22/03/2023
Police Oracle
The issue has been in the news with a Court of Appeal judgment referring to sentencing and the impact of the current, very high prison population.
When a person has committed an offence which (often combined with the extent of their criminal history) puts them at risk of imprisonment, a range of factors are considered by the Judge or Magistrates deciding on their sentence.
Some of these relate to aggravating or mitigating factors related to the commission of the crime. Common aggravating factors include: that an offences was committed while on bail, was motivated by hate towards a specific group in society, was the result of careful planning or involved the use of a weapon to frighten or injure the victim. Abuse of power or of a position of trust are factors which typically ratchet up the sentence considerably. Mitigating factors on the other hand are where the perpetrator was provoked or only played a minor role in the offence. If the offender shows what is though to be genuine remorse and was co-operative with the police, this typically results in a reduced sentence.
Sentencers are also required 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.
Readers are, of course, familiar with all these factors which are formally set out in the Sentencing Guidelines published by the Sentencing Council. What may be less familiar is that sentencers are formally permitted to take into consideration the prison overcrowding situation.
Concerns about overcrowding
This issue has been in the news this week with a Court of Appeal judgment referring to sentencing and the impact of the current, very high prison population. That judgment makes it clear that 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 clarifies that, in such instances, and while there continues to be pressure on prison capacity, the courts can legally 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.”
The Chairman of the Sentencing Council for England and Wales, Lord Justice William Davis, issued a statement this week clarifying that it is perfectly proper for sentencers to take into account prison overcrowding and the impact on an individual who they are considering sending to custody. However, he also made it clear that this does not mean that short prison sentences will not be imposed:
“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.”
It is possible that sentencers are already adjusting their decisions accordingly. After two months in which the prison population was shooting up by approximately 200 people very week, last Friday’s figures revealed a weekly increase of just 43.