Courts no longer to apply reduction of sentence due to prison conditions

06 February 2025

In this article Sophie Drake considers the far-reaching implications of the Court of Appeal decision in R v Qasim [2024] EWCA Crim 1655.

The Court of Appeal in Qasim has determined that pressure on the prison estate and overcrowding are no longer exceptional factors which can be taken into account when a defendant is being sentencing.

Background

Before the outbreak in the UK of the Covid-19 pandemic in December 20219, the prison estate of England and Wales faced a £900 million maintenance backlog and prisons were operating at 98% capacity.

During the pandemic, conditions worsened and the court backlog reached an all-time high, peaking at around 422,000 cases in mid-2020. Nearly double the number of prisoners were held on remand.[1] Prisoners faced considerable overcrowding and were routinely confined to their cells for up to 23 hours a day to prevent the spread of the virus.

By 2023, the prison estate had reached capacity. In February 2023, the Ministry of Justice announced ‘Operation Safeguard’, an emergency measure to make available up to 400 police station cells to accommodate the prison overflow.

The same month, Mr Arie Ali was sentenced to six months’ imprisonment. In the course of his appeal against his immediate sentence of imprisonment), he argued that the sentencing judge should have taken into account the prison crisis and applied a reduction to his sentence. The Court of Appeal agreed and suspended his sentence. The judgment in R v Ali [2023] EWCA Crim 232 was subsequently widely applied. The Sentencing Council produced guidance which stated that “while there continues to be pressure on prison capacity, the courts can take into account the impact of the current prison population levels.”

Court’s decision in Qasim

Qasim concerned an appeal against the length of sentence (12 years and six months) imposed for drugs and firearm offences. Following Ali, the sentencing judge had reduced the sentence due to prison conditions.

The Attorney General appealed on the basis that the sentence was unduly lenient. The Court of Appeal increased the sentence to 17 years and clarified the application of Ali.

The court held that the overcrowding conditions which led to Ali had been addressed by Operation Safeguard which had been operative at the time of the sentencing of the appellant. In August 2024, the introduction of the SD40 Early Release Scheme allowed prisoners to be released after serving 40% of their sentence rather than 50%. The court found that, at least in the short term, that the scheme had resolved the overcrowding facing the prison estate.

As such, the Court of Appeal held that conditions alone were not the subject of the appeal and could not be remedied during sentencing: “It would not be the proper functioning of criminal sentencing to adjust the length of sentences to reflect the unsatisfactory state of the prison estate.”

Comment

The state of the prison system remains dire. In May 2024, HMP Wandsworth was subject to urgent notificationand referred to a 2021 inspection report describing the prison as “crumbling, overcrowded, vermin-infested”. In 2023, the conditions were described asinhumane”. Anecdotally, prisoners complain of condition in this and many other prisons.

However, the Court of Appeal has made clear that it is not the place of sentencing judges to regulate prison conditions by adjusting sentences “that are otherwise mandated by Parliament and the Sentencing Council.”. A prisoner may, the court observed, still have recourse to a civil or public law remedy based on prison conditions.

It does not appear that the court has completely quashed Ali and the reasoning behind it; indeed, it seems likely that it will remain arguable that prison conditions are a relevant factor in the immediate period before a further emergency government measure is introduced.

It should be remembered, as the court recently confirmed, that Ali was only ever intended to be applied to ‘cusp of custody’ cases such as  in the case of Mr Ali, who may be liable to a sentence of under two years which is capable of being suspended.

Finally, although Qasim clearly restricts the use of prison overcrowding as an argument moving forwards, it does not prevent submissions to sentencing judges on chronic conditions experienced by remanded defendants prior to Operation Safeguard and who still await sentence due to the court backlog.

[1] Compare https://www.gov.uk/government/statistics/offender-management-statistics-quarterly-july-to-september-2019/offender-management-statistics-quarterly-july-to-september-2019 and https://www.gov.uk/government/statistics/offender-management-statistics-quarterly-july-to-september-2024/offender-management-statistics-quarterly-july-to-september-2024#population 

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David Sonn

Consultant

David is solicitor and Higher Courts Advocate. He is a consultant at Sonn Macmillan Walker.

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