‘Inevitable’ prison spaces will run out as judges ‘delay sentencings’ to avoid overwhelming system

Prison governors say it is now “inevitable” that jails will run out of space, as judges were reportedly ordered to delay sentencing criminals to avoid overwhelming the system.

Justice secretary Alex Chalk was scrambling on Thursday to find ways to alleviate the crisis, as he met with criminal justice representatives to “ensure that we can continue to strengthen public protection by locking up the most dangerous criminals”.

But the Prison Governors Association (PGA) told The Independent it believed “without a shadow of a doubt” that prison spaces are going to run out, with so little slack in the system that the tipping point could be “one minor event somewhere and that space – it’s gone overnight”.

It said it “would be reckless of any government to get to a position where they have run out of space and are no longer able to accept serious offenders into prison custody”.

“However unpalatable the thought of an early release scheme may be, it would probably be inevitable that, at some stage in the future, government would have to introduce” such a programme for certain offenders, said Carl Davies of the PGA, himself a former acting governor.

It comes after The Times reported that Lord Justice Edis, the most senior presiding judge in England and Wales, has ordered the sentencing of convicted criminals currently on bail to be delayed from Monday – with ministers also reported to have drawn up plans for some prisoners to be released early.

Former victims’ commissioner Dame Vera Baird told The Independent that moves to delay sentencing “won’t be short term”, adding: “This same government said at the start of the pandemic that they would release bottom-level prisoners but were incapable of it. About 10 were ultimately released a few days early.

“And low-risk criminals suitable for release won’t be vacating high-security cells needed to hold the dangerous,” said Dame Vera, adding: “Bail is no control over someone who knows whatever they do, they can’t be locked up.”

While the Times report has seen Labour produce a new attack advert warning that, “under the Tories, rapists and burglars will be spared jail”, a leading barrister told The Independent that most people found guilty of rape will still be remanded in custody while awaiting sentencing.

“Criminal practitioners are given guidance as to what judges will and won’t take into account when setting sentences,’ said Mary Prior KC, vice chair of the Criminal Bar Association. “But none of us expects people who have been convicted of rape or very serious violent offences to be walking around just because the prison estate is near full capacity. That is not what is going to happen.

“What’s going to happen is that people will wait a little longer to be sentenced if they’ve been on bail for a very long time, and when a court is making a decision on whether custody is absolutely essential or not, they are entitled to take account of all manner of things, and [Lord Edis’s reported comments] will be one thing – but it won’t be decisive or conclusive.”

Claims that the most serious suspects remanded in custody will be housed in magistrates’ cells instead of prisons have also raised fears of further delays in courts already dealing with record backlogs.

“Our concern is that any use of magistrates’ courts cells in this way could have a knock-on effect on magistrates’ business,” Mark Beattie, chair of the Magistrates’ Association, told The Independent.

“It could create a higher backlog of cases in magistrates’ courts, meaning longer delays in justice for victims, witnesses and defendants. The government needs to devise a longer-term solution that delivers adequate prison capacity for those being sentenced.”

The number of free spaces across the entire prison estate has this week fallen to 651, down from 768 a week earlier, over which period the male prison population has increased by 211 to hit 84,412. The Telegraph reports that there are fewer than 150 places left in men’s prisons.

PGA president Andrea Albutt told The Independent less than a fortnight ago: “We are reaching the critical point. The point of no return. In the adult male estate, there are only a few hundred spaces left, and that will be consumed in the next couple of weeks.”

Overcrowding in prisons has led to prisoners being kept in harrowing conditions, with some doubled up in cells and others only able to leave their cell for one hour a day, forced to choose between exercising, showering or calling loved ones, with little access to rehabilitation programmes.

Warning that “it’s not if, it’s when” that prisons will run out of space, Mr Davies said: “Speaking candidly, it’s a game of brinksmanship – who’s going to blink first.

“It will be a very unpopular, unpalatable decision for any government to say we’ve got to let prisoners out early to maintain space in the system. So if you can avoid having to make that decision right up to the 11th hour, then that’s what you’re going to do.”

Warning of the dangers of operating even within the traditional buffer of 1,400 prison spaces, he added: “It doesn’t make for a hospitable system when you’re forever running hot, and that’s what we’re doing.

“All the time we’ve been in that buffer, operating in an environment we shouldn’t be operating in, we’re seeing more and more prisoners being transferred, being transferred late at night, the impact of having to use safeguard cells. This is all stuff which shouldn’t happen save in an absolute emergency.”

A Ministry of Justice spokesperson said: “We are categorical that the most serious offenders should be sent to prison and that anyone deemed a risk to public safety is remanded in custody while awaiting trial. Reports to the contrary are false.

“This government has done more than ever before to protect the public and keep sex offenders locked up for longer, ending automatic halfway release for rapists and serious violent offenders and sending rapists to prison for three years longer than in 2010.

“Following the pandemic and barristers’ strike, the criminal justice system has seen a significant spike in the prison population, with 6,000 more prisoners on remand than before the pandemic. While we are carrying out the biggest prison-building programme since the Victorian era, and have taken decisive action to expand capacity further by doubling up cells in the short term, the prison estate remains under pressure.

“The lord chancellor will be meeting criminal justice partners later today and setting out a programme of reform in the coming days to ensure that we can continue to strengthen public protection by locking up the most dangerous criminals.”