News & Insights
The Senior Presiding Judge, Edis LJ, has sent a letter to all members of the judiciary stating that from the week commencing 16th 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 20th 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  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?
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.
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