Earned regression? Howard League outlines concern about government’s prison reforms

The government’s flagship proposal to address prison overcrowding risks ending in failure because it relies on a flawed and unfair punishment process that could lead to people being released without supervision or support, a briefing published by the Howard League for Penal Reform warns today (Tuesday 4 November).

Ministers have set out plans to tackle the prisons crisis in a Sentencing Bill, which is being scrutinised in Parliament. The draft legislation includes a proposal to introduce an ‘earned progression’ model that would enable some people to be released from prison one-third of the way through their sentences.

But the Howard League briefing, Earned regression?, explains how the proposal, which was recommended by an Independent Sentencing Review led by former Secretary of State for Justice, David Gauke, may result in further overcrowding and injustice in the prison system because of the way the government has decided to implement it.

The problem lies in a decision by ministers to take a flawed existing internal punishment process in prisons – through which some people can be given additional days of imprisonment – and make it the cornerstone of the new policy. The proposed arrangements would double the number of additional days that people can receive for breaches of prison rules, putting more pressure on capacity, and leave open the possibility that some are released from custody without supervision.

Andrea Coomber KC (Hon.), Chief Executive of the Howard League for Penal Reform, said: “The prison system is on the brink. Ministers commissioned the Independent Sentencing Review and introduced proposed new legislation in Parliament because they understood that change was needed to address the capacity crisis.

“But in proposing greater use of additional days of imprisonment, they risk making the problems even worse. This blunt instrument only adds to the injustice and distress that exists within the prison system, and it contributes directly to the chronic overcrowding that prevents people receiving the help they need to move on from crime.

“Most worryingly, this ill-considered proposal opens the possibility that people who have demonstrated particularly challenging behaviour in prison will be released into the community without any support or supervision, at a risk to public safety.

“Given other jurisdictions such as Scotland do not use additional days of imprisonment at all, the Howard League remains of the view that they are counter-productive and should be abolished. But if ministers are set on making them the cornerstone of their new earned progression model, then at the very least the proposal to double the amount of additional days that can be awarded per incident, with no upper ceiling on how many days can be handed out, should be dropped.

“There is also an opportunity to tackle longstanding concerns about procedural fairness in the adjudications process.”

Additional days of imprisonment are a form of punishment awarded through prison disciplinary procedures. If someone serving a determinate sentence is found to have breached a prison rule, they can have days added to their time in custody by an external adjudicator, usually a district judge. Additional days are not treated in the same way as sentences handed down by the criminal courts, which have release part of the way through and the remainder of the sentence on licence; people serve the entire period of additional days in prison.

Currently, the maximum number of additional days that can be imposed on someone for one incident is 42; the Ministry of Justice (MoJ) has indicated that it intends to double this to 84. The draft legislation also suggests that there will be no cap on the total number that can be awarded to someone on the earned progression model – in spite of a recommendation from the Independent Sentencing Review that there should be a halfway point limit on how long someone can be kept in custody on additional days.

The Howard League briefing explains how the planned changes raise significant public safety concerns. The lack of an upper limit would make it possible for people in prison to receive so many additional days that they reach the end of their sentence and get released into the community without any form of supervision from probation. Similarly, doubling the number of additional days that can be awarded would mean people get to their sentence end date twice as fast.

The briefing also reveals how the additional days process is unfair and ineffective in maintaining good order and discipline. As additional days can only be awarded to people on determinate sentences (not those serving indeterminate sentences, civil orders and Detention and Training Orders, nor people on remand), they fuel a sense of injustice and unequal treatment behind bars.

Resentment is likely to rise even higher under the government’s proposed changes, as it appears that the harsher additional days structure will apply even to people who are excluded from the earned progression model, including more than 9,000 people on extended determinate sentences and children. The briefing states that this is unfair and a “bizarre” approach to take when the prison capacity crisis is so acute.

MoJ figures show that the number of additional days awarded rose by 56% to 108,366 last year – totalling almost 297 years of imprisonment. The briefing raises concern that this number will soar if additional days become the default mechanism for enforcing the earned progression model in prisons.

Notes to editors

1. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
2. The Howard League briefing, Earned regression? How a flawed approach to punishment risks making the prisons crisis worse, can be found here. The briefing includes a table showing how many additional days of imprisonment were awarded at each prison in England and Wales in 2024.
3. For more detailed information about the prison capacity crisis, read the explainer article Why are prisons overcrowded? here.
4. For more detailed information about sentencing policy, read the explainer article What is sentence inflation? here.
5. The Howard League’s evidence to the Independent Sentencing Review can be read here.

Contact

Noor Khan
Press and Public Affairs Officer
Tel: +44 (0)20 7241 7873
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