John Reid is under fire once again after it emerged his advice to courts to send fewer criminal offenders to jail resulted in a convicted sex offender being spared prison.
Derek Williams, 46, of Penygwdwn in Wales, was yesterday handed a six-month sentence suspended for two years, after pleading guilty to possessing 180 images of child pornography on his home computer.
Handing down the sentence, judge John Rogers said he must consider the "current sentencing climate" and more specifically the letter sent by Mr Reid to courts to keep all but the most dangerous offenders out of jail.
The home secretary is currently trying to find ways to deal with a bursting prison population, which reached 80,000 - close to capacity - earlier this week.
"As of yesterday, I have to bear in mind a communication from the home secretary," Judge Rogers told Mold crown court in north Wales.
The news has prompted outrage from opposition parties and children's groups. NSPCC director Mary Marsh said it was "unacceptable that people who have committed crimes against children are not jailed simply because prisons are too full".
Shadow home secretary David Davis added: "We now have a situation where sentences are being dictated by the prison capacity and not the severity of the crime.
"It looks like the consequences of the government's failure to address the lack of prison places is coming home to roost."
Liberal Democrat home affairs spokesman Nick Clegg accused Mr Reid of interfering with the discretion of the judiciary with his letter earlier this week.
He added: "When an offender is not sent to prison despite the judge feeling he should because of political pressure from the Home Secretary, the public will rightly ask what the point was of all the tough talk from Tony Blair and John Reid."
However, Lord Falconer, the lord chancellor, insisted last night that Judge Rogers had simply applied existing sentencing guidelines, and argued the letter from the home secretary merely reminded courts of what their powers were under those rules.
"If those guidelines, which existed a long time before the criminal justice minister's message yesterday, allowed a choice between sending someone to prison immediately and suspending the sentence, then he chose to suspend the sentence in accordance with those pre-existing guidelines," he told BBC Two's Newsnight.
Lord Falconer added: "It was a perfectly legitimate thing to do, but it was made absolutely clear for individual judges to sentence in accordance with existing guidelines."
The government plans to provide 2,000 more prison places this year and 8,000 within four years to deal with the prison overcrowding crisis, but it has been forced to turn to emergency measures in the meantime.
Hundreds of prisoners are already being held in police cells, and Mr Reid yesterday said he was in negotiations to buy two prison ships, and had plans use an RAF camp, thought to be in Yorkshire, as a temporary jail.
But Mr Davis warned these plans may only provide "temporary respite", and Mr Clegg said: "Panic measures are no replacement for a considered long-term solution to prison numbers."