Nothing to see here, just no more prison places…

The Senior Presiding Judge, Edis LJ, has sent a letter to all members of the judiciary stating that from the week commencing 16^th October 2023, the sentencing of offenders who are on bail where custody is likely to be imposed, should be adjourned. The prison estate is full.

Those working in the criminal justice system, including the judiciary, lawyers, prison service, and probation, have noted the increase in prison populations over a number of years, long before Covid and the Action by the Criminal Bar.

On 20^th March this year, guidance issued by the Sentencing Council entitled ‘the application of sentencing principles during a period when the prison population is very high’ noted that due to the high prison populations, the courts should consider suspended sentences instead of short custodial sentences until the emergency state has been lifted, affirming the leading Court of Appeal case of R v Arie Ali [2023] EWCA Crim 232. In September this year, the government asked to use 400 police cells temporarily to house prisoners due to the surge in defendants on remand, and those sentenced to immediate custodial sentences.

The systematic underfunding of the justice system is the primary cause of this unprecedented situation – limited sitting days and refusal to invest meaningfully in the Prison Estate being the obvious examples – but it is not the only cause. Sentences have been increasing gradually over the last two decades, the average custodial sentence for either-way and indictable offences increasing by 86% from 15.5 months in 2002, rising to 24.6 months by 2022 according to research by the Sentencing Academy.    

The situation has been compounded by the Government’s failure to tackle the residual effects of Imprisonment for Public Protection (IPP) sentences, abolished in 2012, rejecting the recommendations made by the House of Commons Justice Committee. Likewise, additional pressure has been placed on prisons through the reforms to the Criminal Justice Act 2003, which require a significant proportion of prisoners to serve two thirds rather than half of their sentence (more on this here).

The infrastructure of prisons in England and Wales has also significantly contributed to the overpopulation of prisons. The majority of the busiest prisons were built in the Victorian era; at the time they were intended to house a single prisoner per cell. Today, prisons house two or three prisoners, or even more, in each cell whilst the conditions deteriorate. The failure to improve existing, and build new, prison places whilst seeing a substantial increase in the imposition of custodial sentences does not aid the overpopulation issue.

The issue of overcrowded prisons has become a pressing concern almost unheard of in modern society. As prison populations continue to swell, the consequences of having prisons at or beyond capacity are far-reaching and affect not only those in custody but also society as a whole.

What does this mean for the criminal justice system?

1. Deterioration of Prison Conditions – overcrowding can lead to heightened tension and violence within prisons. When facilities are packed beyond capacity, it becomes challenging for staff to maintain order and safety. Those detained may be more likely to experience violence and abuse.  This can be seen in the increase in the number of deaths in prisons in the twelve months up to June 2023, which has increased by 9% on the previous year; the number of suicides by 26% and statistics show that the suicide rate in female prisons which has always been high is now at 52%.
   
   
2. Rehabilitation – Inevitably, efforts to prioritise safety have led to opportunities for rehabilitation being curtailed, as staff.
   
   
3. Delays in Justice – with no prison places left, defendants on bail and victims are those most affected by the delays in sentencing. Without defendants being sentenced, some victims will not have the closure they need. Likewise, defendants will also find themselves in a position where they can’t move on and make progress as they have a custodial sentence likely to be imposed upon them leaving them in limbo.

Conclusion 

It is evident that Government intervention is needed in order to address the issue.

Prison overpopulation has been ignored for far too long and detracts from the objectives of the criminal justice system; it requires urgent attention and reform.

By Zayd Ahmed and Grace Khaile