Early release is the latest stop-gap solution to solve overcrowding in prisons, but a media storm forced Andy Burnham to reconsider. Amid pledges to build more space, Sian Harrison hears calls for more support for probation and community services
‘Money spent on keeping more people in prison for longer is money wasted. Expenditure should be directed to reducing prison numbers by providing effective rehabilitation in prison and proper supervision and assistance to those who have served their sentences.’ These were the words of the four surviving former lord chief justices and former president of the Queen’s Bench Division Sir Brian Leveson in a report on ‘sentence inflation’.
Their report, published by the Howard League for Penal Reform in September 2024, highlighted the fact that sentence lengths and the prison population had both close to doubled over the 50 years of their service in the law.
Almost exactly two years on, Leveson was more forthright. ‘We can’t build our way out of the problem of prison capacity,’ he told Channel 4 News.
Leveson has, of course, put forward a series of recommendations to address what he describes as a ‘whole system issue’ within justice, not least the measures to restrict jury trial, which have proved so controversial and currently remain in the Courts and Tribunals Bill making its way through parliament. Other recommendations have not been taken up, and his frustration seemed evident during his recent interview.
But his blunt intervention on prisons comes as the justice system prepares to release 4,500 people between October and June next year by reducing the extent of their jail sentence to one third (or half for those who would have previously been freed after serving two-thirds of their term).
This is the latest drastic measure taken by government to ease the crisis of overcrowding in prisons. A similar scheme, known as SDS40, was introduced in 2024 and changed the usual halfway release point for many inmates serving determinate terms to 40% of their sentence. Shabana Mahmood, justice secretary at the time, described it as ‘the only way to avert disaster’. A previous early release scheme introduced in October 2023 under Rishi Sunak’s premiership saw low-level offenders let out up to 70 days before they were due to be.
Backlash
The responses to the latest measures in the Sentencing Act 2026 have reached fever pitch, amid our relentless and turbulent news cycles. Victims’ commissioner Claire Waxman said she was ‘increasingly concerned’ that what started as a prison capacity crisis was ‘becoming a public safety issue’.
Meanwhile, police representatives signalled alarm over how they will cope with an increased workload. Similar fears have been raised regarding probation staff. Nick Smart, president of the Police Superintendents’ Association, warned that early release will damage public confidence in policing and described it as the ‘lowest form of insult’ to victims of crime.
Action under the act, due to begin this month, was paused until October by Andy Burnham within weeks of him becoming prime minister. During this hiatus, former justice secretary and lord chancellor David Gauke, who advised on the early release provisions, warned that prisons would run out of space by November if the issue were not taken up by the new PM.
Changes were later made to exclude more offences from early release following a review. While those guilty of rape, child sex or grooming offences were excluded in the original legislation, prisoners serving time for manslaughter, death by drunk or dangerous driving and historical child sexual offences were also blocked from early release after the PM’s intervention. This followed an outpouring of condemnation from many victims and bereaved families, including the family of PC Andrew Harper. Two of his killers, jailed for his manslaughter, were initially eligible for release after serving a third of their sentences.
Government figures show that the additional offence exclusions have blocked the early release of 1,400 offenders. These figures apply to England and Wales – Scotland is facing its own crisis and is also taking urgent action, including early release to tackle prison numbers.
Overcrowding crisis
Latest weekly figures show the prison population in England and Wales hovering around the 87,000 mark, out of a maximum capacity of 88,986. Rob Preece, head of communications for the Howard League, says the population rose by 243 in one week – the 10th consecutive increase in a row.
He says the ‘headroom’ – that is, the difference between the population and the maximum capacity – should ideally be around 6,000 places to cope with the prospect of a large-scale event, such as simultaneous riots. ‘We need some slack within the system to be able to respond to a really serious incident, but when the prison system is running at this level of capacity it is really hard to be responsive to whatever may come along,’ he adds. ‘The government is running out of time.’
Behind these stark numbers are increased difficulties for all those who are incarcerated, as well as those who work in prisons. Lower staff-to-prisoner ratios mean there is less capacity to supervise activities such as exercise and educational courses, which some are required to complete for their rehabilitation. More prisoners are put into cells shared with others, causing cramped conditions.
Preece says this can exacerbate the already tense situation in jails, and staff shortages compound the problem. ‘It is not uncommon for us to see reports of the prisons that have the double problem of overcrowding but also not enough staff,’ he adds. Pressure builds within jails as more prisoners are confined to their cells for longer periods, sometimes up to 23 hours a day.
Alex Hewson, policy and communications manager for the Prison Reform Trust, says: ‘Overcrowding affects almost every aspect of prison life. It makes prisons less safe, increases violence and self-harm, limits access to education, training and rehabilitative programmes, and places immense pressure on staff. In overcrowded prisons, opportunities to address the causes of offending are often squeezed out by the day-to-day challenge of simply managing growing numbers of people.’
How have we got here?
Returning to the report of the LCJs and Leveson on sentence inflation, the doubling of sentences has led to a doubling of the prison population. The current cost of keeping someone in jail is around £60,000 annually, according to government figures, with the prison population across England and Wales eating up £4.9bn last year, making this a huge cost to the public purse.
Ministry of Justice figures show that, between 2010 and 2024, successive governments built around 13,000 new prison places but also closed around 12,500, meaning a net gain of just 500. Record court backlogs, which grew during lockdowns, created a bottleneck. This saw the number of those on remand awaiting either conviction or sentence grow rapidly, though latest figures show a 13% decrease over the past year to June following increased funding for Crown court sitting days and an increase in magistrates’ sentencing powers.
That increased capacity has, however, been eclipsed by a sharp rise of 28% in the number of offenders being recalled to prison. One solicitor who asks not to be named explains they view this as partly caused by issues within the overstretched Probation Service. Fewer probation officers means offenders are more likely to encounter an officer they have never met before who might recall them to prison for a missed appointment, whereas previously they would have had more support and been given a chance.
Beyond early release, the government has committed to ‘turbocharge’ funding for prison construction, with £110m to build new capacity, starting with a 1,700-place jail. The government aims to create 14,000 more prison places by 2031. An extra £18.9m has been set aside for additional victim support services, on top of £550m of spending commitments already made for such services.
Efforts will be made to remove foreign national offenders more quickly and there will be a ‘presumption’ against custodial sentences for those who are given terms of 12 months or less. A commitment to inject £700m into probation by 2028/9 has also been made.
But there are many uncertainties. It remains to be seen how many of the measures set out in the Courts and Tribunals Bill will survive, given tepid statements from both the PM and his new lord chancellor. And, while Burnham and Alex Norris have both pledged to end IPP sentences by the end of this parliament, potentially unlocking another 2,000 places, there is scant detail yet on how that will be achieved.
Given the complexity of freeing hundreds of people who have been incarcerated for long periods without any prospect of release, it is likely to be an uphill battle, while freedom cannot come soon enough for some who have been locked away for 20 years (see box, right).
An MoJ spokesperson said: ‘We’re building 14,000 more prison places, imposing the toughest-ever controls on offenders, investing record sums in probation and victim support, and reforming the length of time people spend on recall to reduce the prison population. We will also deport thousands of foreign criminals and bring the injustice of IPP sentences to an end. The lord chancellor has also been clear in his commitment to turn the tide on the Crown court backlog and deliver swifter justice for victims.’
IPP sentences – ‘it’s a vicious circle’
For more than 2,000 prisoners serving indefinite sentences, the path to freedom remains uncertain and intangible. Sentences of Imprisonment for Public Protection (IPP) were introduced in 2005 under the Blair government and scrapped in 2012, though their abolition was not applied to those already incarcerated.
During their operation, open-ended jail terms were handed to 8,700 adult offenders (300 sentences of the youth justice equivalent, Detention for Public Protection, were handed to under-18s) who were deemed ‘dangerous’, but whose crimes did not merit or qualify for life sentences.
David Blunkett, home secretary when IPPs were introduced, has since described them as the ‘biggest regret’ of his time in government and will now work with justice secretary Alex Norris to bring an end to them within this parliament.
While this is welcome news for those serving IPPs and their families, it is also long overdue. The thorny issue of what to do with those who have spent up to 20 years behind bars with no prospect of release, many of whom have abandoned all hope, has been kicked along the road by successive governments. In 2011, prime minister David Cameron described IPP sentences as ‘unclear, inconsistent and uncertain’.
Eleven years later, the Justice Committee published its report on IPPs and made a set of recommendations on how they should be tackled, including a resentencing of those serving. Yet, of those given IPPs, 2,271 remained behind bars as of June – 856 have never been freed, while 1,415 have been released on licence but recalled to custody. All but three have long ago seen their minimum sentence expire; five were only given a minimum term of six months. Most have serious mental health issues and 96 have died by suicide in custody, with many others taking their own lives after release.
In July UN experts called on the government to urgently review and resentence those still subject to IPP, saying: ‘These penalties involve prolonged uncertainty and cause serious psychological deterioration among prisoners, including an increased risk of self-harm and suicide. Such punishments may amount to psychological torture.’
For solicitor Karen Todner, who is representing four IPP prisoners bringing a writ of habeas corpus in the High Court in Cardiff, due to be heard in October, the work to free them is ‘emotionally draining’. She said: ‘I spoke to one man the other day who was jailed for robbery of a bicycle and has never been released since 2006; he has never been offered the courses that were suggested for him. These people don’t feel they have got any hope left and their mental health deteriorates so they can’t be released; it’s a vicious circle.’
Will these measures be enough?
"People who get out before they can access the courses they need, who may have mental health issues and lose access to any support when they are released… are more likely to reoffend and be recalled to prison"
Nicola Maynard, Reeds Solicitors
Buried deeper than the public and media outrage over early release, but no less palpable, are rumblings of concern from those in the legal profession and others who work with prisoners.
Nicola Maynard, partner and head of prison law at Reeds Solicitors, says the plans are ‘rushed’ and not properly thought through, and that there has been little guidance given to the legal profession.
She does not believe the latest measures will actually free up as much space as predicted because many prisoners will be more likely to be recalled, having been released early without being properly prepared. For example, she says that less time spent in open conditions because of the way the changes are being introduced, as well as a lack of access to courses designed to help with rehabilitation and mental health support, means prisoners are less ready for returning to life outside.
‘People who get out before they can access the courses they need, who may have mental health issues and lose access to any support when they are released… are more likely to reoffend and be recalled to prison,’ she says.
The availability of courses is also an issue that needs addressing to improve the situation. Maynard notes: ‘People can be waiting 18 months, two years to access courses, and more resources need to be put into that, as well as better mental health support upon release. That is the thing that would free up spaces and give those people the best chance of not being recalled.’
For Hewson, who agrees with Leveson’s observation that building alone will not be enough, there has to be a holistic approach. ‘The government should also tackle the key drivers of prison population growth, including the rising recall population and pressures in the remand system,’ he says.
‘Reducing court delays would help ease demand, while any effort to reduce prison numbers must be matched by investment in probation and community services so that people can be supervised safely and supported to turn their lives around.’
While those in the justice system may not agree with all of the measures, there is a sense of a willingness to work with the government to ensure success, because the consequences of failure are too alarming to contemplate.
As Leveson said in his recent television appearance, ‘the idea that the courts cannot send people to prison for serious crime is beyond imagining’.
Sian Harrison is a freelance journalist
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