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Last year the UK Government commented that despite plans underway to deliver the largest prison building programme since the Victorian era, “in recent months we have experienced an acute and sudden increase in the prison population…”. In this article, we discuss the ongoing efforts in order to tackle this problem, along with what factors the courts will take into account when sentencing.
Background
As a result of the COVID-19 pandemic, in May 2022 in an effort to reduce a significant backlog of cases going to the Crown Court, the Government extended the sentencing powers of magistrates. For either-way offences, magistrates were permitted to sentence up to 12 months (an increase on the previous limit of six months). However, only a year later, from 30 March 2023, magistrates’ sentencing powers reverted to six months again.
Practically, the reduction in sentencing powers will mean more cases are referred to the Crown Court and, in the short-term it is likely to reduce the number of prisoners arriving at prisons in coming months.
The change was not welcomed by the Magistrates Association (MA) who commented: “We are incredibly disappointed by the impending introduction of this statutory instrument, which will be implemented as part of Operation Safeguard’s efforts to reduce overcrowding in male prisons. The extension of magistrates’ sentencing powers from six to 12 months is something we had long campaigned for as a vital means of ensuring speedier justice for all. It was succeeding—delivering faster results for victims, witnesses and defendants…”
Operation Safeguard
In November 2022, Prisons Minister Damian Hinds, announced that ‘Operation Safeguard’ would come into force. This saw the Government requesting the use of 400 police cells to hold people remanded in custody or serving prison sentences, in an attempt to tackle the overcrowding at male prisons.
Only four monthly later, in the case of R v Arie Ali [03.03.23] the Court of Appeal cited the high prison population, overcrowding and availability of rehabilitative programmes as factors to be considered when sentencing. The Court of Appeal made the following remark regarding prison overcrowding:
“This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that.”
In response to the Court of Appeal ruling, whereby the appellant was successful in having his sentence suspended, the Sentencing Council recently commented:
“When the courts are considering sentencing an offence that crosses the threshold for a short custodial sentence, judges and magistrates can elect to suspend the sentence or impose a community order instead. The judgment in the case of Ali clarifies that, in such instances, and while there continues to be pressure on prison capacity, the courts can take into account the impact of the current prison population levels when making that decision.”
The Court of Appeal was quite clear that this consideration “will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high.”
Comment
Whilst the Sentencing Council’s reflection on the ruling was that it “clarified” the position that a number of factors can be considered when sentencing, there remains a number of uncertainties: 1) how much weight R v Arie Ali will have when arguing for suspended sentences; 2) what state do prisons need to reach for this to stop being considered a relevant factor at sentencing, and; 3) more widely when (or if) the Magistrates’ powers will revert to 12 months.
United Kingdom