UPDATED: A custody crisis with ideology at its root – HDC extension & Operation ‘Safeguard’

The UK government is set to expand its Home Detention Curfew (HDC) scheme, which will allow prisoners to leave prison up to six months before their release date. This may help to reduce overcrowding in prisons and free up between 400 and 600 prison places. In this article, Benjamin Knight looks at how this measure, the reintroduction of the poorly-named ‘Operation Safeguard’, and the efforts of a limping system are attempting to prevent collapse of the Criminal Justice System.

**Updated 27/03/2023 – see end of article**

Benjamin Knight - The prison crisis is of the government's making.The reform, which will require legislation, will come into effect on 6th June 2023. As always, the eligibility for the HDC scheme will be restricted, and people convicted of domestic abuse, sexual offences, terrorism, and foreign nationals liable for deportation will be excluded from the prison release scheme. 

The announcement of the intention to extend the HDC scheme came to light in a letter from the Prisons Minister to the House of Commons Justice Committee (published 21st February 2023). The expansion of the HDC scheme will allow prisoners to spend up to 180 days at home wearing an electronic tag, up from the current maximum period of 135 days. The change is “intended to promote rehabilitation and provide offenders with more opportunities to prepare for the transition from custody to supervision under licence in the community, while being subject to strict monitoring conditions.”

In reality, all who work in the Criminal Justice System are well-aware that the move is a desperate attempt to help tackle overcrowding in prisons, which has been exacerbated by a new law that requires many people serving sentences longer than four years to spend two-thirds of their time in custody, rather than half. The HDC scheme will help to free up between 400 and 600 prison places, according to the government. 

Why now?

The Prison Governors’ Association has warned that it will take legal action if the government tries to squeeze more prisoners into existing jails, as jails are already overflowing. So, in February 2023, the Operation Safeguard scheme was re-introduced to hold remand prisoners in police cells instead of prison cells, with it having come into force this month. 

The HDC scheme was introduced by Tony Blair’s Labour government in 1999, with a maximum period of 60 days. This was increased to 90 days in 2002 and to 135 days in 2003. The Conservatives opposed the policy at the time, calling it evidence that Labour was soft on crime. To many, therefore, it seemed a little ironic or hypocritical when the plan to increase the HDC limit from 135 days to 180 days was initially proposed by the former justice secretary, Robert Buckland, in early 2020. Perhaps inevitably, it was withdrawn after the onset of the Covid-19 pandemic but the plan has now been revived by Buckland’s successor, Dominic Raab. 

Police cells as overflow prisons

In addition to the expansion of the HDC scheme, the Conservative Government has been forced, once more, to activate ‘Operation Safeguard’ on 20th February 2023. The misleadingly-named ‘operation’ is used when the prison estate is at or over capacity so the Government tells police to utilise their cells to make sure there is enough accommodation for the prison population. This is highly controversial for any number of reasons to do with effective operation of police forces, transportation of prisoners to courts, and (ironically) the safety of prisoners and staff. There are also some questions around the regulations that apply to people held in such cells.

Those in the know have been highly critical of the scheme. In December 2022, General Secretary POA union, Steve Gillan, commented:

The Government reaps what it sows. In the last ten years 18 prisons have been closed along with a large number of Magistrates Courts. These cuts have serious consequences, and the use of Operation Safeguard by the Government is an absolute fiasco”.

National Chair of the same union of prison, correctional and psychiatric workers, Mark Fairhurst stated:

Mr Hinds’ comments that Operation Safeguard is an established procedure “to ensure our prison system can operate effectively and safely during periods of high demand” just proves to me how out of touch he is. The Prison Service is in crisis. There are many spaces available within prisons, but HMPPS and the Government are unable to utilise them due to the recruitment and retention problems in our prisons.

His comments that this is only a temporary use of police cells does not ring true. Until he resolves the Prison Service recruitment and retention problems by remunerating our members appropriately, I have no confidence whatsoever that the Prison Service can get near operating effectively or safely in these times of high demand”.

They were correct. Just months on and we are seeing the extraordinary scheme activated once more. 

The prison numbers reveal the lack of preparation

Why are we seeing this dubious provision relied upon again? Well, the prison population in England and Wales was 83,876 as of Friday 17th February 2023. It is projected to increase steadily to reach 94,400 prisoners by March 2025 and between 93,100 and 106,300 by March 2027. 

The Government has blamed Covid-19 and, laughably, the Criminal Bar Association strike action for the current spike. The rationale is that the projections made by the Ministry of Justice are based upon the courts “processing and disposing of” prisoners faster than the population is increased by the police and courts. 

In addition, the total prison population is projected to continue to increase over the full projection period of 2022 to 2027. This is partly driven by rising police officer numbers which are expected to increase charge volumes and therefore increase the future prison population, according to the Government. This ignores the staggering number of police officers suspended, fired, and/or convicted of offences in the wake of the wide-reaching review presently underway. 

Ignoring the realities

In fact, all of these assumptions and projections ignore the decimation of the criminal Bar, the closure of criminal courts, the difficulties attracting and retaining police and prison officers, the increasing public pressure on the Parole Board, and the impact of Divisional Court’s clearly-expressed views on the arbitrary extension of Custody Time Limits (CTLs). These variables weigh more heavily towards the upper end of the projections, it is submitted. 

We do not have to get out a crystal ball to look at the known factors that have brought us to this pitiful point. We know the following to be facts:

  • Police-recorded rape and sexual offences hit a record high in the year to June 2022.
  • Probation officers (who are a key part of the decision whether to imprison and whether to keep in prison) have left in droves; a 207% increase in their departures in 2022 compared to the previous year. 
  • 55.1% increase in Band 3 to 5 prison officers in the year to July 2022.
  • 10,640 prison places taken permanently out of use since 2010.
  • Police stations have been closing at a rate of more than one per week since 2010.
  • Literally hundreds of thousands fewer crimes solved year on year
  • A shortage of prosecutors nationally, and the independent Bar not having the numbers to prop-up the CPS advocate ranks.
  • The Public Defender Service (PDS) failing to recruit enough staff and with around 18 advocates available across the jurisdiction.
It falls to the lawyers and judges – again

The courts have been trying to do their bit to clear the backlogs that long pre-existed both Covid-19 and the CBA direct action. Presiding judges have been meeting with barristers, solicitors, probation staff and CPS staff to see what can be done to make more trials effective and to ensure that every valuable sitting day can be utilised. Barristers have been attempting to triage their cases in order to assist the courts and to speed-up access to justice, despite significant parts of the ‘new deal’ on fees having been delayed and/or kicked into the long grass. 

Further up the hierarchy of the courts of England and Wales, the Divisional Court has been compelled to underline the risks of government failings in the administration of justice resulting in remand prisoners being released on bail (the ‘CTLs case’ of 2022) but the Court of Appeal has now observed that the impact of another triggering of ‘Operation Safeguard’ ought to be a factor in the minds of sentencers. 

It is important to remember that, amongst the political arguments on sentencing that are being bandied about to spare the blushes of the incumbent government, the Deputy Prime Minister (yes, Dominic Raab – the Lord Chancellor and Secretary of State for Justice) wrote to the Lord Chief Justice as Operation Safeguard was activated in February 2023. He said:

You will appreciate that operating very close to prison capacity will have consequences for the conditions in which prisoners are held. More of them will be in crowded conditions while in custody, have reduced access to rehabilitative programmes, as well as being further away from home (affecting the ability for family visits). Prisoners held in police cells under Operation Safeguard will not have access to the full range of services normally offered in custody, including rehabilitative programmes.”

In R v Manning [2020] EWCA Crim 592 (the ‘lockdown sentencing’ case), the Court of Appeal expressly recognised that the prevailing conditions in prisons were overcrowding, extensive cellular confinement, limited exercise and education, reduced rehabilitation work etc. Those conditions were such that cases around the custody threshold ought to be more carefully considered before imposing an immediate sentence due to the heavier impact of those conditions. 

The Court of Appeal’s attempt to mitigate the crisis – R v Ali [2023]

Since the reimposition of Operation Safeguard (i.e. 14 days after 6th February 2023), the Court of Appeal has issued the following guidance in R v Ali [2023] EWCA Crim 232.

This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high.

It will only apply to sentences passed during this time… Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.

Accordingly, we return to a position where the Government has created a problem through lack of resourcing. It has sought to blame everybody from lawyers and judges to a microbe and a very short period of strike action. Yet it is the courts and the lawyers arguing before them who are left to prevent the entire system from exceeding capacity. For their troubles, the judge and lawyers will receive grief in the press and from the Dispatch Box about “criminals walking free”. 

Illogical and ideological remand

Much of the problem is caused by England and Wales’ growing addiction to remand pending trial. The Ministry of Justice in England and Wales released figures in September 2022, showing that the number of people held on remand is at its highest for over 50 years, with 14,507 people being held as of 30 September 2022, representing a 12% increase in the past year. 

Almost 2,000 people have been held for over a year awaiting trial, with hundreds held for over two years. The backlog of cases currently stands at well over 70,000, with more than half of those held on remand being held for non-violent offences, despite the fact that many people held on remand will not receive custodial sentences. 

Black defendants are more likely to be remanded than white defendants, despite being more likely to be acquitted or not sentenced to prison. 

The uncertainty and lengthy periods in prison are contributing to a rise in suicides among remand prisoners, with remand inmates accounting for more than 40% of prison suicides in 2020-2021, despite only making up 16% of the prison population.

Somebody is making hay from the crisis

Serco and Sodexo have both seen ~21% increases in profits over the period of 2020 to 2022. G4S have seen profits drop globally but seemingly not so in the UK. There are 14 privately-run prisons in the UK. Sodexo runs four of them. The others are shared equally between G4S and Serco. 

A fine of £19.2 million was imposed on Serco following the delayed legal action that began in 2013, for fraud and false accounting over its electronic tagging service for the Ministry of Justice. Serco was also ordered to pay the full amount of the Serious Fraud Office’s investigative costs (£3.7m). In his judgment, Mr Justice Davis said: “SGL (Serco Geografix Ltd) engaged in quite deliberate fraud against the Ministry of Justice in relation to the provision of services vital to the criminal justice system.”

On December 16, 2016, around 600 prisoners participated in a riot at HM Prison Birmingham, which is operated by G4S and located in Birmingham, England. The riot was said to be the worst in the country since the 1990 Strangeways riot. Prior to the incident, more than 30 officers had quit in the weeks leading up to the disturbance, according to the national chairman of the Prison Officers Association, who warned of further prison unrest.

During a statement to Parliament, Secretary of State for Justice Liz Truss attributed the twelve-hour riot at Birmingham Prison to understaffing and announced that G4S would have to pay for the deployment of ten highly trained public sector Tornado elite teams that were called in to quell the disturbance. John Thornhill, the president of the independent monitoring board, agreed that insufficient staffing was responsible for rising levels of violence in prisons across England and Wales, leading to “unrestrained violence” and the transfer of a “large number of prisoners…to other prisons that are already stretched with their own problems and staffing issues.”

G4S had its contract to run Birmingham Prison revoked in August 2018 after Peter Clarke, the Government’s Chief Inspector of Prisons, reported that it was the worst prison he had ever visited.HM Prison Birmingham in the 1920s

G4S’s history includes the use of immigrant-detainee labour in prisons, extreme misconduct in child custodial institutions in the UK (and in the US), as well as allegations of police telephone data manipulation.

And finally, Sodexo. Well, it’s no happier a picture. On 22 February 2013, Sodexo in the UK withdrew all frozen beef products after horse DNA was discovered in a sample. Sodexo supplies various institutions, including schools, senior citizen homes, prisons, and branches of the armed forces, numbering 2,300 across the UK.

An official report criticised Sodexo Justice Services in August 2013 for subjecting a female prisoner to “cruel, inhumane and degrading treatment” at HMP Bronzefield in Ashford, Surrey, UK. She was segregated from other prisoners for over five years in an “unkempt and squalid” prison cell, which was tantamount to torture.

Sodexo was criticised by the United Kingdom Ministry of Justice in February 2019 for repeated and systemic breaches of the human rights of inmates at the Sodexo-operated HMP Peterborough, stemming from a series of illegal strip-searches of prisoners in 2017. One inmate was menstruating, and another was transitioning from female to male, with Justice Julian Knowles describing the illegal procedures as “humiliating and embarrassing.”

After allowing a woman to give birth alone in her cell without medical support, HMP Bronzefield in Surrey, operated by Sodexo Justice Services, was investigated by the police. The baby was found dead in the early hours of 27 September 2019.

All of these companies have as directors or senior staff, former members of government and/or former senior civil servants. 

Despite the endless stream of scandals and abuses by these tax-payer funded corporations, successive administrations reward them with contracts upon contracts. 

What now?

In conclusion, the prisons are being pumped full of money and full of prisoners – many of whom have no business being there. The prisons are getting less suitable for human habitation. Governments are ramping-up their rhetoric on being “tough on crime” whilst failing to meet the very basic standards of international and domestic law. The buck is being foist upon the courts and lawyers. The private corporations are getting fatter on the taxpayer’s cash, despite overseeing abuse and corruption. 

It must be coming up to the May elections…

To end on a positive note, the Prisons Minister (in his letter to the Justice Committee) observed that releasing eligible offenders under this scheme is likely to help resettlement planning. As he points out, research on early release with electronic monitoring has shown no increase in re-offending and it appears more cost-effective than prison itself. He cites two studies that touched on HDC and recidivism; one published in 2001 and another in 2011:

http://www.antoniocasella.eu/nume/Dodgson_electronic_2001.pdf and 


He asserted that “Broader research into the experience of being subject to electronic monitoring suggests it may help some people to break negative habits and limit opportunities to commit crime, enhancing opportunities for employment and training, and allowing relationships to develop or be maintained. Each of these can be important in helping offenders desist from crime in the longer-term.” 

The research can be found here: https://www.gov.uk/government/publications/the-experience-of-electronic-monitoring-and-implications-forpractice-a-qualitative-research-synthesis


UPDATE 20th March 2023 – In a week that has seen this article flying all over the internet and has seen the Home Office categorically deny that the prisons are full (despite Dominic Raab explicitly saying that they are more or less, well, full – The Chair of the Sentencing Council has stepped-in to give us some guidance.

Most importantly, the last paragraph tells us the following:

“[the fact of the government melt-down on very-nearly-full-prisons]…does not mean that the high prison population is a factor which requires all short prison sentences to be suspended. Rather, when a court has to decide whether a custodial sentence must be imposed immediately or whether the sentence can be suspended, the high prison population is a factor to be taken into account.”

Well, I am certainly pleased that that’s clear.