As dusk fell on a Sussex country road, motorist Malcolm Legrys performed a dangerous overtaking manoeuvre and smashed head-on into a motorcycle, killing the rider.

Legrys was spared prison, following Home Office orders to jail only the most dangerous and persistent offenders.

The case has raised fears that the prison overcrowding crisis has so undermined the criminal justice system that society is no longer able to punish killers. Simon Barrett reports.

  • The case of killer driver Malcolm Legrys this week brought home the stark reality facing the criminal justice system.
  • Having been convicted of causing death by dangerous driving after smashing into a motorbike rider, Legrys was given a 12-month prison sentence - suspended for two years - ordered to carry out 200 hours of unpaid work and banned from driving for two years.

It sounds more like the sort of sentence you might give a 15-year-old for stealing a moped.

Judge Charles Kemp said he had spared Legrys jail as he did not pose a risk to the public and prisons only had room for dangerous criminals.

In recent months, similar cases have caused outrage across the country, with sex offenders being released by judges worried about putting a further burden on overcrowded jails.

It is easy to see how the crisis has unfolded.

Nowhere in western Europe jails more of its population than England and Wales, where 143 people per 100,000 are incarcerated.

Since the start of 1993, the prison population has ballooned by 90 per cent - from 41,600 to more than 79,600 last autumn.

The fear is prisons simply cannot do an effective job of rehabilitating offenders if they are lurching from one overcrowding crisis to another.

Nick Herbert, shadow minister for policing and MP for Arundel and South Downs, said the prisons system was in the "worst of all worlds".

He said: "I just don't hold with the argument that because prisons are full we should let more criminals walk free.

"It simply cannot be right that judges are having their sentencing powers taken away from them.

"There is strong evidence to suggest building more prisons is the way forward. Jails are overcrowded, re-conviction rates are sky-high and community penalties are not robust enough. More jails would relieve the pressure and allow us to concentrate on rehabilitating offenders."

The overcrowding storm began in January, when Home Secretary John Reid and fellow ministers asked judges and magistrates to jail only the most dangerous and persistent criminals.

Mr Reid, the Attorney General and the Lord Chancellor sent out their advice as the number of inmates in England and Wales hovered about the maximum 80,000 mark.

The Government is planning to create an extra 8,000 prison places but they will not all be ready for four years.

Meanwhile, HMP Weare - Britain's only prison ship, moored off Dorset - was sold off last year after conditions on board were criticised by the chief inspector of prisons.

There has been speculation the Government is thinking of buying the ship back and Prime Minister Tony Blair has also indicated the Government may purchase two new prison ships, which could house up to 800 inmates.

However, the policy of building more prisons has been criticised by many.

Some say high reoffending rates prove jail is not the answer for many criminals.

The Institute for Public Policy Research (IPPR) argues 5,000 inmates should be in mental health units, while another 5,000 should be in drug rehabilitation centres.

The left-of-centre think-tank also says 2,000 female prisoners serving less than six months should have been given community sentences. In a report to be published next month, the group says the majority of British people do not believe prison is the right place for vulnerable offenders.

IPPR director Nick Pearce said prison was an expensive and ineffective way of warehousing social problems.

He said: "If more drug and mental health treatment was provided outside prisons and women sentenced to less than six months were given community sentences, we could stabilise our prison population to 10 per cent lower than it is today."

The group says community service orders should be high-visibility "payback" sentences, with objectives set by communities to establish greater trust in non-custodial punishments.

The Legrys sentence is the latest in a series of worryingly lenient punishments handed out by judges.

Paedophile Keith Morris, facing a sentence of up to 14 years for serious sex offences against a teenager, was released on bail in January, despite concerns he had been hanging around a school.

Morris had a string of previous convictions and admitted to police he had "a problem with children".

Days later, Judge John Rogers suspended Derek Williams's six-month sentence for downloading child pornography because of the Home Office's request to consider an alternative to custody in all except the worst cases.

Paul Cavadino, chief executive of Nacro, the crime reduction charity, blamed the courts' over-use of prison for causing the crisis.

He said: "Courts should only be imprisoning dangerous or persistent offenders in any event, not just at times of extreme overcrowding.

"If the Government wants a stable and effective penal system, it must make permanent measures to reduce the use of prison as a centrepiece of criminal justice policy."

The trend of moving away from custodial sentences will come as no comfort to the family of Malcolm Legrys's victim, who may not the first to question whether the punishment fits the crime.

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