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Helen comes with a breath of experience in child care and related family matters which she consolidates with 13 years of experience as a Solicitor.

She commenced her career as a nursery nurse and then went on to graduate in Social Work gaining experience in child care, mental health and managing the provision of emergency services, Child Protection, Social Work duty and Court Teams. She chaired Child Protection Case Conferences and child care and secure accommodation reviews. Helen was also a Children’s Guardian.

Since obtaining further academic and professional qualifications she has specialised in care proceedings whereby the State intervenes in family life representing parents, grandparents and extended family members as well as the child, she being a member of the Law Society Children Panel.

Helen also represents parents/grandparents in private law proceedings as well as cases involving the abduction of children, often abroad. Helen’s professional background is steeped in the myriad of issues surrounding children and families and she is a firm believer in the child’s place being within the family, where at all possible. 

She has a firm and realistic approach based on solid experience and will guide, support and assist you to the conclusion of proceedings and often beyond.

Helen undertakes her own advocacy whenever possible.

The City of London Police have announced a pilot where they will use private law firms to seize and forfeit the assets of those suspected, but not proven, to be involved in cybercrime. It is likely these firms will instigate proceedings under the Proceeds of Crime Act 2002 and in some cases this will replace a criminal prosecution. This shift has been justified simply because it is quicker, that it returns the proceeds of crime much earlier.

Not only is it quicker but it is much easier. Why? Because not only does it lower the standard of proof required (on a balance of probabilities instead of being sure) but because fewer people access legal advice when facing such civil proceedings when compared to those being prosecuted and there follows a mismatch between the parties at court.
But if this leads to more criminals being targeted and their activities disrupted what is the problem? As ever when designing our criminal justice system we must consider what happens to the innocent person caught up in the system by error or mistake.

One of the reasons so few people instruct a solicitor to protect their rights when their assets are seized is because of the potential liability for costs. Where people use a solicitor and show their assets are not derived from crime they often have to bear the costs incurred. The courts are concerned not to penalise the state (or its agents) when they get it wrong in case it deters them from carrying out a function which, overall, is for the good of the public. This is based on an assumption that an occasional adverse costs decision would reduce the number of cases they bring. That is not necessarily a sound assumption to make, it is more likely to improve the internal scrutiny of the cases brought, enhancing quality.

What does this mean in practice? Well imagine you have had £5,000 seized by the state (be it the police, or under this pilot, a prominent City law firm). You know this money has not come from crime but your financial arrangements are complicated, say by irregular self-employment. Faced with documents drafted in technical language by intimidating City law firms you call a solicitor. This solicitor says she can help you but then lists all things you will need to do to succeed and then gives you an estimate of costs, say between £1,000 and £2,000. She then tells you that these costs are unlikely to be recoverable at all. She also reminds you that if you lose you will have to pay the costs of the state, again measured possibly in the thousands. Would you be willing to pay for legal representation in those circumstances? Gamble and lose: you lose your £5,000 and pay another £5,000 for the privilege. Win and you might get £3,000 back after you have paid your lawyers.

If people do not instruct a solicitor we enter a vicious cycle. To appear unrepresented the person risks failing to meet the case against them, failing to realise what needs to be done in preparation for the final hearing. And in those circumstances the innocent person might lose their money principally because of a disparity in the quality of litigation. This problem maybe compounded as we are told, under the City of London Police’s pilot, the firms they instruct will only be paid if they succeed. This puts greater strain on their decision making and increases the risk of pursuing the wrong people.

Devolving law enforcement to the private sector is questionable. But if it is to happen people need to be able to defend themselves my accessing specialist legal advice. The current costs rules are not fit for purpose. Those who successfully defend asset forfeiture proceedings must be able to recover their costs. Those with a good case will therefore not be dissuaded from instructing a solicitor and presenting it properly.

Mark Troman
Powell Spencer & Partners

1. Introduction

Our starting point is a proposition at once both simple and complex, that people of colour live at a disadvantage within a culture that is institutionally racist. (Statistics on Race and the Criminal Justice System 2014.)

– Class, gender and race issues weave together within policy and economic frameworks that under-allocate resources in education, housing, and healthcare. Destructive cyclical problems of gangs, post-codes and drug dealing lie at the nexus of policy failure and are compounded by issues around identity in a white and unfair world. Over many years there has been a remorseless reduction in facilities for working class people and their children; ranging from the cut back of the sure start programme; the loss of open public spaces including school playing fields and sports facilities; youth clubs; free access to swimming pools, library closures; holiday ‘play’ schemes; ratios of health visitors and so on. We might characterise this as institutional disadvantage.

– Identity is a crucial outcome of environment and education. There is an appalling failure in education to relate an accurate view of the colonial legacy (Richard Gott: 2011). Identity is a critical issue. In the absence of educational or employment progression, of ambition, it may become a default position to fall in with ‘gang’ which offers others ‘rewards’, albeit both high risk and short-term but certainty of identity.

– Institutional racism plays its part. Black youth feature as over-represented in stop and search leading to resentment and reinforcement of ‘us’ and ‘other’ categories of thought. Figures published on the 7th August 2015 state that “black people are up to 17.5 times more likely than white people to be stopped and searched by the police in certain areas of the UK.” “The issue of stop and search has dogged the police service for decades,sparking riots in Brixton in 1981 and in various parts of the country in 1985.”(The Guardian: 07/08/2015). “Black people are stopped and searched at just over 3 times the rate of white people across London in 2014/15 whilst people from mixed backgrounds were searched at one and a half times the rate of whites.”(Stopwatch). It also represents a police attitude that defines entry points to the CJS. Distorted policing leads to decision making less favourable at each stage of the CJS. Temporally as follows; to stop and search; to arrest (on suspicion); to caution rather than NFA: to charge and to treat more harshly on sentence. Some examples are set out in S.2.

– Actual and perceived injustice is rife. The litany of (never prosecuted) black deaths in custody, sometimes sparking waves of disorder in which the other factors mentioned above play their part (Scarman report 1981, August 2011 riots). (The Guardian: 17/02/1999 and Wikipedia) .While elsewhere individual acts of violent racism on occasion lead to the exposure of police culture as well as white racism. In the UK there was the MacPherson enquiry, while in the US there was the case of 70 deaths of black women at the hands of the police over a 3 year period (Sir William MacPherson of Cluny: 1999 and The Guardian: 31/05/2016: Page 12).

At its heart the problem of ‘over representation’ of black people in custody needs a societal response, a cultural shift, policies that allocate land resources fairly, provide excellent education from early years, an education that assists the development of identity within a clear sighted view of history – that is political, and articulates an understandable discourse to which young people can relate their lived experience.

2. Inside The Criminal Justice System

– What are the backgrounds of Judges?

– “Of the current senior judiciary (High Court and above), 81% have Oxbridge degrees, 76% attended fee-paying schools, and half went to boarding schools” (Cheryl Thomas: 2005:8).

– “Of the 1868 judges who declared their ethnicity there are 177 (9.5%) who declared their background as Black or Minority Ethnic (BME)”. (Courts and Tribunals Judiciary: 2015).

– 81% of judges Oxbridge educated in 2004 (Sutton Trust Survey: 2005).

There appears very little erosion of this white hegemony.

– If you are a black defendant, especially in the Crown Court (and certainly should you reach the Court of Appeal) you can expect white Judges, mostly men and often still an all-white court room. Role reversal is a useful exercise. Imagine if you are white appearing in an all-black courtroom where you believe you have been harshly treated. Later you might read of higher sentences for white people; that white deaths in custody never result in any prosecution. That white youth are disproportionately stopped and searched. You may imagine a lack of equality in the criminal Justice processes.

– The Metropolitan Police have failed post-McPherson to reach ‘proportionate’ ethnicity to the policed population (Sir William MacPherson of Cluny: 1999). 88% of police force are white compared to 60 % of population being white in London (Police.uk).

– By 2015, only 5.5% of police officers in England and Wales were from a Black or Minority Ethnic (BME) background (Parliament.uk).

– The endemic nature of establishment whiteness is demonstrated by the fact that top jobs at MI5 and MI6 are all held by white people, according to diversity figures released by parliament’s intelligence and security committee. “The latest figures show that 27% of senior roles at MI5 are held by women” none of whom are BAME (black, Asian or minority ethnic) (The Guardian: 06/07/2016: page 14). “For MI6, one in five of its senior officials are women but none is from BAME backgrounds” (The Guardian: 06/07/2016: page 14).

– Projections (The Guardian on 08/07/16 in ‘Black flight: how England’s suburbs changed colour by Hugh Muir) are that by 2061 white Britons will account for 70% of UK population, ethnic minorities 30%. What will diversity look like in the CJS? On present trends there may be little change.

– For a particular subset of defendants the jurisprudence of the CA is highlighted by Powell and Zaman in “A challenge to the Jurisprudence of the Court of Appeal? Why working class black ‘foreign’ women get a tough deal.”(2016). Recent immigration legislation has sought to create a hostile environment its ideological, institutional racism and practical parallel is to be found in this line of authority, justifying the immediate custodial sentence policy for (black) women committing document offences.

3. Legal Aid

– Legal Aid accidentally presented opportunities for lawyers of a non-white heritage to be small scale entrepreneurs. Recent Legal Aid policy has disadvantaged small firms. The Government has sought economies of scale as an outcome of policy (fewer larger firms) managing larger volumes following cuts in unit (case) prices. It is another policy with a negative impact on opportunity and diversity.

– There has been an erosion of resources within the structure of Legal Aid. Payment of fixed fees rather than on the basis of time inevitably leads to an emphasis on speed at the expense of time taken with clients.

– In the police station this hands the initiative to police officers who by contrast are time rich, detention being allowed for 24 hours before charge. Custody sergeants rarely exercise proactive ‘control’ over the pace of proceedings despite authorising detention for ‘interview’. Speedy justice does not apply. We know of no statistics regarding the length of detention of black people compared to white, but for considerable insight into police “In a report commissioned by the Ministry of Justice, Vicky Kemp reviewed 5000 arrests made over a 3-month period in 2012 by Nottinghamshire Police. She found that ‘a significant minority’ involved suspects who were known to be prolific in the past but who had been wrongfully arrested with no evidence linking them to the crime for which they had been detained” (Iain Gould: 24/06/2013). Approximately 50% of people are interviewed without a solicitor.

4. How Do Cases Reveal Institutional Racism (IR) in Practice?

– Example 1. Decision to arrest and detain. At 22:00.

A GBH occurs. The description of the three assailants, Male 1. 19 years old braided hair, Somali with goatee beard. Male 2. Black taller than 1st Somalian origin. Male 3. 6’ black, 16 years old with short hair. The suspect is 13 has a very distinctive hair style (nothing like the description), is of Caribbean descent and significantly shorter without facial hair.
Is this a case of subtle (or perhaps not even subtle) IR in practice? A simple inability to distinguish descriptions, a ‘blindness’ compounded by the snails pace of the investigation culminating in a decision to keep the boy in a cell overnight despite vociferous objection. Would this have happened in this way if he was not black but white? They didn’t interview in the night because of outstanding suspects?! The interview is not until 10.40 am. The police offices are all white.

– Example 2.

It is difficult on a case by case basis to extract the IR that appears from overall statistical analysis. In this case a group of men are involved in a conspiracy to supply class A drugs. Two D’s are black, the others white. To D1 is ascribed the ‘leading role’. It is the solicitor and counsel’s view that the evidence does not support that conclusion. Is this the working out in practice of IR? His sentence after trial 10 years, his white Co-D’s 6 years. We know the C.A. will be reluctant to interfere with the Judge’s ‘view’, and when is IR a ground of appeal when nothing overt has been said and the conclusion of leading role ‘fleshed out’ by references to this or that piece of evidence?

– Courts adopt a ‘position’ of colour blindness and yet black Ds enter the ‘system’ more frequently and are disproportionately represented within prisons. “Out of the British national prison population, 10% are black and 6% are Asian. For black Britons this is significantly higher than the 2.8% of the general population they represent. Overall black prisoners account for the largest number of minority ethnic prisoners (49%).” (Prison Reform Trust).Our examples are we hope a demonstration of how difficult it is to unpick prejudice within a system that in pretending it isn’t prejudiced.

Training, greater diversity, and perhaps a public recognition within sentencing guidelines that institutional racism exists and care must be taken. , submissions invited, consideration given at sentence. Can recognition of institutional racism become a part of CJS process and discourse to prevent unfair practices?

5. Vulnerable Ds and Mental Illness

“People from ethnic minorities remain disproportionately represented on mental health wards with no signs of this reducing, the Care Quality Commission revealed” in 2011. “The census found admission rates to hospitals were at least two times higher than average for people from black Caribbean, black African and mixed white/black groups in 2010. Rates of detention were between 19% and 32% above average for these groups.”(Community Care: 2011). There is a substantial con-over between the Mental Health and Criminal Justice systems. In our submission “over representation” is rooted in similar IR acting upon pathways to detention.

6. Police Powers of stop and search and Detention

– How is one to reconcile this paradox? The code for stop and search says “powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. Under the Equality Act 2010, section 149, when police officers are carrying out their functions, they also have a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to take steps to foster good relations between those persons”, and yet statistics above shows over propionate use on black youth. (PACE 1984 Code A: 2013: Page 3).The simple answer is a flagrant disregard of the code is the product of Institutional Racism. It is the first step on the pathway to over representation.

– It is difficult to exclude evidence ‘unlawfully’ obtained. There is a lack of weight or regard for a community interest is ‘rule’ adherence/standards versus always the desire to convict ‘the guilty’.

– Avoidance of Police Criminal Evidence Act 1984 (PACE). The ‘street’ bust. A man cycles down the street and allegedly discards a spliff. The passing police take him to the police station. They obtain a confession signed in a notebook and then let him go and follow up with a postal requisition. A guilty plea follows. The safeguards of PACE, the delivery of rights, access to lawyer avoided. This is picking the criminal low hanging fruit ( see Billie Holiday “Strange Fruit”)

– What was PACE 1984? A rebalancing of police powers and suspect rights, but it also reflected a long held or still held vigorously pursued policing agenda. See Nick Blake Police Powers and Powell/Magrath Pace – a Practical Guide. Has PACE in fact failed?

– The period of detention. Long forgotten is the debate on the acceptable length of detention (imprisonment in a police cell) before charge and a decision on bail; 12 or 24 hours. The impact of 24 hours is to increase costs to police through cell occupancy and often overtime but this burden is also an advantage as it allows police officers to manipulate the process of detention. (See Vicky kemp). While the fixed fee regime reduces effective time spent by defence lawyers in the police station.

– Surely there is a powerful economic and process case for re-examining the period of pre-charge detention. There are no statistics we are aware of but we suspect that on average non-white people are detained longer.

7. Conclusions

– Statistics as far as they go highlight “over-representation”. It is our everyday experience that the CJS is replete with examples of IR selection and prosecution of Defendants.

– The difficulty is gathering evidence and the context the failure of PACE protections.

– The coherence of society depends on a general acceptance of fairness and trials justice applies to all. At this point The Lammy Review is an important step but it is our view that real resources need to be devoted to statistical analysis and a review of rights. That public expenditure in community resources needs rebalancing post-austerity to restore resources to the most disadvantaged communities. That concrete steps need to be taken to address diversity throughout the CJS and education and training re IR are priorities and IR should be addressed through sentencing guidelines.

Reported in the Law Gazette:

http://www.lawgazette.co.uk/law/criminal-justice-institutionally-racist-solicitors-allege/5057004.article

For more information on the LCCSA : https://www.lccsa.org.uk/

Bibliography

Cheryl Thomas (2005), “Judicial Diversity in the United Kingdom and other Jurisdictions, A Review of Research, Policies and Practices”. Accessed 07/07/2016 https://www.ucl.ac.uk/laws/judicial-institute/files/Judicial_Diversity_in_the_UK_and_other_jurisdictions.pdf

Community Care (05/04/2011). Accessed 12/07/2016 http://www.communitycare.co.uk/2011/04/05/ethnic-minorities-still-over-represented-in-mental-healthcare/ >

Courts and Tribunals Judiciary (2015), “Judicial Diversity Statistics 2015”. Accessed 07/07/2016 https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2015

Greg Powell and Sinead Zaman (2016), “A challenge to the Jurisprudence of the Court of Appeal? Why working class black ‘foreign’ women get a tough deal.” Accessed 07/07/2016 https://psplaw.co.uk/a-challenge-to-the-jurisprudence-of-the-court-of-appeal-why-working-class-black-foreign-women-get-a-tough-deal

Iain Gould (24/06/2013), “Police abuse powers to arrest the ‘usual suspects’”. Accessed 07/07/2016 https://iaingould.co.uk/2013/06/24/police-abuse-powers-to-arrest-the-usual-suspects/ 

PACE 1984 Code A (2013). Accessed on 12/07/2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384108/2013PACEcodeA.pdf

Parliament.uk, “Police diversity: Urgent action needed to tackle consistent failure”. Accessed 07/07/2016 http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/160521-police-diversity-report-published/

Police.UK, “Police officer diversity in Metropolitan Police Service”. <Accessed 07/07/2016 https://www.police.uk/metropolitan/E05000063/performance/diversity/ 

Prison Reform Trust. Accessed on 12/07/2016 http://www.prisonreformtrust.org.uk/projectsresearch/race 

Richard Gott (2011), Britain’s Empire: Resistance, Repression and Revolt.

Sir William MacPherson of Cluny (1999), “The Stephen Lawrence Inquiry”. Accessed 07/07/2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf

Stopwatch, “Metropolitan Police”. Accessed 07/07/16 http://www.stop-watch.org/your-area/area/metropolitan

Sutton Trust Survey (2005). Accessed 07/07/2016 http://www.suttontrust.com/wp-content/uploads/2014/09/Extracurricular-inequality.pdf 

The Guardian (06/07/2016), “Top jobs at MI5 and MI6 all held by white people”.

The Guardian (31/05/2016), ‘#SayHerName: fighting for the forgotten victims”.

The Guardian (07/08/2015), “Stop and search is a disgrace across the UK – not just in our cities”. Accessed 07/07/16 https://www.theguardian.com/commentisfree/2015/aug/07/stop-and-search-uk-rural-black-people-police

The Guardian (17/02/1999), “Facing the ugly facts”. <Accessed 07/07/2016 https://www.theguardian.com/society/1999/feb/17/guardiansocietysupplement4

Wikipedia, “2011 England riots”. Accessed 07/07/2016 https://en.wikipedia.org/wiki/2011_England_riots 

After the investigation: police records and disclosure

For many of our clients being suspected of a crime can have a damaging effect on their professional and personal life, even if they are not charged with an offence. There are a growing number of people who are employed in jobs which require an Enhanced DBS check to be completed. It can be quite distressing to learn that, despite having no convictions or police cautions, information about an investigation where you were a suspect might still be disclosed to prospective employers. Sometimes the disclosure might not concern you directly; for example it might concern your relationship or connection to another person who was suspected of a crime.

Below is an overview of 3 aspects of data retention and your rights.

1. Personal samples (Fingerprints and DNA samples /profiles)

The Protection of Freedoms Act 2012 provides the framework outlining when police are required to destroy personal samples taken from those who have been arrested. Until recently anyone who had been arrested was forced to provide such samples and they were retained for future use, even when investigations were discontinued for want of evidence.

The Act does not assist those aged 18 or over who are convicted of a recordable offence or if they accepted a caution at the police station for such an offence. For those aged under 18 at the time of their first conviction (or youth caution) the samples will be retained for 5 years (plus the length of any prison sentence if one was imposed).

For those not convicted the treatment of their samples depends on the level of seriousness of the alleged offence. The Act divides charges into ‘Minor’ and ‘Qualifying’ offences.

In cases involving only Minor offences, regardless of whether a person is charged or not, the samples will be destroyed.

Persons arrested for, but not charged with, Qualifying offences will have their samples destroyed unless the police apply to a Biometrics Commissioner to keep them. The arrested person would then have the right to make representations. If a person was charged with, but not convicted of, a Qualifying offence their samples will be retained automatically for 3 years. For both scenarios there is a further power to extend retention for 2 years by application to a District Judge and a person is entitled to make representations before a decision is made.

A useful summary of these powers can be found here.

2. Named on the Police National Computer

Irrespective of how your fingerprint or DNA profiles are treated if you were arrested your name will still appear on the Police National Computer which is an information database available to all police officers nationwide. While we are not able to explain how the information will be used, it is possible that it would affect how you are treated in the future. You can, however, apply to the police to have your record deleted. The National Police Chiefs’ Council has created a standardised process for this and have published some guidance on their criteria.

3. Local Information for Enhanced DBS checks

For certain work a prospective employer is entitled to apply to the Disclosure and Barring Service (previously the Criminal Records Bureau) for an Enhanced Check. This will be submitted to a local police force who will search their records for information which they consider is relevant to the application. This includes any information and is not restricted to allegations of misconduct by the person involved. Past examples have included the fact that a person lives with someone who has a criminal record. Before making the disclosure the police must provide the person with an opportunity to make representations and provide evidence where appropriate.

Information correct as of June 2016

Mark Troman
Powell Spencer & Partners

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