Overflowing prisons are just one aspect of deep dysfunction across our failing criminal justice system

The early release scheme has been triggered, returning the prison capacity crisis – there were just 92 spaces left in adult men’s prisons at the end of August – to the headlines. But the grave situation in prisons is just one example of a broader breakdown in the criminal justice system, of which it is both cause and symptom.

A trio of reasons has caused the growing prison population: longer sentences, an increase of prisoners on remand awaiting trial or sentencing, and a rise in the number of people being recalled to prison after being released on parole.  

Only the first of these was a deliberate policy choice. The other two, which have had dire consequences for prisons, are chiefly products of challenges elsewhere in the system. Large court backlogs have caused the number of people on remand to balloon, while failures in resettlement support and risk assessment by the probation service have driven up recall rates. This is typical of the kind of knock-on effects from poor performance that can be seen throughout the criminal justice system. Problems in different parts of the system have, inevitably, fed into the crisis in prisons – but prisons have also contributed to these problems.

These knock-on effects produce harmful feedback loops of declining performance

The intense pressure on prisons and lack of staff experience mean that prisoners get little in the way of education or employment in prison, or preparation for release.  ²² Rowland C and Davies N, ‘Fixing public services: The criminal justice system’, Fixing public services, Institute for Government, 2024.  Ad hoc and often chaotic early release schemes have exacerbated these problems, leaving the probation service dealing with higher caseloads and prisoners released without a home to live in and with limited support. So it is no surprise that recall rates are high and rising, with many people returning to prison just weeks, or even days, after their early release.  ²³ Rowland C and Davies N, ‘Fixing public services: The criminal justice system’, Fixing public services, Institute for Government, 2024.

There are also harmful feedback loops between criminal courts and the police, with court delays making victims more likely to withdraw from the case,  ²⁴ Ames J, ‘Victims abandon rape trials due to acute backlog of cases’, The Telegraph, 25 July 2024, retrieved 9 September 2024, https://www.thetimes.com/uk/law/article/victims-abandon-rape-trials-due-to-acute-backlog-of-cases-f5nk6js3m  often causing the whole case to collapse.  ²⁵ IfG interviews.  Last-minute delays and cancellations of trials mean police time is wasted in preparing for and attending court, and finding and arresting defendants who fail to attend hearings.  

The interlinking problems go further still, with court backlogs similarly worsened by problems elsewhere in the system. Sentencing hearings are frequently delayed by inadequate, slow or missing pre-sentencing reports, which are largely caused by performance problems in probation: only 47% of reports were judged satisfactory in a recent inspection.  ²⁶ HM Inspectorate of Probation, The quality of pre-sentence information and advice provided to courts – 2022 to 2023 inspections, Research & Analysis Bulletin 2024/04, 2024, https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2024/08/The-quality-of-pre-sentence-information-and-advice-provided-t…  Problems with prisoner transportation often cause cases to be delayed or cancelled at short notice, wasting court time and further exacerbating case backlogs and delays.  ²⁷ Comptroller and Auditor General, Reducing the backlog in the Crown Court, Session 2023- 24, HC 728, National Audit Office, 2024.  All of this is bad for justice.

What can be done about the vicious circles in the justice system?

There are two key reasons for these feedback loops. The first is a failure to think about the criminal justice system as a system, rather than a collection of separate organisations. There are many complex relationships between the agencies making up the criminal justice system, but no overarching accountability or oversight. Different organisations often have conflicting interests, and the government has historically failed to understand adequately the consequences of a change in one part of the system on the other parts.  

The Criminal Justice Board was set up by the last Labour government to provide this system-wide view, bringing together the home and justice secretaries, the Attorney General and other relevant ministers to oversee and collaborate across the whole system. But in recent years it has failed to translate this into practice. For example, it was clear that the recruitment of 20,000 new police officers under the Police Uplift Programme would likely increase the number of cases brought before the courts. The Ministry of Justice was fully aware of this, but siloed accountability for policing and justice led to inadequate preparation in prisons and courts, and consequent declines in performance.  

The second reason is that acute performance challenges mean individual agencies are constantly firefighting, leaving little opportunity for long-term planning and considering potential knock-on effects. This is epitomised by the prison early release scheme: it was clear this would have negative consequences for the probation service, but the urgency of the situation in prisons meant it had to be enacted regardless.  

The lack of a joined-up approach is common across a range of public services. In health and social care, for example, recognition that hospitals rely on adequate community and social care provision to discharge patients has not translated in practice into effective partnerships and collaborative working. The criminal justice system, however, is unusual in being much more centralised than other public services.  

The NHS is overseen by an arms-length body, NHS England, with delivery carried out by independent hospital trusts and typically reliant on local government for social care services. By contrast, courts, prisons and probation are all national services, run directly by the Ministry of Justice through executive agencies. Policing is split into 43 different forces, but they are still directly accountable to the Home Office as well as local police and crime commissioners. This centralisation in the justice system means the government has much more power to fix the problem and look at the system as a whole, not simply the sum of its parts.

Ending the feedback loops will require a long-term, joined-up approach, including opportunities for pooled funding and effective joint accountability. Governments have previously had success with this model, with the last Labour government’s cross-departmental Office for Criminal Justice Reform seeing substantial improvements in criminal justice performance across a host of metrics.  ²⁸ The ineffective trial rate and number of warrants issued for defendants’ failure to appear both fell in the mid-2000s, while the witness attendance rate, guilty plea rate and number of offences brought to justice all increased.

An effective mission board or revitalised Criminal Justice Board could provide a similar vehicle to reset the criminal justice system. While these feedback loops are currently drawing criminal justice into a downwards spiral, they also hold a grain of hope: fixing problems in one part of the system will improve performance across the board. Turning these vicious circles into virtuous ones holds the key to success in the government’s Safer Streets mission.