Criminal Justice System: Capacity

Statement

The following Statement was made in the House of Commons on Thursday 17 October.

“When this Government came to power, we inherited prisons on the brink of disaster, moments from total collapse. Had that happened, the consequences would have been apocalyptic: courts would have been forced to cancel all trials, the police would have been barred from making arrests, and we would have faced the total breakdown of law and order.

The last Government knew what had to be done. My predecessor, the former Lord Chancellor, begged his Prime Minister to act, but rather than have the bravery to do so, the now leader of the Opposition chose to call an election instead. As a result, it fell to this Government to take the necessary but difficult action. While they say that to govern is to choose, my predecessors left me with no choice at all.

On 18 July, just two weeks into the job, I announced to this House that we had been forced to bring forward the release dates of some prisoners serving standard determinate sentences from 50% of time served in prison to 40%, serving the rest on their sentence on licence in the community. Make no mistake: the action we took prevented the immediate collapse of law and order in our country, but with our prison population still rising fast, there is more that we must do to address the capacity challenges our prisons face, and our task now is to ensure that a crisis like the one we inherited can never happen again.

Today, I can set out a measure that will begin to address a specific and acute cause of our prison capacity crisis: the remand population. As this House will know, prisoners on remand are in our jails but have not yet been tried or sentenced. Because of the historical backlog in our Crown Courts—another element of the woeful inheritance my predecessors handed to me—the remand population in prisons has soared. Today, it stands at a record 17,000, which is nearly one in every five prisoners. As some Members will know, remand prisoners are an especially acute problem as they are placed in so-called reception or category B prisons. Until they are tried and sentenced, they cannot be moved elsewhere in the estate. It is in our reception prisons that we face the most acute capacity pressure in the country. Unless we address our remand population, we could still see a collapse of the system, not because of a lack of cells, but because we do not have those cells in the places we need them. It is therefore crucial that we bear down on the remand population.

Magistrates’ courts have sentencing powers for only up to six months’ imprisonment for a single triable either-way offence, and only the Crown Court can hand down sentences beyond that. Between May 2022 and March 2023, the previous Government chose to extend magistrates’ court sentencing powers to 12 months. This enabled magistrates’ courts to retain more sentencing hearings and meant that they were heard more quickly. It also freed up capacity in the Crown Court to hear more complex cases. However, magistrates’ sentencing powers were then reduced back to six months when, having failed to address the capacity crisis in our prisons, the pressure on prison places became too great.

This Government have now acted to relieve that pressure, so I can announce that we will extend magistrates’ sentencing powers back to 12 months’ imprisonment. On 28 October, I will lay a statutory instrument to that effect, which will come into force on 18 November this year. This change does not increase the maximum sentence for specific offences, and nor does it change the length of sentence that a defendant will serve. Instead, it expands which courts can hand down sentences of six to 12 months’ imprisonment for a single triable either-way offence. It will enable the system to make more use of magistrates, who are an integral part of our court system, delivering justice swiftly across the country.

This measure will also allow us to begin to address the remand problem in our prisons, but it will do more than that. This Government inherited a record Crown Court backlog. Waits for trials have grown so long that some cases are not heard for years. The impact on victims of crime is profound. For some, justice delayed is, as the old saying goes, justice denied, as victims choose to withdraw from the justice process altogether rather than face the pain of a protracted legal battle. By extending magistrates’ powers, we will be able to make progress on addressing the Crown Court backlog, and we will free the Crown Court to take on more of the cases that only it can hear. This measure is expected to free up an equivalent of 2,000 sitting days within the Crown Court each year, which will add capacity on top of the additional 500 sitting days that this Government funded on taking office.

This measure will, in total, see a slight increase in the overall prison population, but by bearing down on the remand population in our reception prisons, we will create capacity where we need it most. This measure allows us to manage our prison population smartly, and it means we can both address our prisons crisis and tackle the court backlog.

When this Government came to power, we inherited a justice system in crisis. We took immediate action to avert a total breakdown of law and order. We are now beginning the work of ensuring that this country never faces this crisis again. There will be more that we must do. In the coming weeks, I will return to the House and set out our long-term plan for the justice system, but these new powers for magistrates mark an important step. They help us alleviate the capacity pressures caused by the historical remand population that we inherited, and begin to address the record Crown Court backlog that my predecessors handed to me. In so doing, for victims across the country they will make justice swifter, and ensure that more criminals receive the punishment that they deserve. I commend this Statement to the House.”

15:53:00

My Lords, I begin by thanking the Minister for engaging with me in correspondence last week, in which he calmly set out his reasoning for the present policy proposal. I express my deep sympathy to him for having to respond to questions on a Statement from the other place that is heavy in hyperbole and very weak on reasoning. What is particularly surprising is that by this morning, the Justice Secretary, who made the original Statement in the other place, was conceding in an interview that this is not a problem you can build yourself out of. Where did this policy originate? The last Labour Government, while recognising the obvious link between sentencing and prison capacity, decided to advance a policy that relied on prison capacity being predicted and adjusted to accommodate sentencing policy, rather than sentencing policy taking account of prison capacity. The Centre for Criminology at the University of Oxford described this “predict and provide” policy as flawed. The then president of the Prison Governors Association described the then Labour Government’s policy as “an out-of-control demand met by the provision of little more than penal warehousing”. The noble Lord, Lord Dubs, then chair of the prison policy group, described the policy as “simplistic”. What did the then Labour Government do? They announced plans for the building of three titan prisons with massive capacity. What did they do next? They announced the abandonment of plans for three titan prisons with massive capacity and announced plans for the building of five new prisons. If we could find them all, we might utilise their capacity, but the fundamental issue here is not prison cells but penal policy. It is not only obvious but well established that if you increase sentencing powers, sentences increase. Magistrates, like science, cannot resist a vacuum. They will fill it. Increasing sentencing in the magistrates’ court may well relieve some pressure on the Crown Court, but it is liable to increase pressure on reception prisons and category C prisons. What will that impact be? We have no impact assessment, but the means to carry out such an assessment are potentially available. During the pandemic, the sentencing powers of magistrates were temporarily increased from six to 12 months. It should be possible to correlate this with the impact on reception prisons and category C prisons. Why has that not been done? I note the Government’s most recent decision, which is to appoint the former Conservative Justice Secretary David Gauke to carry out a review. I applaud their decision to call on his expertise and ability to properly inform them as to what they should do next. I come on to the question of early release, which is connected to this proposal over sentencing. If the Government are to release more prisoners in the next few days, will they please try to release the right ones? Last time, they released dozens of prisoners who did not qualify for release and dozens of prisoners who had breached restraining orders and should never have qualified for early release. Of those who did qualify for early release, some were let out on licence without an electronic tag, which might have made it a little difficult to work out where they had gone. In coming to a conclusion, I observe that the marrying up of social policy, penal policy, sentencing policy and prison capacity in the context of recidivism, extensive substance abuse, mental health issues and the requirements for care in the community and family support raises complex issues, particularly when the Treasury will rarely, if ever, invite the Ministry of Justice to the front of the spending queue. Those issues have to be addressed as a whole and, in my respectful view, they are not well served by a simplistic statement of blame, which was essentially what was delivered in the other place. I conclude by thanking the Minister once again for his reasoned and calm engagement on this topic and I look forward to his response.

My Lords, the noble and learned Lord, Lord Keen, gave us some interesting historical context, but I had expected an apology—or at least a guilty plea, with the plea in mitigation that he chose to leave the previous Government before the ceiling really started to fall in. They left an appalling situation: overflowing prisons, a huge backlog of untried cases, record numbers of remand prisoners, and victims seeing no outcome or closure to what they had suffered. This Government now have to deal with that, and they are running out of their few options to do so. I welcome their decision to have a fundamental review of sentencing policy and to invite David Gauke to carry it out. I very much agree with the noble and learned Lord on that; he is a good choice and I wish him well in the task. Why are we filling prisons with more offenders than any other western European country? Why are we failing to recognise that we are putting resources into a prison system that is institutionally ill equipped to do the kind of rehabilitative work that is clearly necessary? Unless we see a significant reduction in prisoner numbers, what hope is there that rehabilitation programmes can work in prisons? With so few options available to them, it seems logical and sensible for the Government to make use of the available time of magistrates who are willing to sit on more serious cases, freeing up time in Crown Courts. However, last time, this was not found to be very effective; it led to an increase in the demand for prison places. The Lord Chancellor conceded in the Commons: “That is what happened and what I expect to happen again”.—[Official Report, Commons, 17/10/24; col. 1011.] It is not even a temporary solution. Do these plans overlook the possibility that some defendants will opt for a jury trial when they no longer have the incentive that magistrates can sentence them only to six months? That means longer sentences and larger prisoner numbers. Will special training be provided to magistrates to try to ensure that good use is made of them in cases dealing with more serious offences that require a longer sentence, but that the new powers do not simply inflate sentences that would otherwise have been given to potentially shorter-sentence prisoners? The Lord Chancellor has said, and I agree with her, that “people have to know and believe there are consequences to breaking our laws”. This is not achieved when prisoners are released without completing their sentences or any serious regard to why they were imprisoned for a long period. Neither is it achieved by using a significant part of our resources in a prison system which is ill equipped, ill resourced and ill prepared to rehabilitate offenders. If this announcement buys the Government some time, can we have some reassurance that it will be used for fundamental change?

I thank both noble Lords for their questions. I will first address some of the points made by the noble Lord, Lord Beith, and then turn to the noble and learned Lord, Lord Keen. On the noble Lord’s final point about buying time, that is the Government’s objective with SDS40; the standard determinate sentencing going from 50% down to 40% is indeed to buy time. As he will know, there was a Statement in the House of Commons today on a sentencing review, which we are very grateful that David Gauke has agreed to chair. That Statement will be repeated in this House in due course, so we can debate the issues raised in it. The noble Lord, Lord Beith, asked some specific questions, including whether increasing magistrates’ sentencing powers from six to 12 months will incentivise defendants to opt for jury trial. In the brief interlude when that happened before, there was no statistical data to say that might be the case, so on that particular example we are confident that there will not be any appreciable increase in the number of defendants opting for a jury trial. As far as training goes, there will be refresher training available to magistrates. When I was in opposition, I personally did the training for the increase in sentences. It was not that long ago, but if some magistrates feel they want the refresher training then it will be available to them. The central point that the noble Lord made was about filling up prisons. As my noble friend Lord Timpson often reminds me, if you do nothing then the prison population will go up by 80 a week. That is the reason we are initiating this review of sentencing, which will get under way very quickly. The closing remarks of the noble and learned Lord, Lord Keen, were much more acceptable than his opening remarks. In his closing remarks, he acknowledged the complexity of the situation, that there are many interacting factors in the situation we have arrived at today, and that there needs to be a multifaceted approach to try to turn the tide on the ever-increasing number of people we find in our prisons. I agree with the point he made in his closing remarks. I think the noble and learned Lord might have been tweaking my nose with his other point. He said that magistrates cannot resist a vacuum, but he knows that that is absolutely not true. Magistrates sentence within the sentencing guidelines, as do district judges. The problem with magistrates and district judges is that they sentence quicker than Crown Courts, not that they sentence more harshly. I see that the noble Baroness, Lady Sater, is nodding her head, because she knows that what I have said is correct. The overall objective of this announcement is to increase magistrates’ sentencing powers back from six to 12 months. I look forward to answering more questions from other noble Lords on that matter.

Could the Minister perhaps respond to my inquiry as to why no impact assessment was carried out, given that there is potentially data available from the previous period when magistrates’ sentencing powers were increased from six to 12 months? If this is going to be an interim measure of some relief, we ought to know whether it is going to provide that relief or exacerbate an otherwise very difficult situation.

This measure was unavailable to the previous Government, who had to reverse it because they ran the system so close to collapse. They left the backlog unaddressed and victims had to wait far too long for justice. The prediction is that we will see a slight increase in the overall prison population, but by bearing down on the remand population in our reception prisons we will create capacity where we need it most. However, I am confident that there is currently enough capacity in prisons to absorb the initial inflationary impact, and there is no evidence that magistrates send people to prison more or for longer. Because of how precarious the situation is, we believe that now is the right time to take this measure.

My Lords, before we move on to Back-Bench questions, let me be absolutely clear that this is 20 minutes of questions—short, succinct and sharp questions—not speeches.

16:09:00

My Lords, last month, 37 prisoners were mistakenly released from prison under the early release scheme. One was charged with sexually assaulting a woman on the same day that he was released. Can the Minister please explain what evaluation is given and criteria used when deciding whether a prisoner is eligible to be released under the early release scheme?

I thank the noble Baroness for her question. All prisoners who were released in error under the first tranche of releases are now back behind bars. I will write to her on her question but, broadly speaking, the criteria includes whether offences were sexual and violent or related to domestic abuse. I will write to her with the specific list; it is in my notes, but I am not sure that I can find it in proper time today.

My Lords, I can see why increasing magistrates’ courts’ sentencing powers may be necessary as a short-term measure to deal with the backlog of about 17,000 remand prisoners. However, will it not result in a great increase in the number of short sentences? We know that the reoffending rate for short sentences is around 50%, or even a bit more. Although it may be necessary as a short-term measure, how long will this last? If it lasts for too long, surely it will have a reverse effect and we will end up with the revolving-door syndrome that we have seen for short sentences over many years.

I do not agree with the premise of the noble Lord’s question. It is not right that we will see an increase in the number of short sentences. Certainly, in my experience as a sentencing magistrate who gave short sentences, I gave them only to those who were already on community orders or suspended sentences. I cannot remember giving a short sentence to somebody who had a previous good character.

My Lords, can the Minister say a little more about training? I understood him to say that it would be available to magistrates who feel that they need it. Is it not better that there should be some supervision to identify which magistrates really need training? When will the training be available?

All magistrates were trained the first time these sentencing powers were put in place. Of course, there will be some new magistrates aboard and some who feel that they would like to retrain, so there will be online courses available either for refreshing or for magistrates who are relatively recently in post. The magistrates are regularly appraised—winger magistrates every four years and presiding magistrates every two years—so we can be confident that the standards are being kept up.

My Lords, before his death, the late Lord Ramsbotham regularly asked the same question of the Government: when will there be a royal commission on criminal justice? The mess in the prison system is highlighted by the Statement made the other day, but, as we know, there are nearly 70,000 cases awaiting trial in the Crown Court. Is it not time to stop applying sticking plasters and short-term measures, and instead have a proper look at how the whole system should work?

I thank my noble friend Lady Mallalieu for her question. I very much remember the noble Lord regularly asking for a royal commission. The reality is that we feel that we have a big job of work to do on reviewing sentencing and then managing the whole prison population and estate, so that it stops increasing. That is where our focus is right now. I will take back the question of a royal commission to my right honourable friend the Lord Chancellor, but, to be frank, I have not heard it spoken about in the time I have been in government.

My Lords, I support a smaller prison population, not just because there are not enough places for the people who have been sentenced but because there are too many people in prison. However, one of the consequences of releasing people early, at a quicker pace than one might have planned for, is that it will put more pressure on the police service. This Government made a manifesto pledge to increase the size of the police by around 4,000 officers, but we have not heard an awful lot about that since the Government took office. Secondly, as has been mentioned by the noble and learned Lord, Lord Keen, and by the noble Lord, Lord Timpson, in passing, one of the measures for mitigating the recidivism of those who are released is tagging—normal tagging to determine where the person is and sobriety tagging, where alcohol is an aggravating factor, and now there is also drug tagging. Finally, the response to those tags when they are breached should go straight to the police, not to a private company to be emailed to the police to be dealt with some time later. Is the Minister able to respond to those points about resourcing?

I have just consulted with my noble friend Lord Timpson and I can reassure the noble Lord that we do have enough tags for the process which we are embarking on. I should also mention that both my noble friend Lord Timpson and I were fitted with a sobriety tag for a while to see whether it worked, and I can assure the noble Lord that it does work. The noble Lord’s opening point was about more pressure on the police. That is right; there will be some more pressure on the police and also on the Probation Service and some social services such as housing. The philosophy underlying the Government’s SDS40 approach rather than the previous approach is planning down the whole pipeline, including people who will regrettably reoffend and how to deal with them. By managing this with a more planned approach, we hope and expect that we will reduce the chances of reoffending.

My Lords, can I refer the Minister to the recent quite appalling race riots that took place during the summer? I think everyone agrees that those involved in violence and incitement to violence, including online incitement to violence, deserved extremely harsh punishment. But the Minister will be aware that many of these people had no previous convictions and posed no immediate threat to the public and yet nearly all were remanded in custody, thus putting greater pressure on the Prison Service. Can the Minister comment on this point?

Of course, the matter of sentencing is for judges. My personal view is that the sentences I read about seemed entirely appropriate, but this is a matter for them. This was a particular situation where maybe the judges felt that even people who were of previous good character needed to be made an example of—but that was a matter for them.

Speaking as a former magistrate who worked in a young offender institution, I can say that short sentences clearly do not work. To go back to the point made by the noble Lord, Lord Hogan-Howe, that it is preferable to have fewer people in prison, have the Government looked at the prison system in Holland? The Netherlands has managed to reduce its prison population significantly, such that it can even outsource prison spaces to other countries, but this depends on a lot of resources being put into the Probation Service and community sentences. Can the Minister respond?

I agree with every word the noble Baroness has said. My noble friend Lord Timpson has just whispered in my ear that he has been to Holland, so we are looking at that very closely. The other point he made is that they use a lot of tagging in Holland, so that is another factor when we are looking at reviewing sentencing as a whole, although of course the sentencing review will look at adult sentencing and not at youth matters.

My Lords, I am worried about a public loss of confidence in the contradictions around sentencing. I think there was public disquiet about the high-profile case of a woman given a two-and-a-half-year sentence for a social media post, which the noble Lord has pointed out was possibly somebody being made an example of. Yet letting people out before their sentence is up for more serious crimes seems to contradict that. Also—dare I mention?—many IPP prisoners have served their tariff in prison. Will the Minister comment on whether some of those could be looked at to see whether, having done their time, they could be released earlier than their indefinite sentence? They have done their time for the crime they committed and yet they still languish in prison. It just does not seem to make any sense to the public.

I thank the noble Baroness for that question. In a sense, she exemplifies the difficulty of the various matters we are grappling with when trying to address the overall problem of having this large number of people in prison at the same time as the riots were happening over the summer period. I acknowledge that that is a difficult situation. Regarding the IPP sentences, the Government have set up an IPP action plan which they are working at full speed on, and proposals will be coming forward in due course.

My Lords, the Minister described very well the process which he undertook when sentencing somebody, giving them a sentence of imprisonment only when other avenues had been properly explored. I was a recorder for some considerable time and that very much echoes my approach and, I suspect, the approach of most judges: a real reluctance to send people to prison unless there is no other alternative. However, during the last Labour Government, there was an enormous amount of legislation changing the sentencing powers of judges and magistrates—particularly judges—and not trusting the judges to make their own assessment of what the appropriate sentence was. When there is this review of the appropriate response to the prison crisis, can the Minister convey to his colleagues that it is not a good idea to fetter the discretion of a judge and prevent them coming to the right conclusion in the right case?

I think I can reassure the noble Lord. It is intended that we will have very senior former judges on the sentencing review, who I am sure will take to heart the noble Lord’s point.

My Lords, this measure is intended, in part at least, to take pressure off the Crown Courts, but can the Minister say something about the pressure on magistrates? Is it the case that the number of magistrates fell by 50% over the decade to 2021 and has not yet got anywhere near that number? Can he say something about the backlog of cases at magistrates’ courts, too, please?

I became a magistrate just under 20 years ago and at that point there were 30,000 magistrates in England and Wales. There are now about 14,000 and we are trying to get the number back up to 18,000. So, I accept the point the noble Baroness made on that. The other point is that in the youth court, magistrates have powers to sentence up to two years—I was a youth magistrate as well. The change is important and significant, but it is not such a big step change that magistrates will not be able to handle it in any way. I am confident that they will be able to handle it, and the backlogs in the magistrates’ courts are nowhere near as bad as those in the Crown Court.

My Lords, may I seek some further clarification from the Minister? I asked him about remanding in custody and, having worked in the criminal justice system as a barrister, I am well aware that obviously the sentencing is up to the judges or magistrates. However, remanding in custody is not meant as a punishment; it is meant to protect the public.

Of course, I accept the point. The objective is not to change the number of people who are remanded in custody, because obviously that is a judicial decision, but to reduce the time those who are remanded in custody spend in custody. If we can do that through reducing the backlog, that will be a desirable effect. We think that some 2,000 days of Crown Court sittings could be saved by this change to the rules of magistrates’ sentencing powers.

Can the Minister assure us that the training of magistrates covers the circumstances in which it is right for somebody to be remanded in custody? Following the riots, suspicions were raised that some people were being remanded without true consideration of whether they justified that treatment. It is rather an important issue, and I hope that the training does cover it.

I absolutely assure the noble and learned Lord that remanding in custody is covered in magistrate training. When I used to oversee new magistrates, I said to them on their first day in court that remanding in custody is the most difficult decision they will make, both on the first day and on the last day. It is consistently a difficult decision to make and one that magistrates and the judiciary, I am sure, are fully aware of and trained in.

Can my noble friend the Minister give some reassurance that with the increased number of cases before magistrates, they will have increased resources to receive pre-sentencing reports from the Probation Service? That is so important, particularly for women with family responsibilities, before magistrates consider the sentence.

My noble friend raises a good point. There has certainly been increased resource in probation, and we are recruiting additional probation officers. That is going very well, but it takes time to train those probation officers. The other factor is an increased number of legal advisers, who are often the unsung heroes of our court system. Again, recruitment is going okay but they need time to gain the experience so that the system can be in equilibrium with these new sentencing powers.

In due course will the Government bring forward proposals to improve the way in which prisoners are rehabilitated?

It is certainly our intention to do so. That underpins so much of what we are going to do. We are increasing the number of people in the Probation Service. Obviously, we want to increase the rehabilitation figures and reduce the reoffending figures. The spotlight will be on the Probation Service to try to deliver that objective.

My Lords, given the importance of employment in stopping reoffending, are there plans to increase the number of employers that will consider taking on ex-offenders? Will the Government provide any incentives for them to do so?

My noble friend Lord Timpson has just whispered in my ear “Employment advisory boards”, of which he was a leading light and which we intend to increase. I accept the noble Baroness’s point that if people can get gainful employment when they leave prison, they are far less likely to reoffend.

My Lords, the Minister has already had a question about the rehabilitation of prisoners. A number of organisations are having quite good results in the rehabilitation of prisoners. Are the Government working with these organisations, and are they concerned with the lack of funding that many of these small organisations have? Could the Government outsource some of this work?

I acknowledge the noble Baroness’s point, and of course we value the contribution that they make. We all know these organisations. I remember working very closely with them when we were in opposition, and we continue to work with them in government. Many of them bring real expertise to the table. We want to work collaboratively to achieve our overall goal of turning around the ever-increasing prison population we have seen over the last decades.