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.”

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.

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?

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.

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.

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?