As of June 21, 2024, the prison population in England and Wales had almost reached its limit, standing at 87,395, according to figures released by the Ministry of Justice. This is stark in itself, but the size of the crisis is exacerbated further when pitted against a “usable operational capacity” of 88,778. This leaves less than 1,500 available spaces in the whole of England and Wales, prompting prison governors to sound the alarm, warning that without immediate intervention, the criminal justice system teeters on the brink of collapse.In a letter addressed to political leaders on 25th June, the Prison Governors’ Association (PGA) which represents over 95 percent of prison governors and managers, the PGA emphasised that the criminal justice system “stands on the precipice of failure,” urging the next government to tackle this issue “without delay” as “not doing so will result in the CJS failing”.

The problems facing the criminal justice system are nothing new, and the idea of a system on the brink of collapse are words we’ve heard before. Legal aid is failing to keep up with real-time wages, and barristers are continuing to strike amidst unworkable hours, pay figures below minimum wage, and a system running on goodwill. This crisis is just the latest problem – the criminal justice system has been plagued by court backlogs, poor pay, crumbling court buildings, lack of retention, and strikes. The whole concept of the rule of law has been left on its knees.

Current Overcrowding

Although the current figures suggest some available capacity, the reality is more complex. Around 1,350 cell spaces are kept in reserve as a contingency, to ensure prisons can operate safely and manage unforeseen circumstances. This effectively reduces the actual number of available spaces down to merely hundreds.

In an attempt to manage the crisis, earlier this year, the Government expanded a scheme allowing certain inmates to be released up to 70 days early from their sentence, The Times reported in May, meaning more places would be freed up quicker. However, there are concerns that this measure could inadvertently lead to dangerous criminals being eligible for early release. Not only that, but it could mean more people on the streets who should still be in prison, an affront to victims of crime. Despite assurances from officials that released offenders will be strictly supervised, the fear remains.

The escalating crisis has also led to legal and safety concerns being raised, prompting the prison officers’ union (POA) to threaten legal action if the overcrowding worsens. The union has highlighted the risk of breaching safe capacity levels, highlighting that prison staff in England and Wales lack the right to strike, which complicates their ability to protest working conditions. According to a report by POA, former Justice Secretary Alex Chalk and former Prisons Minister Edward Argar attempted to reassure union leaders that safe operational capacity would not be breached. Nevertheless, the lingering concerns and the looming threat of a system collapse underline the urgency of the situation.

POA’s general secretary, Steve Gillan, underscored the gravity of the crisis, advocating for drastic measures, such as potentially freeing non-violent prisoners, to relieve the pressure on the system. He pointed out that the entire criminal justice system—from police to courts—is stretched thin, with prisons virtually “on their knees.”

Gillan stated:

We are fully aware of the crisis we are in and have been warning against this for several years. Make no mistake we support HMPPS leadership and will take any action necessary to protect our members in any attempt to further overcrowd our prisons under Health and Safety Legislation and indeed legal action.

Gillan warned that by the first week of July, prisons might be forced to “lock out,” a scenario where they can no longer accept new inmates, including those detained on remand or newly sentenced criminals. This dire situation, he stressed, must be averted at all costs.

Political Responses and Future Projections

Then-Shadow Justice Secretary and newly appointed Lord Chancellor and Secretary of State for Justice, Shabana Mahmood criticised the previous Conservative government’s handling of the issue, attributing the crisis to “staggering Tory chaos” and emphasising the need for more prisons and strategies to reduce reoffending. However, she did not outline any immediate steps Labour would take to ease short-term overcrowding.

The National Audit Office (NAO) recently reported that overcrowding in prisons significantly hampers efforts to reduce the court backlog, with some trials being delayed until 2026, a consultation in which The Criminal Bar Association submitted evidence. The NAO’s report states that “The Government’s plan to cut the Crown Court backlog to 53,000 by March 2025 now appears unattainable.”

The Ministry of Justice (MOJ) last published its finalised figures for the backlog in March, totaling 67,533 outstanding cases as of December 31, 2023. The Criminal Bar Association (CBA) anticipates that by the end of March this year, the backlog will have reached around 70,000 based on the first four months of 2024 updates from HMCTS, which showed the backlog rising on average over 800 cases per month. The MOJ was due to publish the March 2024 backlog figures on June 27, but at the last moment cancelled the release of figures. The CBA expects the backlog to have exceeded 72,500 by the end of June 2024

Addressing the State of the Criminal Justice System

This all adds to a wider issue of addressing the crisis in the criminal justice system in England and Wales, exacerbated by years of underfunding and fragmented planning. With prison overcrowding and case backlogs becoming increasingly unmanageable, key players within the system are raising their voices. Tana Adkin KC, Chair of the Criminal Bar Association, spoke with JURIST. Adkin offers a detailed critique and insightful perspective on the current state of affairs and the pressing need for a coordinated strategy.

According to Adkin, the MOJ has repeatedly failed to implement a sustainable, long-term strategic plan that addresses the interconnected elements crucial for the proper functioning of the criminal justice system. She emphasises:

The independent National Audit Office report, published in May, forensically examines the consequences of the Ministry of Justice’s ongoing failure to put into effect a long-term strategic plan and related funding to a tried-and-tested formula: that every defendant charged and brought to trial in the Crown Court requires, under one roof at the same time, properly qualified and available counsel both to prosecute and defend a case, a judge, a jury, and a working courtroom.

Adkin’s call to action highlights the systemic neglect that hampers the administration of justice in Crown Courts. The lack of synchrony and comprehensive funding for these vital components is dragging down the efficiency and effectiveness of the justice system, leading to unacceptable delays and additional taxpayer burdens.

Court adjournments, while sometimes necessary to ensure justice, compound the problems posed by an already overstretched system. Adkin observes:

Long before last year’s prison overcrowding first became a dominant factor and continues to be so, court adjournments were part of the criminal justice process. When justice demands an adjournment is necessary, for whatever reason, the court will weigh up the interests of justice and the effect of any adjournment on those involved before granting it.

However, with record case backlogs and overcrowded prisons, the frequency and impact of these adjournments have escalated, undermining the integrity of the criminal justice process. The burden on the taxpayer is steadily increasing, as the system struggles to manage its caseload efficiently.

Adkin points out that solutions to these structural problems lie in the hands of political leaders:

What happens in terms of prisons funding, planning, and capacity remains a political decision for our elected legislature and government. Criminal barristers are dedicated to working in a large and sometimes complex criminal justice system and will continue to uphold the rights of individuals within it and to ensure justice is done whatever difficulties arise.

She advocates for a governmental responsibility to safeguard its citizens by properly funding and planning the criminal justice system, including the management of prison capacity. Judges, criminal barristers, and solicitors are doing their utmost to deliver justice under strained conditions, emphasising the government’s duty to support their efforts with adequate resources.

As Adkin concludes, “Judges, criminal barristers, and solicitors continue working hard to ensure justice delivered and safe outcomes for victims despite the acute strains on the prison and courts system.”

To address the growing demand for prison spaces, the Ministry of Justice is building six new prisons to add 20,000 more places, with around 6,000 already created and 10,000 more expected by the end of 2025. Nonetheless, immediate measures are crucial to prevent the imminent crisis.

JURIST spoke with CBA spokesman James Rossiter who said that setting trial dates for summer 2026 is becoming a norm and trial dates for 2027 are set to be scheduled within a few months.

“Trial dates for summer 2026 are now commonplace, and 2027 trial dates are only a few months away from being set,” Rossiter stated. He underscored the pressing need for more criminal barristers to address the increasing gap between case disposals and new case receipts. “Without a sudden increase in criminal barrister numbers, there is little to stop the gap between case disposals and receipts growing sharply each month between now and the end of 2024 and into 2025, making the current 840 average monthly deficit of cases resolved over new cases arriving seem conservative,” Rossiter added.

Currently, the Crown Court is grappling with a backlog of around 72,500 outstanding cases as of June 2024—a number that continues to rise. This figure is alarmingly close to the Government’s “worst-case scenario” of 72,000 cases, as outlined by the National Audit Office (NAO) in its October 2021 report on “Reducing the backlog in criminal courts.”

Rossiter highlighted the critical insights from the NAO report:

The report stated that ‘in July 2021, the Ministry developed two initial scenarios that it termed ‘ambition’ and ‘cautious’. The ministry later developed a worst-case scenario it called the ‘counterfactual’ based on maintaining funding agreed in the 2020 spending round. In this scenario, the ministry forecast a backlog in the Crown Court of 72,000 cases by November 2024, 74% above pre-pandemic levels.’ That would be, however, 118% above the low of just under 33,000 achieved only 15 months before the pandemic in December 2018.”

As worrying as these projections are, Rossiter pointed out that the “worst-case scenario” forecasted for November 2024 could see the backlog exceed 78,000 cases at the current rate of growth. This poses severe implications for the court system and the timely administration of justice. The NAO’s follow-up report on the criminal courts, published in May 2024, painted a grim picture of the Government’s efforts to reduce the backlog. It concluded that the Government’s 2021 target to reduce the backlog to 53,000 was “no longer achievable,” calling for “co-ordinated and timely action.” In light of these findings, Rossiter stressed the urgency of addressing the systemic issues plaguing the court system to prevent further deterioration. “Co-ordinated and timely action is crucial to managing this crisis,” he concluded.

The overarching crisis within the criminal justice system is a stark indicator of more than 15 years of misaligned planning and underfunding. Despite the acute challenges, the commitment of those operating within the system remains steadfast. For the criminal justice system to uphold its principles and effectively administer justice, it is imperative that the government adopts a more coordinated and well-funded strategy. Only then can we expect to see a system that not only punishes and deters but also rehabilitates offenders, delivering justice for all and maintaining public safety.

With an incoming government, newly appointed Justice Minister Shabana Mahmood will need to place the problem of overcrowding at the heart of Labour’s policy to avoid aid “worst case scenario” with the Bar Council Chair, Sam Townend KC stating:

It is no secret that the new Government faces a genuine crisis in the justice system, the result of years of underinvestment. It is vital that measures and funding to ease prison overcrowding and tackle the court backlogs are treated as an immediate priority for action by the new Lord Chancellor.

The new government is expected to announce new measures to address jail overcrowding across England and Wales by the end of this week.