Overcrowding in adult male prisons is a significant problem affecting the criminal justice system. The Government has responded to this by way of Operation Safeguard. On 30 November 2022, a statement was made in Parliament announcing the operation. The Ministry of Justice requested the use of 400 police cells to hold those who are serving prison sentences or remanded in custody. Subsequently, on 6 February 2023, the National Police Chiefs’ Council were given 14 days’ notice to make cells in the North of England and the West Midlands available before the operation commenced.
Two key developments occurred in March 2023, the Court of Appeal case of R v Ali (Arie)  EWCA Crim 232 and a reduction in the sentencing powers of those sitting in magistrates’ courts. These demonstrate the response of sentencing practice to prison overcrowding. They shed light on the reality of a precarious criminal justice system. Changes occur in certain sections of it to assist with the stability of others. In these current circumstances, the approach of the criminal courts when considering imposing short sentences of imprisonment has shifted to ease pressure on prisons.
R v Ali (Arie)  EWCA Crim 232
This case was heard in the Court of Appeal on 3 March 2023. It was a successful appeal against a sentence of six months’ immediate imprisonment for an offence of assaulting an emergency worker, which had been imposed at Maidstone Crown Court on 6 February 2023. The appellant and he submitted that the sentencing judge had erred in not suspending the sentence. The Court of Appeal ultimately quashed the sentence imposed by the sentencing judge and substituted a suspended sentence order. The salient point from this judgment is applicable to cases where judges are on the cusp of sentencing defendants to immediate imprisonment. Where there is difficulty over whether a custodial sentence should be suspended, judges are entitled to consider the current situation of prison overcrowding and the impact that immediate imprisonment would have on the defendant as a result.
The offence had occurred when Mr Ali was a serving prisoner; he threw the boiling contents of his mug over a prison officer, causing a first-degree burn to the victim’s face. Prior to this, Mr Ali had no convictions for violent offences. He initially entered a not guilty plea at the magistrates’ court. The matter was listed for trial at the Crown Court. However, it could not proceed on the first occasion due to the industrial action that was being taken by the Criminal Bar Association. The trial was then relisted, and Mr Ali pleaded guilty on the first day.
No pre-sentence report was ordered. The fact that the offence was committed in prison was treated as a very significant aggravating factor. Despite several mitigating factors such as Mr Ali’s lack of previous convictions for violence, the judge determined that the offence had crossed the custody threshold and imposed six months’ immediate imprisonment.
Mr Ali raised three grounds of appeal. The first was that the sentencing judge had erred in not ordering a pre-sentence report. The second was that the length of the sentence was manifestly excessive. The third was that the sentencing judge had erred in imposing a sentence of immediate custody. The Court of Appeal rejected the first two grounds. However, it found merit in the third, due to the case’s exceptional circumstances.
The Court agreed that offences such as this which were committed in prison and against a prison officer usually merited immediate custody. Nevertheless, they recognised that, in the present case, there was a realistic prospect of rehabilitation. There were three exceptional factors which were identified in this regard, and which were strong arguments for Mr Ali’s custodial sentence being suspended. The first was that Mr Ali had not been charged until sixteen months after the offence and over six months after he had been released from prison. The second was that Mr Ali was not sentenced until two and a half years after his release and, since that time, he had remained out of trouble. The third was that he had received a very positive reference from a probation officer referring to Mr Ali’s compliance with his licence conditions.
The fourth factor, and the one with wider implications, was that Mr Ali was sentenced at a time when the prison population was very high. The Court noted the existence of Operation Safeguard and stated that this resolved any doubts that it had about whether Mr Ali’s sentence should be suspended. The Court noted that this would likely apply to shorter sentences since ‘a significant proportion of such sentences is likely to be served during the time when the prison population is very high’ (paragraph 23).
The consideration of prison overcrowding will apply to sentences which are passed during this situation of prison overcrowding. The date of Operation Safeguard was given by the Court of Appeal as the starting point. It is for the Government to communicate to the courts when prison conditions have returned to normal. When this will be, remains unknown. On 5 December 2022, Parliament was informed that it was not possible to estimate the duration of the protocol.
The Court of Appeal has previously given guidance on several occasions of the importance of considering prison conditions and their impact on an individual’s experience of an immediate custodial sentence. One example was referred to in Ali, which was the Attorney General’s Reference (Manning)  EWCA Crim 952. Manning specifically concerned how prison conditions were affected by the COVID-19 pandemic. Two other examples which were not referred to in Ali are Seed and Stark  EWCA Crim 254 and R v Bibi  1 W.L.R. 1193.
Clearly, therefore, Ali is not representative of a departure from usual approaches to sentencing. Rather it is a restatement of those approaches with explicit acknowledgement of their applicability to the current issue. The fact remains that custodial sentences should only be imposed where necessary and when no other type of sentence is appropriate. Sentences should also be in proportion to the seriousness of the offence and last no longer than is necessary. In each case, the individual’s experience of custody should be considered. Factors like prison overcrowding, which are caused by external factors, should be considered along with other circumstances such as poor health.
It should not be forgotten that the consideration of prison overcrowding should only be relied on when a court already has doubt about whether a relatively short custodial sentence should be imposed immediately or suspended. The Chairman of the Sentencing Council for England and Wales, Lord Justice William Davis, published a statement concerning the Ali case on 20 March 2023. He made clear that this is not a factor requiring every short prison sentence to be suspended.
Reduction of Magistrates’ Court Sentencing Powers
On 2 May 2022, the maximum prison sentence available to those sitting in magistrates’ courts when sentencing for either way offences was doubled from six months to 12 months. This was achieved through section 13 of the Judicial Review and Courts Act 2022 amending section 224 of the Sentencing Act 2020. However, from 30 March 2023, the Ministry of Justice has reduced the powers back to six months through the Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023. The relevant date is that of conviction as opposed to the date of sentencing or the offence itself.
The rationale behind the initial increase to 12 months was to reduce the backlog in the Crown Court by ensuring that more cases would be sentenced in the magistrates’ courts, freeing up capacity after the COVID-19 pandemic. The backlog had existed long before the pandemic, but it has been worsened by it. During the first lockdown, all jury trials were postponed, and some courts were closed. When they resumed, there were delays due to the requirement for social distancing and the necessity of tests being conducted by court staff and jury members. The increase in sentencing powers was predicted by the Ministry of Justice to allow up to 1,700 extra days of Crown Court time to be freed up each year.
The raising of jurisdiction in the magistrates’ courts has been subject to much criticism. One point which was advanced by Kirsty Brimelow KC, Chair of the Criminal Bar Association, was that it would ‘increase the risk of additional people being imprisoned for short sentences which places pressure on already overcrowded prisons’ (Evening Standard, 10 March 2023). Since May 2022, the prison population has risen by 4,000 or 5% and, since the end of 2022, spare capacity in the prison estate has decreased by more than half. The decrease in sentencing powers is said by the Government to be a reaction to the situation of prison overcrowding. Yet, it is difficult to say whether this is a result of the change to magistrates’ sentencing powers. It is also questionable as to whether a decrease in magistrates’ sentencing powers will affect prison overcrowding. Two considerations support this. First, committing for sentence does not remove the Crown Court’s ability to impose short custodial sentences, as magistrates and district judges would have been able to do. Secondly, even if more cases are committed for sentence, the fact remains that some defendants will be remanded in custody ahead of their Crown Court appearance.
This movement has been framed by the Government as a pause on increased sentencing powers rather than a reversal of policy. The Magistrates’ Association have responded by arguing for their powers to be increased again. In a statement on 10 March 2023, the Association said that it was ‘incredibly disappointed’ and referred to a lack of morale that the change may cause against the backdrop of demand for magistrates. In January 2022, the Ministry of Justice launched a national recruitment campaign which was the largest in the Magistracy’s 650-year history. It is important to note that the change in sentencing powers affects not only magistrates but also District judges and deputy District Judges. The former take on a large proportion of work in magistrates’ courts and, as with the Magistracy, there have been recent difficulties in recruitment.
The reduction of the only recently increased magistrates’ courts sentencing powers is a swift and, to some, surprising move. In contrast, the Ali case appears to be a restatement of long existing principles with explicit application to current circumstances. Both demonstrate the reality that, as one section of the criminal justice system experiences difficulties, another part of it has had to adapt its operation to help mitigate the problem.