Judges will be expected to consider the state of prisons and the numbers already in them when deciding if a criminal should be jailed or given a community sentence.

The move, long supported by Lord Woolf, the Lord Chief Justice, was part of a Bill that included plans for a huge increase in the maximum fines magistrates can impose.

Magistrates will be able to impose a maximum fine of £15,000 compared with the current £5,000.

A new system of day fines will be created which will link an offender’s punishment to disposable income as well as the seriousness of the offence.

The Bill also allows lie-detector tests to be used on sex offenders who have been released from jail on licence.

The plans to link the sentences handed to criminals to the availability of prison spaces is intended to prevent overcrowding in jails and keep the prison population below the government ceiling of 80,000.

Last night the Opposition said that it was an attempt by the Government to overcome its failure to build enough new prison places to meet a predicted rise in jail population.

David Davis, the Shadow Home Secretary, condemned the move unveiled by Charles Clarke, the Home Secretary, in the Management of Offenders and Sentencing Bill. He said: “For the first time in British history, sentencing will be decided by economics rather than the merit of an individual case.

“It is a disgraceful violation of our criminal justice system and will lead to thousands of criminals getting shorter sentences, or no sentence at all, because the Government has failed to provide enough prison places.”

Under the proposals the Sentencing Guidelines Council, an independent body that formulates sentencing policy for the courts, will be required to take prison and other resources into account.

The council, chaired by the Lord Chief Justice, will be required to consider the cost of different sentences, their effectiveness in preventing reoffending and the resources available now and in the future for prison and community sentences. A note accompanying the Bill said: “Resources in this context refer to the capacity of correctional services (probation and prison) to deliver sentences of the court.”

While penal reform groups welcomed as sensible plans for judges to take into account the state of jails before sentencing criminals, the Opposition said that it was an admission that the Government’s prison policy had failed. “They have failed to provide more prison places despite the fact that our prisons are bursting at the seams,” Mr Davis said. “Those who deserve to be in prison should be in prison — sentencing should be determined by the crime, not by the number of prison places available. It will be the British public who will suffer as a result of this Government’s irresponsible policies.”

The jail population at present is 73,085 but longer-term projections expect it to be between 93,000 and 109,000 by 2009.

Kevin McCormac, secretary to the Sentencing Guidelines Council, welcomed the proposals. He said that the council was already required under the Crime and Disorder Act to take into account the cost differences between sentences and the relative effectiveness in preventing reoffending. But the Act had not made clear the position on resources.

The council was relaxed about the provisions, he said. “Clearly the council is concerned that the courts pass sentences that are effective in terms of the whole range of objectives set out in the Criminal Justice Act and the range of resources available when they consider the effectiveness of different penalities.”

The maximum fine in a magistrates’ court will rise to £15,000 for an adult, from £1,000 to £3,000 for offenders aged 14 to 17 and from £250 to £750 for under-14s.

The maximum Level 1 fine at magistrates’ court will rise from £200 to £750; Level 2 from £500 to £1,500, Level 3 from £1,000 to £3000, Level 4 from £2,500 to £7,500 and Level 5 from £5,000 to £15,000.

INMATE NUMBERS

January 1993: 42,500 people in jail
James Bulger murdered
May 1997: 59,000
Labour elected
December 1999: 66,000
Early release scheme starts
April 2004: 75,544
Highest ever population
2009: predicted jail population — between 93,000 and 109,000

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