By David Philpott
That the prison system in this country is in crisis is beyond dispute. The numbers of people held in prison continue to rise to levels that are unsustainable and the projections for the years to come make it clear that this trend will continue.
Such is the extent of the crisis the government have been forced to approve both the building of more cells and the use of police stations to hold prisoners. The courts have also had to recognise that prisons are operating so far beyond their capacities that when sentencing a defendant overcrowding in jails is a factor that can be taken into account. All the while individuals are held in institutions that hold far too many people and where reports of very poor conditions are commonplace. Perhaps the time has come when we have to consider whether there should be far greater use of alternatives to imprisonment.
Population and conditions
The Howard Leagues prison tracker shows that there are nearly 85,00 people in prison in England and Wales that is approximately 4000 more than 12 months ago. More prisoners inevitably means that more prisons are overcrowded with several operating at approximately 170% of their capacity as well as many others at more than 100% of their capacity.
Figures from the House of Commons library show that the number of people in prison equates to approximately 159 people per 100,000 of the population. Long term analysis indicates that the number of prisoners has quadrupled between 1900 and 2018 with more than half of that increase taking place in just over the last thirty years. Forecasts for the next few years suggest that the prison population may soon top 100,000.
As a country we continue to imprison more people per hundred thousand of the population than most of our European neighbours. The most recent information available reveals that the figures for England and Wales exceed those of France, Germany, Spain and Italy as well as the Scandinavian countries and many other places in Europe.
People are in prison either because they have sentenced to a custodial sentence or because they have been remanded in custody by the courts waiting for their case to be concluded.
The Bail Act 1976 sets out the circumstances in which a person can be remanded into custody either to the date of their trial or until they have been sentenced. In many cases the presumption is that a person should be granted bail until their trial. Bail can be made subject to conditions which might include living at a specified address, non-contact with prosecution witnesses, a curfew and exclusions from specified areas (both of which can be electronically monitored) as well as other conditions that the court consider necessary in the circumstances. There are a number of reasons why the court might refuse bail and these, on occasions, include concerns that someone might commit further offences, fail to attend court and interfere with prosecution witnesses. For those people who are remanded in to custody awaiting the conclusion of their case there are custody time limits which mean that they can only be held in prison for specified periods unless the courts consider that there are good reasons for the detention to be extended.
The numbers of people on remand in prisons has been increasing to the extent that it is now higher than it has been at any time in the last half century. In March 2020 there were just over 10,000 remand prisoners by September 2022 that figure had risen to more than 14,000. The impact of the pandemic and the backlog in cases waiting to be finalised will have contributed to this increase but it is nevertheless a staggering rise. Such are the concerns about these numbers the House of Commons Justice Committee published a report in January 2023 addressing ‘The role of adult custodial remand in the criminal justice system’.
In their conclusions and recommendations the MPs state;
We are concerned by the increasing size of the remand population, and in particular by evidence of the increasing length of time people are spending in custody on remand. Efforts need to be focused on reducing this population and bringing forward the hearing dates of trials. A significant proportion of defendants held on remand will be found not guilty, and so it is vital that they are not deprived of their liberty for long periods of time. For those found guilty and given a custodial sentence, they should be progressing on to sentence planning to prepare them for release, rather than waiting long periods of time for their sentence to be passed. The need for efforts to reduce the population are particularly pressing now, given the current capacity crisis in the prison system, and the recent activation of Operation Safeguard [see below] to allow the temporary use of up to 400 police cells to hold prisoners, with the growing remand population given as a reason for increased demand on prison spaces.
The Magistrates Court and the Crown Court both have a full range of sentencing powers that mean that in addition to imprisonment people can be sentenced to community orders (that might involve supervision by the probation service, unpaid work and electronic monitoring) and also financial and other penalties. The Sentencing Council have made it clear that in addition to punishment factors that should be considered at sentence include rehabilitation, reducing crime, protection of the public and restorative justice.
As far as prison sentences are concerned the Council says;
Imprisonment is the most severe sentence available to the courts. Custodial sentences are reserved for the most serious offences and are imposed when the offence committed is “so serious that neither a fine alone nor a community sentence can be justified for the offence” (section 230(2) of the Sentencing Code).
The vast majority of the prison population is made up of people who are serving sentences of imprisonment. Of those people more than 55% are serving sentences of four or more years. It is in the older age groups that numbers are increasing most rapidly with the numbers of prisoners aged over 50 nearly doubling between 2011 and 2022.
In an attempt to address some of the immediate problems the government have recently authorised the use of cells in police stations to house prisoners across the country the under the terms of a longstanding arrangement called Operation Safeguard. That it was last deemed necessary to use these arrangements in 2008 is an indication of the extent of the current crisis.
The courts have had to recognise that numbers of people in prison are excessive. In February 2023 the Deputy Prime Minister wrote to the Lord Chief Justice stating that;
You will appreciate that operating very close to prison capacity will have consequences for the conditions in which prisoners are held. More of them will be in crowded conditions while in custody, have reduced access to rehabilitative programmes, as well as being further away from home (affecting the ability for family visits). Prisoners held in police cells under Operation Safeguard will not have access to the full range of services normally offered in custody, including rehabilitative programmes.
At the beginning of March 2023 the Court of Appeal referred to that letter in the case of R v Ali. The court went on to find that in certain cases the size of the prison population and the impact that a prison sentence might have on an individual in such circumstances could be factors taken in to account when determining whether someone should be made subject to an immediate sentence of imprisonment.
That approach was also confirmed by the Sentencing Council.
Ministry of Justice figures show that the prison population will continue to rise. The most recent projections suggest that by March 2027 the figure will be between 93,100 and 106,300 people with the increase being attributed to factors including more police officers, greater numbers of people being charged with offences and sentencing policies.
There can be little doubt that many of the problems that the criminal justice system face result from the number of cases waiting to be resolved. The most recent figures show that the backlog in Magistrates Courts across England and Wales amounts to more than 340,000 whilst in the Crown Court that figure is over 60,000. The reasons for those backlogs are many and various but what is clear is that this problem, together with others, needs to be tackled.
The government seem to be content that the way forward is to create more prison places. At the beginning of March 2023 they announced plans for the creation of rapid deployment cells, the renovation of existing prisons and an ambitious programme for the building of new prisons.
The government is delivering the biggest expansion of prison places in over a century, creating 20,000 additional places to achieve the vision set out in the Prison Strategy White Paper of a resilient system which can meet the capacity demands of the 21st century. This includes building 6 new jails backed by over £4 billion.
However, whilst there might be an immediate need for more prison places, maybe what is also needed is an informed public debate about the role of imprisonment and whether we really have to see so many people jailed. Lots of countries have rates of imprisonment that are much lower than in this country. The courts already have a full range of both sentencing powers and bail conditions that mean that people do not have to be sent to prison. Who knows we might conclude that what is really needed is a properly resourced criminal justice system with prison as the very last resort.
Olliers Solicitors – Specialist Criminal Defence Lawyers
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