Statement on the application of sentencing principles during a period when the prison population is very high

Chairman of the Sentencing Council for England and Wales, Lord Justice William Davis, issued a statement on 20 March on the application of sentencing principles during a period when the prison population is ‘very high’. The statement begins by acknowledging the concerns relating to the current prison population and the issue as to whether the potential impact on offenders, due to the high prison population, should be taken into consideration during sentencing.

Lord Justice Davis states: “There are well-established sentencing principles which, with sentencing guidelines, are sufficiently flexible to deal with all circumstances. These principles are familiar to judges and magistrates and include a requirement for the court to take into account the likely impact of a custodial sentence on the offender and, where appropriate, on others such as children or other dependants. They apply today just as they applied during the Covid emergency.”

A recent judgment by the Court of Appeal is cited as a useful case that included specific references to sentencing taking into account the impact of the current prison population. The ruling in R v Arie Ali [2023] EWCA Crim 232, is an example of a case where the court took into account the impact of the current prison population levels when making a decision on an offence that crossed the threshold for a short custodial sentence. In such circumstances judges and magistrates can elect to suspend the sentence or impose a community order instead, in view of the very high prison population.

Lord Justice Davis explains that in the case at hand, the court found that, irrespective of the current prison population, there were strong arguments for suspending the sentence. As such, Lord Justice Davis concludes: “This 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.”