Suspects will be freed on bail instead of remanded to ease overcrowding in prisons, lawyers fear

An inmate at Wandsworth prison, one of the institutions struggling with overcrowding
An inmate at Wandsworth prison, one of the institutions struggling with overcrowding - Andrew Aitchison

Criminal suspects will be freed on bail rather than remanded into custody because the Ministry of Justice is running out of prison spaces, senior lawyers have warned.

The Law Society said delays in magistrates court hearings ordered by the Ministry of Justice (MoJ) to ease the prison overcrowding crisis would mean some suspects “who would normally be put forward for remand will be given bail.”

The overcrowding crisis has forced Alex Chalk, the Justice Secretary, to introduce emergency measures, known as Operation Early Dawn, which means criminal suspects awaiting bail hearings are being held in police cells until prison places become available.

The move has been prompted by the number of spaces in the adult male prison estate falling to just 300 out of a total capacity of 85,000, The Telegraph can reveal.

Ministers have been warned there is virtually no capacity left in the system with one senior prison service official saying: “If we had a repeat of the disturbance in a prison on the scale we had at HMP Birmingham in 2016, we would go bust. That would be it. We would literally be out of space.”

‘How are they going to minimise risk?’

David McNeill, director of public affairs for the Law Society, said the MoJ had yet to reveal how it would prioritise prison space for the most potentially dangerous defendants awaiting a remand or bail hearing.

“They are going to prioritise serious cases, particularly on remand. If you are a defendant in a very serious case or at risk of running away, you will be put in prison on remand prior to the court case,” he said..

“They will triage those for the most serious cases and highest risk which means there is a group who would normally be put forward for remand who will be given bail.

“We don’t know the criteria for that but the determining factor is the availability of prison cells.

“They are making that decision on a daily basis. There is a key question about how they are managing risk. How are they going to minimise risk in those situations?”

Emergency measures in place

On Wednesday hundreds of court hearings were delayed or even postponed at the last minute after emergency measures were introduced to deal with prison overcrowding.

There were chaotic scenes at magistrates courts across the country as suspects who were due to appear for hearings were left in the police cells rather than being produced at court.

The move was intended to prevent a situation arising where defendants were remanded into custody but there was nowhere to take them.

The fall to below 300 available prison places comes despite a series of measures introduced to address overcrowding, including releasing some inmates 70 days earlier than they were due to be freed.

‘Already overflowing’

Tom Wheatley, president of the prison governors’ association, said: “We are already letting the water flow out of the overflowing bath.

“This is an attempt to turn the taps off. We are still struggling with increasing numbers of being sent to prison.

“It is relatively sensible from the viewpoint of prisons. We are trying to slow down the flow but that will cause disruption around the defence community due to the last-minute nature of it.

“All these things are happening at the last minute because they are unpopular.”

Mark Fairhurst, chairman of the Prison Officers Association, said: “They are going to dump prisoners in police cells and only take to court those prisoners they think are either going to be remanded into custody or get sent down.

“That means that they will only take to court those prisoners that they can accommodate in the prison estate because there are spaces available.

“Prisoners will languish in police cells for days or police will have to decide whether to bail them.”

Operation Early Dawn has been invoked twice before, in October and March, and MoJ sources have insisted it is only temporary.

A spokesman admitted magistrates and police were notified late on Tuesday night due to extreme pressure on the prison system, although he said there was a lot of movement in and out of prisons, which would help resolve overcrowding.

Asked if any defendant would be bailed as a result, he said that would be a police decision based on risk.

The spokesman said: “To manage this demand we have brought on thousands of extra places at pace and will introduce strategic oversight of the transfer of remanded offenders from police custody to maintain the running of the justice system.

“This Government is categorical that dangerous offenders should stay behind bars, which is why new laws will keep rapists locked up for every day of their prison sentence and ensure life means life for the most horrific murderers.”

‘Real-life consequences for victims, witnesses and defendants’

But Tom Franklin, the chief executive of the Magistrates’ Association, said the implementation of Operation Early Dawn would only add to the huge backlogs at court and said it was illustrative of the “parlous state” of the criminal justice system.

He said: “We are very concerned about these further delays being imposed on cases reaching magistrates’ courts.

“Every case that is delayed has real-life consequences for victims, witnesses and defendants – and leads to magistrates and court staff sitting around waiting, rather than administering justice. That is a waste of resources, at a time when there are already large backlogs.

“It demonstrates the parlous state of the criminal justice system and the need for an injection of more resources at every stage of the justice process.”

Sources have also said police forces are extremely unhappy at having to house defendants in their custody suites.

Dept Chief Constable Nev Kemp, National Police Chiefs’ Council Lead for Custody, said: “We are working closely with criminal justice system partners to minimise the impact on police resources and allow forces to continue conducting operational business to keep the public safe.”