Decision time

At long last, it looks like the justice secretary Alex Chalk will finally bow to the inevitable and announce emergency measures in parliament next week to handle the unfolding capacity crisis, which has now bought the prison system dangerously close to breaking point.

He is rumoured to be considering introducing a presumption against short sentences of six months and possibly 12 months. This is similar to an existing provision in Scotland, with its separate legal system to England and Wales. He is also expected to announce plans for the early release of prisoners who have been assessed as low risk, two weeks earlier than their automatic release date. This sounds suspiciously like the early release scheme introduced by the Labour government in 2007 in response to a similar crisis, and which ministers were said to be implacably opposed to introducing just a matter of weeks ago.

In truth, the government has little choice but to act in the face of dangerous and growing levels of overcrowding. The weekly prison population figures published today show a further rise of 209 in one week, bringing the population to 88,225. The entire prison system in England and Wales now has only 557 places left to spare.

Not doing so would place prison leaders in the invidious position of overseeing a system unable to ensure the safety of the people in its care. It would also mean prisons turning away those sentenced and remanded to custody by the courts because there simply weren’t spaces to house them. The impression given, one year before a likely general election, would have been of a justice system in meltdown.

Certainly, Alex Chalk deserves some credit—if not a little sympathy—as the justice secretary prepared to push through necessary but unpopular measures to deal with the mess he has inherited from his predecessors. Along with a surge in police numbers leading to an increase in arrests and convictions, there can be no doubt that one of the causes of the current crisis is a failure to properly plan for the impact of punitive policy changes on demand for prison capacity.

The task ahead is a formidable one. The Ministry of Justice has predicted that the prison population in England and Wales will rise to 94,400 by March 2025. In the longer term, they predict that it could reach as high as 106,300 by March 2027.

Since 2020, the government’s prison population projections have warned of a significant rise in the prison population. The government had planned to build an additional 20,000 prison places by the mid-2020s to meet this increased demand. However, it was reported at the end of September that these plans won’t be completed until 2030. In June, the government admitted that, even if all of the government’s planned capacity projects were delivered on time, there would still be a shortfall of 2,300 prison places by March 2025.

Nearly 10,700 prison places have been closed since 2010—many of them old and/or dilapidated. At the same time, nearly 11,000 places have been created, a net increase of just 300 prison places.

The government’s strategy of attempting to build its way out of this crisis has finally run out of road. But will measures Alex Chalk is rumoured to announce next week be sufficient to get the government out of the hole it has dug for itself?

Introducing a presumption against short sentences and increasing the uptake of non-custodial alternatives would be a good thing in and of itself, regardless of its impact on demand. It has long been recognised that short sentences do more harm than good and that community orders are more effective at reducing reoffending. The Ministry of Justice’s own evidence shows that reconviction rates are lower for people on community orders than short sentences, and the positive impact is even more marked for people with mental ill-health.

The use of community sentences has dropped by almost half (48%) for women, and 50% for men in the last decade. Any provision that led to a reduction in the number of short sentences passed and an increase in the uptake of community alternatives, not only has potential to reduce overall demand on the system but would also lead to better outcomes.

As a measure to reduce demand on the prison system, a presumption against short sentences does have limitations. In any given year, a significant number of people are received into prison on a short sentence. In 2022 half of all sentenced receptions into prison were for less than 12 months, some 21,500 people. However, because of the short period of time many will be held in custody – some for a matter of weeks – they do not represent a significant proportion of the population. On 30 June 2023, there were 3,645 people in prison serving a sentence of less than 12 months out of a population of 85,851, representing 4% of the total number in prison.

Of course, in a situation where every bit of extra headroom counts, reducing the numbers in prison on short sentences by a couple of thousand could make the difference between the prison system hitting the buffers or just squeezing under the line. And there are parts of the prison estate where a presumption would have a greater impact.

In the female estate, just under 10% of the total population are serving a prison sentence of under 12 months. In Cat B local prisons, which have the highest levels of overcrowding on the estate and where the majority of people on short sentences are sent, a presumption may also have a significant benefit.

Another problem with the idea of a presumption as a measure to handle the immediate capacity crisis is that it would require legislation to enact. The same is also true of Alex Chalk’s much criticised proposal made at Conservative party conference to rent foreign prison places as a way of increasing capacity.

The passage of any bill is likely to take several months. However, the current capacity crisis cannot wait for lengthy parliamentary deliberations. The justice system requires urgent solutions for today not tomorrow. This is why it will be vital next week for the justice secretary’s announcement to include practical measures to reduce demand now on a critically overburdened system.

These should include provisions to restrict the number of people coming into prison. According to reports, judges have been instructed to delay sentencing for people who have been convicted and are on bail. A Court of Appeal judgement in March 2023 has already made clear that judges can take into account the current overcrowding crisis when they are considering whether or not a sentence should be suspended.

The government could also look at increasing the use of pre-sentence reports, which are associated with a higher uptake of community orders. It could also speed up the roll out of the community sentence treatment requirement, which enables people to access treatment for mental health conditions, and drug and alcohol addictions as part of a court disposal. In addition, it could beef up access to liaison and diversion services in police stations and courts, as well as extend the pilots of problem-solving courts.

Measures could be introduced to stem the flow of people entering prison on recall following a breach of their licence conditions. Particular attention should be given to the high numbers of people serving prison sentences of less than 12 months who are recalled back to prison. Legislation introduced under the former justice secretary Chris Grayling mandated a minimum of two years statutory supervision for any sentenced to less than 12 months. As a consequence, recall rates amongst the short sentence population rocketed. It is surely time to revisit this unnecessary and disproportionate provision.

Ministers should also ensure that spaces are created within the resettlement and open prison estate. These establishments are vital components of our prison system, providing the conditions which enable people to progress through their prison sentence and prepare them for life on the outside.

The most sensible way of reducing demand on these prisons in the short term is through an early release scheme. The scheme introduced in 2007, when we last ran out of prison places, lasted until 2010 and resulted a reduction of around 1,000 in the daily prison population. Ministers will need to avoid a repeat of the scheme introduced during the Covid-19 pandemic which resulted in just a few hundred prisoners being released.

Finally, ministers could also look to extending the eligibility for home detention curfew, which sees people released from prison under an electronically monitored curfew. Under the current scheme, prisoners serving a prison sentence of four years or less may be assessed as eligible to spend their last 180 days under curfew at a verified suitable address, rather than in prison.

Extending this to people serving longer prison sentences would require a change in the law. However, there are other exclusions in the existing policy which could be reviewed without the need for parliament to be involved. In 2021 we published a report which found that many of the current exclusions are disproportionate and unfairly restrict large groups of prisoners who could benefit from the scheme.

In the long term, a thorough and in-depth review will be needed of the use imprisonment. This should include a reckoning with the political arms race over law and order which has contributed to significantly longer prison sentences and an explosion in our prison population, which has risen by 80% in the last 30 years. Right now, however, the focus must be on reducing dangerous levels of overcrowding and ensuring the safety of those who live and work in our prisons. Alex Chalk has already shown bravery in his willingness to take on thorny but important issues of reform. We trust he will make the right decision next week and put the lives of prisoners and those who work with them over the barracking of his backbenchers.