The prison system in England is set to be thrown into a fresh crisis this week with scores of alleged criminals to be released on bail rather than taken to their court hearings.
The jailing of hundreds of rioters has pushed prisons towards full capacity forcing HM Prisons and Probation Service to prepare Operation Early Dawn, a contingency plan that prevents inmates being taken from police cells to courts, unless a prison place is available.
Those who do go to court and are given jail sentences may find themselves sent to prison hundreds of miles away from home.
More than 300 people charged with offences linked to the disorder that broke out following the Southport attack have so far been remanded in custody, and the number is set to continue rising rapidly as police leaders vow to track down offenders for “as long as it takes”.
The Observer understands the prison operation is expected to start this week, having been used for several days in March when prison capacity previously hit critical levels
An internal document states that prison escort staff will make assessments throughout each day to check how many inmates being held by the police can be taken to scheduled court hearings, and how many will have to be released on bail and have their cases delayed because there is no space in jails.
Officials will triage the prisoners who are kept in police custody to prioritise as many as they can for court hearings according to the seriousness of their alleged crimes, and adjust plans according to new capacity information from across the prison estate.
Sources say Operation Early Dawn is needed because a long-running contingency called Operation Safeguard, which sees prisoners held in up to 200 police cells for a night before they are moved into prison custody, is becoming exhausted.
Mark Fairhurst, national chair of the Prison Officers’ Association, said there were only 340 spaces left in adult male prisons that are able to receive rioters.
“There has been a massive rise in the week-on-week prison population, it’s one of the largest ones I’ve ever seen,” he added.
“The north-west and the north-east are the pinch points, where the worst disorder was, so it’s possible that rioters will end up in the south-west or south-east. The rioters shouldn’t expect a prison cell on their doorstep, they’ll go wherever there’s a space and if they don’t like it – tough.”
Fairhurst warned that although Labour has announced a new early release scheme that is expected to cause thousands of inmates to be freed, it is not coming into force until next month.
“The thing we’re worried about is the next three weeks,” he said. “It’s going to be really really tight, these riots have come at a bad time.”
The number of people brought before the courts for involvement in the riots is increasing rapidly, with a total of 677 charges and 1,117 arrests recorded since 29 July.
Chief constable BJ Harrington, the national police chief for public order, said police would continue identifying and arresting people who were involved in the riots “for as long as it takes”.
“The relentless focus on bringing people to justice won’t change,” he added. “There is no place to hide, we are coming after people.”
Harrington said that with disorder having subsided, arrests are likely to slow but that investigations would continue for many months as officers identify offenders behind anonymous social media accounts, and track masked rioters backwards through hours of CCTV to the moments before they covered their faces.
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“Inevitably, the number of arrests will peter out, and some of those investigations will take longer,” he added. “Some of those will require the forensic download of phones and detailed evidence, and it can take time to build the case.”
Harrington rejected claims that “two-tier policing” was seeing rightwing protesters disproportionately punished, saying: “We’re not anti-protest, we’re anti-crime. Policing will deal with stuff where it’s unlawful, where it’s violent.”
He said claims that police had been more permissive to pro-Palestine and environmental protests were wrong, adding: “They weren’t setting fire to hotels, they weren’t lobbing bricks. That’s not two-tier policing, that’s about dealing with threat, risk and harm.”
While many defendants who have so far appeared have pleaded guilty and been swiftly sentenced, more than 150 cases are set to go to full crown court trials, joining immense backlogs that were already seeing cases scheduled into 2027.
Michelle Heeley KC, who represents barristers practising in the Midlands, said cases had so far been heard at “unprecedented speed”.
“We’re seeing protocols put in place by judges to get people from the magistrates to crown court in days,” she added. “There’s a real emphasis on swift justice that we haven’t seen since the 2011 riots, but if we start getting guilty pleas and trials it will take longer.”
A Ministry of Justice spokesperson said: “The first job of this government is to keep people safe, and the new lord chancellor has taken action to make sure the justice system is always able to lock up dangerous offenders, protect the public and reduce reoffending.
“Operation Early Dawn is not active and we will notify the public if it is activated.”