The news that the MOJ is today (15th May) implementing “Operation Early Dawn” to decide which newly charged (and bail refused) Defendants should be kept in custody for court, and potentially remanded into the prison system, and which should be re assessed for release is good reason to reflect on the reasons for prison overcrowding and the most effective way of dealing with it. Any discussion about the increasing prison population within England and Wales is usually followed by a proposal that short sentences, that is of one year or less, should be restricted or even abolished.
The implication seems to be that if we stopped locking up offenders for one year or less then this would solve the crisis. It is also pointed out that short sentences do little to aid the rehabilitation of offenders, undoubtedly true. Prison over population and the recidivism of short term offenders are important issues, but should not be conflated.
Prison Overcrowding in the UK
The Times on 23/4/24 published a graph of the prison population. As at April 2024 the number in England and Wales stood at about 88,000. In very approximate terms, about 16,000 prisoners are on remand awaiting trial. About 18,000 are serving sentences of 1 – 4 years, about 10,000 indeterminate sentences, and about 12,000 are on licence recall. An apparent paradox is that although over half the number of people sent to prison each year are given sentences of less than a year, at any one time less than 4,000 are serving such a sentence. The biggest single category of prisoner in the system is made up of those serving a sentence of over 4 years (but not indeterminate), about 28,000 prisoners.This suggests that if short term sentence of imprisonment were significantly reduced in number then it would have only a modest impact upon the overall prison population.
Alternatively, the Government could look at those longer sentences of over four years. If an offender is sentenced to, say, 6 rather than 8 or 12 rather than 15 years, might this equally meet the prison objectives of punishment, rehabilitation and deterrence? If so then what is the point of the longer sentence? A statistician would need to work the figures through but common sense suggests that such an approach would have a significant impact upon the prison population. Politically, of course, this could lead to accusations of being “soft on crime” but the bigger picture is a reduction in the prison population that frees resources to concentrate on education and rehabilitation within the prison estate.
Restricting the use of short term sentences also has political risks. In my experience both magistrates and judges only impose (immediate) short term sentences when they feel that they have no alternative, perhaps because of a recidivist offender or an offender who has persistently refused to comply with the requirements of a community order. These can be the regular, nuisance offenders that can be responsible for a great deal of anti social behaviour in a community. If they are not yet open to rehabilitation then does any politician want to be faced with complaints from constituents of offenders consistently being given a slap on the wrist and released back into the community that they are terrorising? The backlash against the failure to prosecute shoplifters should be borne in mind here.
A proposal to reduce these longer sentences would need a revision to sentencing guidelines. There is a feeling that sentencing guidelines have led to a general increase in “tariff” sentences with Judges feeling less able to deviate from guidelines than they did from case law. This is compounded by the re introduction of prisoners serving 2/3 rather than 1/2 of a sentence for many of these longer sentences. Restricting the imposition of short term sentences would very quickly slow the input into the prison population, and so can be politically attractive, but the limit of this measure would be quickly reached. Reducing longer sentences is less politically palatable but in the long term a more effective measure.
Andrew Bishop, Bishop and Light Solicitors and CLSA Committee Member (all views are my own)
