Most effective options

Given the scale of the problem, the new government will need to free up thousands of prisons places. Unfortunately, there are few options that will have sufficient impact, can be implemented quickly and pose low risk in terms of both public protection and miscarriages of justice. But there are some that would make a meaningful impact on prisoner numbers, albeit with various practical and political challenges. At least one of these will likely be required immediately. 

Lower the point of automatic release for most offenders from 50% of their sentence to 40-45%

This is the lever that delivers the greatest capacity the quickest, as it can be done in weeks. While it would likely require new legislation, it would be fairly straightforward to draft and deliver. Lowering automatic release below 50% would however have a symbolic impact, as it would mean criminals spend more time on licence in the community than in prison, which would likely damage public confidence in the system. But it could be moderated – for instance, it need not apply to the most serious violent and sexual offenders, who currently serve two thirds of their time in prison and would continue to do so. This would limit the public safety risk and free up capacity for serious offenders in prison. 

Those released would be supervised by probation, and if they committed further offences or breached conditions, would be recalled to prison. This unavoidably places some additional strain on an already creaking probation system and high recall rates, as have been seen in the current early release scheme, could see a chunk of any capacity freed up being used for recalling the same prisoners. This option is likely to be necessary to deliver sufficient space in the available time – even if other options are also used.

Introduce a ‘queuing system’ for immediate custodial sentences, with low-risk prisoners starting their sentence on house arrest

Some prisoners already spend the last 12 weeks of their sentence in home detention, with a curfew enforced by an electronic tag. The government could choose to take the same approach to lower-risk offenders at the start of a prison sentence, until prison space becomes available. The time spent in home detention would count towards a prisoner’s sentence, to avoid a growing backlog. If they breached conditions, they could be sent to prison immediately. If they do not, and a space does not become available for the duration of their sentence, they could have served their sentence without entering prison.

This would prioritise prison places for the highest risk offenders, while taking a more lenient approach to those who are lower risk (a third of prisoners in March 2024 were serving time for a non-violent offence, for example). ⁹⁰ Ministry of Justice and HM Prison and Probation Service, ‘Offender management statistics quarterly, October to December 2023’, ‘Prison population 2024’.  The challenge in delivering this is time: it would require legislation to be drafted and passed, new probation capacity and electronic tags, and finally detailed design on who would be eligible and how breaches would be managed. 

This option would be unlikely to work either in isolation or if the pressure is so acute that there is no time to fully design and deliver it. There are different ways to approach the scheme to be less complex to design and pass through parliament, but these might limit the impact on the prison population.

Allow sentences of up to three years to be suspended

Currently sentences of up to two years can be suspended – that is, the offender does not have to go to prison as long as they do not commit any further offences and abide by any conditions attached. Raising this to three years could deliver a significant and sustained reduction in the prison population, while also improving outcomes. Sentences served in the community typically have lower reoffending rates, ⁹¹ Mutebi N and Brown R, The use of short prison sentences in England and Wales (UK Parliament POSTbrief 52), UK Parliament, July 2023.  and relatively few suspended sentences result in the offender breaching their conditions and entering custody. ⁹² Ministry of Justice and HM Prison and Probation Service, ‘Offender management statistics quarterly, October to December 2023’, ‘Prison recalls: October to December 2023’.  Most people receiving a sentence of 2-3 years have committed a non-violent offence (62%) ⁹³ Ministry of Justice, ‘Criminal justice statistics quarterly: December 2023’, ‘Outcomes by offence data tool: December 2023’.  so the public safety risks are relatively small, and the impact on public confidence should also be limited compared to other options. This option would also require legislation, but the practical implementation would not be complex.

However, any impact is highly dependent on how judges respond when handing out sentences. To have a rapid impact, this measure would likely need to be combined with a presumption to suspend sentences for certain types of offences, such as drug or theft offences, or sentences up to at least two years. This would be substantially more complicated to introduce, and would still be less certain than the other two options. If judges respond by increasing the length of sentences to avoid suspending them, it could even make the situation worse.

Supplementary options

There are a number of other promising options that will not have sufficient impact on their own, but may help buy more time for some longer-term measures to have an impact.

Remove supervision or abolish recalls post-release for offenders serving sentences of under 12 months

This would roughly halve the number of recalls. The impact on the prison population would likely be fairly small, as most of these recalls are only 14 days, but it would free up some probation capacity for more impactful measures, and greatly reduce the burden on prisons from entrants and releases. However, some of this prioritisation is already happening under ‘Probation Reset’, ⁹⁴ Ministry of Justice, Written Ministerial Statement, ‘Update on foreign national offenders, prisons and probation’, 11 March 2024, questions-statements.parliament.uk/written-statements/detail/2024-03-11/hcws332  so the impact is hard to assess and could be small. Reduced probation supervision could be replaced by commissioned support from the third or private sector to meet offenders’ housing, mental health and other needs in the community. This would help address reoffending and could be established more quickly than expanding probation capacity.

Reintroduce the requirement for magistrates’ courts to approve standard recalls

This should reduce the number of recalls without having to raise the thresholds for recall, simply by adding an extra administrative step. Fixed-term and emergency recalls would not be affected, preserving flexibility for emergency situations. However, the additional burden this would place on magistrates’ courts and probation practitioners could be significant, given both are struggling to cope with existing demand.

Prioritise defendants on remand for case hearings

Many crown court defendants spend at least six months on remand and almost 30% do not receive an immediate custodial sentence. ⁹⁵ Ministry of Justice, ‘Criminal justice statistics quarterly: December 2023’, ‘Remands data tool’.  Accelerating the passage of these cases through the courts would free up capacity and prevent long periods in custody for those who should not be there.

Introduce a presumption to suspend sentences for certain offences or up to a certain length

A presumption to suspend sentences of up to 12 months would likely only reduce the prison population by a few hundred, but the evidence suggests it would cut reoffending and improve other outcomes as well. ⁹⁶ Ministry of Justice, ‘Sentencing Bill Impact Assessment – Short Sentences’, November 2023, assets.publishing.service.gov.uk/media/65537ccdc684c4000db64d21/Sentencing_Bill_-_IA_-_Short_Sentences.pdf  Though again this would result in more pressure on probation.

These are not competing options, and the next government will need to consider a response that involves a combination of measures to free up capacity while delivering on other policy objectives. For example, lowering the point of automatic release only slightly, to 45%, and reducing post-release supervision for those on short sentences could create both time and capacity to implement a queuing system. Alternatively, a more radical change to automatic release would provide more breathing room to do an in-depth review of sentences. 

Real-time prison capacity data is not perfect, and nor are population projections. Given that, the new government will need to create a sufficient capacity buffer, whichever options are pursued, to avoid further crises and emergency measures being needed. The system will need a sustained period outside of crisis to recover and reset.