Magistrates told to delay locking up criminals to ease prison overcrowding

Magistrates have been ordered to delay jailing criminals in a bid to ease prison overcrowding as the number of people behind bars hit a new weekly high.

Court of Appeal judge Lord Justice Green, who is the deputy senior presiding judge for England and Wales , issued what is known as a listing direction to magistrates’ courts managers in the two countries, saying offenders likely to be jailed should have their sentencing hearings postponed until the Government’s plans to free thousands of offenders early from prison come into force next month.

The direction comes just days after emergency measures were re-activated in the north of England allowing defendants to be held in police cells and not summoned to magistrates’ court until a space in prison is available.

Another day, another sticking plaster to hold our crumbling justice system together

The body representing magistrates described the move as “another sticking plaster to hold our crumbling justice system together”, while solicitors repeated calls for an “urgent injection of funding” to get a grip on the crisis.

But the prison officers’ union said it could see “no reason why justice should be delayed”.

As of Friday, the prison population in England and Wales stood at 88,234.

This is the highest end-of-week number since weekly data was first published in 2011, according to analysis of Ministry of Justice (MoJ) figures by the PA news agency.

The previous weekly high, reached on October 13 2023, was 88,225.

The latest figure is higher than the peak reached in the aftermath of the 2011 summer riots, 88,179 recorded on December 2 that year.

It is also more than 9,000 higher than three years ago, when it stood at 78,832 on August 20 2021.

The highest number of prisoners in England and Wales ever recorded is 88,336, reached at the end of February 2024, separate figures for the monthly population size show.

There is considerable concern among justice figures about what could happen over the coming weeks prior to prisoners being freed early, PA understands.

Last month, Justice Secretary Shabana Mahmood announced plans to cut the proportion of the sentence inmates must serve behind bars from 50% to 40%, as the MoJ said violence and self-harm in prisons had risen to “unacceptable” levels as overcrowding pushed jails to the “point of collapse”.

The temporary move – which does not apply to those convicted of sex offences, terrorism, domestic abuse or some violent offences – is expected to result in 5,500 offenders being released in September and October.

Issued on Wednesday with immediate effect, the judge said: “The following direction is made in the context of the current challenges in our prisons, and order to assist the magistrates’ courts in the management of lists over the next few weeks pending the coming into force of the new early release arrangements which will begin to come into effect on September 10.

“Courts are responsible for the proper administration of justice. It is therefore appropriate that the judiciary have regard to the wider functioning of the criminal justice system.”

Telling court managers to “review all cases listed for sentence up to and including September 6 where the defendant is currently on bail”, he added: “Where it is assessed that a custodial sentence is a possible outcome, consideration should be given to rescheduling the hearing for the shortest possible period of time, but not earlier than September 10.

“Every case must be considered on an individual basis and decisions must be made on the basis of the interests of justice. It follows that this needs to be a careful process.”

Magistrates cannot ignore the listing direction or refuse to adopt it and court managers, government staff who are tasked with deciding when cases are brought before the courts, are bound by the orders from senior judiciary. The rules do not apply to crown courts, which deal with more serious criminal cases.

The MoJ said the guidelines would not apply to high-risk offenders who were already on remand.

Magistrates’ courts heard at least 1.26 million cases last year, up 8% on 2022, according to government data.

Tom Franklin, chief executive of the Magistrates’ Association, said: “Another day, another sticking plaster to hold our crumbling justice system together.

“While this measure may be necessary in the short term, things can’t keep going on like this and we need a long-term plan and an injection of more resources at every stage of the justice process for recovery.”

Law Society of England and Wales president Nick Emmerson said: “This is another clear indicator of the scale of the crisis in our justice system and there are no easy solutions after decades of neglect.

“The Government and judiciary are having to make difficult choices to try to mitigate the emergency in the short term.

“An urgent injection of funding is needed across our justice system. Otherwise, justice will continue to be delayed for victims and defendants.”

Mark Fairhurst, national chairman of the Prison Officers’ Association (POA), said: “POA members do not arrest, investigate, charge, convict or sentence. We will, however, stand ready to accept those who are sent to us by the courts.

“We can accommodate anyone who is convicted, so we see no reason why justice should be delayed.”

Meanwhile Kingston-Upon-Hull Crown Court heard a grandfather bitten by a police dog during a riot had not had his bandages changed for 17 days due to “prison overcrowding issues”.

Michael Campbell was “worried it was becoming infected”, and has been using a wheelchair and crutches to get around the prison, his lawyer told the court.

The 56-year-old was jailed for 20 months after he used a bicycle to try and fend off the police dog during the August 3 disorder.

The MoJ said: “The new Government inherited a prisons crisis, and this is yet another sign of the pressures our justice system is facing. The changes coming into force in September will bring it under control.

“Independent judges decide when to schedule court hearings and do so in the interests of justice, including to ensure the effective operation of the criminal justice system.”