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‘Operation Safeguard’ – Our prisons are at capacity

The recent Court of Appeal Authority of R v Arie Ali [2023] EWCA Crim 232 is of particular relevance for all criminal defence practitioners.

Every so often a case comes along which has such universal significance that it quickly acquires a daily usage in the criminal courts. R v Manning [2020] is a perfect and recent example of such a case.

In R v Kefford [2002] the Court considered economic crimes and reducing the then prison population due to over-crowding.

Twenty-one years later, it’s no secret but our prisons are at capacity hence ‘Operation Safeguard’ (please see below).  

In the recent case of R v Ali [2023] the Court of Appeal considered, amongst other issues, the issue of overcrowding in adult male prisons in England and Wales. Also considered was the worrying lack of rehabilitative programmes linked directly to prison overcrowding.

Given the current pressures on our overcrowded prisons, there is now even more justification for judges suspending an immediate custodial sentence, especially if a short sentence is to be considered OR if the sentence is on the cusp of 2years.

At paragraph 20 of the judgement the Court said: –

“On 24 February 2023 the Deputy Prime Minister wrote to the Lord Chief Justice saying: –

‘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.’”

Paragraph 22 of R v Ali also helpfully provides defence advocates with an ‘exceptional factor’ in support of submissions in favour of a suspended sentence. It states:

  • ……. We have concluded that there were strong arguments for suspending the sentence in this exceptional case, for the reasons we have given.  Any doubt we may have had on that issue is resolved by this additional factor which we do take into account in dealing with this appeal.  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 highIt will only apply to sentences passed during this time.  We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023.  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.

Thanks to R v Manning and now R v Ali, judges will be expected to have regard to current prison overcrowding when deciding whether or not to suspend a sentence.

For the full transcript:

R -v- Ali (