Addressing prison capacity pressure

Approximate read time: 10 minutes

Prisons in England and Wales are almost full. Official prison population figures for 23 August 2024 showed the prison population to be 88,234. Useable operational capacity for the system stood at 89,383.^[1] The Ministry of Justice’s latest prison population projections for England and Wales estimated the prison population would increase to between 94,600 and 114,800 by March 2028, with a central estimate of 105,800.^[2] Recently, the Prison Governors’ Association warned that a potential surge of inmates following recent rioting could “destabilise” England’s prisons.^[3]

1. What action has the Labour government taken to reduce pressure on prisons?

To free up prison places, the Labour government has changed the law which stipulates when prisoners serving determinate sentences can be automatically released from prison on licence into the community.^[4] A ‘determinate sentence’ is one that has a fixed end date. They include a period of time in prison and a period on licence in the community.^[5] Under the previous law, offenders serving determinate sentences were usually released from prison automatically at the half-way point (50%) of their sentence. The Labour government has changed the automatic release point to enable eligible prisoners to be released on licence after serving 40% of their sentence in prison.^[6] However, this change would not apply to all prisoners. Excluded are those serving sentences for certain sexual, violent, domestic abuse, terrorism and national security offences. The law change is due to come into force on 10 September 2024. It will be reviewed in 18 months.^[7]

To manage the early release of prisoners, Justice Secretary Shabana Mahmood said at least 1,000 new trainee probation officers would be recruited by the end of March 2025.^[8] In response to concerns about prison capacity following the recent riots, a readout of a Cabinet Office briefing room meeting on 6 August 2024 said that the justice secretary and the prison service were confident that there would be enough prison capacity for convicted rioters.^[9]

Additionally, on 19 August 2024, the government activated emergency measures in the north of England to help manage pressures in prisons exacerbated by recent riots.^[10] These measures mean offenders will only be summoned to court once it has been confirmed that a prison cell is ready for them, should they be remanded to custody. They will be held in the police station cells until they are summoned to court.

2. How has the criminal justice sector reacted to the government’s scheme?

Representatives from across the prison, policing and probation sectors have acknowledged the scale of the challenge. Whilst some have expressed support for the government’s modification to automatic release provisions, others have highlighted implications it could have on wider parts of the criminal justice system.

During an interview on ‘Double Jeopardy: The Law and Politics Podcast’, Mark Fairhurst, national chair of the Prison Officers’ Association, said he felt more optimistic following the government’s announcement.^[11] Describing the policy as “the right decision at the right time”, Mr Fairhurst said it would help to give the prison service “much needed breathing space”. However, Mr Fairhurst acknowledged the policy’s impact on the Probation Service which, despite being “understaffed, underfunded and overworked”, would be required to supervise the released prisoners on licence in the community.

From the policing sector, Commissioner of the Metropolitan Police Sir Mark Rowley acknowledged in an interview on ITV Good Morning Britain that the government was faced with a situation that had “no easy solution”.^[12] Sir Mark said the worst possible thing would be for the criminal justice system to “block”. He described the government’s scheme as the “the least worst option” to addressing the problem.

His Majesty’s Chief Inspector of Probation and former chief executive of the Parole Board Martin Jones said the challenge with the government’s plan would be the impact on the probation service.^[13] In an interview on the ‘Trapped: The IPP Prisoner Scandal’ podcast, Mr Jones said reports had shown 97% of probation areas had fallen short of the inspectorate’s expectations for the supervision and management of offenders in the community. He said the probation inspectorate and the government would need to scrutinise the impact of the early automatic release. This was to ensure the public were kept safe and prisoners were given a second chance when released into the community. When asked about the government’s commitment to recruit 1,000 new probation officers, Mr Jones said the extra resources would be positive.^[14] However, he also warned that it would take time for newly qualified probation officers to build their experience.

3. What is the long-term solution?

Whilst the early automatic release is expected to ease pressure on prisons in the short term, the government has also set out longer-term plans to stop prisons becoming full. Plans include accelerating the building of new prisons by reforming the planning system.^[15] However, even with new prisons being built, the Institute for Government (IfG) has projected there could be a shortfall of 8,000 prison places by 2028.^[16]

A Howard League for Penal Reform briefing has set out several options for both short- and long-term reform.^[17] It said immediate measures could include changes to sentencing practice. This would ensure prison is reserved for those who pose the most risk of harm.^[18] Over the longer term, it said changes to the wider criminal justice system could help, such as making greater use of non-custodial sentences.^[19] The campaign charity has also called for probation reform. In a blog post, Director of Campaigns Andrew Neilson called for 800 probation officers currently working in prisons to be redeployed into the community.^[20] Mr Neilson argued that efforts to prepare prisoners for release from prison could be done “just as effectively, if not more so, beyond the prison gates”. Chief Executive of the Prison Reform Trust Pia Sinha has also called for greater support for the probation service.^[21] Ms Sinha warned that the probation service would need sufficient resources to cope with supervising the increased number of people on licence in the community and “prevent the prison crisis becoming a probation crisis”.

However, a recent IfG insight paper, ‘The crisis in prisons’ (3 July 2024), has argued that certain options should be avoided as part of a short-term response to the prison capacity issue. This was either because they would not have a big enough impact or because they would pose significant risks.^[22] This included measures that would rely on changing the judiciary’s behaviour, such as encouraging community sentences or reducing the use of remand. The IfG said whilst these were likely to be needed in the medium to long term, they would be hard to implement quickly. On solutions, it said one of the most effective options that could have a meaningful impact on prisoner numbers in the short term included lowering the automatic release point for most offenders to 40–45% of their sentence. Over the longer term, the think tank said introducing a presumption to suspend sentences of up to 12 months was one possible option. It said whilst this would only reduce the prison population “by a few hundred”, there was evidence to suggest that it could cut reoffending.

KC barrister and former director of public prosecutions Lord Macdonald of River Glaven (Crossbench) has argued that a “whole system change” is needed.^[23] Lord Macdonald described the prison capacity problem as a “complex, interconnected issue” that required more investment in rehabilitation, probation and the judiciary. Referring to an “addiction to prison”, barrister and deputy high court judge in the administrative court Tim Owen KC said attitudes within both civil and judicial cultures in England and Wales would also need to change.^[24] Mr Owen said Prime Minister Keir Starmer had a “huge challenge” ahead in persuading the public that prison sentences were “more often than not an expensive waste of time”.

4. Read more

• Francis Pakes, ‘British jails are at a breaking point: Here’s how the Dutch halved their prison population’, The Conversation, 9 July 2024
• Miranda Boone et al, ‘Explaining the collapse of the prison population in the Netherlands: Test the theories’, European Journal of Criminology, 2022, vol 19, issue 4, pp 488–505

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