The website of the judges, magistrates and tribunal members in England and Wales

27 January 2007

The Lord Chief Justice, Lord Phillips of Worth Matravers, issued a public statement today explaining that there is a tried and tested judicial authority for judges to take into account prison overcrowding.

He said:  “As I have already made clear, the ministerial statement issued on Tuesday by the Home Secretary, the Lord Chancellor and the Attorney General gives a helpful summary of the present situation and this is consistent with existing sentencing legislation and well-established sentencing principles.

“In these circumstances I agreed with the Senior Presiding Judges that it should be copied to judges and magistrates presiding in the criminal justice system in England and Wales. 

“In this statement attention was drawn to the fact that prison population is currently running very close to capacity.  The Home Secretary has not sought to instruct judges to stop imposing sentences of imprisonment.  But the statement carries the implication that ministers hoped that judges would be particularly careful to consider, in each individual case, whether there was an appropriate means of disposal that did not involve immediate custody.

"In many cases the nature of the offence means that a custodial sentence is inevitable. There are some cases where an immediate custodial sentence is not necessary for the safety of the public, but where the judge has to decide on the appropriate sentence to punish and to deter offending.  In such a case the judge has to choose between immediate imprisonment, a suspended sentence and other forms of punishment that do not involve custody.  When making such a choice the judge has to have regard to the effect of the sentence that he or she is considering imposing.

“There is well and long established authority of the Court of Appeal that in such circumstances it is appropriate for the judge to have regard to prison overcrowding.

"To this extent it is appropriate that, when imposing sentence, the judge should have regard to the present state of the prisons. Where the judge concludes that the offence requires a custodial sentence it remains his or her duty to impose one.

"There is no need for me or the sentencing judge to comment on the current state of the prisons as the Home Secretary has already described it as highly regrettable."