Some prisoners will be released ‘up to 35 days early’ to make room for new inmates, The Times reported last week. Those freed could include burglars and some violent offenders.

Joshua Rozenberg

Joshua Rozenberg

Why did the Ministry of Justice give the newspaper’s home affairs correspondent this apparently damaging information? The first reason was presumably to soften the blow: in reality, its proposals turned out to be even more damaging.

Arrangements for releasing prisoners on licence towards the end of their sentences will be extended to ‘around 35 to 60 days’, justice secretary Alex Chalk told parliament in a written statement released late on Monday evening. Five weeks turned out to be the minimum, not the maximum. And it could go up: the government will ‘keep the use of this measure under review’.

On Tuesday, Chalk had to repeat his announcement, almost word-for-word, in an oral statement. He referred to the ‘existing end-of-custody supervised licence measure’ he had announced last October. ‘We have decided,’ he told MPs at the time, ‘to use the power in section 248 of the Criminal Justice Act 2003 to allow the Prison Service to move some less serious offenders out of prison on to licence up to 18 days before their automatic release date’.

Can he do that? Section 248 allows the secretary of state to ‘release a fixed-term prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds’.

A policy framework reissued by the MoJ last August explains that an application may be made under this section ‘where the prisoner is incapacitated or has health conditions such that the experience of imprisonment causes suffering greater than the deprivation of liberty intended by the punishment’. Conditions could include paralysis, severe strokes, respiratory illnesses, cardiovascular disease and dementia, the document adds. It makes no mention of prison overcrowding.

The second reason for briefing The Times must be that Chalk was worried about the progress of his Sentencing Bill. MPs gave it a second reading on 6 December and agreed that its committee stage should be taken on the floor of the Commons, a procedure sometimes used for urgent legislation. But the bill has stalled, with no date announced for its committee stage.

Chalk made no mention of the bill in his statements this week and he was not asked about it by MPs. But the government’s decision not to proceed with it was clearly political: the bill would have faced opposition from those on the right of the Conservative party.

If passed, it would introduce a presumption that short sentences – of 12 months or less – will be suspended unless there are exceptional circumstances relating to the offence or the offender.

The bill would also have ensured that some murderers, rapists and serious sexual offenders spent longer in prison. But effectively doing away with short-term sentences was presumably seen by opponents of the legislation as too high a price to pay for keeping the most serious offenders locked up for longer. If there is to be no new legislation in the coming months, Chalk must simply stretch the existing provisions as far as he can.

Early release will apply only to ‘certain low-level offenders’ – but that could cover those convicted of all but the most serious offences. Electronic tagging may be used, but only ‘where necessary’.

Chalk also wants more foreign offenders returned to their home countries. More will be done to support bail applications, with the judges promising to hear them promptly. And two prisoners will be housed in cells designed for one – but only ‘where safe to do so’.

But even with all these efforts, letting prisoners out two months early may not create enough space. In that case, the MoJ will ‘work with the police, prisons and probation leaders to make further adjustments as required’.

That means more work for the probation service, of course. But the ministry ‘will be taking steps to refocus probation practice on the points that matter most to public protection and reducing offending’. This seems to mean that those working for the Probation Service will spend more time with prisoners shortly after their release – when they are most likely to reoffend – and less towards the end of their licence period, when it’s thought they may be at less risk.

The shadow justice secretary Shabana Mahmood told Chalk he had gone much further than Labour had when it let prisoners out early. His ‘unprecedented 60 days’ was ‘nearly three times the number of days on licence seen under any previous scheme’.

Mahmood said that ‘people who have broken the law and, in many cases, pose an ongoing threat to the law-abiding public are directly benefiting from the government’s complete incompetence’.

But as Chalk asked, what would she have done?