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Prison Overcrowding: A review of recent Court of Appeal cases

The number of people currently held in prison in England and Wales is at a record high. As of Monday 18th March 2024, the prison population was at 87,827 people.

The King v Arie Ali [2023] EWCA Crim 232

On the 3rd of March 2023, the Court of Appeal delivered its judgment and held that the exceptional factor relating to the overcrowding conditions of the adult male prisons can properly be considered by a sentencing judge, particularly for short term prison sentences.

Mr Ali had pleaded guilty to assaulting an emergency worker and was sentenced to 6 months’ immediate custody.  In deciding that the sentence ought to have been suspended, Edis LJ, at paragraph 18-20 of the judgment, relied upon the “exceptional factor” which arose from “the fact that the appellant was sentenced at a time of very high prison population”.  The Court referred to the announcement of “Operation Safeguard” by the Minister of State; a protocol whereby the Government requested the use of 400 police cells to hold people who were remanded in custody or serving prison sentences in the adult male prisons. Edis LJ also referred to the Deputy Prime Minister’s letter to the Lord Chief Justice of 24 February 2023 which made clear that prisons are operating at “very close” to prison capacity and many prisoners are held in “crowded conditions” with “reduced access to rehabilitative programmes, as well as being further away from home”.

The Court of Appeal reiterated the principles it established in R v Manning [2020] EWCA Crim 592 which considered, although in the context of the Covid-19 pandemic, that the current prison conditions represented a factor which could properly be taken into account in deciding whether or not a sentence could be suspended.

In recent months, appellants have relied upon Ali in support of arguments that sentences imposed at first instance ought to have been suspended.

In R v Monk [2023] EWCA Crim 518, the Court of Appeal refused to reverse the decision to impose an immediate custodial sentence of 6 months for an offence of ABH and distinguished Ali on the basis there was a “realistic not merely speculative, prospect of rehabilitation and a positive report from Mr Ali’s probation officer… in Ali the impact of the surge of offenders in the prison estate was described as a ‘further exceptional factor’ in addition to the other factors justifying suspending Mr Ali’s sentence”.

In R v Foster [2023] EWCA Crim 1196 the Court of Appeal considered the principles in Ali and applied them to female defendants. Carla Foster had pleaded guilty to one count of administering a poison with intent to procure her own abortion.  On appeal the sentence of 28 months’ immediate custody was substituted with a suspended sentence of 14 months’ imprisonment.  The judgement also provided important guidance to practitioners as to the principles to be applied when sentencing female defendants:

  • First, because there are comparatively few female prisons, women held in custody may often be a long distance from their families, which may add to the adverse consequences for them, and children deprived of their care.
  • Second, the conditions in which prisoners are confined can properly be taken into account in sentencing, including in deciding whether to suspend a sentence. Judges can and should keep in mind that the impact of a custodial sentence is likely to be heavier during the present circumstances of overcrowding than it otherwise would be.

These judgements will have a significant impact on those borderline cases which are on the cusp of immediate custody. They make clear that sentencing tribunals should consider the prison population and prison conditions, when deciding whether to suspend a period of imprisonment. Arguments can now be properly made on behalf of defendants who might otherwise be facing immediate custody, that on account of the high prison population, their sentence should be suspended.


The full judgements can be found at:


R v Pascal Molliere [2023] EWCA Crim 228

Requirements of a pre-prepared statement and the implications that may arise.

This matter concerns the Defendant’s appeal against conviction in relation to three counts of sexual assault on 25th February 2022 following a trial before HHJ Bartle QC at Southwark Crown Court. He was acquitted of the fourth count which was a charge of assault by penetration. The Defendant, or more recently the Applicant, in the Court of Appeal progressed one relevant ground of appeal, namely, that the trial Judge was wrong in law to direct the Jury that they had the power to draw an adverse inference under s.34 of the Criminal Justice and Public Order Act 1994. The Crown, upon conclusion of the defence’s case advanced legal submissions to the Judge that it would be appropriate for s.34 direction to be given to the Jury for the following reason:

  • The Defendant gave a no-comment answer in respect of matters which arose at the trial in evidence.

Counsel for the defence opposed the s.34 direction relying heavily on the basis that the Defendant had provided a pre-prepared statement, and the following submission was advanced:

  • “The full facts relied on by the Applicant were contained in the prepared statement and that none of the facts now particularised by the prosecution were facts which the applicant could reasonably have been expected to mention questioned in interview”.

HHJ Bartle QC refuted the defence’s argument and found that his statement was an uncomplicated denial albeit his account in evidence provided to be “very detailed”. The Judge went on further to find that the pre-prepared statement fell short of dealing with the issues raised in evidence by the Defendant and therefore proceeded to give the Jury a s.34 legal direction as submitted by the Crown.

At the Defendant’s appeal, it was submitted by the Applicant that there was approximately a 10-year gap in time between the offence and interview and therefore there was no wonder that the Defendant’s account was significantly undetailed in his police interview. It was further submitted that common practice provides for further detail to be advanced when preparing for the trial.

The Court of Appeal dismissed the appeal for the following reasons:

  • The Defendant’s pre-prepared statement amount to a bare denial and before he was interviewed, the police had informed him of the fundamental details in respect of the allegations he faced. The Defendant then drafted and read his pre-prepared statement and gave a no comment answer interview to all questions put to him by the interviewing officer. The Defendant’s evidence at trial appeared to more than amplify his pre-prepared statement as it formed a heavily comprehensive account.


My comments on the issue:

  • This case has caused a significant amount of discussion in relation to the police station procedure and perhaps it’s safe to conclude that this issue heavily affects criminal defence solicitors. It’s often common practice for an accused to give a pre-prepared statement followed by a no comment interview especially in relation to serious allegations, perhaps this case will make police station representatives more alive to what a pre-prepared statement stands for and what it doesn’t.
  • A pre-prepared statement must satisfy all points or issues of the interviewing officers’ questions which will later be advanced at trial, and it must do so in adequate detail to avoid a s.34 direction being given to a jury at the closure of the defence case.
  • It is also worth noting for police station representatives that upon hearing the warning or legal caution at the start of an interview followed by the questions asked, if you feel that the pre-prepared statement falls short of dealing with certain issues or allegations then further instructions should be sought to sufficiently address the questions. In turn, this will avoid an adverse inference under s.34 being given a trial and ultimately is in the client’s best interests. If the accused is unwilling to provide a more comprehensive account to satisfy the interview questions, then the appropriate advice and warnings should be explained in relation to the trial process and adverse inferences under s.34.


The full judgement can be found at: 


R v Watson (Roshane) [2023] EWCA Crim 960

Analysis of the failure of the defence to call a relevant witness

The issue considered by the Court of Appeal was whether it was permissible for the judge or prosecution to make representations on the defences failure to call a witness who may have supported the case of the defence.

Facts of the case:

  • On 29th July 2020, the Defendant was convicted of murder, possession of a firearm with intent to endanger life and perverting the course of justice. He received a sentence of life imprisonment with a specified minimum term of 32 years.
  • The central issue in the case was that of identification where the Crown relied upon CCTV evidence, contact and cell site data and telephone attribution evidence. The defence ran that argument that the clothing referred to were common and that the phone was not in the Defendant’s possession at the time of the shooting. It was then argued on behalf of the defence that the evidence on the above basis was so weak that it did not require the Defendant to answer and therefore no adverse inference should be drawn. However, one of the co-accused in this matter put forward an alibi stating the Defendant was seen by a number of people at a party which was not challenged by the Defendant. No alibi notice was served by the Defendant and therefore there was no legal basis to call these witnesses to support his claim.
  • This resulted in the court receiving a jury note asking whether they would be hearing evidence from the people supporting the co-defendants alibi.



  • The Court of Appeal dismissed the appeal on the basis that the Defendant’s submissions essentially invited the Court to disregard the law and precedent which was clear. It was found that there was no legal reasoning to exclude reasonable comment on the failure of a defendant to call witnesses.
  • The Court of Appeal considered many relevant authorities however the case of R v Shakeel Khan [2001] EWCA Crim 486 was the primary authority. Khan, provided for a balance which must be met, especially when considering the weight of a jury’s speculation for the Defendant not calling a certain witness.
  • The authorities on this issue favour the Crown’s position that commenting on the failure to call a witness who would be considered relevant to an issue in dispute is worthy of comment. Albeit the directions given to the jury must be worded with paramount care to ensure improper speculation is avoided and the jury should be heavily reminded that the burden of proof still lies with the Crown to prove the Defendant’s beyond all reasonable doubt.


My comments:

  • The take away from this case originates from the meticulous consideration of the relevant case law. Comment on the failure to call a witness may be acceptable but only if the circumstances provide for this. There is essentially no indefinite answer and counsel must be live to the fact that in certain circumstances it would be unfair to allow comment.
  • Counsel should approach this issue with care and considered discussing this matter prior to closing speeches in order to avoid judicial disapproval.


The full judgement can be found at: 

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