Independent Review of Prison Capacity
Introduction
In May 2024, following the announcement of a general election, an official-level COBR1 meeting was convened to discuss contingency plans in case the criminal justice system collapsed during the election campaign because prisons were unable to take in any more prisoners. This could involve invoking emergency powers under the Civil Contingencies Act 2004 to release prisoners early, in order to avert the risk of public disorder. Those meetings and discussions continued throughout the election period.
The risk was real: at one point there were fewer than 100 places in adult male prisons. However, the system had in fact been in crisis for over eighteen months. From 2023 onwards, prisons were running very close to the edge of capacity. On three occasions, this was only pulled back at the last minute by the use of early release schemes, gradually decreasing the amount of time many prisoners spent in custody, using powers designed to allow release on compassionate grounds. Senior officials were so concerned about a potential breakdown in the criminal justice system that an audit was kept of all decisionmaking and documents, in case there was a public or parliamentary inquiry.
The system in fact limped through the summer of 2024, helped by the knowledge that relief was coming, in the shape of the new government’s pledge to reduce the custodial element of most standard determinate sentences from 50% to 40% (SDS40). This was a similar measure to the one that had been energetically but unsuccessfully pursued by the Lord Chancellor in the previous government. That government had also proposed to suspend most short prison sentences, alongside other measures, in legislation which fell when the general election was called. The new government commissioned an independent review of sentencing,2 chaired by the former Conservative Lord Chancellor, David Gauke. It reported in May, at a time when prisons were within sight of yet another capacity crisis.
The 2022-24 prison capacity crisis was a conjunction of some specific circumstances. However, it was also a symptom of a systemic and long-running problem: the apparently irresistible pressure for more and longer prison sentences coming up against the immovable object of the difficulty, expense and overall effectiveness of building and running more prisons. In general, population pressure has constrained prisons’ capacity to operate safe, positive and purposeful environments that can reduce the likelihood of reoffending. From time to time that pressure erupts into a crisis that requires executive action, sometimes unnoticed and sometimes public.
In 2007-08, the last Labour government faced a capacity crisis, due to the mismatch between the number of available prison spaces and the demand created by legislation that had increased some minimum sentences and introduced the now abolished imprisonment for public protection (IPP) sentence. The then Lord Chancellor had to introduce an early release scheme, not dissimilar to the 2023-24 schemes, but under different powers, to avoid the system collapsing.
During the austerity measures in the Coalition government between 2010 and 2015, the Ministry of Justice (MoJ) offered up savings based on the assumption that the prison population would reduce, but did not take any measures to reverse the inbuilt drivers of population increase. Eighteen expensive, mostly smaller, prisons were closed and only two new prisons were opened; overall prison officer numbers were reduced by 27%,4 with a significant loss of experienced staff; maintenance and capital budgets were cut or transferred to plug holes in running costs. By the summer of 2017, there were only around 900 prison spaces left,5 and real risks of a system collapse. This was averted by a series of barely-noticed executive measures, including a 60% increase in the use of home detention curfew6 (the use of electronic tags) and a steep rise in the executive re-release of recalled prisoners.
The 2022-24 capacity crisis, which is the focus of this review, is therefore only the latest among a succession of crises, though it was probably the deepest and longest, described by many of those who lived through it as an 18-month ‘permacrisis’. It affected the prison service at every level, as well as much of the rest of the criminal justice system. As recent events have shown, it is far from over, as recent prison capacity figures show.
Increasingly, during this time, the focus in the MoJ and the prison service, especially at senior level, was on managing the crisis, rather than managing prisons or supporting prisoners. Task forces, boards and committees, across and beyond prisons and the MoJ, were meeting weekly, and at times daily, to document, monitor and try to resolve capacity problems, at the expense of other aspects of prison strategy and policy (see Chapter 3 of this report). Only when this complex ecosystem signalled that the criminal justice system was within seven, and then three, days of collapse was action taken. On each occasion this was just enough to avert breakdown and buy time until the next predictable cliff edge was reached.
During the crisis, senior officials struggled daily with the effort to keep the system running. This included those running prison escort services, transporting people to and from courts and prisons, as well as those responsible for population management or for working out how to implement the various interacting release and recategorisation schemes. At one point, under what was aptly called Operation Early Dawn, teams of officials worked from 5:30am until late at night to move people to and from prisons, police cells and courts, in a complex series of interrelated moves, many of people with risks and vulnerabilities. The capacity crisis also came with a financial cost. Police cells had to be used, under Operation Safeguard, to house prisoners overnight, or sometimes longer. Each police cell cost the prison service £688 a day, compared with the average daily cost of a prison place at £150: a total bill so far of over £70 million and rising.
On the ground, the capacity crisis had a direct and damaging impact on those working and living in prisons, and on prisons’ capacity to carry out positive and rehabilitative work. In prisons outside the high security estate, initially most acutely in the north, day-to-day life was dominated by numbers: creating enough space by moving prisoners in and out of prisons and police cells, transferring prisoners from one part of an overheated prison system to another, trying to avoid releases in error while implementing ever-changing and increasingly complex release schemes. And this all dropped into a prison system that was still recovering from earlier severe staffing reductions and had only just emerged from managing the COVID-19 crisis.
Demand for prison places has risen inexorably, checked only temporarily by the COVID-19 outbreak. This has been driven by a number of factors, set out in Chapter 1 of this report. They include greater use of custody, an escalation in the length of sentences for more serious offences, and increases in the proportion of time spent in custody.10 In addition, there has been a significant rise in the number of those recalled to prison, who accounted for nearly a quarter of prison admissions in 2023-24. Nearly one in five prisoners are also remanded or unsentenced, due to the continuing backlog in the criminal courts. Though the number of short-sentenced prisoners has dropped to only 3% of the population at any one time, they account for nearly half of all new receptions into prisons. Proposals for a presumption against short sentences, by this and the previous government, are designed to relieve this pressure.
Governments have responded by focusing on the supply side, with ambitious plans for more and more prison places. However, in practice this has not been a solution (see Chapter 2). Financial pressures and planning constraints, together with the need to ensure appropriate levels of security, have severely limited the ability to create new prison places, or even, in the ambition of a previous Secretary of State, to replace old crumbling prisons with new and more efficient ones. At the same time, prison places were lost, due mainly to closures and critical infrastructure failings, so that total operational capacity fell between 2012 and 2025. But prison capacity is not just about creating enough spaces next month or next year: it is about whether prisons have the capacity and the resources to provide safe environments that can work effectively with prisoners to reduce the chances of reoffending. Moreover, prison capacity crises will keep recurring unless there is sufficient investment outside prison – both in probation and in other community services – to support those being released and to tackle some of the underlying causes of offending.
In this context, it is important to note that there are groups which have bucked the trend of a steadily rising prison population. Over the last 20 years the number of under-18s in custody has dropped from over 3,000 to around 400. This is seen as a direct result of focusing on a multidisciplinary, community-based preventive and supportive approach, with imprisonment reserved for the most serious offending. That has not just meant disinvesting in prison: it has meant reinvesting in the community services that can prevent offending or reoffending.
The introduction of SDS40 in late 2024, combined with more extended use of home detention curfew, has provided breathing space, but not a solution. By the spring of 2025, prison numbers were once again butting up against capacity, police cells were again being used, and the forums set up to manage capacity were revived. Emergency action to expand the use of fixed-term recalls has been announced, and home detention curfew (‘tagging’) has been further extended. The recommendations of the Independent Sentencing Review aim to cap the projected rise in prison numbers at its highest ever level of around 95,000. That will still be a challenge for the prison service. Meanwhile, early release measures and greater use of community alternatives do not by themselves reduce overall pressure: they displace it from prisons to probation, third sector and community services, which, as this report notes, have their own, less well-publicised, capacity problems. Significant and much-needed additional investment in these services has now been promised.
This report shows the risks and consequences of the cycle of prison capacity crises, and in particular the highly damaging impact of the acute crisis over the last few years. It also sets out the wider impacts: the opportunity costs at every level, of having to focus on capacity at the expense of more strategic planning, policy development and positive rehabilitative work. It concludes by proposing a change of approach from predicting to preventing crises, both in prisons and probation and community services.
Recommendations
The Annual Statement on Prison Capacity, first presented to Parliament last December, is a step forward. However, this is a mechanism for reporting and projecting capacity, not a strategy for managing it, and it focuses mainly on prisons. Within five months of its publication, emergency action was needed to avert another capacity crisis. The accompanying ten-year strategy is the latest of many, and again deals only with prison capacity.
I recommend that there should be a published ten-year strategy for developing capacity within probation and community services.
Within the MoJ, it is helpful that there is now a separate strategic arm of the capacity options taskforce. However, past history strongly suggests that such strategies may not survive contact with reality, and also that the plethora of internal systems and processes set up in recent years has not been able to ensure timely action across departments and at governmental level.
I recommend that there should be an independent advisory body to provide advice and external validation of the capacity strategies and challenges in both prisons and probation, and in particular the impact of any proposed changes in the criminal justice system.
I note that the Independent Sentencing review, and a number of its witnesses, also recommend the creation of an independent external advisory body. There would need to be consultation on its precise composition and remit, but, like the Sentencing Review, I believe that it should assess the impact on prisons and probation of structural, financial or legislative changes or guidance planned or implemented in any part of the criminal justice system, including funding and organisational implications. It should provide independent advice and commentary on prison and probation capacity strategies and relevant policies. It should draw on the findings of the independent inspectorates of prisons and probation in order to provide a reality check. This process would take these discussions out of the shadows of inter-departmental or intra-governmental tugs of war, and move towards a preventative, rather than a crisis management, approach. The decisions on whether and how to legislate and where to invest resources are rightly political decisions, but this mechanism would provide greater transparency and accountability.
In the course of this review, some strong views were expressed about the structure and focus of HMPPS. In prisons, this focused on the organisational structure, and the relationship between governors and local and central management structures. In probation, this centred on the need for a more local focus, including partnerships with organisations outside criminal justice.
Even if the proposals in the Independent Sentencing Review are implemented and have the desired effect, the prison population will still be at its highest ever level, with pressure on the capacity to run safe and rehabilitative regimes. HMI Prisons will continue to report on the outcomes for prisoners in each prison, and those reports clearly show the scale of the challenge for most prisons, in the light of changing risks. However, some of those findings reflect, or are the result of wider organisational and resource issues within the prison service. There is no independent evaluation of the prison service as a whole – its central, regional and local management structures, strategic capability, and staffing, training and resource needs.
I recommend that the HMPPS Board should be mandated to carry out an evaluation of the prison service, in consultation with the Chief Inspector of Prisons. It should also monitor and report on progress against the 10-year prison capacity strategy and the proposed strategy for probation and community capacity.
The capacity crisis in probation and the shortfalls in the provision of community services are much less visible than in prisons but are equally real and damaging. Given the changes proposed in the Independent Sentencing Review, and accepted by the government, those services will now have to take on much greater responsibility for supervision and support in the community. There is the promise of considerable additional funding over the next four years, but it is not clear how much of this will be in control mechanisms – extended electronic monitoring – and how much in the essential support services, within and outside criminal justice, that can prevent offending and reoffending. Probation, community services and the third sector are not pressure valves that can be turned on or off at will to relieve an overwhelmed prison system: they should be an integral part of leadership, planning and funding. That will require creating and strengthening genuine operational partnerships, not hand-offs, particularly at local level, learning from the failings of the Transforming Rehabilitation process.
I recommend that both the Chief Inspector of Probation and the third sector should be involved in discussing the design, as well as the delivery, of community services. This should include the engagement and resourcing of essential non-criminal justice support such as addiction, health, housing, and employment services.
There have been tensions between policies and funding in different parts of the criminal justice system, particularly since the MoJ was detached from the Home Office. These tensions, both at national and local level, have at times led to blame-shifting, not problem-solving. More recently, as this review records, there have been examples of constructive operational relationships, developed during the COVID-19 pandemic and capacity crises, which can be built on to tackle underlying causes rather than symptoms. The integrated offender management (IOM) approach, when properly implemented and resourced, brought together local agencies to deal with repeat and persistent offenders.
I recommend that the IOM model should be reinvigorated, properly funded, and rolled out in a consistent way as a model for cross-agency work.
The terms of reference of this review do not include sentencing, which has been considered by the Independent Sentencing Review, and I refer above to some of its recommendations. That review also referred to the impact of sentence inflation on the size and composition of the prison population, but did not have the time or scope to make specific recommendations. It notes, for example, that the rise in mandatory minimum sentences has created ‘additional and unsustainable pressure’ on prison capacity, as well as the nearly 70% rise in average minimum tariffs for murder. As both of these factors have a continuing impact on prison capacity, I support the Independent Sentencing Review’s proposal that there should be a separate review of the impact and effect of minimum sentences, and that the Law Commission should examine minimum murder tariffs as part of its review of homicide law and sentencing.
Dame Anne Owers
Independent Reviewer
