2.0    REVIEW OF RELATED LITERATURE

2.1     Deterrence and Retribution

Prisons are notoriously known for the incapacitation, deterrence, and retribution of offenders i.e. somebody breaks the law, as a result they are detained in prison to prevent them from committing further crimes and to keep society safe, protecting them from future harm. Research has however questioned the effectiveness of this tactic, in particular The Prison Reform Trust (2018)^[1] highlighted how longer prisons sentences and harsher penalties do not necessarily result in reduced crime rates. They suggested that possibly the idea of the ‘certainty’ of receiving a form of punishment may be of greater significance than the severity of the punishment itself. The United Nations Office on Drugs and Crime^[2] reported that when an individual who comes from a low-income family is sentenced to prison, this disproportionately affects the families living in poverty and their wider community – if the individual incarcerated was an income generating member of the household this leaves the remainder of the family to deal with the associated costs such as loss of income, transport for prison visits and the payment of solicitor’s fees.

A core factor in determining the level of effectiveness of prisons within England and Wales is the prisons’ ability to successfully reduce the offenders from reoffending after release. The most recent recidivism rates in England are considerably high, as reported by the Ministry of Justice (2022)^[3] with an overall reoffending rate of 25.5%. Broken down, the statistics for reoffending revealed:

1. The overall proven reoffending rate for adults was 25.1%.
2. The overall proven reoffending rate for adults released from custodial sentences of less than 12 months was 55.5%.
3. The overall proven reoffending rate for adults released from custody or starting court orders was 33.2%.
4. The overall proven reoffending rate for juvenile offenders was 34.2%.

The Ministry argued that shorter sentences make up a significantly large proportion of the prison population and could be reduced via the use of alternative sanctions such as electronic monitoring or community sentences.

Shorter sentences, higher reoffending rates, together with ineffective rehabilitation provisions, contribute to prison overcrowding as reoffenders return to prison. This is discussed further at 2.3.

2.2     Overcrowding

The effectiveness of these prisons is also crucially influenced by the conditions within them. A significantly high number of English prisons are suffering from overcrowding, according to the report published by HM Inspectorate of Prisons^[4], as they are currently running at an over 120% capacity which is presumably going to get worse as The Ministry of Justice published Prison Population Projections^[5] for 2023 to 2028 for England and Wales in which they stated the prison population is projected to increase between 94,600 and 114,800 by March 2028. The total number of people in prison is published by the Ministry of Justice and is updated on a weekly basis. The data on the overcrowding itself is published once a month in more detail. Such detail is acquired from four figures; population, baseline certified normal accommodation, in-use certified normal accommodation and operational capacity.

Population is the number of prisoners currently held in the prison.

Baseline certified normal accommodation is the number of spaces within the prison that allows the prison to operate with a decent standard of accommodation that the prison service can provide to all prisoners.

In-use operational capacity is the same as the above but minus the places that are unavailable for immediate use. For example, if some cells within the prison are damaged.

Operational capacity is the total number of prisoners that the prison is able to accommodate whilst being able to operate effectively in terms of security, control and planned regime.

When the operational capacity number of a prison is higher than its baseline certified normal accommodation number of a prison it leads to prisoners being forced to share cells that are initially designed for one person only.

(This information shows how the statistics are calculated but not the root cause of why the prisons have become, and continue to grow, so overcrowded. A major contributing factor as to what caused prisons to become overcrowded are the sentencing policies which is discussed at section 2.3)

The more sever these conditions get, they eventually cross the line into human rights deprivation which was noticed by The United Nations Office on Drugs and Crime, which highlights reasons why prisons within the English and Welsh legal system may currently be considered ineffective and do not work. The first reason highlighted was the deprivation of human rights. In essence, it is stated how an individual being sentenced to prison is the punishment in itself, thus there is no need for additional punishment whilst imprisoned, and in this punishment the prisoner’s right to liberty is lost. When prisoners are forced into overcrowded conditions, these conditions are critical because not only are the lives of the prisoners being impacted, the prison system’s efficacy and rehabilitation practices are compromised. The Prison Reform Trust^[6] heavily highlighted that overcrowding has been a serious issue for a long time which has led to a strain on the prison system facilities due to their operating well beyond their limits. Some major conditions that are affected are the poor sanitation throughout the prisons, the poor ventilation, the deteriorating of the infrastructure and the defectiveness of rehabilitation practices. The last point (rehabilitation practices) was formerly pointed out as a major issue by Hough and Roberts in 2004^[7] where he discussed the fact that prisoners being incarcerated in overcrowded prisons reduces their much needed access to meaningful rehabilitation activities. This, of course, results in their chances of rehabilitation being reduced. Further, it is pointed out how the overcrowded space is a main contributing factor of rising mental heath issues of the prisoners and rising stress levels of them also.

Her Majesty’s Inspectorate of Prisons^[8] published how prisons with poor management often experience higher violence rates. The lack of personal space for prisoners being incarcerated in overcrowded prisons has increased the number of physical assaults not only between the inmates but also against the vulnerable prisoners and the staff, to the point that these physical assaults are now considered common occurrences. This was furthered by Crewe’s research^[9] which was suggestive of the increase in violence linking to a new culture of aggression and fear which originates from the pressures of overcrowding. This then raises safety concerns especially for younger or more vulnerable inmates. It is not only physical health that overcrowding affects. The prison systems in England struggle to meet the mental health needs of its population. The National Audit Office’s research ^[10] found that amongst the prison population, a significantly large percentage of the population are suffering from post-traumatic stress disorder, anxiety and depression which, considering the inadequate setting for treating these conditions, contributes to higher rates of self-harm and suicide within the prison systems.

The prison systems withing England and Wales has faced criticism by many over the years for these reasons, many of which emphasise the insufficient rehabilitation programmes. The Howard League of Penal Reform^[11] found that, as a result of their lack of educational programmes, a lot of prisoners leave the prison system unequipped to reintegrate into our society. Murry^[12] had linked the lack of rehabilitation programmes to the recidivism rates due to lack of alternative employment. This, of course, traps them in a vicious cycle of re-offending. There have been many calls for reform in regard to the conditions of prisons within England and Wales. The Prisons and Probation Ombudsman^[13] reports that there have in fact been some improvements in these areas – in particular the introduction of new safety measures and implementing more focus on the rehabilitation programmes.

How does this affect the legal practice?

The Equality and Human Rights Commission^[14] published research that showed overcrowding increases the risk of human rights violations. Overcrowding thus raises claims for legal practitioners who become the vital gateway for prisoners asserting their rights to which their lawyers will represent the prisoners in judicial review cases in situations where there is inadequate living space, poor sanitation, insufficient healthcare and systematic neglect as these conditions breach the prisoner’s Article 3^[15] right which prohibits inhumane or degrading treatment.

The increased volume of prisoners creates an overwhelming volume of cases for lawyers, especially those who specialise in human rights law, causing them a great deal of pressure and results in a backlog of cases. This consequently affects the efficiency in how claims are handled.

Moreover, the lawyers and other legal practitioners who are relying on set court dates to progress their timely provisioned cases forward, as stated by Hough and Roberts^[16]. The limited access to facilities due to overcrowding makes it very difficult for the legal representatives to schedule consultations with their clients who are imprisoned which consequently affects the quality of the legal representation the legal representative is able to provide as they are unable to meet with their clients in the expected timely manner. A client in prison has a strict right to meet with their solicitor which is their essential pathway into court to proceed with their case. This right should not ever be taken away from an individual; as Lord Justice Steyn in the case of ex parte Leech (1994) “It is a principal of our law; that every citizen has a right of unimpeded access to a court… as the common law “afforded special protection to a person’s right of access to a court as a constitutional right”.

 Even once prisoners do get to meet with their legal representative, there is not much opportunity for private consultations due to overcrowding increasing the number of inmates sharing space and resources. The Prison Reform Trust states these limitations prevent lawyers from being able to adequately prepare for hearing and trials, with some prisoners having reported being unable to access legal services due to overcrowded conditions, which limits their ability to defend themselves adequately. This, again, affects the prisons human rights, under Article 8^[17], which protects the right to privacy, ensuring any legal discussions between a prisoner and their solicitor are confidential.

As mentioned, overcrowding in prisons creates a strain on the prison’s resources. This includes all resources such as transporting the prisoners from the prison to the court for their hearings and trials. Crewe studied how the overcrowding of our prisons ‘exacerbates’ logistical problems including the delays in prisoner transportation. This delay causes issues by prolonging the time it takes to process cases, even more so when there are last minute cancellations of said hearings and trials. This ultimately deprives prisoners of their Article 6 right^[18] to a fair trial within a reasonable time. Crewe also highlighted how prisoners’ legal options are restricted when a prison is operating beyond capacity, their resources for educational programmes, rehabilitation programmes, vocational training and therapy are stretched thin. This then creates difficulty for the legal representative attempting to argue for parole or early release based on their client’s rehabilitation progress. This point was also reported by the Ministry of Justice who found this results in longer sentences and higher recidivism rates. Thus, creating a difficult task for lawyers to balance the rights of their clients with the reality of the consequences of the overcrowded facility.

2.3     Sentencing Law and Alternatives to Prison Sentences

During the late 20^th century and early 21^st century, prison sentences became harsher and longer in a tough on crime movement.

A ‘zero tolerance’ policy on policing strategies emphasizes a stricter enforcement on law for even the most minor offences. Research by The Home Office^[19] found that the use of stop and search being used increasingly more has led to individuals being incarcerated for minor offences. They recognise that a zero-tolerance policy was intended to produce a safer community however in reality it has resulted in an ‘over-representation of individuals in prison for non-violent or low-lever offences.

 Harsh prison sentencing policies majorly contribute to overcrowding in prisons due to increasing the number of individuals incarcerated and also the length of time in which they are ordered to spend in the prison. If anything, this is the root cause of the mass overcrowding.

Research by Bottoms^[20] suggests that the desire to appear tough on crime presents much political pressure that have led to policies being in favour of prison sentences over using alternatives to sentences, even when custodial sentences are clearly not the most appropriate punishment for the crime in question. This political pressure is said to exacerbate the prison population, contributing heavily to overcrowding.

Prison sentencing law uses mandatory sentencing policies that limit the amount of discretion Judges have when sentencing convicts to prison by providing Judges with a framework to decide an appropriate prison sentence based on the severity of certain types of crimes. They compel the courts to impose custodial sentences for many offences, regardless of reviewing the circumstances. The Criminal Justice Act 2003^[21] introduced mandatory minimum sentences for repeat offenders, in particular those who were convicted of serious drug offences or violent crimes.

Whilst the introduction of this Act was intended to raise the public’s confidence in our criminal justice system by ensuring there was consistency in the way convicts were sentenced, these minimum mandatory sentences have, ironically, been highly criticised for their inflexibility which has led to overcrowding. One critic was Ashworth^[22] who felt that alternatives to prison sentences should be encouraged such as community-based sentences would be much better served, this of course does not include serious offences such as robbery, rape and murder. This is because the effect that the mandatory sentencing was having our legal system led to our Judges being unable to consider and Judge the individual circumstances of each case bought before them, instead they had to obey the guidelines which lead to an increase in custodial sentences even for cases which were considered less severe such as nonviolent offences that a rehabilitation based alternative would prove more successful. Cavadino and Dignan^[23] further this by saying that, in an attempt to adhere to the mandatory framework, will often default to imprisonment instead of exploring non-custodial alternatives that could prove more effective as they could address the root cause of the individual’s criminal behaviour.

Research by Robinson^[24] addresses a ‘revolving door’ phenomenon where criminals repeatedly get incarcerated for minor offences as a result of the system being heavily reliant on short-term custodial sentences. Robinson highlights that that this revolving door of repeatedly giving short-term sentences for minor crimes does not address the root cause of the crimes these individuals commit or the factors that lead to them committing the crime – instead the system simply incarcerate them and release them with little, if any, rehabilitation programme beforehand, only for them to be sent back to prison to repeat the process. This unnecessarily increases overcrowding.

The United Nations Office^[25] explains how prison and penal reform would help to reduce imprisonment by promoting community-based measures which would directly reduce the overcrowding within the English and Welsh prisons and the overall condition and effectiveness of the prisons also. This chapter was strongly suggestive that the improvement of rehabilitation and integration back into society is a key issue which must be reformed in order to keep crime down and reduce prison overcrowding which shall consequently improve the prison conditions and effectiveness. 

The Criminal Justice Act 1991^[26] had previously aimed to reduce the prison populations by promoting alternatives to incarceration such as community sentences. Community sentences are now central to reduce prison overcrowding and involve offenders serving their punishment amongst the community under supervision. The Ministry of Justice reported^[27] that the use of community sentences was more effective at reducing reoffending in comparison to short-term sentences, especially when the community sentences involve treatment for substance abuse, lack of education and mental health problems. They help reduce the prison population and increase the rehabilitation and reparation within the community.

            In October 2023 the Ministry of Justice introduced an Early Release Scheme. They note that the objectives of early release schemes is to promote rehabilitation, rather than punishment. By releasing low-risk offenders early, we can improve the overall management of prisons which shall enable our prisons to direct their efforts to rehabilitative programmes. There are three types of early release schemes. Parole; which allows prisoners serving long sentences to be released before serving their full sentence, Home detention curfew; which allows the early release for prisoners who have served the minimum portion of their sentence, subject to being electronically monitored, and release on temporary licence; which allows prisoners to be released from prison temporarily for a specific purpose such as family visits or work placements, subject to strict conditions.

            What affect does this have on the legal practice?

            Legal representatives have a heavy duty of advising and representing their clients who have committed crimes in the context of early release. This is more complex now that early release schemes have been introduced.  Legal representatives must be well versed in the early release procedural aspects. They must ensure that their client’s are well advised on the likelihood of parole and represent them at the hearing. They must ensure that clients understand the conditions that are attached to home detention curfew schemes. They must also assist their clients in applying for early release. As the schemes become more prevalent, the demand for such legal services is increased. As suggested by Cavadino and Dignan, this is beneficial for lawyers as more successful parole hearings lead to a reduction in the workload of defence lawyers. This is opinionated as lawyers work on an hourly rate basis – so reduced workload for some is a negative concept whilst easing pressure for others is seen as positive. Nevertheless, the same opinion was published by Sampson & Laub ^[28], if the early release schemes are successful, the number of repeat offenders will reduce leading to a reduction in repeat offenders needing ongoing legal representation. Similarly, these schemes would reduce the length of time offenders served in prison, mitigating overcrowding and relieving some pressure on the facilities, the prisoners and on the legal system.

            Unsuccessful early release schemes, also published by Cavadino and Dignan, lead to increased workload and prolonged legal process, due to the lengthy time and complexity required for judicial review combined with the backlog of cases, which ultimately circles back to overcrowding in prisons and has a knock-on effect to other disadvantages mentioned in 2.2.