Managing prison overcrowding: the Government's early release dilemma

The new Prime Minister has inherited a criminal justice system near to collapse due to decades of under-investment. One of the most pressing consequences of this neglect is a prison system that is dangerously overcrowded, leading to unsafe conditions for both inmates and staff and insufficient resources for rehabilitation work. On occasions the prison estate has literally been on the verge of running out of cells to accommodate every person sentenced by the Courts. Building new prisons on a sufficient scale is not a financially viable solution, and so successive ministers have had to resort to ad hoc schemes for early release of some prisoners. The Sentencing Act 2026 provides for early release of a wider range of prisoners than previous schemes.

Any measure that shortens prison sentences is controversial. What has led to particular dismay this week is the possibility that two of the defendants convicted of the manslaughter of PC Andrew Harper in 2019 may be eligible for early release under the legislation. The Prime Minster, plainly alive to the public backlash that could result, has promised to ensure that “everything has been looked at again” and in the meantime has put the tranche of early releases due to start in September on hold.

The death of PC Harper was appalling and the outrage in some sections of the media that his killers’ sentences may be shortened is no surprise. Neither is Mr Burnham’s swift public intervention. But he and his Government may find it hard to both assuage public opinion and manage the prison population crisis.

The Prime Minister’s pledge that the release regime will be “looked at again” begs the question of exactly what alternatives he has in mind. If the prison system is to become properly functional again, then inmate numbers must be reduced quickly and drastically. There is no other solution. That means that at least some prisoners who are serving sentences for serious crimes may need to benefit from the scheme. It would simply not be possible, or lawful, to exempt a prisoner from early release because their offending attracted more than usual public revulsion.

It is likely that the Government will try to amend the early release provisions to exclude certain further categories of prisoner. But if the Prime Minister wants to run criminal justice in line with the strategic ten-year vision approach he has promised for his administration generally, then calm and measured responses to emotive issues like this one will be needed. In particular, the Government would do well to explain carefully why easing prison overcrowding will benefit the public, by enabling prison staff to work more constructively with prisoners to prevent re-offending. To date, ministers have lacked conviction on this point. A mature, evidence-based criminal justice policy would acknowledge that locking up prisoners without meaningful rehabilitation intervention is no policy at all.

Mr Burnham will not be the first Prime Minister whose instinct to appear “tough on crime” will need to be reconciled with the resources available. It will be interesting to see what happens.

Martin Rackstraw is a partner in the criminal team. He represents individuals facing serious allegations, particularly homicide, sexual allegations, terrorism and drug cases. He has particular interest and expertise in investigating and challenging convictions in miscarriage of justice cases.