News 29th Nov 2023

Prison Overcrowding: A review of recent court of appeal cases, past and future legislative changes

The number of people currently held in prison in England and Wales is at record levels.  On 19 October 2023, according to figures released by the Ministry of Justice, 88,225 people were held in the prison estate.

The consequences of overcrowding on prison conditions are recorded in regular reports published by HM Inspectorate of Prisons.[1] Five prisons have been issued with an “Urgent Notification for Improvement” in 2023. HM Chief Inspector has publicly commented on the problems across the prison estate which include: insufficient staff, prisoners being held in overcrowded and squalid conditions for up to 23 hours a day, very high rates of violence and self-harm.

On 3 March 2023, the Court of Appeal handed down judgement in R v Ali [2023] EWCA Crim 232.  Mr Ali had pleaded guilty to assaulting an emergency worker and was sentenced to 6 months’ immediate custody.   In deciding that the sentence ought to have been suspended, Edis LJ relied upon the “additional factor” which arose from “the fact that the appellant was sentenced at a time of very high prison population”.  The Court referred to the announcement of “Operation Safeguard”; a protocol whereby the Government requested the use of police cells to hold people who were in custody in the adult male prison estate.  Edis LJ also referred to the Deputy Prime Minister’s letter to the Lord Chief Justice of 24 February 2023 which made clear that prisons are operating at “very close” to prison capacity and many prisoners are held in “crowded conditions” with “reduced access to rehabilitative programmes, as well as being further away from home”.

The Court relied on R v Manning [2020] EWCA Crim 592 which re-stated (albeit in the context of the Covid-19 prison conditions) that prison conditions represented a factor which could properly be taken into account in deciding upon the length of sentence and whether or not the sentence could be suspended.

In recent months, appellants have relied upon Ali in support of arguments that sentences imposed at first instance ought to have been suspended.  In R v Monk [2023] EWCA Crim 518, the Court of Appeal refused to reverse the decision to impose an immediate custodial sentence of 6 months for an offence of ABH and distinguished Ali on the basis there was a “realistic not merely speculative, prospect of rehabilitation and a positive report from Mr Ali’s probation officer… in Ali the impact of the surge of offenders in the prison estate was described as a ‘further exceptional factor’ in addition to the other factors justifying suspending Mr Ali’s sentence”.

In R v Foster [2023] EWCA Crim 1196 the Court of Appeal considered the principles in Ali as they apply to female defendants.  Carla Foster had pleaded guilty to one count of administering a poison with intent to procure her own abortion.   On appeal the sentence of 28 months’ immediate custody was substituted with a suspended sentence of 14 months’ imprisonment.  The judgement also provides important guidance to practitioners as to the principles to be applied when sentencing female defendants:

(i) First, because there are comparatively few female prisons, women held in custody may often be a long distance from their families, which may add to the adverse consequences for them and children deprived of their care.

(ii) Second, the conditions in which prisoners are confined can properly be taken into account in sentencing, including in deciding whether to suspend a sentence.  Judges can and should keep in mind that the impact of a custodial sentence is likely to be heavier during the present circumstances of overcrowding than it otherwise would be.

Past Legislative Changes: Contributory Factors

Since 2002, the prison population has increased by almost 20%.  The reasons for the increase are multifarious and complex.  A report by the Sentencing Academy found that sentences for indictable and triable either way crimes have become more severe over the past 20 years.[2]  There has been a “significant increase” in the number of people serving long sentences.[3]  One example of the increase in sentence severity is reflected in the average tariff imposed for mandatory life sentences for murder which has risen from 12.5 years in 2003 to 20 years in 2020.[4]

Legislative changes have resulted in prisoners serving longer periods of time in custody – the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 means prisoners convicted of serious violent or sexual offences who receive a determinate sentence of 7 years or more must now serve two-thirds of their sentence in custody instead of half.

Future Legislative Changes: The Sentencing Bill

On 14 November 2023 the Government introduced the Sentencing Bill to the House of Commons.[5]   The Government’s principal proposals to address overcrowding include:

(i) A “duty” to impose a suspended sentence order for sentences of 12 months or less unless there are “exceptional circumstances” which justify not making the order;

(ii) An extension of the home detention curfew (HDC) scheme which allows prisoners to be released early from prison.

However, the Bill contains a much larger number of measures which will result in prisoners spending longer periods of time in custody.   The first Clause proposes to make whole life orders mandatory for certain offences save in exceptional circumstances.   Clauses 2 – 5 and 7 broaden the number of offences which will attract a “Sentence for Offenders of Particular Concern” (SOPC) to add all cases of rape as well as a number of other sexual offences involving penetration, and to amend the current release provisions so that prisoners serving either an SOPC or an extended sentence must serve the entire custodial term in prison.

The Government has proposed welcome measures to reduce the number of prisoners serving short sentences.  However, a substantial factor contributing to the current crisis in prisons is the increasing number of prisoners serving sentences for longer periods of time.  The proposals within the Sentencing Bill mean that the trend of sending defendants to prison for longer continues will only increase the current pressure on the prison estate.


Redmond Traynor







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