What would the order do?
The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 would modify the automatic release point for certain Standard Determinate Sentences (SDS) in England and Wales. The draft order is intended to relieve pressure on prisons, against a backdrop of concern that the prison population is rising beyond the operational capacity of the prison estate.
An SDS is the most common type of custodial sentence issued by the courts. It requires offenders to serve part of their sentence in custody and the rest on licence in the community.
The order would change the proportion of the sentence spent in custody for certain SDS, with the automatic release point reducing from 50% to 40%.
Certain offences would be excluded, including serious violent offences with a sentence of four years or more (which will remain subject to a 67% release point); and sexual offences, offences linked to domestic violence, and national security offences irrespective of sentence length. These offences would be excluded “to ensure those convicted of some of the most serious crimes are not released earlier under this change” (see paragraph 5.6 of the explanatory memorandum to the draft order)
The government estimates that the order could reduce the prison population by between 4,900 and 6,200 places (see paragraph 9.4.1 of the explanatory memorandum).
Policy background
The prison population in England and Wales is projected to rise beyond the available prison capacity.
As at 19 July 2024, there were 87,343 people in prison in England and Wales (prisons are a devolved matter to Scotland and Northern Ireland). This was approximately 1% more than in July 2023 and 5% more than in July 2019.
Despite these small fluctuations, and a larger temporary fall during the pandemic, the prison population has been broadly stable at an average of around 85,000 since 2010. Before this it underwent a rapid rise from around 45,000 in 1990 to 65,000 in 2000 and from there to its present level (see chart).
Note: The shaded area represents the range of projections for the prison population from 2024 onwards. Sources: MoJ, Offender management statistics quarterly (various editions); MoJ, Prison population statistics (various editions)
The prison population fell during the pandemic and has been rising again since 2021. This recent rise has been driven by an increase of people on remand, who now make up nearly one-in-five prisoners (16,500 people as of March 2024). Of these, 10,700 were awaiting trial, the highest number of untried prisoners on record.
According to the Prison Service’s annual digest statistics, nearly a quarter of prisoners (23%) were sharing cells due to crowding in 2022/23. Over the past two years, operational capacity has been around 1,000 places higher than the prison population, which is a smaller excess than was typical in the past. The Ministry of Justice predicts that by 2027 the prison population will grow to between 95,000 and 114,000, with a central estimate of 105,000. This growth is expected to stem from the clearance of a backlog of cases in the court system and longer sentences.
The previous government introduced changes designed to address the challenges with prison capacity.
In December 2020, the government announced a £4 billion programme to fund 20,000 new prison places by the mid-2020s. To date, around 5,900 of these prison places are operational,
In October 2023, the government announced that it would move some offenders out of prison, on licence, up to 18 days before their automatic release date. This was extended in March 2024 to a maximum of 60 days. In total, 10,000 prisoners were released early.
The government also used the Early Removal Scheme so that foreign national offenders serving a fixed-term prison sentence could be released early and removed from the UK.
The government also planned to rent space in prisons abroad and to introduce a presumption that prison sentences of 12 months and under should be suspended. The legislative changes required for this fell when Parliament was prorogued before dissolving for the general election.
Following the general election, the new Secretary of State for Justice said that “our prisons are in crisis and are at the point of collapse.” The Secretary of State also said that any further delays would be “unconscionable” and would lead to the “prospect of a total breakdown of law and order.”
Stakeholder reaction
HM Chief Inspector of Prisons, Charlie Taylor, said that he welcomed “swift action to relieve the immediate strain many jails are under” but warned that “this latest measure will inevitably lead to the release of some risky offenders.”
The Prison Governors’ Association said that the changes “will provide the headroom in the system which is needed” and that the prison system requires “significant new money” to address the “enduring overcrowding and capacity crisis.”
Director of Campaigns at the Howard League for Penal Reform, Andrew Neilson, said: “This is absolutely the right decision by the Lord Chancellor and the only way to buy a new government time to think more deeply and seriously about the use of prison and the functioning of the wider criminal justice system.”
Chief Executive of the Prison Reform Trust, Pia Sinha, said that the measures would "prevent dangerous levels of overcrowding" and that it is "vital that sufficient resource and support is provided to the probation service to ensure it is able to cope with supervising an increased number of people on licence in the community."
Farah Naz, the aunt of Zara Aleena, who was murdered by a man who had been out of prison on licence for nine days, said that the changes were a “dangerous gamble with public safety”.
The Sentencing Academy has said that some of the effects of the change would appear arbitrary, and that “It is unclear why an offender sentenced to an SDS of four years for one offence is suitable for release after serving 40% of the sentence whereas another offender sentenced to an SDS of four years for a different offence must serve two-thirds.” The Sentencing Academy stated that “such a disparity in outcome is difficult to justify”.
The Sentencing Academy also said that the changes “will be considered inappropriate by many victims and members of the public”.
Director of the Centre for Crime and Justice Studies, Richard Garside, said the announcement was a "missed opportunity" and that the Ministry of Justice should "develop a strategy to manage down the prison population over the medium- to long-term, allowing prisons to escape the permacrisis they are currently in."
Further reading
Further information about prisons in England and Wales is available in the following briefings:
- The prison estate in England and Wales
- Will prisons run out of space?
- Prison population growth: drivers, implications and policy considerations
- The use of short prison sentences in England and Wales
- Estimates day: The Spending of the Ministry of Justice on HM Prison and Probation Service