Why early prison release is an increasing burden for Burnham

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0:12The government is discovering that you can't solve a prisons crisis by releasing serious violent criminals. And this is why.

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1:20about the world we live in. The first full series of Stuff Matters is out now. Just search for it on your podcast app and follow.

1:34Hi everyone, we're going to start with a statement which ought to be politically straightforward. People responsible for killing police officers should stay in prison. Andy Burnham clearly thinks so, but right now he's struggling to guarantee it. because, quite simply, Britain is running out of prison cells. From October, thousands of offenders will spend less of their sentence behind bars to try and free up some space. Now, among them could be the killers of PC Andrew Harper. He was dragged behind their getaway car after responding to a quad bike theft back in 2019. The Prime Minister says he's determined to stop their release.

2:10I won't give up and I believe there is more I can do and I'm confident there is more that can be done and will be done to address public concern. But did the government even start in the right place? Was releasing violent offenders really the only option? And when the scheme does get going, what effect will it have on a perilously overstretched probation service? Now, I'm going to be putting all of that to one criminal justice expert in just a second. First, though, here's Labour's Jess Phillips appearing on the latest Insider episode of our Electro-Dysfunction podcast. So the Sentencing Act, what that has suggested is that two things that will reduce the prison population and mean there's normal throughput can go.

2:51I mean, obviously you need to build more prisons and there's some work going on to do that, but is that you need to early release at a third of the way through the sentence rather than the halfway point, because the vast majority of people are released at the halfway point, that you need to early release pretty much almost all. And there were some exemptions. So terrorists, murderers were exempted, but pretty much that is about it. and also you need to stop people just going to prison for under 12 months, basically. There is a presumption against short sentences. Both of these things are going to have a huge impact on the society and policy and we have seen huge backlash.

3:31OK, so with all that in mind, I sat down with Danny Shaw, the Home Affairs commentator, but who also worked with Labour in the run-up to the 2024 election. Danny, we've become so used to hearing it that it's almost become a shorthand. prisons are in crisis, prisons are at breaking point. When the politicians say that, what are they actually referring to? Well, when they say that prisons are at breaking point, what they really mean is there's no space, there's no room at the inn. The prison population is over 86 ,000 across England and Wales. There is some headroom, there is some free space at the moment, around about 2 ,000 spare spaces for prisoners.

4:07But the problem is the population is increasing every month. It's forecast to carry on rising by around 3 ,000 a year for the next few years. And even though new prisons are being built and are being planned and other spaces, sort of porter cabin style spaces and that kind of thing are coming on stream, the provision of new places would not be sufficient to cope with the projected rise in the population over the coming years. So that's why we are in a situation where the government is introducing some measures to release prisoners early from their sentences so that space can be freed up and people can be sentenced to prison.

4:52The courts can be confident that there's enough room for them if they do that. Is that the only consequence of us not having sufficient prison spaces? In essence, if you get convicted of a crime, you might not be ending up in jail quite so quickly. It's not the only consequence. You know, the other situation is then prisons are running close to full capacity. They can't provide the type of regime that will allow prisoners to undertake courses that would possibly give them a chance not to reaffirm when they come out. They don't perhaps have enough time to do the training, to do the education, to do the sort of work that they might do in prison that would give them the skills and the experience so that they can lead law abiding lives afterwards.

5:34and also very crowded prisons are a cauldron of dissatisfaction, bullying, debt, violence. Drugs are getting into prisons that are overcrowded with staff that are not able to deal with those sorts of problems. And so the whole thing is combustible. Perhaps the most galling thing for a lot of people is the fact that we have been here before, not just in terms of early release from sentence. You know, currently you leave after two thirds of your sentence unless something has gone wrong whilst you were inside. But on top of that, we also saw the Conservative government deploying emergency measures to release the pressure on the system in the past.

6:13Actually, early release schemes go back even further than the Conservatives. I remember when Jack Straw was Justice Secretary at the tail end of the last Labour government in around 2008, 2010. and he introduced an early release scheme because of capacity pressures then. And that was despite the fact that that Labour government had actually built a lot of new prison places. The Conservatives had to do an early release scheme under Rishi Sunak, which was a bit sort of cobbled together at the last minute and didn't work terribly well. And then Shabana Mahmood, when she came in as Justice Secretary under Labour in 2024, introduced early release measures, which meant that people who would be getting out at 50 % of their sentence were now being freed at the 40 % mark.

6:58So we've had a succession of early release schemes. The main problem, Neil, is that prison building programmes have not kept pace with rises in the prison population, which have been caused predominantly by the fact that people are going to prison for longer, sentences have got longer, because of a whole raft of measures introduced by successive governments responding to a sense that prison has got to be more punitive and that offenders who've committed really serious crimes have got to spend longer behind bars. And so the response has been to ramp up sentencing and all the figures show that that has happened, but without the commensurate increase in prison capacity.

7:41And that's why we're in the situation we're in. So when October rolls around and this new scheme comes into place, what exactly changes? So the scheme that Keir Starmer first introduced back in 2024 under Shabana Mahmood was, as I said, prisoners serving 50 % would be released at 40 % mark. And there were exclusions for the most serious offenders. What the government has proposed and Parliament has legislated for is a new, entirely new regime in prisons, whereby if you're serving a fixed term, determinate sentence, you will serve one third in custody. and unless you behave very badly in prison you will get out after one third then there'll be one third of the time when you're supervised with quite strict conditions by probation and then a third you will be nominally on license but it will be very light touch supervision so it's called one third one third one third so release at the 33 percent mark compared to now release at the 40 percent mark.

8:46For more serious offenders, it will be release at the 50 percent mark instead of release at the two-thirds point. Sorry, just to be absolutely clear, Danny, I mean, I've heard the government previously refer to this as earned release. But as you say, unless you behave really badly in prison, you're going to get out early from your sentence. You don't have to show that you are sorry for what you've participated in. You don't have to demonstrate any form of rehabilitation. You just have to avoid getting into bother. That's essentially it. When these This was first announced by Shabana Mahmood when she was Justice Secretary.

9:20You might remember she did a visit to Texas, the US state, where they have this kind of earned progression model where prisoners can get out early, but only if they really behave well and do various constructive things in prison. And she took film crews along and it was to say, look, we're copying an idea from this toughest American state, Texas. If it's good enough for Texas, it's good enough for the UK. That was the message. And it was broadly welcomed. The reality is that it's not an earned release model. It might say it is, but it is, as you say, you will get out after serving third of your sentence unless you do some really bad things in prison, unless you behave really badly in prison.

10:05And in fact, that's almost the case now. So the idea of this earned progression model adopted from Texas was really a fig leaf to hide the fact that we needed another early release scheme. And this is it. Certainly. Earned release would not be words that leap instantly to mind when it comes to the three individuals responsible for the death of PC Harper, Jesse Cole, Albert Bowers and Henry Long. But even with those three, there is a difference. Two of them, Jesse Cole and Albert Bowers, are eligible. but Henry Long is not. Henry Long is not eligible for early release because although he was jailed for manslaughter over P.C.

10:46Harper's death, he was given an extended determinate sentence which means it's a sort of fixed term sentence with a bit of extra time added onto it and all those sentences called EDS, extended determinate sentences, are not included in the early release scheme. So he was automatically excluded and I think the government when they announced those exclusions probably thought well we're excluding life sentence prisoners and people on EDS sentences so you know those are enough exclusions from the model but of course the other two Bowers and Cole are included in the early release scheme because they have a fixed term sentence for manslaughter there's no extra bit for them.

11:30And all fixed term sentences are in the ambit of the early release scheme, as was initially devised by the government, and as I say, passed through both houses of parliament. And I mean, I do actually think that that's where it went wrong. It was in the design of it that went wrong. David Lammy was the Justice Secretary at the time. I do blame him, his officials and advisors for not seeing that there was an injustice here, and that some very serious criminals will be coming out of prison early and the upset and distress that would cause to victims and also the political ramifications of that. I mean, bearing in mind the fact that more often than not, when you and I talk, Danny, you know, the weight and force of public opinion often collides with the immovable object that is the law.

12:15But in the minds of the majority of people in this country, it is really, really simple. These two were involved in the death of a police officer. The prime minister should intervene to stop them being released. Why can't Well, he can. He initially looked at the scheme and then he excluded various offences. He excluded people convicted of rape and serious sexual offences from the scheme. And I think at that point he thought, well, I've probably done as much as I can do within the constraints of prison capacity. But what he didn't realise was that there will be so much upset caused by the fact that people convicted of manslaughter, like two of PC Harper's killers, were being released and were still not excluded from the scheme.

13:00because every, I think, right-minded person, when you just step back at it, to release people who've killed someone early in order to free up space in prisons that are full of people who've been convicted of non-violent offences is just not right, particularly when they've killed a police officer in the line of duty. So I think that Burnham's problem is, he was saying, look, if I just exclude Bowers and Cole, I will be excluding a very narrow range of people. And I'm not sure legally that I can do that. If I exclude all manslaughter cases, that's going to be 400 to 500. And we don't have the prison space to be able to do that either.

13:47And I think he was getting advice. Obviously, he's come in. He's not an expert on prison population and numbers and capacity. He's getting advice from people at the Ministry of Justice, from civil servants and others who are giving him this. And I think his mistake was just not pushing harder at the beginning and saying, no, this isn't right. You can find space. You can find space in prisons where you have three and a half thousand women locked up, where you have 15 ,000 people on remand who haven't even been convicted of sentences locked up, and where you have 2 ,700 people serving sentences of under 12 months locked up and lots of nonviolent criminals in those categories and others.

14:26There must be a way of doing it. And I think he should have been more insistent several weeks ago.

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15:15Assuming that they can find some sort of workaround, perhaps a category of the killing of emergency workers, some have suggested, doesn't he then open up Pandora's box once more? I mean, as soon as he draws this line in the sand, it says Harper's killers, their crime is too serious for them to be let out. There must be, well, goodness knows, how many other people within the system who fall just the other side of that line, and presumably the families of those victims, or even the victims themselves, will be doing exactly as the family of PC Harper have done, go to the papers, go to the news, go to the Prime Minister and complain about it.

15:54That's right. Wherever you draw the line, there are going to be some people that sit just outside the line who are still going to be included in the early release scheme, and that's the problem. And that's probably initially why he didn't want to just, you know, single out the Harper case. but I think this case has got such momentum now it's become so big I think a million people have signed a petition I mean this is unprecedented he's got to a point where he has to address it and even if that means there is some people who will be out of scope and there will be some other campaigns and unhappiness he will have to draw the line somewhere we don't know exactly how he's going to do it but I think that you know there is with a bit of imagination political will you can create the space and ensure that people convicted of the most violent crimes and serious sex offenders remain behind bars until the period when they were due to come out anyway.

16:45Again, I suppose we should labour the point because a lot of people, I suspect, imagine that these individuals are going to be released under this new early release scheme come October. They're going to be released and they're straight back into the community and they can carry on living their lives as normal. They will be coming out and they will be getting supervised by the probation service. I suppose the only problem with that is they're a bit busy at the moment. Yeah, the probation service is hugely overwhelmed. Currently, the probation service across England and Wales supervises about 250 ,000 or more offenders.

17:15Now, some of those are people who've been given community orders. I think the majority of them are people who've been in prison, have been released under conditions. And it's the job of probation staff to monitor them. Now, Now, sometimes that is fairly light touch and it may be just ensuring they turn up for appointments. And sometimes with the more risky offenders, it's fairly intensive. They may be tagged, they may be curfewed. And there then has to be liaison with the private companies that involve in ensuring that they comply with the tags and curfews and so on. So it does vary. But what we know from across the country is that the probation service is underperforming.

17:52underperforming independent inspection reports that have said that about I think every single area in the country and they're underperforming particularly on assessing risk and public protection which are probably the two things that the public are most concerned about and the reason for that is partly because they have very high caseloads so they haven't had the investment in the resources the sort of optimum number of probation officers they haven't reached across the country. I think it's about 1 ,500 short. A lot of the probation staff that are doing these work are very inexperienced. They've been recruited in the last few years.

18:27They tend to be graduates in their 20s. With the best will in the world and the commitment determination they have, they don't have much life experience. And some of the offenders that you're dealing with are manipulative. They're dangerous. They're devious. And I do think that we need in the probation service, people who are a bit older, who have a bit more life experience, and are able to perhaps see the offenders who are, you know, trying to pull the wool over their eyes from those that are honestly trying to, you know, steer a straight path. So there are lots of problems with probation service.

19:03And now we learn that they're potentially looking at industrial action. And it's principally over their concerns about workload. It's not about pay, though the pay isn't great. It's about workload and wanting some reassurances around that. Given the state of the probation service, given the legal stromash and the PR disaster that this scheme has become, perhaps better it would have been for the government to focus on freeing up prison places or building new ones. How much could be done in that regard? It takes years to build a prison. What the government possibly should look at is whether or not they could repurpose possibly one women's prison.

19:46There are 12 women's prisons at the moment. It's very important that there is a network of women's prisons so that the women held in prison, and there are some women that do have to be locked up, are near courts and are near their families so they can get visits and are near the communities where they're going to be released. That's important. But it could be possible, I think, to free up one women's prison, possibly in the southeast, potentially, and re-roll it into a men's prison if you release some women into more sort of halfway hostels, community centres in the country. The problem is that there aren't enough of them.

20:18I mean, you say absolutely correctly, of course, that it takes years to build proper, decent prisons. But this problem has been emerging over years. We have seen failures by successive governments over decades for us to arrive at the position that we're in right now, haven't we? Look, I think on prison building, I think the previous Labour government built quite a lot of prison places and the Conservative government built thousands of prison places. The problem, particularly with the last Conservative government, is that they closed almost as many prison places as they built. And they did that in the first five or so years of the government to save money.

20:53Now, there is a prison building programme underway at the moment, but they've been delayed because of planning problems, because local people have objected. At the same time, there's a prison in Devon, Dartmoor Prison, would hold about 600 male prisoners. It's completely closed at the moment because radon gas was discovered underneath it, so it's not safe. So that you've got 600 places at a stroke wiped out of the estate. So that's a problem when you have got a prison estate where you've got a lot of older buildings, buildings that are unfit for purpose even if you're building new prisons you sort of can't keep up Danny always a pleasure to talk to you thanks so much for your time Neil it's been a pleasure to be on the podcast thank you That's your lot for today now if you do want more on prison reforms I can heartily recommend that Insider edition of Electoral Dysfunction featuring Jess Phillips which you heard at the very top of this one all the details of how to become a Sky News Insider are in the notes attached to this podcast We're back again tomorrow.

22:25See how together they tell a fascinating new story about the world we live in. The first full series of Stuff Matters is out now. Just search for it on your podcast app and follow.