Suspended Sentences and prison overpopulation

The Times has recently reported (£) that Lord Edis, the Senior Presiding Judge for England and Wales, provided guidance to judges to delay sentencing defendants who are currently on bail due to prison overcrowding.

It is ell-known that prisons in England and Wales are bulging at the seams and have been for quite some time.  The question therefore arises as to whether there is greater scope for a defendant potentially facing a prison sentence to persuade a judge to sentence him or her to a suspended sentence.

What is a Suspended Sentence?

A sentencing court has the power to suspend any custodial sentence of between 14 days and 24 months for a period of up to two years.

Essentially, a Suspended Sentence Order imposes a custodial sentence where the defendant does not have to go to prison immediately (or at all) provided that he commits no further offences and complies with any requirements imposed. The practical meaning is that a defendant who is sentenced to a suspended sentence has a period of imprisonment imposed but this does not take effect. It hangs over his or her head for the operational period, i.e. the suspended period. Provided the defendant does not breach any of the requirements imposed or commit any offences during the period he or she will not go into custody.

Suspended sentences may seem like the ‘soft option’ but any breaches for further offences committed during the operational period are treated more seriously. Broadly speaking, the starting point for a Court dealing with any breach is that the prison term that is suspended should be activated unless exceptional circumstances apply. The defendant will also face a further penalty for the further offence committed.

When should a Suspended Sentence be imposed?

The Sentencing Council provide guidelines on when a period of imprisonment should be suspended.

Factors listed in the guidelines include circumstances where:

• there is a realistic prospect of rehabilitation
• there is strong personal mitigation
• immediate custody will result in significant harmful impact upon others

These factors are balanced against factors such as when there is history of non-compliance with Court orders, whether the Court considers that only immediate custody would be an appropriate punishment and also whether the offender poses a serious risk to the community.

The size of the prison population: is it a factor?

During the Covid 19 pandemic, it was held in a judgment by the Court of Appeal in R v Manning [2020] EWCA Crim 592 that “Judges and magistrates could, and should, keep in mind that the impact of a custodial sentence was likely to be heavier during the current emergency than would otherwise be the case”. This judgment is significant because it confirmed the principle that conditions for a defendant serving a prison sentence may well have an impact on the sentence imposed.

• The factors referred to in this judgment were:
• the confinement of prisoners to their cells for 23 hours a day, in an attempt to curb the spread of the virus;
• the inability to receive visits; and
• the anxiety caused by the risk of transmission of the disease in confined quarters.

The conditions within prisons has obviously moved on since the pandemic. However, at the end of 2022, the protocol Operation Safeguard was launched by the government due to the prison population increasing to an unmanageable size. This permits prisoners to be held in up to 400 police cells if the prison service is of the view that prisons are overcrowded. It was accepted by the government in a letter to the Lord Chief Justice in February 2023 that “Prisoners held in police cells under Operation Safeguard will not have access to the full range of services normally offered in custody, including rehabilitative programmes”.

In March 2023, a judgment was handed down from the Court of Appeal in R v Ali [2023] EWCA Crim 232 which made direct reference to Operation Safeguard and the fact that some prisoners were being in held in unideal circumstances. It was held that an “exceptional factor” that may lead to the imposition of suspended sentence is if the defendant is sentenced at a “time of very high prison population.”

The judgment went on to say that particularly when a short prison sentence is under consideration, “sentencing courts will now have an awareness of the impact of the current populations levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state”.

Further clarification has been provided by Lord Justice William Davis, Chairman of the Sentencing Council for England Wales in guidance published by the Sentencing Council. It confirmed that the judgment in Ali  “does not mean that the high prison population is a factor which requires all short prison sentences to be suspended.  Rather, when a court has to decide whether a custodial sentence must be imposed immediately or whether the sentence can be suspended, the high prison population is a factor to be taken into account.”

Therefore, the current level of the prison population may well be a significant and helpful factor in certain circumstances for a defendant facing a short prison sentence hoping to persuade the Court to impose a Suspended Sentence. However, every case hinges on its particular facts, and so it can be said to a persuasive factor only, not a defining one.

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