The Independent Sentencing Review Report: MOJ’s Saviour or Doomed to Fail? – Yasin Patel and Charlie Hutchins
Yasin Patel and Charlie Hutchins of Church Court Chambers examine the Independent Sentencing Review Report, a report that has been the subject of much scrutiny following its publication, and discuss the proposals from the review and what happens next.
Current Position
The capacity of the UK’s prisons are at breaking point, due to a myriad of reasons. However, primarily this can be attributed to Michael Howard’s 1993 ‘Prison works’ mantra which has been adopted by successive governments for the past 30 years.
As a result of governments’ legislation enactments, determinate sentences have increased on average by 5.4 months since 1993, and over 12,900 prisoners are on recall now compared to less than 100 in 1993. As such, the prison population rocketed from approximately 44,000 in 1993 to 87,000 as of April 2025, with each prisoner costing the state on average £53,801.00.
It is projected that the prison population will be over 100,000 by the 2029.
The enormous strain on the UK’s prison capacity was evident to all by September 2024, where due to overcrowding and no prison places being available, the government implemented an early release of 1,700 prisoners on license. These prisoners had served 40% of their custodial sentence rather than the usual 50%. The current government, driven by necessity to make changes to this unsustainable trend, appointed David Gauke – previous Secretary of State for Justice and Lord Chancellor under a Conservative government – to lead the Independent Sentencing Review.
The Review was set the ‘simple’ task of reducing the demand for prison places by 9,500 personnel.
To address this challenge, the Review considered nine policy areas:
- Revisiting the statutory purposes of sentencing;
- Strengthening alternatives to custody in the community;
- Reducing reliance on custody;
- Incentivising progression from custody to community;
- Taking a victim-centred approach;
- Targeted approaches to different groups;
- The role of the Probation Service;
- The role of technology; and
- Longer-term considerations for a sustainable prison system.
The Review outlined its broad scope, in that it had to deal with the current position and to find solutions for the long-term. The Review stated, ‘we not only have to set out measures to reduce the prison population but also to address other related challenges to the criminal justice system that will reduce future pressures on the prison population’.
Key Proposals from the Review
Various proposals were made by the Review. A number of the Review’s recommendations, if implemented, would significantly impact sentencing practice and prison administration. Among the most notable of the proposals are:
- Limiting short custodial sentences: Prison sentences of 12 months or less are only to be ordered in exceptional circumstances. Therefore, the courts would be expected to pursue alternative punitive options such as community orders. This would be a big U-turn, as community orders have been in sharp decline over recent years.
- Continuation chemical castration pilot: The review supports the scheme providing voluntary chemical castration for sex offenders in the south-west of England with the aim of reducing sexual reoffending, although this scheme has been criticised by NGO groups.
- Increased investment in probation: An additional £700 million by the final year of the spending review is to be allocated to the current £1.4 billion budget. The additional funding will support probation to manage more people serving their sentences in the community. The government has agreed to adopt this recommendation. The National Probation Service welcomed the proposal but stated that this was not enough
- Reforms to foreign national offender (‘FNO’) management: The Review suggests foreign criminals should be deported immediately if they have received sentences of less than three years, and at an earlier point if they were handed longer terms. No mention was made with regards to the ECHR or the various protection.
- Adoption of the ‘earned progression model’: From reforms successfully trialled in Texas where the scheme was credited with cutting prisoner reoffending rates and reducing crime to levels previously seen in the 1960s, this proposal would allow prisoners serving standard determinate sentences to be eligible for release after serving one-third of their term, provided they maintain good behaviour. Those who fail to meet behavioural expectations would instead serve up to half their sentence before release.
This last proposal would, if adopted, represent a significant shift in how prisoners progress through custodial terms. The recommendation has prompted much public debate since being advocated in the Review.
Crime Pays?
Perhaps unsurprisingly, the Review’s proposals have not been embraced by all.
Recently, Robert Jenrick – the shadow justice secretary – stated, ‘scrapping short prison sentences [will] effectively decriminalise crimes like burglary, theft and assault’.
The Daily Mail ran a headline: ‘Fury at Labour plans to allow killers, rapists and domestic abusers out of jail earlier in bid to ease prison overcrowding’.
Dame Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, stated that these plans would ‘send a clear message to domestic abusers that they can now offend with little consequence’.
It is not surprising that all three of these individuals have asked for longer prison terms and not come up with solutions to cut the overcrowding in prison populations in light of their past comments and position on sentencing.
As with most things in life, the answer is arguably somewhat more nuanced than some of the headlines. For example, concerning prison sentences under 12 months, low-risk offenders with high needs, such as pregnant women, would receive deferred sentences. Judges would have greater flexibility to impose travel, driving and football bans as well as other punishments that would inconvenience offenders as opposed to cost the taxpayer more money.
Spades In The Ground
The policy of building more prisons has not been abandoned. As highlighted earlier, the number of prisoners by 2029 will reach six figures. The government has committed to expanding the prison estate by 14,000 additional places by 2031, with 2,400 of those due to be delivered in late 2025. As part of this initiative, HMP Millsike – a new Category C “resettlement” prison – opened earlier in 2025. Its central purpose is to support rehabilitation and reduce reoffending, which remains a significant issue in England and Wales, with the current reoffending rate at 27.5%.
The economic and social impact of reoffending is substantial, estimated at £18 billion annually. HMP Millsike has been designed with resettlement at its core, offering 24 workshops and vocational training facilities aimed at equipping prisoners with skills to support reintegration into society and reduce the likelihood of reoffending upon release. The research shows, that if re-offending is reduced, the prison population will decrease and the savings on the public purse will be substantial.
This development marks the first major step in the government’s £9.4 billion to £10.1 billion prison construction programme. This has two aims: to meet the need of the increasing prison population but also reflecting a long-term commitment to modernising the ancient and decayed prison infrastructure. However, investment in bricks and mortar alone may not be sufficient.
International comparisons offer some perspective. Countries like Norway, frequently cited as leaders in enlightened rehabilitative approaches to prisoners, continue to experience recidivism rates of 20–25%. Based on the evidence, the rehabilitation focus is not on its own going to provide a magic panacea.
Looking Ahead
The review proposes a bold package of reform. This is to be broadly welcomed. It will be a tough sell to the public, with over 70% believing prison sentences are too lenient. Therefore, as Gauke himself has stated, the government will need to be ‘brave.’ A clear articulation by the government as to the reasons for reform would be a good start – namely, we already are as a nation arguably ‘tough on crime’, being one of the highest incarceration rates in Western Europe per capita.
Furthermore, a clear case must be made to the public as to why the punishment of offenders, the reduction of crime, the protection of the public and the reparation of the victims can potentially be more comprehensively addressed by employing alternative sentencing options to custodial sentences.
In addition, the public must be educated on the fact that curfews, tagging, community punishments etc are not “soft”: they take away people’s liberty and are just as effective if not more so. Moreover, where in many instances innocent family members get punished wrongly due to their loved ones being in prison, this would allow stability and support for children and family members in need of assistance.
Developments in technology should be cited as enabling these alternatives sentences which previously would have been much more costly and labour intensive to pursue.
The potential savings for the hard-up taxpayer could be substantial. If a third of the current 87,000 prisoners were to be punished in other forms than a custodial sentence, over £1.5 billion per annum could be saved.
As Law Society President Richard Atkinson has noted, systemic change requires systemic investment. The proposed £700 million for probation services is a start, but it must be part of a broader, sustained financial commitment.
Without this, the Review risks becoming yet another well-intentioned report that fails to translate into meaningful reform.
