In the same week that two Just Stop Oil protesters lost their appeal for permission to challenge the length of their prison sentences in the Supreme Court,1Tom Pilgrim, ‘Just Stop Oil pair jailed over bridge protest lose Supreme Court appeal bid’, Independent, 11 October 2023. the senior presiding judge for England and Wales, Lord Justice Edis, was reported to have instructed judges to delay the sentencing of convicted criminals because of overcrowded prisons.2Haroon Siddique and Vikram Dodd, ‘England and Wales judges told not to jail criminals as prisons full – report’, Guardian, 12 October 2023.

The protesters caused traffic to come to a standstill when they scaled the Dartford Crossing bridge in October 2022, climbing 200ft above the road to hang a giant Just Stop Oil banner. Their barrister, Danny Friedman KC, stated that their jail terms were the longest handed down in a case of non-violent protest in this country in modern times. However, the new lady chief justice, Lady Carr, hearing the case, found that the jail terms were ‘not excessive’ and that the sentences met a ‘legitimate’ aim of deterring others from such offending. Their crime: causing a public nuisance. Their sentences: imprisonment, Morgan Trowland for three years and Marcus Decker for two years and seven months.

The prison population on 13 October 2023 was 88,225 in a system that, the government suggests, has a ‘useable operational capacity’ of 88,782.3Prison population figures 2023 – population bulletin: weekly 13 October 2023, Ministry of Justice (MoJ), 13 October 2023. The prison buildings are generally old, are poorly maintained (like much of the court estate) and there are shortages of prison officers, like most public sector workers, including legal aid lawyers.

Following press headlines of ‘Judges told not to jail rapists due to overcrowded prisons’,4Independent, 12 October 2023. we witnessed another knee-jerk policy change from this government, with justice secretary Alex Chalk KC revealing measures to deal with the bulging prison population. In what was described in the Telegraph as ‘Texas-style justice’, we will now be sending fewer low-level offenders to prison and will make them ‘clean up graffiti and plant forests instead’.5Will Hazell, ‘Alex Chalk to bring Texas-style justice to the UK’, Telegraph, 14 October 2023.

Most of us working in the justice system will recognise the description of ‘Texas-style justice’, as our day-to-day working environment often feels like being in the Wild West, having been abandoned by government funding for more than a decade. It needs investment in its buildings, its infrastructure and the people who work in it.

There are over 15,000 defendants on remand in prison awaiting trial, around 3,000 prisoners who have indeterminate sentences because of their imprisonment for public protection (IPP)6Alex Chalk KC, The government’s approach to criminal justice, oral statement to parliament, MoJ, 16 October 2023. and many who are there because of miscarriages of justice. The latest figures show that the average cost per prison place in 2021/22 was £46,696 per year, with the cost per prisoner £47,434.7Costs per prison place and costs per prisoner 2021 to 2022 summary, MoJ/HM Prison and Probation Service, 9 March 2023.

Of the 88,225 prisoners only 3,621 were women.8See note 3, above. Offences committed by women are often closely linked to poverty and while in prison, it is not uncommon for women to lose custody of their children after just a short time. The cost to the state is huge – both for incarceration and the rippling effect.

The justice secretary, in his statement to the Commons, at least recognised the importance and impact a short prison sentence might have:

Although acknowledging the impact, he didn’t have a joined-up plan to deal with it, unlike in the US. The term ‘holistic defence’ might not be one with which most people are familiar, but this interdisciplinary way of working addresses both the legal and social support needs (a bit like health-justice partnerships) of defendants. In this way, a joined-up service is provided to the client and is often key to reducing both the likelihood of a custodial sentence and expected sentence length.

In New York City, a holistic defence provider, The Bronx Defenders, and a traditional defender, The Legal Aid Society, operate side by side within the same court system – with different outcomes: holistic defence was found to have reduced the likelihood of a custodial sentence by 16 per cent and the expected sentence length by 24 per cent, resulting in nearly 1.1m million fewer days of custodial punishment.10James M Anderson, Maya Buenaventura and Paul Heaton, ‘The effects of holistic defense on criminal justice outcomes’, Harvard Law Review, vol 132, no 3, January 2019, page 820.

So, if the justice secretary wants to reduce the prison population, why is he sending peaceful protesters to prison for two to three years? It is pretty clear: long sentences for environmental activists are entirely political. Environmentalist David Attenborough has a prime-time TV programme, Planet Earth, in which he highlights the impacts of global warming, but climb a tree or a bridge and stop the traffic and you get locked up for three years. It really is the Wild West!

The next in LAG’s series of Rough Justice events, ‘Miscarriage of Justice Case – Birmingham 4’, takes place on 21 November 2023. See LAG’s events page for more details.