersectionality summarises the foundational elements of intersectionality as:

• A recognition that people are shaped by their simultaneous membership of multiple interconnected social categories.
• The interaction between multiple social categories occurs within a context of connected systems and structures of power (e.g., laws, policies, governments). A recognition of inequality of power is key to intersectionality.
• Structural inequalities, reflected as relative disadvantage and privilege, are the outcomes of the interaction between social categories, power relations and contexts.

In particular, it is important to note that it is the interaction or "intersection" of two or more characteristics with power dynamics within a given context that gives rise to inequality, not just the presence of intersecting characteristics on their own.

An intersectional analysis involves a critical analysis of the experiences of individuals or groups based on their social positions^[73]. It is not to be confused with diversity. Rather, diversity can allow a more intersectional approach if representatives of those groups are able to influence and shape the discussion based on their experience of intersecting inequalities. It is often tempting to design policy or make decisions which are to the 'benefit of all', an activity which is sometimes referred to as novel intersectionality or generic intersectionality^[74].

Ms Yaqoob noted some of the challenges around intersectionality in the Scottish context:

• "Whilst the term is being used more in Scotland there is not a coherent approach across the Scottish Government nor is there a clear, definitive, definition".
• "Intersectional and disaggregated data is rarely made available or utilised in the analysis and development of policy".
• "A diluted understanding exists which runs the risk of a 'one size fits all approach'".
• "Further investment is needed in data collection, analysis and skills development across public, private and third sector".
• "National and local data collection and social research is hindered by assuming an intersectional approach is too difficult or inaccurate ideas of 'data protection concerns'".
• "Policy making in Scotland is largely siloed between communities and topic areas".
• "An 'additive approach' which still puts one protected characteristic above others – there must be parity of esteem".

As an example, research has found that minority ethnic people were more likely to contract and experience serious outcomes from Covid-19. Although there was no direct link, a number of mediating factors were identified, such as poverty^[75]. It is also important to understand these effects in the historical context of racism and discrimination experienced by minority ethnic communities, and the impact of stigma on health seeking behaviours. The Expert Reference Group on Covid-19 and Ethnicity (ERG)^[76] recommendations highlighted that "vulnerabilities to Covid-19 are consistent with an established pattern in which 'intersections between socioeconomic status, ethnicity and racism intensify inequalities in health for ethnic groups".

Primarily, intersectionality is about understanding how systems interact to create compounding oppression and responding to those specific experiences. Ms Yaqoob illustrated this using the experience of elderly South Asian women and the health service as an example.

Mrs. Bibi Syndrome

• Elderly South Asian women have been found to be treated less well within the health sector and assumed to be exaggerating their symptoms when there is no physical illustration of their symptoms. They are more likely to be dismissed or assumed to be hypochondriacs.
• This is the compounding, intersecting inequalities of race, gender, age, and migration.

Within the justice sector, South Asian women may be subjected to similar forms of abuse experienced in other population groups, but it has been shown that the ways in which they perceive, and experience domestic abuse is unique to their cultures and communities^{[77], [78]}. This includes suffering abuse for longer periods prior to seeking help, a general reluctance to access services, and a fear that seeking help may subject them to racist treatment^[79].

Domestic abuse is believed to be under-reported within South Asian communities^[80]. A number of barriers to help-seeking behaviours have been identified for South Asian Woman experiencing domestic abuse, including: a lack of awareness of services, lack of English proficiency, structural barriers and economics^[81].

South Asian women's experiences of the police can be highly variable. In some cases, it can be sensitive to women's needs, and in others, the police response can reflect a failure to understand the complex issues which shape women's experiences of abuse and disclosure^[82]. A research project exploring the interaction of police officers with South Asian women who contacted them as a consequence of domestic abuse found that most of the women were unaware of what support they could obtain from the police whilst living within an abusive relationship. However, the women experienced increased confidence after contacting the police and they provided messages of support for women in similar situations^[83].

Researchers have argued that South Asian women can face "family abuse" at the hands of wider family, including their mother-in-law, and that such experiences do not fit within narrower definitions of domestic abuse and "intimate partnerships", thus rendering such experiences invisible^{[84], [85]}.

Some women experiencing domestic abuse have no recourse to public funds due to their immigration status, for example if they are an asylum seeker or entered the UK on a spousal visa. This means they do not have access to publicly funded services and are therefore constrained in their ability to flee an abusive spouse as public money covers the cost of many Women's Aid refuge places^[86]. Immigration policies and insecure immigration status can intensify and create specific forms of abuse^[87], including, for example, having their passports removed by their husbands^[88].

Often intersecting discriminations will have an impact on public (and therefore police and jury) perceptions of who is an 'ideal victim', for example, black males are often categorised as 'ideal offenders' and not as 'worthy victims'^[89].

Ms Yaqoob contends that there is a need for intersectional interpretations and applications of law if women are to be given full access to justice. An intersectional approach requires thinking about the lived experience of those experiencing compounding, and multiple discriminations. It collects and analyses disaggregated data about those experiences and designs and delivers systems which are non-hierarchical and respond to the needs of those often ignored.

Panel Considerations

Panel members were invited to provide their thoughts in response to the presentation and to discuss the impact of gender on the evidence heard. The general reflections are captured below:

• There are clear data gaps, which could aid the understanding of women's experiences of the justice system and how they are treated as victims.
• We need the disaggregated data, and competent analysis on what to do with that data.
• Another reason it would be important to hold this data is if we were to bring strategic litigation – looking at failures to craft specific policies – rather than relying on one case.
• There is also more that can be done with the data we do hold – how best do we make use of this? Lived experience voices are vital for good intersectional analysis.
• Police Scotland's work on a Violence Against Women's and Girl's Strategy has a particular strong focus on lived experience.
• There is a distinct lack of disaggregated data for people from ethnic minority backgrounds.
• There are ethnic minority women at risk, but due to insecure immigration statuses, they are scared to report and fear deportation.
• There is insufficient protection under existing legislation against extended family violence and honour-based violence.
• Ethnic minority representation is also limited, for example, many ethnic minority organisations are unrepresented within VAWG partnerships and are also often absent from VAWG strategic groups.
• The Centre for Women's Justice is in the process of working on a project relating to domestic abuse and minoritised women.
• There is a clear correlation between the concepts of a 'worthy victim' and prosecution of sexual offences, including interlinks with class and ethnicity.
• Looking across the justice system timeline there may be opportunities where an intersectional approach could be brought to influence and change outcomes for women. This may also provide opportunity to support diversion from prosecution.
• The Hard Edges Scotland Report (2019), highlights the complexity of the lives of people facing multiple disadvantages in Scotland.
• The other sphere which is hugely important is the judiciary – how judicial voices are influenced in what is a relatively homogeneous space.
• There may be opportunity to think about how the justice system intersects with other systems such as criminal, civil, and health.