The Council is aware of concerns in relation to the current prison population in England and Wales.  This raises the issue of whether the potential impact on offenders should be considered in sentencing.

There are well-established sentencing principles which, with sentencing guidelines, are sufficiently flexible to deal with all circumstances. These principles are familiar to judges and magistrates and include a requirement for the court to take into account the likely impact of a custodial sentence on the offender and, where appropriate, on others such as children or other dependants. They apply today just as they applied during the Covid emergency – see the Council’s statement issued at the time.

On 3 March 2023 the Court of Appeal delivered its judgment in the case of R v Arie Ali [2023] EWCA Crim 232, which refers to sentencing and the impact of the current, very high prison population. When the courts are considering sentencing an offence that crosses the threshold for a short custodial sentence, judges and magistrates can elect to suspend the sentence or impose a community order instead. The judgment in the case of Ali clarifies that, in such instances, and while there continues to be pressure on prison capacity, the courts can take into account the impact of the current prison population levels when making that decision.

In its judgment the Court of Appeal quotes from a letter sent from the Deputy Prime Minister to the Lord Chief Justice in February 2023, which said:

You will appreciate that operating very close to prison capacity will have consequences for the conditions in which prisoners are held. More of them will be in crowded conditions while in custody, have reduced access to rehabilitative programmes, as well as being further away from home (affecting the ability for family visits). Prisoners held in police cells under Operation Safeguard will not have access to the full range of services normally offered in custody, including rehabilitative programmes.

In the case of Ali the court found that, irrespective of the current prison population, there were strong arguments for suspending the sentence.  The court went on to say: 

Any doubt we may have had on that issue is resolved by this additional factor which we do take into account in dealing with this appeal. This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.

This does not mean that the high prison population is a factor which requires all short prison sentences to be suspended.  Rather, when a court has to decide whether a custodial sentence must be imposed immediately or whether the sentence can be suspended, the high prison population is a factor to be taken into account.

Lord Justice William Davis
Chairman of the Sentencing Council for England and Wales
March 2023