Criminal Justice System: Capacity

Shabana Mahmood Excerpts

Thursday 17th October 2024 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Shabana Mahmood)]

With permission, Madam Deputy Speaker, I will make a statement on capacity in the criminal justice system. When this Government came to power, we inherited prisons on the brink of disaster, moments from total collapse. Had that happened, the consequences would have been apocalyptic: courts would have been forced to cancel all trials, the police would have been barred from making arrests, and we would have faced the total breakdown of law and order.

The last Government knew what had to be done. My predecessor, the former Lord Chancellor, begged his Prime Minister to act, but rather than have the bravery to do so, the now Leader of the Opposition chose to call an election instead. As a result, it fell to this Government to take the necessary but difficult action. While they say that to govern is to choose, my predecessors left me with no choice at all.

On 18 July, just two weeks into the job, I announced to this House that we had been forced to bring forward the release dates of some prisoners serving standard determinate sentences from 50% of time served in prison to 40%, serving the rest on their sentence on licence in the community. Make no mistake: the action we took prevented the immediate collapse of law and order in our country, but with our prison population still rising fast, there is more that we must do to address the capacity challenges our prisons face, and our task now is to ensure that a crisis like the one we inherited can never happen again.

Today, I can set out a measure that will begin to address a specific and acute cause of our prisons capacity crisis: the remand population. As this House will know, prisoners on remand are in our jails but have not yet been tried or sentenced. Because of the historical backlog in our Crown courts—another element of the woeful inheritance my predecessors handed to me—the remand population in prisons has soared. Today, it stands at a record 17,000, which is nearly one in every five prisoners. As some Members will know, remand prisoners are an especially acute problem as they are placed in so-called reception or category B prisons. Until they are tried and sentenced, they cannot be moved elsewhere in the estate. It is in our reception prisons that we face the most acute capacity pressure in the country. Unless we address our remand population, we could still see a collapse of the system, not because of a lack of cells, but because we do not have those cells in the places we need them. It is therefore crucial that we bear down on the remand population.

Magistrates courts have sentencing powers for only up to six months’ imprisonment for a single triable either-way offence, and only the Crown court can hand down sentences beyond that. Between May 2022 and March 2023, the previous Government chose to extend magistrates court sentencing powers to 12 months. This enabled magistrates courts to retain more sentencing hearings and meant that they were heard more quickly. It also freed up capacity in the Crown court to hear more complex cases. However, magistrates’ sentencing powers were then reduced back to six months when, having failed to address the capacity crisis in our prisons, the pressure on prison places became too great.

This Government have now acted to relieve that pressure, so I can announce that we will extend magistrates’ sentencing powers back to 12 months’ imprisonment. On 28 October, I will lay a statutory instrument to that effect, which will come into force on 18 November this year. This change does not increase the maximum sentence for specific offences, and nor does it change the length of sentence that a defendant will serve. Instead, it expands which courts can hand down sentences of six to 12 months’ imprisonment for a single triable either-way offence. It will enable the system to make more use of magistrates, who are an integral part of our court system, delivering justice swiftly across the country.

This measure will also allow us to begin to address the remand problem in our prisons, but it will do more than that. This Government inherited a record Crown court backlog. Waits for trials have grown so long that some cases are not heard for years. The impact on victims of crime is profound. For some, justice delayed is, as the old saying goes, justice denied, as victims choose to withdraw from the justice process altogether rather than face the pain of a protracted legal battle. By extending magistrates’ powers, we will be able to make progress on addressing the Crown court backlog, and we will free the Crown court to take on more of the cases that only it can hear. This measure is expected to free up an equivalent of 2,000 sitting days within the Crown court each year, which will add capacity on top of the additional 500 sitting days that this Government funded on taking office.

This measure will, in total, see a slight increase in the overall prison population, but by bearing down on the remand population in our reception prisons, we will create capacity where we need it most. This measure allows us to manage our prison population smartly, and it means we can both address our prisons crisis and tackle the courts backlog.

When this Government came to power, we inherited a justice system in crisis. We took immediate action to avert a total breakdown of law and order. We are now beginning the work of ensuring that this country never faces this crisis again. There will be more that we must do. In the coming weeks, I will return to the House and set out our long-term plan for the justice system, but these new powers for magistrates mark an important step. They help us alleviate the capacity pressures caused by the historical remand population that we inherited, and begin to address the record Crown court backlog that my predecessors handed to me. In so doing, for victims across the country they will make justice swifter, and ensure that more criminals receive the punishment that they deserve. I commend this statement to the House.

[Madam Deputy Speaker (Ms Nusrat Ghani)]

I call the shadow Minister.

[Edward Argar (Melton and Syston) (Con)]

I am grateful to the Lord Chancellor and her civil servants for their typical courtesy in giving me early sight of her statement. I am also grateful to magistrates, to whom I pay tribute. In many ways, they are the backbone of our justice system, and like juries they root our justice system in our local communities. Their service is hugely appreciated, as is the work of the Magistrates’ Association, and I recognise their skill and dedication.

The Lord Chancellor highlighted the backlog as context. As she will know, in 2010 the backlog that we inherited in the Crown courts was 48,000. It was reduced to 40,000 by 2019, but we recognise that it is a lot higher now. The change? A pandemic. She rightly referred to significant increases in the remand population. During the pandemic, supported by the then Opposition, we opted not to mass-release prisoners, as other countries did, and not to cancel jury trials. That of course led to increases in the remand population, compounded by the effect of the Bar strike.

The vast bulk of the backlog is in the Crown courts, as the Lord Chancellor will know, and it is right to recognise the interrelationship between magistrates courts and Crown courts. I believe that the concordat on sitting days had not been formally signed by the former Lord Chancellor at the time of the election, and I therefore saw with concern that, in stark contrast to previous Lord Chancellors who increased sitting days, it appears we will see a reduction of 2,700 sitting days compared with last year. I would be grateful for the Lord Chancellor’s reflections on that. In 2019 there were 85,000 sitting days, and 107,700 last year. This year the cap appears to be at 105,000. That appears to be the Government’s choice, but I would welcome clarity from the Lord Chancellor on that.

The changes that the Lord Chancellor has set out were characterised by the chair of the Criminal Bar Association, Mary Prior KC, in The Guardian:

“This is a knee-jerk reaction, done without consulting—once again—the criminal barristers or solicitors who deal every day with these cases”.

There are therefore a number of questions about that and the broader criminal justice system, given the scope of the right hon. Lady’s statement, which I hope she will be able to answer. Has she conducted a complete impact assessment for the changes, and will she publish that and all the modelling on it prior to the statutory instrument being laid? How many people are currently on remand, and will she share with the House the latest, most up-to-date figure? Reports suggest that this measure will in the short term potentially increase pressure on prison places, so will she say by what amount her modelling suggests that will be? What prior consultation did she or her Department undertake with the Criminal Bar Association, the Bar Council and the Law Society before making this decision? What assessment has she made of the impact of the decision announced today on the backlog and on the number of short custodial sentence passed by the courts?

Given that the right hon. Lady explicitly referred to her prisoner early release scheme, I hope she will be able to answer all those questions, but there is also one important question that I hope she will answer today by way of reassurance: are any of the 37 prisoners released in error last month still roaming free, or have they all been safely returned to prison? I would be grateful for clarification on that, because it is important.

We will find out in under two weeks whether, in pre-Budget spending discussions with the Chancellor, the right hon. Lady has successfully fought for investment and in the interests of justice and victims of crime, or whether she has sold out the victims and the systems, and conceded cuts to the Treasury. If she has succeeded in securing additional investment, she will have my gratitude and support. If she has not, we will rightly hold her to account.

[Shabana Mahmood]

It is almost as if the shadow Lord Chancellor was not, in fact, a Minister in the Ministry of Justice just a few short months ago. Let me remind him of a few salient facts. First, on Crown court sitting days, I will not accept any suggestion or allegation from him that this Government have cut sitting days or trials in the Crown court. That is entirely untrue. As he knows, or ought to know, perfectly well—I am sure he can check with the former Lord Chancellor—on 28 June, the last Government and the last Lord Chancellor determined how many days the judges could sit this year. Since then, this Government have increased the number of sitting days by 500. As there is clearly some confusion here, it is important that I set the record straight.

Every year, the Government and the judiciary agree a number of sitting days, and an overall budget to fund those sitting days, in what is known as the concordat process. In June, the judiciary reached an agreement with the former Lord Chancellor to sit 106,000 days in the Crown court, with a total budget of £275 million. It has become clear that there has been over-listing against that budget, with more trials scheduled than the funding allowed for. As a result, some cases have had to be delisted, although far fewer than some recent reporting has suggested—it was claimed that around 5,000 sitting days were being cancelled, and I know that the shadow Lord Chancellor had some other numbers in his remarks. In fact, as I understand it, the number is more like 1,600 sitting days. Although misleading reports have abounded, one thing is clear: the concordat process has not worked as it should. I can assure the House that the first concordat process on my watch will be very different, and such confusions will not occur again.

The shadow Lord Chancellor asked a number of questions relating to the impact assessment for the changes announced today. I will publish all the usual impact assessments when the statutory instrument is published. As I said in my opening remarks, we expect an initial impact on prison places, but over time we expect that to come down. We have a little more space in prisons because of the action we have taken to stabilise the pressure on prison places. It is a sensible measure to then take the opportunity to bear down on the Crown court backlog by providing the extra 2,000 sitting days that this change will allow, while also bearing down further on our remand population.

As the shadow Lord Chancellor will know, the exact numbers are difficult to model because listing is a matter for the judiciary. Some of those on remand will ultimately be found not guilty and some will be found guilty and sentenced, and the whole range of sentencing measures is available to the independent judiciary. But we expect to make some progress on the remand population and, crucially, to be able to move people from the reception estate into the rest of the prison estate, thereby helping us to make sure we have the prison places where we need them. I can also confirm that all of the 37 people released in error because of being incorrectly sentenced are now back in custody.

[Madam Deputy Speaker (Ms Nusrat Ghani)]

I call the Chair of the Justice Committee.

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

As someone who spent a decade shadowing and scrutinising the previous Government’s justice policies, I sympathise with the Lord Chancellor over the chaos she has inherited, but the proposed changes to magistrates’ sentencing powers may have mixed results. They should ease the backlog in the Crown court, but they may put additional pressure on our overcrowded prisons. My concern is that we do not have robust data on the Crown court backlog or on the effects of varying sentencing. The Government are about to embark on a quick but thorough review of sentencing. Will they use that opportunity to get the policy and the figures lined up?

[Shabana Mahmood]

I think this is my first chance in the House to welcome my hon. Friend to his new position as Chair of the Justice Committee. Let me deal with Crown court data first. In fairness to the previous Government, they discovered this error prior to the conclusion of their term in office. When I came in, I was made aware of the issue with Crown court data. I ordered further investigation and examination of the issues. It is clear that a number of problems with the data—a number of errors and other issues—need to be resolved. We will make sure that it is published when we can be sure that it is accurate and that all those errors have been finally resolved.

Clearly, the situation is unacceptable. I am in discussion with the Lady Chief Justice about the need for a full external audit of Crown court data, because I think we can all agree that that data must be accurate. We clearly must do more to restore confidence in the reporting process, and I will update the House further in due course.

[Madam Deputy Speaker]

I call the Liberal Democrat spokesperson.

[Madam Deputy Speaker]

Just for reference, your questions should be two minutes, no longer.

[Shabana Mahmood]

I thank the hon. Member for his questions. I am very aware of the number of places in our prison estate, and we had a particularly difficult moment before the last bank holiday, in August, when we came down to fewer than 100. However, as a result of the measures we have taken on SDS40, there is now some space and some capacity in our prison system. It is important that we use this opportunity also to bear down on the remand population and to deal with the Crown court backlog.

This is a delicate balancing exercise, and it is one that I will personally be keeping a close eye on and keeping under review. However, I think that the measure we have announced is ultimately the right one, because it helps us with our prison capacity challenges. As a result, we will have the prison places where we need them—in the reception prisons—and we can start moving people out to other parts of the estate, which is not possible until cases are heard. I am confident that we have the capacity in the magistrates courts to deal with the additional workload. Again, I will be keeping that under review.

The hon. Member is right: 80% of offenders are actually reoffenders. This country has a real problem with failing to rehabilitate offenders, and our record on reducing reoffending is not as strong as it should be. Prison has a place, and it is really important that people who break our laws are properly punished. That is necessary for the public to maintain confidence in our system and for law-abiding citizens to feel that there are consequences when our laws are broken. There is no doubt in my mind that punishment and prison are important, but they go hand in hand with rehabilitation. I do not think there is a choice to be made between punishment and rehabilitation—they are two sides of the same coin, and we have to have both. This Government are determined to have a better track record on both punishment and rehabilitation compared with anything that has gone on in the previous 14 years.

Let me gently say that it is not the case that magistrates courts send more people to prison. Following the previous change the courts were able to run through cases faster, and because the previous Government had not created capacity in the prison estate, the pressure on prison places became acute and the measure had to be dropped back to six months—the shadow Lord Chancellor might wish to offer further comments on that. That is what happened and what I expect to happen again.

[Ms Stella Creasy (Walthamstow) (Lab/Co-op)]

It is fascinating and powerful to hear the plans to deal with the backlog in the courts. I know that all our constituents will be grateful for the Lord Chancellor’s work. I have a constituent who was the victim of an aggravated burglary that involved multiple men coming to her house with machetes in 2021. Finally, last week at Snaresbrook Crown court, a date for the trial of the gentlemen accused of this crime was set for October 2026. The Lord Chancellor will recognise and share the concern of my constituent. As she says, justice delayed is justice denied. What comfort can she give my constituent that such matters will be expedited as a result of her work?

[Shabana Mahmood]

I am very sorry to hear about the experience of my hon. Friend’s constituent. I have many such instances of unacceptable delays for hearing cases in my own constituency caseload. I hope that the measures that I have announced today will begin to ease some of that pressure, because making this change will free up around 2,000 sitting days in the Crown court. This Government have funded an additional 500 beyond the concordat process agreement that was reached by the previous Government in June. I am determined to make more progress in dealing with the Crown court backlog so that constituents such as my hon. Friend’s do not have to wait so many years for their cases to be heard and, ultimately, for justice to be done.

[Sir Julian Lewis (New Forest East) (Con)]

May I reach out across the party divide to say that I warmly welcome what the Justice Secretary said about punishment and rehabilitation? By coincidence, I have just written to her—she will not have seen the letter yet—about the work of my constituent, the publisher Andrew Duncan, in co-ordination with a panel of experts that includes a psychology professor, a former governor of Pentonville, a Probation Service specialist in reducing reoffending and a central London magistrate, on a new concept of community detention. My request is that either she or the Minister she thinks most appropriate will agree to have a meeting with my constituent, a few members of his team and me. As a right-of-centre politician, I am sometimes sceptical of alternatives to prison. This one sounds really interesting, and I think it would not be a waste of her time.

[Shabana Mahmood]

I thank the right hon. Member for the spirit in which he made his remarks. I hope that where consensus is possible on a cross-party basis across this House, we are able to work together, because this is a national problem that will require us all to come together to solve it. I will track down his letter and ensure that he gets a full response and a meeting.

[Shaun Davies (Telford) (Lab)]

In Shropshire, the justice system is broken. Under the watch of the last Conservative Government, the remand court in Shropshire magistrates court was closed and transferred to Kidderminster. I am delighted to say that, under this Government’s watch, that remand court is about to reopen. Some 300 court sessions are running empty each and every year at Shropshire magistrates court. My local paper, the Shropshire Star, highlighted a criminal trial—it involved a retrial—that will take seven years from the original date of the offence to be disposed of, which is an absolute disgrace. Will the Lord Chancellor look at ways in which we can further empower district judges in the magistrates court, and at the use of technology in the justice system? Finally, it is important that the transparency around data is fixed. Unfortunately, the last Conservative Government did not release the data on time. We need to understand what is really going on now, and what has happened in the past.

[Shabana Mahmood]

My hon. Friend is absolutely right. Cases are taking too long to reach conclusion in our courts. We are making some changes, and I am considering what further ones we will need to make. There is an important piece around efficiency and productivity in the court system, and there have also been reports by Lord Justice Auld, Lord Leveson and others on other ways to speed up trials being heard. All those options are on the table, and I will update the House in due course about this Government’s approach.

I simply reiterate my remarks on the data: when it is finally published, it is important that we can be certain that it is accurate and properly captures what is going on in our Crown courts and that we can all have confidence in it. In fairness, the last Government did pick up on this problem. I am determined that it will be resolved and that the data will ultimately be published.

[Jim Shannon (Strangford) (DUP)]

I thank the Secretary of State for her very welcome statement. There is a clear commitment to the change that is necessary. She will note that I nearly always focus on victims, so will she outline what weight is given to victim impact statements, and whether there is a need to determine in law how much weight is given to the impact on devastated families? I always think of the devastated families—they are the ones who are really important.

[Shabana Mahmood]

Let me reassure the hon. Member that we place great importance in the victim’s experience. This Government will strengthen that further and ensure that victims are not further traumatised by their experience of seeking justice. Victim impact statements have an important role to play. The victims Minister, my hon. Friend the Member for Pontypridd (Alex Davies-Jones), recently met Victim Support and other groups. This is a really important piece of work for the Government, and I know the hon. Member will hold us to account on our track record. I am very aware of the impact of delays in the system on victims, which is why we are making the changes today. We will make more progress to bring those delays down.

[Oliver Ryan (Burnley) (Lab/Co-op)]

I thank the Lord Chancellor and her Department for their important work in tackling the backlog. Given that the previous Government agreed the funding allocation, who does she feel is responsible for the number of Crown court sitting days being cut? Has she explored the further use of artificial intelligence in small judgments to speed up the backlog?

[Shabana Mahmood]

I reiterate my previous remarks on what has happened to Crown court sitting days, but I do not think it is helpful for me to speculate on who is ultimately responsible. It is clear that the concordat process has not worked as it should. As I said, the first process that I conduct as Lord Chancellor will not have those issues. An agreement was reached and it has to be stuck to. I am sure that all those in the system are worried about the impact on victims—they are the ones who will be waiting longer. As I said, although reports have suggested that up to 5,000 sitting days have been cancelled, the number is more like 1,600, and the changes we have announced today will free up capacity in the Crown courts.

I am very interested in the role that AI and other technology and digital solutions can play in increasing efficiency and productivity in the Crown court system and the court system more broadly. That is subject to discussions in relation to the Budget and the spending review. I hope to update the House in due course.

[Melanie Onn (Great Grimsby and Cleethorpes) (Lab)]

I am very concerned to hear of the missed publication of Crown court backlog data. How can we hope to drive down the backlog if we do not know how big it is?

[Shabana Mahmood]

One of the reasons why I am determined to get to the bottom of what has gone wrong, and to ensure that all errors and accuracy issues are dealt with, is so that we have comprehensive data that we can rely upon. We know that the Crown court backlog is at historic levels. Sadly, I do not think that any assurance work on the data will suddenly bring that down—I suspect it is more likely to go up—but it is important to establish the true scale of that backlog, because this House needs to know exactly what it looks like so that it can hold the Government to account on their efforts to bring it down. We cannot do that unless we know its exact size. Sadly, I suspect it will remain at the historic levels that we have inherited—I do not think it will come down by much.

[Jim Dickson (Dartford) (Lab)]

I thank the Lord Chancellor very much for her statement. It is very clear, from everything we have seen over the past 14 years and since 4 July, that the previous Government completely failed to manage our prison estate. Does she agree with me and my constituents that it is really important that we maintain space in our prison system to lock up the most dangerous offenders? At the same time, we need to have a look at community sentences. Will she be doing that?

[Shabana Mahmood]

My hon. Friend is absolutely right. There must always be space in our prisons to lock up the most dangerous offenders. We must always place public protection above all other considerations when it comes to dangerous violent offenders. When we have a capacity crisis as acute as the one I inherited, we unfortunately have to also consider alternatives, simply because running out of space is no option at all. I reiterate the remarks I made earlier: punishment and rehabilitation have to go together. It is not a choice between one or the other. They are two sides of the same coin and the Government are determined to make progress on both.

[Adam Jogee (Newcastle-under-Lyme) (Lab)]

My constituents will welcome the clarity that the Lord Chancellor has provided today. With reference to her point about the long-term plan for the justice system, a plan that we have to get right, may I ask her to keep in mind the need for a proper, robust and accessible legal aid system?

[Shabana Mahmood]

My hon. Friend is absolutely right. Legal aid underpins our system of justice and access to justice. Stabilising the situation in relation to legal aid is a key priority for the Government.

[Lee Pitcher (Doncaster East and the Isle of Axholme) (Lab)]

I have a number of prisons in my constituency, so I was particularly concerned to read about Serco’s failures on tagging. What is the Secretary of State doing to hold it to account?

[Shabana Mahmood]

I thank my hon. Friend for his question. Serco’s performance is unacceptable. We are having daily meetings with it to ensure it recovers the position. I have made it clear that improved performance is an absolutely priority. We are already imposing financial penalties, given its performance to date, and we will not hesitate to trigger relevant contractual penalties if it does not improve.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

I thank my right hon. Friend for her statement, and commend her and her ministerial team for the work they are doing to fix the last 14 years of Tory mess in this Department. In her statement, she talked about the withdrawal of victims from the process. On that point, 60% of rape victims are dropping out of their cases, partly because they are waiting years for justice. Will the Secretary of State explain how independent legal advocates will support victims to see their cases through to trial?

[Shabana Mahmood]

The introduction of independent legal advocates for rape victims will, we believe, ensure that the rights that victims already have will be enforced, and in such a way as to give them the confidence to continue with their cases. This is a key priority policy for our party and for the Government, and I will be very pleased to be able to roll it out over the coming months and years. It is a significant change to our legal system. It will be the first time that independent legal advice is given to a type of victim. We think that is incredibly important, because rape victims lose confidence in the process and are often re-traumatised by the process of seeking justice. The independent legal advocates will try to ensure that the scales of justice are rebalanced and that victims have a fair shot at having their already existing legal rights enforced.

[Ben Goldsborough (South Norfolk) (Lab)]

Prisons have two vital functions: punishment and rehabilitation. Reoffending has gone up, because after 14 years under the Conservatives prisons have become colleges of crime. We need to get the basics right and we need to get the fundamentals right on prison education reform. Will my right hon. Friend look at how we can improve literacy and numeracy skills in our prison estate?

--- Later in debate ---

[Shabana Mahmood]

We will of course look at improved literacy and other skills within our prison estate. The problem with running a prison estate as hot as the previous Government did, and so full to the brim, is that when we are so badly overcrowded and prisoners are locked up for 23 hours every day, there is very little other work we can do to help prisoners rehabilitate. Dealing with the capacity crisis will enable us to have a better performance and better track record on rehabilitation, which is crucial if we are ultimately to reduce the number of victims in future and cut crime.

[Warinder Juss (Wolverhampton West) (Lab)]

Does the Secretary of State agree that failing to address the prisons capacity crisis and allowing the Crown court backlog to grow to unprecedented levels has meant that the entirety of our criminal justice system has been broken? I make particular reference to rape and serious sexual offences cases.

[Shabana Mahmood]

It is clear that the position I have inherited from my predecessors was shocking and completely unacceptable. We were, simply, one bad day away from total disaster in our criminal justice system. That is why, since we formed the Government, we have been making the difficult choices necessary to stabilise our criminal justice system and stabilise the situation in our prisons, so we can restore the system to one that the public can rightly have confidence in.