On Thursday 12 October 2023, The Guardian reported that judges have been told to delay sentencing hearings in order to manage the UK’s expanding prison population. This will drag out the imprisonment of convicted criminals currently on bail, including rapists and burglars.

The guidance reportedly came from Lord Justice Edis, the senior presiding judge for England and Wales, on a private call with senior Crown Court judges. One of the judges was quoted by The Times as saying that, from Monday 16 October, they’ve been “ordered/strongly encouraged” not to jail someone who appears before them.

The big question on everyone’s mind right now is which prisoners will be impacted by this rule, and of course, is it safe to delay sentencing? As previously mentioned, it looks like only criminals currently on bail will be affected. A government source in conversation with The Guardian stressed that these offenders are on bail because they have been assessed as lower risk. The idea is that they will be left free on bail between conviction and sentence and be jailed on their delayed sentencing date, assuming they are even-handed a custodial sentence.

Nevertheless, a senior Crown Court judge stated that their “biggest concern” was defendants charged with historical rape, rape of a child under 13, or other forms of sexual assault. Even if convicted, these defendants are now likely to remain free on bail, due to this decision. The source stressed that it was not a government policy, as sentencing is the preserve of the independent judiciary.

A spokesperson for the Ministry of Justice told Sky News on Thursday: “We are categorical that the most serious offenders should be sent to prison and that anyone deemed a risk to public safety is remanded in custody while awaiting trial. Reports to the contrary are false. This government has done more than ever before to protect the public and keep sex offenders locked up for longer, ending automatic halfway release for rapists and serious violent offenders and sending rapists to prison for three years longer than in 2010.”

Following the COVID-19 pandemic and a barristers’ strike that ran from June to October 2022, UK prisons saw a significant spike in population, with 6,000 more prisoners on remand than before the pandemic. The prison population was 88,016 as of 6 October 2023, reflecting an increase of more than 6,500 inmates compared to a year before. As a result, a lot of warnings were issued over the summer about the lack of capacity in the prison system. Prisons like HMP Wandsworth, for instance, a men’s prison in London, are currently at 170 per cent capacity.