By Howard League for Penal Reform

Sentence inflation: a judicial critique “Overcrowding has had a mesmeric effect on the prison system and has absorbed energy which could have been used in improving prisons. In addition, prisons are expensive and have damaging effects on prisoners. It is therefore important… to reduce the prison population to an unavoidable minimum.” The Woolf Report, 1991 This paper, signed by the four surviving former Lords Chief Justice of England and Wales, and the only surviving President of the Queen’s Bench Division who was also Head of Criminal Justice, raises serious concerns about the state of sentencing law and practice in this country. It urges not merely the new government, but politicians of all parties, to reflect on Lord Woolf’s words above. In 1991 the prison population of England and Wales was just nudging 40,000. Today it stands at over 88,000 – of whom more than 80% are sentenced – and it has been rising steeply. We already have the highest rate of imprisonment per capita in Western Europe, and the Ministry of Justice’s own projections suggest that by March 2028 we face a ‘low’ scenario of 94,600, a ‘high’ scenario of 114,800, and a central estimate of 105,800. This forecast should be treated as unacceptable. There have been two main causes of the steady rise in prison numbers that has taken place since the Second World War. The first is a continuous escalation in the length of sentences imposed for more serious offences. The second is a lack of confidence in the efficacy of non-custodial sentences for less serious offences. These factors might have been offset if imprisonment had proved an occasion for effective rehabilitation, but it has not. Other causes include the increase in the requirement for many prisoners to serve twothirds of the sentence before release, and that licence conditions now apply for the entirety of the sentence. The number of prisoners recalled to prison during this period of supervision has soared. The construction of prison accommodation is unable to keep pace with the demand for prison spaces. The result is severely overcrowded prisons. As the new Prime Minister has made clear, we are close to breaking point. By the Ministry of Justice’s own measure, there are nearly 8,000 more people in prison than can be held in safety and decency. Reports of His Majesty’s Inspectorate of Prisons (HMIP), including a recent spate of Urgent Notifications of unacceptable prisons, evidence the scope and severity of the challenge. HMIP reports, along with those of the statutory Independent Monitoring Boards report poor physical conditions in many jails, the absence of meaningful activity for prisoners and diminishing safety across the estate. Population and staffing pressures mean that access to a useful daily regime, one which gives any opportunity for rehabilitation, is severely curtailed for most people in prison. Last year, HMIP found that 42% of those surveyed spent more than 22 hours a day in their cell, and that access to purposeful activity in the library, gym, employment and education was limited. Lack of purposeful activity has been repeatedly highlighted as HMIP’s biggest area of concern. To address the current crisis, the last government pursued a series of emergency measures that included reversing an increase in the sentencing powers of magistrates, releasing prisoners days early and delaying court processes likely to result in imprisonment. The new government has reduced the proportion of a sentence that many prisoners must serve before release on licence. Recent Court of Appeal rulings and statements from the Sentencing Council indicate that judges may have regard to the effect of prison overcrowding when passing sentence. From the outset we should be clear in our understanding that prisons hold many people who have committed very serious offences and who present a real danger to the public. In these cases, a substantial custodial sentence will be necessary and inevitable. However, in England and Wales, sentences for such offending have grown significantly over our time as judges. And this growth has resulted in the inflation of sentences across the board 

London: Howard League for Penal Reform, 2024. 14p.