We are sending too many criminals to prison for too long…

...that’s why our jails are full to bursting point, writes former HM chief inspector of prisons Nick Hardwick, and only radical rethinking of what justice means can save our criminal justice system

An aerial view of HMP YOI Peterborough, a category B prison for men and women, which has a capacity for 840 people (Getty Images)

Today, I spoke at the Justice Committee on the government’s response to prison population pressures.

On 6 October there were only 150 places left in men’s prisons in England and Wales. The prison system was full. The issues was not just thousands of prisoners crammed together in squalid conditions, often locked in their cells for 23 hours a day, and managed by thinly stretched and inexperienced prison officers – but that as Charlie Taylor, my successor as chief inspector of prisons has powerfully described, the essential education and rehabilitative activities that might reduce the risk a prisoner reoffending after release (and so create more victims), is simply not happening in many, many cases.

Back in October the prison population was 88,872. When I started working with young offenders in the 1980s and at the height of Thatcherism, the prison population was around 40,000. The latest government forecast now predicts the prison population will rise to 94,400 by March 2025, and up to 106,3000 by March 2027. The government’s long-term strategy is to build an additional 20,000 prison places at a staggering capital cost alone of £4bn.

But prison building has not kept pace with the speed of population increase, and so when the system finally ran out of room back in October, Alex Chalk, one of the better justice secretaries we have had in recent years (it was not a problem of his making) announced a series of frankly panicky measures to create some space. These ranged from releasing some prisoners up to 18 days early, delaying sentencing for some convicted prisoners and installing temporary prefabricated cell units in a few prisons where there was the physical space to do so.

A sensible measure was to propose a presumption against short sentences in the Sentencing Bill now before parliament. This would be a welcome measure – short sentences seldom do anyone any good – but it will have little impact on the overall size of the prison population. The reason for the increase in the prison population is not that we are sending more people to prison but that we are sending people to prison for longer – if you think of it like a bath, the water is coming in at the same rate but the outflow is blocked, so the bath fills up and simply scooping some of the water out does not solve the fundamental problem.

Sentences of more than four years increased by over 20,000 between 1993 and 2020 and sentence lengths have increased by 5.4 months on average since 1993. The prime minister stated on 19 April 2023 that “the average custodial sentence since 2010 has now increased by almost two thirds”.

There is no obvious political advantage in addressing this. Which politician is going to argue that we should send men (the prison population is 96 per cent men) who have committed harmful offences to prison for less time?

Well, do we think that sending someone to prison for, say, 15 rather than nine months is going to have a significantly greater deterrent effect? Or if they come out after those 15 months with nothing done to address their behaviour (other than to mix them, largely unsupervised, with men that are worse) we are going to be any safer?

And if this really is just about punishment and making ourselves feel better, then is that really worth £4bn? You can fix a lot of school roofs with £4bn.

Here are a couple of suggestions that might help.

First the government is already planning to produce an annual “Prison Capacity Statement” and the House of Commons Justice Committee is urging it be put on a statutory footing. Make that Prison Capacity Statement binding, so when capacity is reached people have to wait to serve their sentence or others are released early. This is what happens in some other European states and is happening by default in an ad hoc way here. Make it a properly organised requirement and that would at least concentrate minds. For individual prisons, give the chief inspector of prisons the power to halt admissions to prisons that fall below a minimum standard.

Second, this is an issue where a Citizens’ Assembly could have real value. Bring a group of randomly selected people together, give them the facts and let them hear different opinions argued and have a commitment to follow through on what they suggest. By all accounts it is a process that has worked well in Ireland on the abortion issue and perhaps it might create progress on the prisons issue here.

Professor Nick Hardwick is former HM chief inspector of prisons, and Nacro chair of the board of trustees