We have a prison population crisis that must be addressed urgently. Our prisons are close to being full (with 88,087 inmates) and the demand for places is growing faster than it is possible to build new cells. Unless action is taken to reduce demand in the next few months, we will either have to undertake a programme of emergency early releases or be unable to place new offenders in custody.
That was the bleak context when I was approached last September by the government to chair an independent review on sentencing policy, assisted by a panel of experts from across the criminal justice system. At the time, the expectation was that prison capacity would be reached in spring 2026. Since then, matters have become more acute as the prison population has risen even faster than anticipated. Last week, the Ministry of Justice revealed that the adult male estate will be full by November.
Considering the need for a precautionary buffer, by early 2028 demand for prison places needs to be reduced by 9,500 compared with current projections. There is no uncontentious way to do this, although some argue that there are two relatively easy ways of doing this.
The first is to deport foreign national offenders (FNOs), of whom there are approximately 10,800 in our prisons. More could be deported, it is argued. We agree and have set out proposals on how to do so. But claims that this can solve the problem entirely are unfortunately very wide of the mark. For a start, approximately a third of FNOs are on remand awaiting trial. For some nationalities, we have no functioning relationship with an FNO’s home state, so they will not accept them back. Even where we can deport someone, unless we have a prisoner exchange agreement, there is no guarantee that an offender would be sent to prison in their home country. For serious offenders, it would be wrong for them to escape time in prison altogether.
The second suggestion is that if only we accelerated the courts process, we could reduce the remand population, which currently stands at over 17,000. Again, there is a very good case for reducing the courts backlog. Current waiting times are too long for defendants and complainants and doing so would reduce the remand population. But although some on remand will be acquitted or have already served their time, a large majority ultimately will be convicted and have more time to serve. Furthermore, tens of thousands of defendants are currently on bail. Some of those defendants will eventually be convicted and sentenced to prison. The point here is not that we should ignore the courts backlog (Brian Leveson will be reporting on this shortly), but that it is not the solution to the prison capacity crisis in the short term.
Instead, we have focused on what can make a significant difference to the numbers. The reoffending rates for those receiving short custodial sentences are very high. A better approach to continuing to use short sentences as frequently as we do would be to strengthen community sentences (both by widening the use of sanctions available to the courts and enhancing the capacity of the probation service) and only using short sentences in exceptional circumstances.
One area of the sentencing regime that works well is suspended sentences – compliance with conditions is relatively high and reoffending is relatively low. We recommend allowing them to be used more widely.
For those who do go to prison, we need a change of approach. We recommend a progression model that means that well-behaving prisoners can be released earlier than is currently the case, but that there is also a second stage in the sentence where offenders are monitored much more closely in the community. Technology creates new opportunities to do that.
A significant cause of the surging prison population has been the increased use of recall, when an offender out on licence is returned to prison as a consequence of breaching the terms of that licence. In 1993, there were fewer than a hundred recalled prisoners and even in my time as justice secretary in 2018-19 it was just 6,000. There are now over 13,000. We recommend a fundamental reform of this system to ensure that recall is only used when necessary.
All of these measures should be sufficient to prevent our prisons from overflowing. But a successful long-term approach means they need to be accompanied by measures to ensure that we can adequately deal with offenders in the community.
The probation service, third-sector organisations that assist in rehabilitation, drug and mental health treatment, and approved premises for ex-prisoners reintegrating into society are all vital to bring down reoffending and can be neglected if resources are diverted into supporting an ever-larger prison population. In the longer term, the best way to reduce the prison population is to cut reoffending, and these areas can play an important part.
There is an opportunity to move in a more positive direction in which prison continues to play an important part in our system but that we make better use of the alternatives to custody, bringing down reoffending and reducing the number of victims. Necessity has created an opportunity to deliver important and meaningful reform. I hope it is an opportunity that the government will take.
David Gauke is the former justice secretary and chaired the government’s independent sentencing review.
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