The very existence of such a plan demonstrates clearly that the Government has suspected the tipping point of a nationwide prison crisis would be reached. It has been used earlier this year for a day or so, but this is the first blanket roll out, set to last a week in the first instance, with scope to extend.  Despite the warnings from the Law Society, the Criminal Bar Association and the Bar Council that the criminal justice system was collapsing, the Government continues to shy away from attempting a cure, and instead reaches for yet another sticking plaster.

Under this emergency measure put into effect this morning the Ministry of Justice (‘MoJ’) said HM Prison and Probation Service (‘HMPPS’) – services wrecked by underfunding and cuts that prevents either prisons or probation from working safely, adequately or at all – will assess each morning which defendants can be transferred from police cells and taken to courts to ensure that there is a safe and secure location if they are remanded into custody.  The emergency measure will be used regionally where demand necessitates.

This is just one of a number of half-baked measures that have been taken in an attempt to avert or delay the inevitable crisis in the past few years.  It follows on from Operation Safeguard, which seeks to use 400 police cells to ease overcrowding in prisons.  This was first brought in in October 2022, and has been called on again in the last week.  On 23rd May this year, the End of Custody Supervised Licence (ECSL) scheme introduced in October 2023 to allow some prisoners to be released early on curfew for 18 days, already increased to 60 days in March 2024, will see this increase again to 70 days.  Meanwhile the Courts have reacted by delaying sentence hearings, and tipping the scales in favour of suspended sentences: guidance issued by the Sentencing Council in March 2023 regarding ‘the application of sentencing principles during a period when the prison population is very high’ indicated that due to the high prison populations, the courts should consider suspended sentences instead of short custodial sentences until the emergency state has been lifted, affirming the case of R v Arie Ali [2023] EWCA Crim 232.  None of the measures are turning the tide: at the beginning of May 2024 the prison population stood at 87,505, with the total usable capacity at 88,895.

The response from the MoJ is typically Pavlovian: “This government is categorical that the most dangerous offenders should stay behind bars for longer, which is why new laws will keep rapists locked up for every day of their prison sentence and ensure life means life for the most horrific murders.  We continue to see pressure on our prisons following the impact of the pandemic and barristers strike which is why we have initiated a previously used measure to securely transfer prisoners between courts and custody and ensure there is always a custody cell available should they be remanded”. A response that goes nowhere near a satisfactory explanation for the measure, and does not address the potentially huge impact on those within the justice system, and on the backlog itself.

The Magistrates Association whose members bear the brunt of working within the emergency measure were not even informed about the operation before today. The Chief Executive Tom Franklin stated “We are very concerned about these further delays being impose on cases reaching the magistrates courts. Every case that is delayed has real life consequences for victims, witnesses and defendants”.

It is far too early to say whether this measure is a terrible response or a truly cataclysmic one. But its very existence demonstrates the constant erosion of a justice system that has been in decline for decades.

According to online press reports this afternoon matters are not proceeding smoothly – the Daily Telegraph’s Martin Evans and Charles Hyman wrote at 2.12 pm on 15 May 2024: “there have been chaotic scenes at magistrates’ courts across the country as defendants who were due to appear were not produced”.

Whether it was Gladstone, Francis Bacon, William Penn or any other august individual the phrase “Justice delayed is justice denied” has never been more appropriate. This is a shameful and desperate measure. The plaster will fall off quickly and the suppurating sore will be revealed once again.

Article by Benjamin Hargreaves