CAN five years imprisonment for peaceful protests ever be proportionate? Convicted of a conspiracy to cause public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022, five Just Stop Oil protesters received sentences of between four and five years by an English court last week. A firestorm of controversy has followed.

In a letter to Keir Starmer’s new ­Attorney General, 1200 public figures including broadcasters, media types and ­academics have criticised the penalty as grossly ­excessive.

What the court regarded as the aggravating factors are all set out in the ­sentencing statement, which dismisses the protesters as climate fanatics whose actions inflicted serious and quantifiable harm on ordinary people.

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Just as the new legislation formed part of the broader Tory push to constrain public protest, the punishment handed down is clearly intended pour encourager les ­autres. Campaigners and protesters in ­Scotland will be interested to know the 2022 Act doesn’t apply here, but you’ll have to ­tangle with common law breach of the peace ­instead.

The key evidence against the Whole Truth Five was a Zoom call where they plan to bring the M25 to a halt. The evidence led in the case set out how effectively the protest had done so, mobilising significant police resources, delaying all kinds of traffic, and causing some travellers to miss flights, funerals and NHS appointments.

Prosecutors suggested that the economic cost of the four days of disruption was just under £770,000. The police found out about the planned protests after a Sun ­journalist infiltrated the meeting and passed on a ­recording to the authorities.

The story represents a rare opportunity to talk about an important question – what precisely is prison for? Should we be ­routinely incarcerating people convicted of non-violent crimes? There are compelling political reasons to consider this ­question carefully. Across the UK, the prison ­population is in crisis. Overcrowding is ­endemic.

After an unanticipated surge in demand for prison places – resulting in too many prisoners and too few cells to put them in – both Scottish and UK governments found themselves obliged to institute early release schemes this summer, authorising ­governors to release short-term prisoners near the end of their sentences early.

In Scotland, around 514 eligible ­prisoners will be released. Folk ­serving sentences of less than four years and ­already due to be released within 180 days qualify, with exceptions for some ­categories of violent crime. In England and Wales, Labour ministers look likely to release several thousand people in a similar scheme. If the Tories were still in ­office, they’d have been forced to do so too.

The facts are remarkable. As of March 2024, the UK had a total prison ­population of approximately 97,700 ­people, ­comprising 87,900 in England and Wales, more than 8000 in Scotland, and 1900 in Northern Ireland.

According to the House of Commons Library, the prison population of England and Wales actually quadrupled in size ­between 1900 and 2018 – with around half of this increase taking place since 1990.

The Scottish prison population has ­almost doubled in size since 1900 and has also grown significantly since ­devolution. On any given day, there were an ­average of 5868 prisoners in custody in ­Scotland in 2000.

By April this year, the ­Scottish Prison Service was reporting crisis ­numbers of 8100 prisoners – a 38% ­increase since the millennium, accommodated in increasingly crowded and inadequate environments making a bleak joke of aspirations towards rehabilitation.

But ask the ordinary punter, and I doubt you’d find much public awareness or ­understanding of any of these things. We can’t understand these changes ­without talking about how the media talk about crime and criminal justice, ­distorting ­appearances and reality.

There’s a school of thought – well-represented in politics and the wider media – that the only kind of punishment which counts is “the jail”.

People can be indicted and convicted, face personal, professional and social ruin, pay up massive fines, have property confiscated, find their liberty significantly restricted – and in the absence of a stretch in Barlinnie or even Low Moss, we’re told they “walked free from court”, as if the prisoner tripped gracefully out legal ­jeopardy and bounced off scot-free.

Even when the courts hand down ­massive penalties, consigning people to Scotland’s overcrowded jails for decades on end, fearsomely long prison terms are routinely dismissed as “soft-touch justice” “putting the rights of ­criminals ahead of victims” – and other wise thoughts about how the law’s an ass, and the ­sensible ­solution to all forms of ­offending and ­reoffending is more jail, more ­prisons, more punishment, and no honest ­reflection on the social good any of this is doing.

In British politics, imprisonment is the one court disposal that never has to ­justify itself, the one punishment that is never held responsible for either its costs or its failures. If someone handed a ­community disposal reoffends, you’ve got a ready-made tabloid story about the feebleness of the justice system.

But should a prisoner join the hundreds of thousands who leave prison to reoffend again, nobody seems to worry that we’ve thrown good money after bad. And to be mercenary about it, a lot of money is involved, even before you contemplate a capital splurge on new facilities and more capacity.

The going rate to keep a single prisoner in custody is currently estimated to run between £47,000 and £51,000 a year – comfortably outpacing the salary of a full-time worker in the UK.

The murder rate in Scotland has fallen significantly since the advent of devolution, but over the same period, the penalties imposed on killers have continued to increase and increase.

In the last few years, Scottish courts have handed down sentences with minimum tariffs of more than 30 years.

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These have been for crimes of ­astonishing nastiness – but experimental statistics suggest the punishing trend is on the up and up. Scottish Government statisticians reckon that between 2004 and 2019, ­murder sentences handed out by Scottish judges increased by about five years on ­average – a fact you’re unlikely to see widely reported as it doesn’t chime with the popular perceptions and ­popular ­prejudices the media does so much to shape.

Politicians love creating new criminal offences. One of the hallmarks of the New Labour years was an astonishing proliferation in the number of new crimes it ­created.

The political gag line was that Tony Blair created a new criminal ­offence for every day spent in office. But ­ironically, research suggests this ­histrionic-sounding accusation actually understates New Labour’s frenzied law-making.

One of the curiosities of the ­Scottish third sector and campaigners is how much energy has been spent in recent years – with resources being tight – ­promoting ­legal changes, enhanced penalties and new crimes.

Folk who in most other ­contexts, you might expect to be ­pessimists about the utility of ­prison and allergic to the rhetoric of what’s ­often called penal ­populism joined in ­enthusiastically. ­Devolution channels these impulses. ­Holyrood can’t give ­retail workers rights, but they can ­create a crime just for them.

At PMQs last week, the new Prime Minister (above) made clear he has no ­intention of revisiting legislation on protests.

This should surprise no-one. Back in ­October 2022, Sir Keir was boldly ­outflanking the ­Tories on the ­authoritarian right, ­complaining that the public order ­proposals under which Judge Hehir jailed Roger Hallam for five years needed ­tougher penalties written into it.

“What we were pushing for was longer sentences for those who are glueing themselves to roads and motorways because that’s where you’re putting lives at risk. We didn’t get that through but that’s what I wanted,” Starmer told LBC.

This line is wholly consistent with the penal populism Starmer put at the heart of his pitch for power.

One of the key measures announced in the new Labour government’s first King’s Speech was a “crackdown” which will ­recriminalise assaulting retail workers, and roll back 2014 changes which mean you can’t be indicted in England for ­shoplifting goods worth less than £200 and face summary justice instead.

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Another story with implications for the prison population you might think, but nobody seems all that keen to join the dots between Labour’s plans to shovel more people into prison just as they find themselves obliged to let existing convicts out the back door.

In the UK, prison policy has been an ­exercise in magic realism for decades. Blissfully unconscious what an outlier we are in Europe, we continue to place trust in a crumbling Victorian prison ­estate, more prosecutions, more jail – pack ‘em in and stack ‘em high.

If madness is ­doing the same thing over and over again expecting different results, then prison policy in the UK is wilfully mad.