Prison Capacity Pressure Vs Public Safety: Why Reducing Custody For Domestic Abusers Leaves Fundamental Questions Unanswered

The early-release scheme as revised by the Andy Burnham Government’s will see around 5,000 prisoners released earlier than they otherwise would have been, down from approximately 6,000 under the original proposals developed under Keir Starmer while David Lammy was Justice Secretary. The decision to exclude rape and specified serious child-sex offences has been widely welcomed, but one particularly concerning category of offending remains within the scope of the scheme: domestic abuse. That means some offenders convicted of violence, stalking, harassment or other offences against partners or former partners may still be released earlier than under the ordinary sentencing arrangements.
The change is being made because the prison estate does not have enough capacity. That is a real and immediate problem, and reducing the number of prisoners affected is preferable to a wider release programme. But the policy remains a mechanism for managing overcrowding rather than a solution to it. As former chief inspector of prisons Nick Hardwick has warned, reducing the number of prisoners released early leaves the system with less headroom, while the underlying shortage of prison places remains.
For victims of domestic abuse, however, the issue is not simply one of how many prisoners are released. It is what an earlier release means in an individual case. A prisoner who leaves custody earlier has less time in which rehabilitation can take place and, equally importantly, less time during which he is physically separated from the person he has previously abused. Where the offending has included stalking, harassment, intimidation or violence against a former partner, release brings forward the point at which that separation ends.
That does not mean that a particular additional period in prison can be shown to produce a particular reduction in domestic-abuse reoffending. There is no reliable formula by which serving four years rather than three, or three rather than two, can automatically be said to make an offender safer. Rehabilitation depends upon the offender, the interventions available in custody, supervision after release and the circumstances into which the prisoner returns. It would therefore be wrong to present a particular sentence length as a scientifically established safeguard against further offending.
But neither does that uncertainty make the period of imprisonment irrelevant. A custodial sentence imposed by a court serves more than one purpose. Rehabilitation is one consideration; punishment and incapacitation are others. While an offender remains in prison, he is not at liberty to approach the former partner he has abused, stalk or harass her, or commit further offences against her in the community. Bringing forward his release necessarily removes some of that period of physical separation.
This is particularly significant because domestic abuse is not ordinarily a single, isolated event between strangers. In many cases the offender and victim know one another, have lived together, share children, or remain connected through family and practical arrangements. A licence and conditions imposed after release can provide restrictions and supervision, but they do not recreate the physical separation provided by imprisonment. The question is therefore not whether supervision has value; it plainly can. It is whether earlier release changes the circumstances in which both the offender and the victim subsequently live.
The Government has chosen to exclude certain categories of serious sexual offending despite the prison-capacity crisis. It has not made the same blanket decision in relation to domestic abuse. That does not mean that every domestic-abuse offender will qualify for early release: eligibility depends upon the offence, sentence and statutory provisions applying to the individual prisoner. Nor does it mean that every offender who is eligible will necessarily reoffend. It does, however, leave domestic-abuse victims facing the consequences of a policy in which the shortage of prison places is one of the reasons for bringing forward the end of some custodial sentences.
The reduction from 6,000 to 5,000 releases is therefore a welcome restriction, but it does not answer the underlying question. If the prison system lacks capacity, the Government has several possible ways of addressing that problem over different timescales. Building additional prisons is the obvious long-term answer, but construction takes years. Bringing forward release dates produces an immediate increase in available space, but at the cost of reducing the period some offenders spend in custody.
There is, however, another question which deserves to be considered before that cost is imposed. The United Kingdom holds thousands of foreign national prisoners, and some are liable to deportation when the legal requirements for removal are satisfied. Not every foreign national offender can be deported, and individual cases remain subject to domestic and international law. But where deportation is legally available, removing an offender from the United Kingdom would create prison capacity without shortening the custodial period imposed by a British court.
That presents a different policy choice. Rather than asking whether some offenders who would otherwise remain in prison should be released earlier because the prison estate is full, the Government could ask first whether prison space occupied by foreign national offenders who are lawfully removable can be recovered through deportation. That would not eliminate the need for new prisons or resolve every aspect of the capacity crisis. It could, however, provide capacity without requiring the same reduction in punishment and incapacitation for offenders who remain in the United Kingdom.
The revised early-release scheme is therefore more restrictive than the original proposal, and the exclusion of rape and specified serious child-sex offences is a significant improvement. But the position of domestic-abuse offenders remains a legitimate point of concern. An earlier release means less time for rehabilitation, less time of physical separation from a known victim and less time during which the offender is incapacitated from committing further offences in the community. We do not need to claim that a particular number of years in prison guarantees a particular level of safety to recognise those facts. If prison capacity is the justification for changing the release point, then the Government should also be prepared to explain why every other lawful means of creating that capacity — including the deportation of foreign national offenders who are eligible for removal — has not been exhausted before domestic-abuse offenders are released earlier than the courts’ sentences would otherwise require.