Judges have been told to delay the sentencing of convicted criminals currently on bail – including rapists and burglars – because prisons are full, the Guardian understands.
The guidance reportedly came from the senior presiding judge for England and Wales, Lord Justice Edis, on a private call with senior crown court judges.
Earlier this year, in a court of appeal case, Edis said that for offences that attracted 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, according to the Times, Edis is said to have responded by issuing fresh guidance to judges.
A government source told the Guardian it applied to those who have been on bail throughout the court process and had therefore already been assessed as lower risk. The suggestion was that they would be left on bail between conviction and sentence, as it was thought to be safe enough to do so, and only be jailed on sentencing, assuming they were handed a custodial sentence. The source stressed that it was not a government policy, as sentencing is the preserve of the independent judiciary.
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 historical 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 was 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) blamed the coronavirus pandemic and last year’s barristers’ strike for the backlog in courts, which it said was contributing to the high number of remand prisoners. While the backlog has increased since the pandemic, it was already high before it started, and 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 owing to prisons nearing capacity, but acknowledged prisons were under “huge pressure”.
An MoJ spokesperson said: “We are categorical that the most serious offenders should be sent to prison and that anyone deemed a risk to public safety is remanded in custody while awaiting trial. Reports to the contrary are false.
“This government has done more than ever before to protect the public and keep sex offenders locked up for longer, ending automatic halfway release for rapists and serious violent offenders and sending rapists to prison for three years longer than in 2010.”
The judicial press office declined to comment.
