The Causes and Consequences of Prison Overcrowding in England and Wales

Background

As of May 2024, the prison population in England and Wales stood at 87,505. With official usable capacity of the prison estate standing at 88,895 there are 1,390 remaining usable prison cells.

England and Wales have the highest rate of imprisonment in Western Europe. There has been an 80% rise in the prison population in the last 30 years. In 2022, 43,000 people were sent to prison to serve a sentence, 61% for non-violent offences.

The president of the Prison Governors Association, Andrea Albutt has called for an urgent early release scheme. Due to prison overcrowding prisons are failing in their duty to rehabilitate prisoners and house them with dignity. There has been corresponding a deterioration in the provision of education services and increased delays in access to mental health services. Rates of self-harm, violence against prisoners and assaults against staff have increased in line with increased overcrowding and a deterioration in the conditions of our prisons. Many prisoners remain locked up for 22 hours a day, a provision that was meant to be a temporary response to the coronavirus pandemic.

What are the causes of prison overcrowding?

Remand

Prisoners on remand are prisoners awaiting trial or awaiting conviction following sentence. There has been an 84% rise in the number of people on remand in prison in the last five years. Two thirds of prisoners on remand are yet to be convicted of any crime.

The massive rise in the number of prisoners on remand has been driven by the growing backlog of cases in the crown court. At the end of 2023, 67,573 cases were waiting to be heard in the crown court.

The National Audit Office published a report on reducing the backlog of cases in the crown court in May 2024. The report identified: a shortage of criminal law practitioners, trials frequently being postponed at the last minute, the effects of the Covid pandemic and the industrial strike action taken by the Criminal Bar Association as contributory factors to the backlog of cases in the crown court.

Without significant government investment in the criminal justice system the factors contributing to the backlog of cases in the crown court will remain. Many courts are in a state of disrepair and understaffed, resulting in the short notice cancelling of trials. As an example, Harrow Crown Court in London has been closed since August 2023 and is expected to remain closed until at earliest April 2025. The Criminal Bar strike resulted in a 15% increase in legal aid fees rather than the 25% demanded by the Criminal Bar Association. Legal Aid fees for criminal defence solicitors have also resulted in a real-terms pay cut for practitioners. As a result more legal aid defence practitioners have left the profession a trend which will continue without a serious government review of legal aid fees.

IPP sentences

IPP sentences were abolished in 2012. However, as of April 2023 there were 2892 prisoners serving an IPP sentence, of those 52% were on recall. The remaining 48% had never been released from prison.

The Justice Committee published a report in September 2022 that called IPP sentences ‘irredeemably flawed’ and proposed the immediate re-sentencing of all IPP prisoners. In 2024, The UN’s special rapporteur on torture said there was “no justification” for the continued indefinite detention of those still serving sentences under the “discredited” and “abandoned” IPP regime. In January 2024, the previous government proposed changes under the Victims and Prisoners Bill to reduce the qualifying period for an IPP licence termination.

What have the ministry of justice been doing?

The previous government triggered ‘Operation Safeguard’ in May of this year. This plan involves temporarily housing serving and remand prisoners in police cells.

On 15 May 2024, The Ministry of Justice triggered emergency measures to address prison overcrowding through ‘Operation Early Dawn’. This was a triage a triage process where some defendants would be released on police bail and other defendants would be remanded in custody to attend the Magistrates Court. The decision on who would be remanded to the Magistrates Court under Operation Early Dawn is to be made by workers at SERCO, a private company that provides prison services in England and Wales as well as waste and leisure services.

The previous government introduced ‘The Sentencing Bill 2023’, this new legislation contained some provisions that may reduce prison overcrowding including:

• A duty to impose a suspended sentence order of 12 months or less unless there are exceptional circumstances.
• An extension of the home detention curfew scheme.

However, the bill also includes measures to ensure longer sentences for defendants convicted of violent offences and the expansion of the use of whole life orders.

The Sentencing Bill 2023 has not been formally passed and it remains to be seen whether it will become law under the new government.

How does this affect a defendant facing sentence in England and Wales?

Following the Court of Appeal judgement in R v Ali [2023], sentencing judges are now able to cite the additional factor of the very high prison population in deciding whether or not to suspend a prison sentence. In his judgement in Ali Edis LJ relied on the decision in R v Manning [2020] that prison conditions represented a factor which could properly be taken into account when deciding upon the length of sentence and whether or not it could be suspended.

Defendants awaiting trial while on remand are more likely to receive a suspended sentence as the increased time spent on remand while awaiting trial or sentence will be taken into account by the sentencing judge. As an example a defendant who has spent one year on remand may receive a suspended sentence if given a custodial sentence of three years.

In the next few days the phrase SDS40 will come to public attention. It refers to Standard Determinate Sentences. This is the term used in the Government for the early release of non-violent prisoners after 40 % of their sentence, not 50%. This could be politically damaging to a new Government, even though they did not create this mess. If this process of early release begins, it could allow 18 months of breathing room for the Ministry of Justice, and then the problems will really begin.

Alex Chalk, the last Justice Secretary said on the Today programme that it costs £49,000 per year to keep someone in prison. He went on to say the cost to build one prison cell is around £600,000, yes that is for one prison cell. How this is to be paid for is sadly not something we know.

This is a crisis that was long in the making, it may prove to be even longer in the solving.

Hodge Jones and Allen are leading experts in criminal defence, we represent clients accused of offences from shoplifting to murder who face imprisonment. If you or a loved one have any questions or need advice in this area, please contact us on 0330 822 3451 or request a callback.