On 16 October 2023, the Justice Secretary announced measures to try to ease the pressure on prison capacity in England and Wales, noting that the prison population is now greater than it has ever been.

This Insight summarises the Government’s announcements.

Current prison population and capacity

A record 88,225 people are currently in prison in England and Wales leading to increased prison overcrowding. The Ministry of Justice has projected a longer-term rise in the population to between 93,100 and 106,300 by March 2027 referring to factors such as changes to sentencing legislation and the impact of increased numbers of police officers.

The Chief Inspector of Prisons, Charlie Taylor, has warned that the prison population crisis “will mean more deprivation, squalor and the risk of further violence” in overcrowded prisons. He said everyone should be concerned that prisoners will be released without having had the support they need to successfully settle back into the community, potentially resulting in them committing more crime.

The Government is undertaking a prison building programme to increase capacity. In the 2021 Prisons Strategy White Paper, it committed to creating 20,000 additional prison places by the mid-2020s. By July 2023, around 5,400 places had been delivered.

To increase capacity more immediately, the Government has delayed non-essential maintenance projects to bring cells back into use and put in place “rapid deployment cells”.

Police cells are also temporarily being used to hold prisoners.

What are the Government plans?

Early release on licence

On 16 October 2023 the Justice Secretary Alex Chalk told the House of Commons that the Government would allow prisoners to be released from prison up to 18 days before their automatic release date. This would be done using the power in section 248 of the Criminal Justice Act 2003, which allows for the release on licence of certain prisoners if the Secretary of State is satisfied that exceptional circumstances justify release on compassionate grounds.

Prisoners released on licence must comply with certain conditions. If they do not, they can be returned to prison. The Justice Secretary noted several conditions that can be imposed, including being made to wear an electronic tag, not contacting a named individual, and not entering specific areas. These conditions are be overseen by the probation service.

The power to release will be used only for prisoners serving fixed determinate sentences (not, for example, those serving life sentences or extended determinate sentences). It will not be used for prisoners convicted of an offence of serious violence, a terrorism offence, or a sexual offence. HM Prison and Probation Service will be able to decide on further exemptions.

The Government intends that the power will be used for a limited period and in targeted areas. Concerns have been raised about the additional workload this measure might create for the probation service, which the Chief Inspector of Probation said is currently “struggling”.

The end of custody licence, which also allowed some prisoners to be released 18 days early, was previously used between 2007 and 2010 to help deal with prison overcrowding.

Suspending short sentences

The Government will legislate for a presumption that sentences of less than 12 months in prison will be suspended. A suspended sentence means that the person does not have to go to prison provided they commit no further offences and comply with any requirements imposed for the relevant period.

The Government will make more GPS tags available to allow for the monitoring of offenders’ compliance with conditions.

In his announcement, the Justice Secretary referred to evidence that people who serve suspended sentences are less likely to go on to commit further crimes than those who serve short prison sentences of less than 12 months.

A presumption against short sentences has been welcomed by prison reform organisations, including the Prison Reform Trust and Howard League for Penal Reform.

A briefing from the Parliamentary Office for Science and Technology (POST)  discusses the use of short prison sentences in England and Wales, including evidence on their effectiveness and cost.

Removal of foreign offenders

Around 3,000 foreign national offenders were removed from the UK last year, compared with a pre-pandemic average of almost 6,000 a year. The Justice Secretary said more should be removed to free up prison space.

Under the Early Removal Scheme, some foreign prisoners are released early so that they can be removed from the UK. The Government has now laid draft legislation to increase the maximum sentence discount to 18 months, up from 12 months at present (and 135 days in 2008).

This change would come into force on 16 January 2024. The government has not prepared an impact assessment but says it expects a “modest increase” in the number of foreign national offenders removed.

Other measures

In addition to funding for prison places already committed, the Government announced it will spend up to £400 million for more prison places. A new annual statement on prison capacity will be laid before Parliament, and the Justice Secretary has commissioned urgent work, to conclude this year, to identify new sites to be purchased for prison building. The Government has also committed to legislating to allow for prisoners to be held in prison places rented from other countries.

The Government will consider whether to increase the reduction in sentence for a guilty plea to encourage people to plead guilty at the first opportunity. The Government says this would reduce the number of people being held on remand (awaiting trial in prison).

The Government will also take the following actions, which have been called for by campaigners for prison and sentencing reform:

  • review the use of recall to prison of prisoners released on licence
  • look at options to reduce the licence period of prisoners serving a sentence of imprisonment for public protection (IPP)
  • keep under active review the expansion of Home Detention Curfew, which allows for the early release of offenders monitored by electronic tag

About the author: Jacqueline Beard is a researcher at the House of Commons Library specialising in prisons, probation and sentencing.

Photo by: (©Tom Falcon Harding – stock.adobe.com).

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