As prisons reach capacity and criminals walk free, court reporter Julia Roberts says judges will be left to take the flak for issuing lenient sentences.

“Your crime IS on the list – but you're not coming in.”

No, not some bizarre greeting at the latest nightclub opening but a reflection of the state of the nation's prisons.

In short, they are full - or "nearing capacity" as officials say - and from Monday judges are reportedly being "encouraged" not to jail defendants who have been on bail, even as it's suggested if the offence is as serious as rape and burglary and which almost always result in a spell behind bars.

So the crime might fit but an extra inmate certainly will not.

It was announced on Monday this week that Kent's largest prison, HMP Elmley on the Isle of Sheppey, could not accept any more prisoners and that the government's Operation Safeguard had been triggered whereby emergency measures allow the Ministry of Justice to take over up to 400 police cells for detention purposes.

This had an impact on trials with judges having to be given assurances by the prison authorities that those defendants being brought to court from Elmley would have a cell waiting for them on their return each day.

There was also the knock-on effect in that court arrival times were put at risk as the transport vans were also needed to "scoop up" those defendants displaced to other locations.

Now it is reported that Lord Edis, the senior presiding judge in England and Wales, has ordered that sentencing of convicted criminals who are currently on bail should be delayed from Monday, according to The Times.

The Judicial Office has not commented on either the instruction, as claimed, or the prison situation, but Tonbridge and Malling MP Tom Tugendhat, who is security minister, told Sky News "a wave of prosecutions....and therefore a wave of detentions" were coming through the system following delays caused by the pandemic and barristers' strike.

But this is not a new predicament and the prison population has been a growing concern for many months. Nor is the implementation of Operation Safeguard an unprecedented move as it has been used on several occasions over the past 17 years.

In recent times, barristers arguing that their clients should not be locked up have relied on case law known as "R v Ali".

This stemmed from a case heard at Maidstone Crown Court where the offender was jailed and the sentence was appealed.

In a judgment subsequently handed down in March, the Court of Appeal ruled that the high prison population in adult prisons was an "exceptional" mitigating factor for judges when considering whether to impose a suspended sentence for what would usually warrant a short spell in prison.

The judgment made it abundantly clear that the prison population and conditions should be considered.

Since then, judges have often been heard to reference "the case of Ali" in their sentencing remarks when referring to mitigation and is so well-known that no explanation is needed.

Similarly during the pandemic, R v Manning - a case that referenced the impact of coronavirus in overcrowded jails - was regularly voiced as a mitigating circumstance.

Only last week and faced with a young street mugger, Canterbury Crown Court's most senior judge, Judge Simon James, said he was "obliged" to take the pressures faced by prisons into account when considering the appropriate punishment and although there were other mitigating circumstances, the offender was spared jail for an offence which usually attracts immediate custody.

According to latest figures, there are just over 88,000 offenders locked up, with capacity across the whole estate standing at 88,667. Some might say it truly is "standing room only" and the only answer is to build more prisons.

But that obviously costs money and requires staff for an already under-manned industry due to a recruitment and retention crisis.

There is also the option of home detention whereby those coming to the end of their prison sentences are released earlier than expected but with an electronically-monitored curfew.

Some take the hardline approach that prisoners should be living in appalling conditions anyway and not have the "luxury" of a single cell or, God forbid, the death penalty should be reintroduced.

Others highlight the need to focus on rehabilitation measures as justice is not always met by dishing out custodial sentences.

Whatever the solution, one needs to be found and it is the government's responsibility. And it does not help that in the past 10 years there have been eight Justice Secretaries. A revolving door for them, closing doors for the prisons.

In the meantime, it will be magistrates and judges who will no doubt have to take the flak for what the public will view as lenient penalties.