Magistrates’ prison sentencing powers doubled to tackle backlog

On the 18th January 2022 the Ministry of Justice issued a press release which led to a wide array of reactions from all corners of the Criminal Justice System. The release read as follows:

Under plans announced by Justice Secretary Dominic Raab, the maximum 6-month prison                    sentence that can currently be handed out by Magistrates is to be doubled to a year                  freeing up an estimated 2,000 extra days of Crown Court time annually.

 Todays move will increasingly allow the serious cases heard by magistrates – such as                             fraud, theft and assault – to be sentenced by them too. At present, any crimes warranting a jail term of more than 6 months must be sent to Crown Court where judges determine the appropriate sentence.

Retaining more cases in the MagistratesCourts, which have been less severely affected by Covid, means Crown Courts can focus their resources on tackling the backlog which has built up during the pandemic.’

For Magistrates, the immediate action was one of jubilation. The National Chair of the Magistrates Association, Bev Higgs, declared that she was ‘delighted’ by the move, pleased that it showed ‘greater confidence in the magistracy’ and convinced that it would deliver a ‘safe, effective and efficient justice system’.

Others – including but by no means limited to the influential legal blogger and author The Secret Barrister – were less ‘delighted’ and rather closer to aghast at this step. Both The Secret Barrister and a mass of other legal commentators (your author included, I should declare) took to social media to decry the increased powers. Many of us pointed out, some in rather blunt terms, that our experience in the Magistrates Court convinced us that they were simply not fit for purpose when it comes to delivering justice, and that any increase in their powers without massive reform was a huge mistake. Perhaps The Secret Barrister put it most succinctly – and kindly – when he/she tweeted the following: ‘Magistrates courts, presided over by volunteers with no legal training, are run in conditions of chaos. They are by any measure a lesser form of justice. Rather than fund the system properly, the government wants more cases heard in these conditions.’

So critical were so many members on both sides of the profession, in fact, that – several days after the announcement – Bev Higgs felt compelled to call out the ‘unwarranted hostility’ that legal commentators were directing towards Magistrates Courts.

A lengthy article could be written about this response and particularly the use of the term ‘unwarranted’. Because whilst there certainly was ‘hostility’, it was not of the ‘we just don’t like magistrates’ variety. Rather, almost every criticism made by almost every commentator came with detailed justification and reasons. The hostility was real, yes, but it most certainly was not unwarranted. And the fact that the Chair of the Magistrates Association dismissed the invariably consistent complaints that underpinned the hostility, instead seeing nothing but an unjustified attack on her colleagues, speaks volumes about exactly the issues the professions have with the Magistrates Courts.

This, however, is not that article. Rather, I would seek to focus on the third reaction to the government’s announcement. A reaction perhaps best summed up in a single word: incredulity. Because those of us who practice every day in crime knew immediately that none of what the government was claiming was even remotely accurate. It was, as ever, an announcement designed to attract a headline in those corners of the press that still support the current administration, rather than a well thought out change in policy that at least carried the possibility of achieving something positive.

It would be a simple thing to sit and dissect the more glaring issues with the change. And so for a moment I will. The fact that the average lay bench is more likely to resort to immediate custody for a relatively minor offence than would be the case with a Crown Court judge has an obvious and immediate impact on our already overburdened prison population. That impact is then inevitably increased by the significantly higher rates of conviction in the lower court, as compared to the Crown Court. The negative result of these two factors alone – increased convictions + greater tendency to immediate custody – hardly requires a grasp of complex calculus to be seen. Plus there is the low-hanging fruit of these changes ‘freeing up 2,000 Crown Court days a year’. No one has yet been able to provide me with a sensible or even fanciful explanation as to how this figure was reached. It sounds impressive. Not to mention a remarkably convenient rounded number. But from where does it come? I have heard some rather rude suggestions which I will not repeat. Instead I will paraphrase: it’s a generally held belief that these 2,000 Crown Court days a year have been pulled from…let’s just say ‘the air’.

Of course, all of this presupposes that the effect of the increase will work in the way the government intends, which experience alone suggests is extremely unlikely. But even that experience aside, the plan just does not stand up to any reality-based assessment. Most of you will probably be ahead of me, but let’s run through it anyway.

At the moment the Magistrates Courts have the power to sentence a defendant to a maximum six months imprisonment. In the event that the defendant faces two or more charges, these sentences can – in certain circumstances – be compounded to a maximum of twelve months.

The proposed change would increase the single sentence to one of 12 months imprisonment, but necessarily this would only really apply to either-way offences since all but an exceptional handful of summary-only offences will still have their own maximum term of 6 months.

The idea, then, is necessarily two-fold. The magistrates will now be permitted to sentence those who plead guilty to an either-way offence to 12 months instead of 6 months, if ’appropriate’. And they will be permitted to sentence those who are found guilty after trial for an either way offence to the same. With, of course, anyone in either scenario who warrants a greater sentence still being sent to the Crown Court.

In respect of the first scenario, the government’s ‘workings’ could be said to make some sense. Less magistrates court guilty pleas being sentenced in the Crown Court will see a reduction in the number of cases coming before them. It will also cause an increase in the workload of the Magistrates Court, of course, where there is a far higher backlog than in the higher court. But we’re not here to discuss that, are we? And nor are we going to analyse whether this reduction – taken in isolation – equates to 2,000 Crown Court days a year.

It is in respect of the second scenario, however, where things really fall apart. As set out above, the increase in sentencing powers only really applies to either-way offences. And when it comes to either-way offences, magistrates have for a number of years operated under the instruction that they should accept jurisdiction in all cases where they believe the sentence was likely to be up to 18 months, i.e. 6 months more than even the increase allows them to impose themselves. The difference being, of course, that where in those scenarios that would send the sentence to the Crown Court once it ‘deserved’ more than 6-months custody, now they do so only when it ‘deserves’ more than 12-months custody.

The increase, then, will make absolutely no difference whatsoever to the number of trials the magistrates are permitted to accept. It will, from the perspective of the justices, in no way impact how many cases they are sending to the Crown Court.

The same cannot be said for defendants. As it stands, in every case where the magistrates accept jurisdiction, final say on venue lies not with them but with the defendant. A defendant who will inevitably have been advised that he or she has a better chance of acquittal before a jury, and a defendant who will now be aware that if convicted by the magistrates he or she potentially faces double the sentence as was possible before the increase. Of course the same defendant will have been told that, in any event, the case could have been sent to the Crown Court for sentence after conviction. But we are dealing with human nature and non-lawyers here; in all likelihood, they will be focused on the simple facts and the simple conclusion to which those facts lead: i.e. higher conviction rate + 12 months instead of 6 = let’s take our chances with a jury.

The likely result of scenario two, then, is not a reduction in cases going to the Crown Court for sentence. It’s an increase in cases going to the Crown Court for trial and I think we all know which of the two – sentences vs trials – take up more of the higher court’s time. This alone utterly undermines the claims of the Ministry of Justice as to the effectiveness of and the rationale behind the increase in Magistrates Court powers. And this is without factoring in the derisory fee offered under legal aid for an elected Crown Court trial that goes short, which makes it increasingly difficult for publicly-funded law firms to take on elected trials, therefore very likely seeing a major increase in unrepresented defendants conducting their own proceedings before a jury. We all know what effect that will have on Crown Court time.

And so to bring things back to where we began, once again we find ourselves looking down the barrel of a government decision that will increase injustice in the guise of assisting a system which that same decision – on even the most basic analysis – will actually hurt. And somehow they just don’t see it.

It would almost be laughable, were it not so sad an indictment of how far we have fallen.

 Tony Wyatt is an Associate Counsel at Ewing Law and a best-selling crime author under the synonym Tony Kent.

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