A challenge to the Jurisprudence of the Court of Appeal? Why working class black ‘foreign’ women get a tough deal.

What’s in a name?

Many defence lawyers will recognise some of these names: Lindiwe Mutede, Liliane Makuwa, Alica Chiwanga, Wendy Chengetayi, Margaret Boateng, Rosiene Carneiro, Paris Osato, Rita Nenartoniene, Jacinta Kinbunyi, Valerie Ovieriakhi, Ruth Abumhere, Cynthia Acheampong. Ten years of cases reviewed in the Court of Appeal (2005-2015)[1], a line of Jurisprudence concerning cases of forged and false identity documents and the necessity for immediate custody.

Women, Prison and Race?

The over representation of women and men who are not white in the Criminal Justice System (CJS) has a substantial history.[2] Some general issues are well documented [3].During the year it is estimated 18,000 children are separated from their mothers who enter custody. The average cost of prison per person is £56,415 per annum; 9,051 women entered prison in 2014; 58% serve 6 months or less. In 2011 black female prisoners made up 26.4% and black British woman 11.6% but only 2% of the overall population. Significantly 81% of all women prisoners have committed non-violent offences. It is an expensive system and rehabilitation for “persistent” offenders is ineffective.

Multi-factorial explanations of “offending” behaviour include poor education, mental and other health issues, drug use, employment and educational outcomes, a history of local authority “care”, housing, low income and class. There is eloquent work on passive and active social exclusion particularly around “identity” and gang culture. Gus John[4] articulates that how people relate to themselves and to the world some “200 years after the abolition of slavery..(is)..totally bound up with our colonial past. “

Sometimes there are riots or a murder that give rise to public enquiries and the conclusion that there is a pervasive Institutional Racism within policing and the CJS. Lord Scarman (1981) on the problems underlying the Brixton riots summarised by Ruth Chigwada-Bailey as “intense social deprivation, a history of unlawful policing, racially prejudiced police conduct”[5] and MacPherson (1999) following the murder of Stephen Lawrence, “unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage ethnic minority people”[6]. Meanwhile the population of Judges in the CJS and the overwhelming majority of its personnel remain also overwhelmingly white, male and frequently privileged (private education and family wealth).

There is also that context highlighted by Gus John, a devastating history of a colonialism that depended on military repression to organise slavery, indentured labour and the plunder of raw materials.[7] The political repercussions of that vast tale of repression and arbitrary location of peoples and boundaries still frames so many lives. The repercussions of Colonialism and individual tales within the CJS are intimately related. A quick survey of the countries of origin of Lindiwe, Liliane, Alice, Wendy and the others reveals, Zimbabwe, Nigeria, Brazil, the Democratic Republic of the Congo and Ghana. The colonial inheritance within the UK and the CJS is a lived experience further mediated by Institutional Racism and manifest in social issues, access to housing, health, education, employment and the struggle to be legitimate as a migrant.

The Court of Appeal

And so to the Jurisprudence. Our authorities begin with David Kolawole (2004) who appealed a 16 month sentence of imprisonment for possession of 2 forged passports. The refusal of his Appeal set a new benchmark for custody. The Court of Appeal quickly established a demarcation between passports used to gain entry (with the spectre of terrorism prayed in aid) and the conduct of working mothers using passports and other forged documents to gain employment and open bank accounts (6 months in custody became the norm).

The rationale is that a false National Insurance document used to gain work (the latter itself a pecuniary benefit obtained by fraud), by defendants without immigration status, “undermines immigration control”, the presence of such persons “undermines the good order of society”, “constitutes a threat”, is “detrimental”, and “ordinarily” the sentence is “Immediate custody”.

One answer to the question why are black women over represented in custody is this particular line of authority. Is it rational or justifiable?

These Court of Appeal cases are overwhelmingly black women with children and their most common occupation carers or cleaners. Hard low paid work. The pathways of how these broken threads of lives percolate through post-colonial history to become present in the imitation Gothic of the Royal Courts of Justice is hidden both by its complexity and a collective disregard.

The costs of effectively 3 month prison sentences (released after half sentence served) are absurd. The “deterrence” of such sentences is unprovable and highly unlikely. This is because the immediate choices facing women in very difficult moments, to use a document to gain employment or support a family or what? What are the choices, Prostitution, surrendering children to care, homelessness, returning to even worse outcomes?

What is needed here is a re-evaluation

No one knows how many woman are being routinely consigned to prison because of this line of case law. Whatever happened to Lord Woolf’s stricture, prison must be a last resort?

The welfare of children is disregarded in these authorities despite the enormous amount of historical studies that separation from parents and in particular mothers has a devastating effect. The welfare of children so paramount in the family courts is disregarded in these cases. See by contrast a more “balanced” approach in R v. Petherick[8] . See also the case of R v. Welsh and others[9] where it is made clear that the positon of children in a family were of little significance “at the most serious levels of criminality” when sentences of 20 years upwards were under consideration. Hardly the position in this category of document offending.

There are obvious alternatives. Community sentences, even suspended sentences at worst, and across the board a substantial investment in women’s centres to support[10], rehabilitate and help reframe the lives of women who have come into contact with the CJS.

The rationale that choices made by marginalised women “undermine good order”, is a chimera. It is a reflex that bears no relationship to the reality of the defendants but is rather a reaction to the politics surrounding the migration of poor working class people.

Reality, proportionality and even economic sense should lead to very different outcomes and the overrepresentation of black women in the CJS in this instance at least ameliorated.

Greg Powell & Sinead Zaman
Powell Spencer and Partners Solicitors

www.psplaw.co.uk
20 May 2016


[1] See Appendix.
[2] See Ruth Chigwanda-Bailey Black Women’s Experiences of the Criminal Justice System. The over representation of black people in prison
http://www.prisonreformtrust.org.uk/projectsresearch/race
http://www.womensbreakout.org.uk/about-us/key-facts/
[3] See http://www.womensbreakout.org.uk.
[4] See Gus John Emancipate Yourself…Choose Life. And Derek Humphrey and Gus John because they’re ‘black’.
[5] As in R. C. Bailey p43
[6] MacPherson
[7] Richard Gott ‘Britains Empire’: Resistance, Repression and Revolt.
[8] (2012) 177 JP 94, [2012] EWCA Crim 2214
[9] Para 18 [2014] EWCA Crim 1027
[10] http://www.womensbreakout.org.uk/


Appendix
R v Abumhere (Ruth) [2011] EWCA Crim 26; [2011] 2 Cr. App. R. (S.) 44
R v Acheampong (Cynthia) [2015] EWCA Crim 1894
R v Boateng (Margaret Ofoswah) [2013] EWCA Crim 2306
R v Carneiro (Rosiene Ribeiro) [2007] EWCA Crim 2170; [2008] 1 Cr. App. R. (S.) 95
R v Chiwanga (Alice) [2007] EWCA Crim 1939
R v Kibunyi (Jacinta) [2009] EWCA Crim 9; (2009) 173 C.L. & J. 94
R v Makuwa (Liliane) [2006] EWCA Crim 175; [2006] 1 W.L.R. 2755; [2006] 2 Cr. App. R. 11; [2006]
R v Mtandagai (Wendy Chengetayi) [2013] EWCA Crim 1093
R v Mutede (Lindiwe) [2005] EWCA Crim 3208; [2006] 2 Cr. App. R. (S.) 22
R v Nenartoniene (Rita) [2009] EWCA Crim 2659
R v Osato (Paris)  [2009] EWCA Crim 1549
R v Ovieriakhi (Valerie Ekiuwa) [2009] EWCA Crim 452; [2009] 2 Cr. App. R. (S.) 91; [2009]

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