England and Wales judges told not to jail criminals because prisons full – report
Judges have been told to delay the sentencing of convicted criminals currently on bail – including rapists and burglars – because prisons are full, according to a report.
The guidance came from the senior presiding judge for England and Wales, Lord Justice Edis, on a private call with senior crown court judges, according to the Times.
Earlier this year, in a court of appeal case, Edis said that for offences which attract shorter terms, judges and magistrates should consider imposing suspended sentences given “current prison population levels”. The prison population has grown since then – to more than 88,000 – and Edis is said to have responded by issuing fresh guidance to judges.
A senior crown court judge was quoted by the Times as saying that, from Monday, judges have been “ordered/strongly encouraged” not to jail someone who appears before them.
They were said to have added that the “biggest concern” was defendants charged with historic rape or rape of a child under 13 and other sexual assault, as even if convicted they were now likely to remain on bail.
The prison population stood at 88,016 last week, an increase of more than 6,500 in a year, almost 10,000 up on two years ago and close to the capacity of 88,667. Last year, the government announced Operation Safeguard, the emergency use of 400 police cells to hold inmates.
To much criticism, it recently said it would seek to rent prison cells in foreign countries to alleviate the squeeze in England and Wales.
In his court of appeal judgment in March, Edis cited a letter from the then justice secretary, Dominic Raab, which said: “Detention would be harsher than before on account of high occupancy levels, reduced access to rehabilitation programmes and the possibility of prisoners being detained further away from home.”
The Ministry of Justice (MoJ) stresses that sentencing is a matter for the independent judiciary. It blames the coronavirus pandemic and last years’ barristers’ strike for the backlog. While the backlog has risen since the pandemic it was already high before it started and it reached another record high (in crown courts) of 64,709 open cases at the end of June. Coronavirus restrictions were lifted last year and the strike ended in October.
On Tuesday, the president of the Prison Governors Association blamed a lurch to the right by ministers for the overcrowding in jails, citing a stream of announcements about crimes that would now attract custodial sentences, or increased sentences for offences that already did.
Speaking to Times Radio, the health secretary, Steve Barclay, refused to confirm or deny that judges had been told not to send some convicted criminals to jail due to prisons nearing capacity but acknowledged prisons were under “huge pressure”.
A MoJ spokesperson said: “The criminal justice system has seen unprecedented growth in the prison population, following the pandemic and barristers’ strike, particularly among those awaiting trial, with 6,000 more prisoners on remand than pre-pandemic.
“The Prison Service has already put in place measures such as rapid deployment cells and doubling up cells to help manage these pressures, and the government is carrying out the biggest prison building campaign since the Victorian era to create 20,000 new places, making sure we always have the places we need.”
The judicial press office declined to comment.