Growing numbers of criminals in England and Wales are being spared jail sentences because of prison overcrowding amid warnings that the problem will get worse.
Judges and magistrates are giving people suspended sentences instead of immediate jail terms on the back of guidance that they should take into account the high prison population.
Examples of criminals given suspended sentences because of prison conditions include an inmate who poured boiling water over a prison guard and had his six-month custodial sentence quashed; a drug dealer who was told by a judge it was due to “the current state of prisons and the overcrowding”; and a drug driver without a licence who led police on a high-speed chase.
Mark Beattie, the national chair of the Magistrates’ Association, said: “The high prison population is now a factor to be considered when the court is deciding between an immediate custodial sentence or a suspended sentence.
“Decisions on prison population policy are for others to make. Magistrates will continue to apply the law. However, it is important that whatever decisions are taken about prisons, the government ensures that there is adequate provision.”
The prisons crisis has also seen magistrates’ sentencing powers scaled back less than a year after they were doubled from a maximum of six months to 12.
Guidance on the relevance of prison overcrowding came in a court of appeal case in March concerning an inmate who threw water over a prison guard, in which Lord Justice Edis said the crisis should be taken into account for shorter sentences.
Explaining his reasoning, Edis referenced the then justice secretary Dominic Raab’s request for the emergency use of 400 police cells for inmates – the first such request in 14 years – and a letter sent by Raab to the lord chief justice in February.
Raab’s letter, cited by Edis in his judgment, said: “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).”
Edis said: “Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that.” The judgment was flagged by the Sentencing Council and has been referenced by judges and magistrates in sentencing remarks.
While the edict applied to shorter sentences, longer jail terms for more serious offences and the recruitment of 20,000 extra police officers are projected by the Ministry of Justice (MoJ) to increase the prison population to 94,400 by March 2025 and up to 106,300 by March 2027, meaning the squeeze will get worse despite prison-building plans.
Figures published on Friday showed the prison population was 87,685, within a whisker of the “usable operational capacity” of 88,314 and up 7% in a year. The situation is exacerbated by a record backlog in the courts leading to a 50-year high in the number of people on remand.
Andrea Coomber KC, chief executive of the Howard League for Penal Reform, said: “I do think that judges need to be thinking more about where they’re sentencing when they sentencing somebody, where they’re sending them to, and what conditions they’re going to be in and whether that actually meets the various goals of sentencing, which do include rehabilitation, at a time when you have such an overcrowded system.
“It would be fantastic if the incoming lady chief justice [Sue Carr] would prioritise that as something in her inbox.”
Coomber said the real culprit when it came to prison overcrowding was sentencing inflation as, despite the independence of the judiciary, they have limited discretion when it comes to sentencing.
“Government needs to take greater responsibility for the fact that that sentences are getting longer and that they’re the ones doing that,” she said. “We’ve got many more people in that kind of bracket of four to 10 years than we used to have.”
Nigel Lithman KC, a retired crown court judge and author of Nothing Like the Truth, said it was not for the judiciary to solve the problem.
“It’s not [the judge’s] job to deal with what happens in prison. It’s another one of those issues – whether with the NHS or junior doctors, or the criminal lawyers that were on strike so recently – that has to be looked at in the round and really worked out what the right answer is.”
He said the Edis judgment would be cited by defence barristers trying to keep their clients out of prison and while judges might be moved to agree when “teetering on the borderline between sending somebody into prison or not” it was just one of many factors they would consider.
It came as the government launched its first national TV and radio campaign to hire prison and probation officers amid a recruitment and retention crisis. The MoJ said the adverts marked a “bold new approach” which would not “sugar coat” challenging jobs.
Prison officers had complained that previous recruitment drives suggested staff can “change lives”, which the MoJ admitted had “been jarring to some existing staff who find it to be inauthentic and the idea of making a difference in small, everyday ways was highlighted as more of a motivating factor”.
A Ministry of Justice spokesperson said: “We are pressing ahead with the biggest expansion of prison places in over a century – investing £4bn to deliver 20,000 extra places.
“We have already delivered 5,500 of these places and have also taken decisive action to bring on a further 2,400 places in the immediate term.
“Sentencing is a matter for the independent judiciary and judges as a matter of law are able to take a range of factors into account when handing down sentences.”
