The consequences of criminal legislation
Government predictions do not exactly have a brilliant track record. You may remember the suggestion that allowing free access to workers from eastern Europe would lead to very limited total immigration, not much more than 10,000. It turned out to be more like that every week.
However trying to assess consequences is a useful discipline. If you get it wrong, at least you have tried, and it will help you to see where your assessment went wrong. (If it shows that the assessment is a reflection of what you would like the position to be, or what you would like people to believe the position to be, then at least that may introduce more rigour into the assessment for the future).
There has been no policy of prison building introduced by the government over recent years. Some would welcome that, others not. There are at least two views about the number of prisoners (or possibly three for those who think present levels are about right). Some think that too many people are being sent to prison and other penalties should be looked at more vigorously. Others think, whether because some sentences are too short or because some offenders merit longer periods of imprisonment, that more prison places should be available. This is a question of policy. There are arguments for each side.
What however is difficult to defend is a system which introduces vast numbers of additional offences (or civil orders breach of which can lead to criminal penalties, such as antisocial behaviour orders or Asbos), which moreover introduces various sentencing initiatives which inevitably increase the prison population (for example indeterminate sentences for public protection (or IPPs)), but does so without any apparent assessment of the likely implications that this has for the number of prisoners likely to be in the system at any time, still less take steps to actually ensure that prison places are available for them.
One can see that there might have been room for considerable dispute as to the precise consequences which would follow from these changes. It seems utterly impossible to believe that anyone could have thought that they would not lead to any increase in the prison population. The only issue could ever have been how great an increase.
This has led to problems with some of the very initiatives which partly caused the problem in the first place. Not only were the prison places not provided for IPPs, but nor was the infrastructure to allow prisoners to complete the courses which were necessary for them to show that they were no longer a menace to the public. Not only was it plainly foreseeable that prison overcrowding might make undertaking courses difficult, but introducing such a scheme had to ensure that the prisoners would have the facilities to undertake the relevant courses. Otherwise the whole exercise was a sham and indeed as the Court of Appeal held in dismissing the Crown's appeals in the cases of Walker and Brett, the Secretary of State for Justice was acting unlawfully by failing to let prisoners serving such indeterminate sentences have an opportunity to show the Parole Board that they could be released on licence.
The consequences are damaging for the system of justice. It leads to early release of prisoners, purely as a response to overcrowding rather than for any coherent reason. Possible release of prisoners whether they are dangerous or not because continued detention, absent giving them the relevant opportunity, would be unlawful. The powers that be suggesting that judges consider the present prison population in deciding on sentence. Whilst there is a case for less imprisonment, that should be coherently thought out with the punishment fitting the crime. It should not be a lottery driven by the state of the prison population from time to time.
The mess needs sorting out. A good starting point would be requiring an assessment of the anticipated yearly consequences for the prison population of acts imposing criminal law offences.