The Government's open secret...

Last November, when the Prisons Minister, Damian Hinds, told the House of Commons that up to 400 police cells would be used to hold prisoners because of a lack of capacity in jails across England and Wales he didn't reveal the whole picture.

Hinds said that the emergency police cell plan, known as Operation Safeguard, was being activated because of an "acute and sudden increase in the prison population". He said this was partly due to strike action by criminal barristers which had led to "significantly higher numbers of offenders on remand." He added that as court hearings had resumed there had been a "surge in offenders" in the criminal justice system placing pressure on prisons, particularly those which which hold men.

The rise in the prison population, however, was entirely foreseeable. It had been forecast by officials in Hinds's own department 12 months earlier, not because of the barristers' strike, but due to courts opening up again after the pandemic, an anticipated increase in police officer numbers leading to more arrests and prosecutions and various sentencing changes. The analysts reckoned that by July 2022 there'd be 84,800 prisoners and by November 87,000. The population levels and projections are shown in the table, below:

You might have thought, therefore, that when the projections were published in November 2021 ministers would have embarked on a plan to deal with the expected increase. Hinds's statement, setting out the need to requisition police cells as an emergency measure, shows that they completely failed to do so. This lack of planning has appalled criminal justice experts I have spoken to.

In fact, the Ministry of Justice (MoJ) got lucky, because the rise in the prison population has turned out to be far lower than projected. In July, there were just under 81,000 prisoners and in November around 83,000 - that's 4,000 fewer than forecast. There may have been a sudden uptick in numbers during the year, but the increase was well within the estimates officials had produced months earlier.

The Prisons Minister also left out other crucial facts from his Commons statement. He didn't mention that since 2010 the Government had closed 20 prisons, ostensibly to save money, without replacing enough of the cell spaces lost. He also didn't say that the ambitious prison building programme, which aims to provide 20,000 additional places by the mid-2020s, is already bogged down in planning disputes. HMP Five Wells, in Northamptonshire, opened in 2022, Fosse Way, in Leicestershire, will be operational in the next few months and a new jail near Full Sutton prison is on track for 2025, but other new sites have yet to be approved. If the prison population carries on rising at anything approaching the rates forecast (98,000 within three years) more extreme emergency measures will be required. The last thing ministers would want to do is to release some prisoners early, to free up space, but unless they grip the capacity issue that will be the only feasible alternative.

There is one final thing that Hinds omitted from his Parliamentary statement: the shortage of prison capacity has been exacerbated by Government policy, specifically, a new approach towards Category D prisons, also known as 'open' prisons.

Security in open prisons is less stringent than other jails, with inmates allowed out for work, training and family visits. As a result, the establishments are not suitable for the vast majority of offenders. They are designed to hold those who are coming up for release and pose a low risk of harm to the public. They're also intended for long-term prisoners as a way of testing, in a more relaxed environment, whether they're ready to be let out: can they be trusted, how do they respond to being in the community, could they be safely managed on licence? Open prisons are a vital stepping stone between incarceration and freedom...but occasionally the test goes badly wrong.

In February 2022, a life sentence prisoner, Paul Robson, who had been jailed for sexually assaulting a woman at knifepoint, went missing from North Sea Camp, an open prison in Lincolnshire. Robson left a dummy in his bed, climbed out of a window and made off on a bicycle. His disappearance led to a nationwide manhunt before he was recaptured and sparked concern about decision-making at the Parole Board, the independent quasi-judicial body whose job it is to recommend to the MoJ moves to open prisons by lifers, such as Robson, and other indeterminate sentence inmates.

The Justice Secretary, Dominic Raab, had already decided to oversee the most sensitive cases himself, rather than delegating decisions to MoJ officials, but the Robson case convinced him further changes were needed. The Parole Board was given fresh guidance, so that it could recommend a transfer only if a prisoner was assessed to present a "low risk" of absconding and if it was considered "essential" in terms of preparing for their possible release. The Justice Secretary also gave himself greater powers to block the Board's recommendations, to ensure an open prison move did not "undermine public confidence in the wider criminal justice system." Previously, he could thwart a recommendation only in limited circumstances - if it went against expert advice without an explanation, was based on inaccurate information or where there wasn't a wholly persuasive case for the move.

The changes, which were signalled after Robson's disappearance in February, came fully into force last June and have had a dramatic effect.

In the 12 months leading up to April 2022, the Parole Board made 568 recommendations for offenders to transfer to open prisons, an average of 47 per month. Of the 549 recommendations processed, 515 were accepted by the MoJ - a 94 per cent acceptance rate. Since then, the number of recommendations has dropped and acceptances have plummeted.

Here are the latest figures, provided to me by the Parole Board:

April: 27 recommendations made, 0 accepted

May: 24 recommendations made, 3 accepted

June: 24 recommendations made, 2 accepted

July: 28 recommendations made, 1 accepted

August: 25 recommendations made, 5 accepted

September: 43 recommendations made, 7 accepted

October: 22 recommendations made, 9 accepted

So, during the seven months there were 193 recommendations that a life sentence or indeterminate sentence prisoner should move to an open prison, an average of 28 per month, down from 47.

A total of 27 recommendations were granted, an acceptance rate of 14 per cent, compared with 94 per cent in the previous 12 months

The aim of Raab's new approach is laudable - to bolster public safety and confidence in the criminal justice system - but there's a risk that it merely stores up problems that prison staff, the Parole Board and ministers will have to confront further down the line. The wise and experienced Director of the Prison Reform Trust, Peter Dawson, a former governor, believes the policy is "irrational".

Although it's too early to draw conclusions, one thing is already clear: the policy has added to the capacity problems across the prison estate. Hundreds of cells in open prisons are lying vacant, because fewer offenders are being dispatched there, while other overcrowded jails have run out of room. On 2 December 2022, there were 642 empty bed spaces in men's open prisons - surprising reading, perhaps, for the chief constables who were told to make space for prisoners in police custody suites.

Here is a list of the open prisons and spare bed spaces, drawn from data supplied by the MoJ.

Ford 2

Hatfield 36

Haverigg 94

Hollesley Bay 21

Kirkham 216

Kirklevington Grange 20

Leyhill 23

North Sea Camp 57

Prescoed 13

Spring Hill 14 (figure from April 2022)

Standford Hill 23

Sudbury 74

Thorn Cross 49

Damian Hinds didn't talk about the unused cells in open prisons when he made his statement in November. It would have been embarrassing for him to admit that policies introduced by his own boss had contributed to such an imbalance of capacity across the prison estate. But if Raab carries on with his approach, if the overwhelming number of suggested transfers to open prisons continues to be blocked, more cells there will sit empty while precious space elsewhere, particularly in categories B and C jails, will be squeezed.

It's the open secret the Government hasn't been open about.