Early Release Policy to Relieve Pressure on Prison Places

The decision to release prisoners early in order to relieve pressure on the prison system is not a single recent measure but the latest stage in a prison-capacity crisis that has developed over several years. The immediate problem is particularly acute in England and Wales, where the prison population has remained close to the maximum capacity of the available estate.

As at 30 June 2026 there were 85,858 prisoners in England and Wales. Although this was actually a 2 per cent reduction on the previous year, the prison estate remained under severe pressure, with the Government reporting that adult male prisons were operating at about 98 per cent capacity.

The most important emergency measure was introduced by the previous Labour Government in September 2024 and became known as SDS40, or Standard Determinate Sentence 40. Under the normal arrangements, many prisoners serving a standard determinate sentence were automatically released on licence after serving 50 per cent of their sentence, although they remained subject to conditions and supervision for the remainder. Because the Government was facing the prospect of prisons running out of cells, it introduced an emergency scheme under which eligible prisoners could instead be released after serving 40 per cent of their sentence. The first prisoners were released under the scheme on 10 September 2024, with a second tranche, covering eligible prisoners serving sentences of five years or more, beginning on 22 October.

This was explicitly presented as a measure to prevent the criminal justice system from becoming unable to function. If prisons have no available places, the consequences extend beyond overcrowding within prisons themselves. Police cells can become unavailable, courts can be prevented from remanding defendants in custody, and newly convicted offenders may have nowhere to be sent. The Government therefore argued that releasing suitable prisoners somewhat earlier, while placing them under licence and probation supervision in the community, was preferable to allowing the entire system to become gridlocked. The official explanation for SDS40 described it as an emergency and temporary measure intended to provide immediate relief to prison-capacity pressures.

The scheme has subsequently become part of a much wider restructuring of sentencing. The Sentencing Act 2026 replaces the emergency arrangements with a new 'progression model'. This is due to come into force on 1 October 2026. Under it, prisoners serving standard determinate sentences for which the existing automatic release point is 40 or 50 per cent will have an earliest release point of one third of the sentence. Those whose present release point is two thirds will become eligible for release after serving one half. The Government therefore accepts that, for a substantial category of offenders, the effect will still be to shorten the period actually spent in prison.

Qualifications

There are, however, important qualifications. The new arrangements do not apply to the most dangerous offenders, including prisoners serving life sentences or extended determinate sentences who remain subject to the existing arrangements and, where appropriate, the Parole Board. Following a highly controversial review announced this month, the Government has also excluded rape, serious child sexual offences and certain grooming offences from the new changes. More than 18,000 offenders serving more serious sentences are consequently excluded from the early-release provisions. The Government has also stated that prisoners who behave badly in custody will be liable to remain imprisoned for longer and, in some circumstances, for the whole of their sentence.

Controversy

The controversy surrounding the policy illustrates the difficult distinction between a prisoner's nominal sentence and the amount of time that the law actually requires him or her to spend behind bars. A sentence of, for example, six years does not necessarily mean six years in prison. Release on licence has long been an established feature of the English and Welsh system, partly because supervision in the community is regarded as an important means of reducing reoffending. What has caused particular controversy is the repeated movement of the statutory release point in response to the shortage of prison places. Critics argue that this can undermine public confidence because a sentence announced by a court may appear to mean something substantially different from what the offender ultimately serves in custody.

Manslaughter of PC Andrew Harper

The most politically explosive example has been the case of the two men convicted of the manslaughter of PC Andrew Harper. They received 13-year sentences but became potentially eligible for release under the new arrangements because manslaughter was not initially included among the offences excluded from the scheme. The possibility that they might therefore leave prison considerably earlier than the public might expect from a 13-year sentence produced widespread criticism from the police, politicians and victims' representatives. The Government has subsequently been attempting to modify the arrangements so that particularly serious offences are treated more severely. The Government's response is therefore a mixture of immediate capacity management and longer-term prison reform. It has announced a substantial prison-building programme, with a stated aim of creating 14,000 additional places by 2031, while also looking at the faster removal of foreign national offenders, the position of prisoners serving historic Imprisonment for Public Protection 🔗 sentences, and ways of making better use of existing prison accommodation. It is also increasing the use of electronic monitoring and strengthening probation supervision, so that prisoners released into the community are subject to more intensive controls.

The scale of the problem is demonstrated by the fact that the Government is simultaneously attempting to reduce the prison population and increase the number of prison places. That apparent contradiction reflects the underlying difficulty. The number of people being sent to prison, the length of sentences, court backlogs and the availability of cells have combined to produce a system in which there is very little spare capacity. Early release is consequently being used not simply as an act of leniency towards individual prisoners but as a mechanism for managing the capacity of the criminal-justice system as a whole.

There is a serious philosophical and political objection to this approach. If imprisonment is imposed as punishment, changing the point at which a prisoner is released because there are insufficient cells can appear to make the severity of punishment dependent upon the physical resources available to the Government. It can also seem unfair to victims and to offenders who have previously been sentenced under different release arrangements. On the other hand, there is an equally serious objection to allowing prisons to become so overcrowded that courts and police forces can no longer operate normally. A prisoner released into the community under strict licence and probation supervision may present less danger than a criminal-justice system that is unable to accommodate people whom courts have ordered to be imprisoned.

The present policy should therefore be understood less as a decision that imprisonment is unnecessary than as an admission that the existing prison estate cannot accommodate the number of people whom the criminal-justice system is sending to it. The emergency SDS40 scheme was the most conspicuous response to that problem, and the new Sentencing Act arrangements represent an attempt to turn an emergency expedient into a more systematic system of sentence progression. The Government is now trying to combine that approach with new prison construction, tougher supervision after release and additional exclusions for the most serious offences. Whether this ultimately restores public confidence will depend largely on whether the Government can expand prison capacity sufficiently to ensure that early release is regarded as a principled part of sentencing rather than as a recurring necessity imposed by a shortage of prison cells.