Is Prison Overcrowding Having an Impact on Sentencing?

How Overcrowding in Prisons Could Force more Suspended Sentences

On 3 March 2023, the Court of Appeal handed down a judgment in the case of Arie Ali. The case proved to be of some interest due to this remark made by Lord Justice Edis:

‘On 24 February 2023, the Deputy Prime Minister wrote to the Lord Chief Justice saying:-

“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.”

We have concluded that there were strong arguments for suspending the sentence in this exceptional case, for the reasons we have given. 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.’

So, has it made a difference?

The answer to this is undoubtedly yes, but only in some cases. We have been studying recent Court of Appeal cases, and some trends have emerged.

(1) The importance of rehabilitation

In R v Bailey [2023] EWCA Crim 463, the Court rejected an argument based on R v Ali, for the following reasons:

‘…we are not able to accede to the submission made by [Counsel] that

there is a realistic prospect of rehabilitation at this point…we have carefully considered the issue of delay, particularly in the context of the overcrowding and the guidance provided in Ali, to which we have referred.’

But:

‘…with the lack of insight into his offending and the lack of positive

assessment of a realistic prospect of rehabilitation, drives us to the view that the Judge was justified in determining that appropriate punishment could only be achieved in this particular case by immediate custody.’

(2) Lack of remorse & harm done

In R v Monk [2023] EWCA Crim 518, the Court upheld a six months sentence commenting:

‘The delay and the current prison conditions are both powerful factors which, in a more borderline case, may well be decisive, but when weighed against the facts in this case, the seriousness of the offence, the appellant’s total lack of insight and remorse, together with the harm done, (both physical and psychological causing them to move from their home of over 11 years), it cannot be said that the Recorder’s decision not to suspend the sentence was wrong in principle.’

(3) A balancing of factors

In R v Mall [2023] EWCA Crim 459, the defendant had better luck, with the Court of Appeal deciding the sentencing Judge was wrong not to suspend the sentence. The Court held:

‘We conclude that the balance so clearly tips in favour of suspension that the decision not to suspend does fall outside the range of answers to which the Judge could properly have come. He was therefore in error.’

The Court stated that a Judge should focus on the following:

Factors indicating that it would be inappropriate to suspend a custodial sentence:

1. Offender is a risk/danger to the public;
2. Appropriate punishment can only be achieved by immediate custody;

iii. A history of poor compliance with court orders.

Factors indicating that it may be appropriate to suspend a custodial sentence:

1. Realistic prospect of rehabilitation;
2. Strong personal mitigation;

iii. Immediate custody will result in significant harm or impact upon others

This analysis tipped the balance in favour of suspension in the case of R v A [2023] EWCA Crim 382, where the Court stated:

‘These substantial mitigating factors reduce the sentence in our judgment to the bottom of the range within the Guideline. Further, an additional factor must be brought into account as identified by this Court in the occasion of the R v Arie [2023] EWCA Crim 232 concerning greater hardship for those serving custodial sentences in the current climate where there is a very high prison population: see para.18 – 21 in the judgment of Edis LJ. We do not, in this appeal identify any specific sentence reduction,, but we take this factor into account in the balance.’

Conclusion

We can see that simply arriving at Court and expecting a suspended sentence by merely mentioning prison overcrowding is not likely to work. All advocates must present a compelling case to the sentencing judge and, in some cases, the Court of Appeal.

How We Can Help

All of our advocates are aware of the detailed preparation required to achieve the best outcome for our clients. We shall continue to monitor Court of Appeal judgments and tailor our approach accordingly. If you have any questions in to suspended sentences due to overcrowding then please feel free to get in touch by calling us on 0161 477 1121 or email us.